Most contracts end with several provisions, sometimes under the generic heading “Miscellaneous,” that many parties consider boilerplate language not worth spending the time to read prior to signing a contract. However, many times these provisions turn out to be important and should receive your attention. In a dispute, do you want to find yourself litigating in California rather than here in Louisiana? Can you collect attorney’s fees if the other party to a contract forces you to retain and pay for the services of an attorney? Is the PDF copy of your contract enforceable? This article provides a brief overview of these often-ignored contractual provisions.
While many contracts provide the law of a particular jurisdiction will govern the interpretation of the contract, plenty do not. Make sure your contracts state that the laws of the state of Louisiana will govern, especially when dealing with a party that is located outside the state. Here is an example of language to include to avoid having your contract governed by the laws of another state:
This agreement shall be governed by and construed in accordance with the laws of the State of Louisiana.
Jurisdiction and Venue
These two terms refer to the authority or power of a court to oversee a legal dispute and the location where the dispute will be heard. Clients often assume that a suit will be filed in a local court but that is not always the case. To protect against having to litigate in an out-of-state court, we recommend adding a jurisdiction and venue provision to all contracts. Here is an example of language to include:
The state and federal courts located in New Orleans, Louisiana, shall have exclusive jurisdiction and venue with respect to all actions brought by or against any party under or pursuant to this agreement.
Waiver of Jury Trial
Often times contracting parties will want to avoid the time and expense of a jury trial to settle a contractual dispute. This can be accomplished with a contractual provision. Here is an example of language to include:
Each of the parties hereto hereby waive the right to a jury trial in any action, proceeding, or counterclaim arising out of, or related to, the terms, conditions or enforcement of this agreement or any other aspect of the transactions contemplated by or related to this agreement.
Quite often a client comes to us with a contractual dispute and the issue of attorney’s fees arises. For instance, a tenant is behind on rent and the landlord requests that we handle the eviction. The landlord asks whether the attorney’s fees for the eviction matter are recoverable against the defaulting tenant. Absent language in the lease, the answer is most often no. We encourage all our clients to have an attorney’s fee clause in all contracts such as the following:
Should either party employ an attorney to enforce any of the terms and conditions hereof, or to recover damages for the breach of the terms and conditions hereof, the non-prevailing party shall pay to the prevailing party all reasonable costs, damages, and expenses, including attorneys’ fees and costs of court, expended or incurred by the prevailing party.
It is quite common for parties to sign a contract and then later one of the parties claims that the other party verbally or by their course of dealing agreed to either additional terms or subsequent modified terms. To protect against these claims, language such as the example below can be added to the contract:
This written agreement constitutes the entire and complete agreement between the parties hereto and supersedes any prior oral or written agreements between the parties with respect to the subject matter herein. It is expressly agreed that there are no verbal understandings or agreements which in any way change the terms, covenants, and conditions herein set forth, and that no modification of this agreement and no waiver of any of its terms and conditions shall be effective unless made in writing and duly executed by all parties.
PDFs and Electronic Signatures
It is becoming increasingly common for parties to a contract to execute documents and dispense with the need to sign multiple originals and exchange original signature pages. Language such as the following can be helpful in such a situation.
Each party to this agreement agrees that the PDF or electronic signatures of the parties included on this agreement, if any, are intended to authenticate this writing and to have the same force and effect as manual or original signatures.