Difference between terms and clauses in a contract I'm new to legal terminology used in contracts. I'm trying to understand the difference between terms of a contract and clauses of a contract. All the sites have referred so far provide no clear distinction between the two and sometimes use terms and clauses interchangeably. I'm wondering if there is any difference between the two or not. I found a similar question asked before: What&#39;s the difference between a clause, provision, condition and term? but it doesn't answers the question in the context of purchase or legal contracts. Also, from a conceptual point of view, does a contract contain anything other than terms, name of the signing parties and clauses? Thanks in advance.
Terms and clauses are the apples and oranges of a contract. First of all — from a conceptual point of view, does a contract contain anything other than terms, name of the signing parties and clauses? — most contracts do not even need to be in writing (and thus do not need to contain any "signing parties" or "clauses"). What makes up a contract is a separate question but, again, a writing is only necessary for certain types of contracts (e.g. real estate contracts). Terms of a contract exist regardless of whether it is in writing or not: they are plainly specific information (or knowledge) about the contract that the parties have agreed on: who the parties are, what they do for each other and what they get in return, times, places, numbers and whatever the parties consider essential to the contract. This information/knowledge may just stay in the minds of the parties and never be rendered in a readable form. The contract will be perfectly valid and enforceable. Clauses are what written contracts composed of. They are just blocks of text each addressing specific aspect or concern of the contract e.g. Parties, Payment, Delivery, Force majeure, Termination, Jurisdiction etc.
First, civil law has, confusingly, two meanings. It can denote the legal systems used in most of Europe, as opposed to the common-law systems arising in England and spreading to most of the former British empire. In the US, and in other common-law jurisdictions, civil law is pretty much everything other than criminal law. Given the tagging of the question, this seems to be the sense that you have in mind. What is tort law and how does it differ from civil law? Is there any difference or overlap between the two? Does one more broadly encompass the other? Tort law is a subset of civil law. Are torts defined in statute? Some are; some aren't. There is a common-law doctrine of torts. These torts have been defined by the courts through judicial precedent rather than by the legislature through statute law. They are therefore known as &quot;common law torts.&quot; Some jurisdictions have abolished these torts and replaced them with torts defined by statute. or do they exist alongside statute in some way more fundamentally and less ephemerally than statutes exist? Statutorily defined torts are rather less ephemeral than common-law torts, not more. What is a “common law tort “? See above.
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.
Because English loves homophones A lot of words in English have more than one meaning. The current front runner is run with 645 definitions in the OED. Understanding English requires more than knowing the definitions, it requires understanding the context. Warranty in a contract law context means a term the breach of which does not justify terminating the contract. Or a term of a contract rather than a representation about the contract, depending on context. Warranty also has a common meaning that makes it a synonym of guarantee. It can also mean a court order calling for the arrest of someone (an arrest warrant) or to search a premises (a search warrant). It can also mean the authorization from the government to act as a high ranking NCO in a military service - NCOs hold warrants, officers have commissions. Among others ...
Consideration Consideration is essential on both sides of every simple common law contract (civil law is different). It is the quid pro quo or "something for something" that is the essence of a contract - it's what turns an unenforcable agreement into a contract. A formal contract supported by a deed does not need consideration. The rules of consideration are that it: must move from the promisee, but need not move to the promissor. For example, you promising me to wash someone else's car is good consideration. may be 'executed' (something for something now) or 'executory' (something for something in the future) but it cannot be 'past' (something that has already occurred before the contract came into existence - noting that that exact moment might be somewhat nebulous). need not be adequate. If I agree to sell you my home for $1 this is clearly not adequate (in most circumstances) but the $1 is good consideration. must be sufficient. This is not the same as adequate. Insufficient consideration falls under the following headings performance of a duty imposed by law performance of a duty already imposed by another contract moral obligations uncertain or indefinite promises. Possible to perform - both legally and practically. What is promised does not need to have intrinsic value and can be a promise to do something or to refrain from doing something. Condition "Condition" has several meanings in contract law. Condition of a Contract A condition in a contract is an essential term the breach of which entitles the innocent party to either: affirm the contract and sue for damages, or treat itself as no longer under an obligation to perform the contract - but rights which had accrued up until that time continue. A term that is not a condition is a warranty. Breach of a warranty allows suing for