In a contract/an agreement, is there a difference between clause, article and section? In contracts and agreements, I have seen clause, article, and section used for what seems to be the same thing, namely the (often numbered) sections into which the contract/agreement is divided. Now I'm wondering if these are just synonyms (as they seem to be), or if there is, in fact, a difference between them from a law point of view.
While &quot;clause&quot; has a specific definition in linguistics, that is not how it is used in laws and legal documents. These terms have no standard definition for legal writing. Documents or legal codes that use both generally use &quot;article&quot; to mean a larger division than &quot;clause&quot; does. In discussion of the US Federal Constitution, for example, the largest divisions are called &quot;articles&quot;, each of which is divided into several &quot;sections&quot;, and each section generally contains several &quot;clauses&quot;. Some of these are actually grammatical clauses, being part of a sentence with a verb and a subject, while others might be called paragraphs in ordinary prose. A given document or legal code should ideally define which terms it will use for its parts, and which contain which others. This can be done in whatever way the drafters wish, but it is desirable that it be clear. In addition to the terms you have mentioned, terms often used include &quot;subsection&quot;, &quot;subsubsection&quot;, &quot;title&quot;, &quot;paragraph&quot;, &quot;subparagraph&quot;, &quot;chapter&quot;, &quot;part&quot; and &quot;division&quot;. These are not used consistently, and I have never seen a single document or code that uses all of them. The Us law code is divided into titles, each of which contains sections. In some of these sets of related sections are grouped into chapters. Sections may have subsections or paragraphs. In my experience smaller contracts or business documents rarely use &quot;articles&quot; and some just use &quot;section&quot; for any named or numbered part of the document. Usually titles or section headers are explicitly stated to have no legal effect, and the division into sections or other parts is simply to facilitate reference, and does not have legal significance. Whether a provision is called an article, a section, or a clause will not normally change its legal effect. However, where one part of a document refers to another part, such as &quot;as specified in section 23&quot; then the reference will be found in and only in the designated part, and will not be looked for in some other part.
Contracts don’t have to be in writing Generally, there are specific exemptions. For example, in some jurisdictions, copyright transfers have to be in writing. Written contracts do not have to take any particular form Again, in general, some specific contracts may need to be in particular forms or explicitly deal with particular matters. Writing doesn’t mean ink on paper Of course, ink on paper is “writing” but so is an email, a text message, a Facebook post, a photo, a comic book. In law, writing simply means a semi-permanent record. Signatures are not required Unless, of course, they are in the specific circumstances. Your examples The plumber’s promise is both binding and unnecessary - the plumber is responsible for his own negligent acts and omissions even without such an agreement. On the other hand, if you promised not to hold him responsible, that promise would be binding. The designer’s agreement to transfer copyright is binding even where such agreements must be in writing because it is in writing. See What is a contract and what is required for them to be valid?
Let me start by saying that real estate contracts are some of the most heavily regulated contracts and details vary enormously by jurisdiction. That said ... To vary a contract, the contract must actually contain provisions that allow for it to be varied and variations must be in accordance with those. These sorts of clauses are common in long-term contracts (building, mining, logistics etc) but are less common (but not unknown) in transactional contracts like real estate sales. If the contract does not contain such provisions then it can only be varied by a collateral contract which has the same basic requirements of any contract - in this particular case, were you offered something in return for agreeing to delay settlement? If you weren't you do not have a collateral contract that varies the original contract. Notwithstanding, even though the other party delaying settlement from the 11th to the 18th is a breach of the contract by them, by agreeing to it you would be prevented from enforcing your rights under the contract by the doctrine of promissory estoppel. This presumes that they actually settle by the 18th - if they don't all bets are off and you can enforce the rights you have from their breach by failing to settle on or before the 11th - just don't agree to any more extensions. What you remedies are will be detailed in the contract. These would normally include issuing a notice for them to settle by a given date - if they don't do that you can terminate the contract and keep the deposit. You could also sue for damages. Don't do any of this (or anything else) without getting legal advice first. Edit The OP has put in a comment a rather vital piece of information: there is a clause making settlement contingent on the buyer selling their condo. If the delay is in accordance with that clause then the vendor is stuck, even if settlement takes 10 years.
