Does absence of legal advice affect litigation of a written agreement? It is common for parties to a contract to adapt templates (in a generally misguided effort to avoid legal costs). In such cases, the Written Agreement may not reflect the parties' Actual Agreement. How do courts resolve claims by a party in litigation that a term in their Written Agreement does not reflect the Actual Agreement, in a scenario in which (at least) the party disputing the term did not obtain legal advice on the Written Agreement? For example, if neither party obtained legal advice, will a court accept evidence that a term of the Written Agreement did not reflect the Actual Agreement, and instead apply compelling evidence of the Actual Agreement? Or is the language of the Written Agreement always applied, regardless? For purposes of this question, assume: The litigation does not concern ambiguities, so this is not a question that is answered by the contra proferentem rule. Neither litigant asserts that the contract in question is an adhesion contract. I.e., the litigants had equal bargaining power upon entering into their agreement. As an example, imagine that the parties adopted a Written Agreement with a standard integration clause. The plaintiff's case depends on invalidating the integration clause. Plaintiff presents contemporaneous evidence that the parties did not intend the Written Agreement to be integrated, even though the template they used contains the integration clause. (Of course, in this case the defense succeeds if the integration clause is enforced, so the defendant will not admit that the intent was otherwise.) So far it sounds like the plaintiff can't prevail. But what if at the same time that they signed the Written Agreement in question the parties signed another agreement covering some of the same subjects? That seems like evidence that the Written Agreement was not in fact integrated. Or what if there is incontrovertible evidence that both parties subsequently and intentionally acted contrary to some term of the Written Agreement? That would suggest that the Written Agreement did not represent the Actual Agreement. Interested in common law; particularly U.S.
Courts only decide disputes If the written contract says X but the parties agree they meant Y, then the court adopts Y. However, if the written contract says X but one party asserts Y and the other Z, the court takes the written contract as definitive. The parol evidence rule would prevent any evidence being introduced if X is unambiguous. Plaintiff presents contemporaneous evidence that the parties did not intend the Written Agreement to be integrated, even though the template they used contains the integration clause. The plaintiff can’t introduce that evidence in the first place unless there is some ambiguity to be resolved. If it’s plain on the face that integration (whatever that is) was intended then we’re done here counsel, move along. But what if at the same time that they signed the Written Agreement in question the parties signed another agreement covering some of the same subjects? If the documents don’t create a practical conflict then we’re in the same place as before. If they do then the court will try to resolve that within the written documents - a later document will usually prevail over an earlier one and a more detailed document over a more general one. Extrinsic evidence is almost always excluded. Or what if there is incontrovertible evidence that both parties subsequently and intentionally acted contrary to some term of the Written Agreement? That would suggest that the Written Agreement did not represent the Actual Agreement. No, that would constitute a waiver by one or both parties - you can choose not to enforce (waive) your rights under a contract. This can be one off or, if repeated often enough, a waiver for all future breaches. Alternatively, the parties are free to change the terms of their contract; maybe that’s what happened.
No Or at least not necessarily. Contract terms are legally one of three types: Conditions, Warranties, or Intermediate. Breach of any term allows the aggrieved party to sue to recover damages - monetary compensation to restore them to the position they would have been in had the breach not occurred. Breach of a condition also (or instead) allows them to terminate a contract. Breach of a warranty does not. Intermediate terms are terms that might be a condition or might be a warranty depending on how egregious the breach was. A contract can explicitly make a term a condition, the historical and still used phrase being that X is “of the essence”. If the contract is not explicit (most aren’t), then that is the concept that the court uses to decide - is the term “of the essence”, that is, absolutely fundamental to the performance of the contract. Similarly a term can be explicitly a warranty, usually by saying party Y “warrants” something. Most incidental or procedural terms are warranties - if breached, they never give rise to a right to terminate. Most terms are intermediate, particularly most terms about time. Normally, intermediate terms are warranties but if a breach is egregious enough, then this can elevate the term to a condition. Payment terms are a classic: if you are a day or a week late in making payment, the other party can’t cancel the contract. If you are a year late, they can. Somewhere in between, your breach changes the term from a warranty to a condition. For your situation, the early delivery is clearly a breach of a warranty, not a condition. If it even is a breach - the contract may say that they are obliged to deliver by 1 December: delivery on 1 November is clearly in compliance with that term. If it is a breach, you do not have the right to terminate the contract and if you tried you would be breaching the contract yourself by repudiation. By the way, repudiating the contract is definitely breaching a condition. A huge number of contract disputes turn on who validly terminated and who repudiated the contract. If it is a breach, you can sue for damages which, since they have not charged you for November, would be what it cost you or what you lost by having their bin on your premises for a month. My guess that this would be in the order of zero.
A case for negligence or some other tort would likely never reach the stage where we could answer this question, as lawyers are generally immune from suit for their litigation conduct. I don't know of any case with facts likey you've described, but my understanding is that the litigation privilege precludes virtually any tort action based on a lawyer's statements in the course of the proceedings. Florida's Fifth District Court of Appeal, for instance, has specifically acknowledged that claims for defamation, extortion, fraud, perjury, forgery, slander of title, injurious falsehood are unavailable: The policy reasons for the privilege have often been repeated: In fulfilling their obligations to their client[s] and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. Ponzoli &amp; Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989).
