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2021 Midwest Road, Suite 200, Oak Brook, IL 60523

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Shakfeh Law LLC Blog

As a contract lawyer, many clients ask me if their contracts are legally binding. By definition, if an agreement meets the requirements of a contract, then the contract is legally binding. Further, contracts are legal documents by their nature. So what makes a contract binding and enforceable? And what are some factors that make a contract not binding? Below, I will explain that all for you.

 

Elements of a Contract

The basic elements of a contract are: 1) offer, 2) acceptance, and 3) consideration. 'Consideration' is that thing that the parties bargain for exchange and distinguishes a mere 'promise' (which is not legally binding) from a contract. For example, if a painter promises to paint your house but then never does, you probably have no legal claim (there are exceptions to this). However, if you pay the painter (the money is consideration) and the painter does not paint, then you have a contract with the painter and the painter breached the binding contract.

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Shakfeh Law LLC Blog

Contract negotiations sound intimidating. Whether you hire a contract negotiation lawyer or negotiate on your own, there are many strategies you can utilize to get the most favorable terms for your contract. However, any contract lawyer will tell you that the negotiation process starts early.

Many clients come to me after having already 'negotiated' their contracts and leaving the legal aspects until the very end. While it is definitely smart to start negotiating early, it is important that all of the parts, including what many view as 'mere' legal technicalities, should be considered very early on. The time to start negotiating your contract is even before you choose who you want to negotiate with. Part of your leverage in the negotiating process is greatly effected by who is on the other side. So negotiating starts with knowing what you want and researching early on the in the game. Here are some important points to consider before you even choose to walk to the negotiating table:

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Shakfeh Law LLC Blog

Who enforces contracts?

Judges. Ultimately, when it comes down to it, it is judges who enforce contracts. This is why it is important to involve a contract negotiation lawyer when drafting and negotiating your contract. The reason why we enter into contracts is to make sure that we have certain rights in a relationship. I enter into a contract with my home builder to make sure he does the work he promised and contractor wants to make sure he gets paid for his work. We also have other terms about professionalism, timelines, and remedies if things go sour. But at the end of the day, neither party can make the other party do anything. If I don't pay, the contractor can not steal money from my purse or force my bank to turn over the money. So the contractor has to go to court to get his money.

This is how contracts get enforced. The parties must go to court. In this case, the contractor may sue me for the money he believes I owe. However, I can also present my defenses such as the contractor not completing the job or doing very poor quality work. At this point, the judge will determine which terms are enforceable and how much the contractor is owed. In this case, the judge determines that I should pay 25% of what the contractor claims but agrees with me that the contractor's work was terrible so I should not have to pay the remaining 75%. The court will then order me to pay the 25% with a written 'order.' At this point, I can pay voluntarily or the contractor can enforce his right of payment by sending the Order to my bank where the bank must turn over the funds. The contractor can also send the Order to my employer and the employer must turn over a certain percentage of my wages until the amount is paid off.

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Shakfeh Law LLC Blog

Danya Shakfeh has been selected as a Rising Star by Super Lawyers once again for the 6th year in a row.

The Rising Stars list recognizes lawyers 40 years old or younger or in practice for 10 years or less, and includes no more than 2.5 percent of attorneys in Illinois.

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Shakfeh Law LLC Blog

If you read your contract carefully, you may find a clause that reads something to the effect of:

Automatic Renewal. This Agreement shall be automatically extended for one additional year, unless on or before [DATE] (for the initial term), either Party provides to the other written notice of its desire not to terminate this Agreement 60 days before the termination date.

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