Is it even possible for two separate agreements to be made exactly contemporaneously? The issue is not whether two separate agreements on the same matter(s) can be entered at exactly the same time. By contemporaneous agreement, a "Supersedes Previous" clause refers to any agreement which was in force at the time the new one is entered (or just prior to the new one being entered). what happens if other agreements have this clause (that it supersedes all other agreements)? doesn't this result in multiple agreements superseding each other? There is no general answer to that, as it highly depends on a wide range of circumstances. For instance, if two (or more) mutually superseding, contradictory agreements are drafted by the same party, the non-draftsman may invoke the doctrine of contra proferentem to determine which agreement is binding for the controversy at issue. When contra proferentem is inapplicable, ambiguities would be adjudged in a way that is most consistent with the intent of the parties as ascertainable from the rest of terms and conditions. The fact that two parties knowingly and willfully entered contradictory agreements can only complicate the task of identifying the legitimate intent of their contract(s). In a context where the legal relation is so fuzzy, things can backfire when the dispute is adjudged. Thus, it is not in the parties' best interest to deliberately commit to flawed clauses in the first place.
These clauses are called recitals. Taken together, they are a form of preamble. The tradition of preambles is quite ancient. The Code of Hammurabi, for example, has a preamble. This preamble serves to establish the authority of the one enacting the laws, however, rather than his motivation. United Nations instruments typically use a series of participial phrases as preambular paragraphs (pdf) rather than subordinate clauses, but they have the same function of establishing context and motivation. I have not been able to locate the origin of this particular form of preamble, however. It seems to have evolved gradually from freely constructed preambles. I could not identify when this form became fixed.
Does the HOA's lawyer have a duty or is it standard practice to label documents (including) as privileged if it contains privileged information? While it is sometimes labeled, this is done by attorneys when it is done, mostly to prevent stupid clients from sharing the information and waiving the privilege. Usually, however, documents are not marked as privileged in advance and when documents are requested from a third-party this analysis is usually done by junior attorneys and paralegals working as a team for the first time. Formal designation is not required because the definition of what is protected is defined by statute and common law rules on a uniform basis. The duty to share information with HOA members does not generally extend to privileged information. If a document that would otherwise be required to be disclosed (like attorney invoices) contains privileged information, the usual course of action is to redact the invoice so that it contains only non-privileged information (e.g. a bottom line amount owed and the date of the invoice and the matter). In an HOA context, the privilege of the HOA as a client belongs functionally to the board and its officers, not to all of the members of the HOA. Does the Association's contractor who maintains the records have a duty to act as a gatekeeper to said invoices if they are not labeled? This depends upon the contract between the Association and the contractor. A well written contract would include this duty, and spell out the mechanics of how it is implemented, but not all contracts live up to best practices. A related issue is whether a release of privileged information by an independent contractor constitutes a waiver of the privilege by the client if the contractor is not in an agent-principal relationship with the Association, which is often a determination made only after the fact by a court. Some jurisdictions' rules of civil procedure provide a waiting period between the issuance of a third-party subpoena for documents and the earliest time that those documents can be delivered to a third-party, to allow objections on grounds of privilege or another basis to be raised prior to the disclosure of the documents. Colorado Rule of Civil Procedure 45, for example, has such a provision. I don't know what the rule is in Florida on that issue.
A contract is about risk allocation. One of the risks a contract can allocate is events outside the control of the contracting parties. For example, who is responsible if government regulations change, if it rains, if a structure collapses and if a third party does or does not do any particular thing. This does not make the contract an insurance contract or a contract for gambling. An insurance contract involves indemnification against all third parties. A gambling contract is primarily for wagering on an outcome i.e. the consideration from both parties is a bet. If you are unwilling to take the risk as allocated don't enter the contract. Now, no contract can have a penalty clause - these are unenforceable. However, being required to cover someone's actual or estimated costs is not a penalty clause.
The entire purpose of the Entire Agreement clause is to say that this contract is the agreement, and anything previously negotiated is not part of the agreement. I don't know why they would fail to include that in the contract.