But even then, to my understanding, a contract can't prohibit a party from seeking legal remedies. You are mistaken. A contract settling a bona fide dispute regarding people's legal rights can mutually (or unilaterally for that matter) release or waive their legal rights. In fact, a waiver or release of rights is routinely a part of a settlement agreement. Hundreds of thousands, if not millions, of such agreements are entered into every year and they are almost always enforced. Sometimes, but not always, a settlement agreement will also call for a dismissal of a case with prejudice, which (roughly) means a dismissal that prohibits refiling a case involving the same subject matter.
The precedent is very clear and was accurately applied by the judge A treaty does not create domestic law and is only applicable to the extent that it is incorporated into domestic law. She extensively quotes the relevant precedents in the judgement at [42-49].
The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime.
You can use academic sources when arguing in court if you like, but be aware of the following: Academic texts are not primary sources of law in Jamaica. What is in them may be persuasive but does not bind a court in the same way as statute law or case law. Sometimes, it's appropriate to cite works of legal scholarship to flesh out an argument. If the book contains a succinctly-phrased statement that matches what you want to prove, but prior case law isn't quite as neatly applicable, then you might cite both - subject to points below. Citing the book alone is weaker. At other times, when there is authority on both sides of a point, you might find academic argument tipping the balance, but again not to be used in isolation. Whether a text is persuasive may not be obvious, especially for older works. Sometimes, perhaps often, the law has changed since the book was published. Don't assume that an old book by a famous author will automatically be revered. You can check to see if newer books say something different from the older one, and in general start your search looking backwards from now in order to identify the current state of the law. It is more common these days to see references to current editions of textbooks than comparatively ancient authorities, no matter how illustrious the name of Blackstone might be. If a point of law is not actually contested, then there is no need to argue about it. It can form part of the background material that is agreed on between the parties. Basic principles of the way contracts work don't need elaboration or authority. Judges would prefer to have you limit the number and range of authorities you bring in, because they only have so much time in their day and they don't want to struggle through a lot of unnecessary background reading. In a skeleton argument, the strong preference is for only one principal authority to be mentioned in support of each point of law. You can mention a recent decisive case rather than reciting the entire history of case-law on the topic, and you don't need to include cases where a well-understood precedent was applied without difficulty. It may be that a textbook brings you to the relevant statute or judgement but then that is what you need to cite, not the textbook itself, especially if it simply quotes or restates what is found in the primary material. For filing court documents in general, pay close attention to the Civil Procedure Rules and the Practice Directions, including PD No. 8 of 2020 on the format of the judge's bundle. If the judge is annoyed enough about non-compliance with the court's rules about submissions, then various sanctions are available to them. For example, they can refuse costs on the legal research that led to the preparation of the submission. In correspondence, which I think you allude to, you can be more free than when dealing with the judge's bundle. In a letter to the opposing party you can certainly bring in additional references that you think would be helpful to you as a matter of rhetoric and argumentation. Do note that doesn't mean it is a good idea to make correspondence too aggressive or lengthy. For one thing, a judge can end up reviewing the correspondence and will notice whether or not you are making a good-faith effort to resolve the matter, or at least identify the salient issues to bring to the court.
Finding Certainty There is only one way for certain: Do the supposedly unlawful thing Get sued (civil) or prosecuted (criminal) Go to court - if you win it wan't illegal If you lose, appeal to the next appellate court in the chain In one of those courts refuses to hear your appeal - it was illegal Repeat as necessary until you reach the Supreme Court - if you win it wan't illegal If you lose or the Supreme Court refuses to hear your appeal - it was illegal. Of course, this whole cycle will take a few years and quite a lot of money. Not certain but persuasive Consult a lawyer: their area of expertise is knowing what the law is and how it will likely apply to your circumstances. Of course, they can be wrong about this because - see above. Why is this so hard? Common law jurisdictions, of which Florida is an example, do not have a "Code of Laws" where you can look things up and see if they are legal or illegal. The Common Law in Florida is partially enacted law (by the US, Florida, County, City and finally your housing corporation) and partially unenacted law (decisions made by courts about both the enacted and unenacted law). In fact, enacted law is usually quite ambiguous until it has a body of unenacted (or case) law that surrounds it and provides guidance on how the courts will interpret it. Part of a lawyers skill is knowing (within their area of expertise) what the relevant case and statute law is with respect to the specific facts of the case, or knowing how to research them. Publish and be damned! You can always take the Duke of Wellingtons approach. In common law jurisdictions, everything is legal unless there is a law (enacted or unenacted) that makes it otherwise. If you do not believe that the action you wish to take is illegal then advise the other party that you will give them 24 hours to come back with a court injunction to prohibit it, otherwise you will proceed. You can't call a bluff harder than this!