damages but does not allow the innocent party to escape their obligations. Whether a term is a condition or a warranty depends on how essential it is - if it was so essential that the innocent party would not have entered the contract without it, it's a condition. The egregiousness of the breach can affect this as well - a term requiring payment on the 1st of each month is likely to be a warranty if payments are consistently made on the 3rd but a condition if they are constantly 2 months late. Condition Precedent A condition precedent is one which must be satisfied before a contract becomes binding. A condition precedent to the formation or existence of a contract. There are no enforcable rights on either party until the condition is fulfilled. Usually, this condition depends on a third-party. For example, an offer to buy real estate "subject to finance" is not a contract if the finance is not forthcoming. A condition which is precedent (a pre-requisite) to the obligation of a party to perform its part of the contract. For example, a requirement that delivery must be before 9.00 am on Wednesday or there is no binding contract. This can alternatively be thought of as the parties providing within the contract a mechanism for its discharge. Condition Subsequent Is a condition terminating the contract (either automatically or on the election of one of the parties) when it occurs. For example, a contract for the supply of iron ore while the price is above $X/ton - if the price drops lower the contract ends. Other uses Outside of contract law, the word "condition" is used a lot; most usually in its common English construction of "If [condition] then [consequence]". For example, "if I put the basketball through the hoop, my team gets 2 (or 3 or 1) points" - that's a condition of getting the points but it's not a contractual obligation. Bob and Alice Bob washing his hands It moves from Bob - that is, Bob has to do something. It doesn't move to Alice (apart from her not having to sensorily experience Bob's greasy fat-smeared hands anymore). It is executory - Bob may have washed his hands in the past (we can hope) but this particular contract requires him to wash them in the future. It doesn't have to be adequate although in the context of this contract it probably is anyway. It is sufficient - Bob is under no legal or moral obligation to wash his hands. It's possible to perform - it is neither illegal nor physically impossible for Bob to wash his hands. Alice lending the pen It moves from Alice and it this case, to Bob. It is executory - Alice will lend the pen in the future. It doesn't have to be adequate although in the context of this contract it probably is anyway. It is sufficient - Alice is under no legal or moral obligation to lend Bob her pen. It's possible to perform - it is neither illegal nor physically impossible for Alice to lend the pen. Bob washing his hands is also a condition of the contract - if Bob does not wash his hands, Alice can either affirm the contract and sue for (admittedly small) damages or terminate the contract and keep whatever benefits she has accrued (none). And, it's a condition subsequent, until Bob washes his hands, Alice has no obligations under the contract.
&quot;Acceptee&quot; Is Often Ambiguous The Offeror and Offeree construction, like Lessor and Lessee, always comes in a pair. An act and a response to the act. But, following that logic, the &quot;Acceptor&quot; should be the person who accepts an offer to enter into a contract, and an acceptee should be the person who made the offer, since they receive the acceptance. According to the OED at the link in the OP, the word &quot;Acceptee&quot; has two senses which mean basically opposite things. One sense is synonymous with Acceptor in the quoted language in the OP, and is the person who accepts an offer, but it is confusing because the construction is not parallel to Acceptor. The second sense in the OED is one in which Acceptor is an entity that admits someone to membership (e.g. a college) and Acceptee is the person who is admitted to membership (e.g. a prospective student who decides to attend a college). But this sense isn't naturally applicable to contracts and involves something that isn't litigated. So, the meaning of the word &quot;Acceptee&quot; is often ambiguous in the context of offers and acceptances of proposals to enter into contracts. Early Uses Of Terminology Become Entrenched In Common Law Systems Beyond this, there isn't any profound reason. Neither &quot;Acceptee&quot;, nor any of the other words in question (like Offeror, Offeree, and Acceptor), are used with any regularity in statutes. All of these terms are used principally in the context of case law interpretations of common law contract rights. Common law terminology is prone to strong &quot;founder effects&quot;. Once a term is used once, subsequent courts citing past precedents like to quote exactly from previous court rulings. Often, there is more than one word which would be appropriate to describe a participant in a contract formation process, as you point out, but a court will generally use only one in any given court opinion for clarity's sake. Calling the same person an Offeree in one paragraph of a court opinion, and an Acceptee in another, would frequently be confusing. In part for the substantive reasons, but also just as a matter of random happenstance, &quot;Offeree&quot; came to be used in some of the early opinions rather than Acceptee, and everyone writing court opinions and making legal arguments who followed tended to imitate that early word choice so as to invoke the legal authority of the early precedents. So, one term &quot;went viral&quot; in the common law opinions that cited the early decisions, and another one which would have been equally suitable fell into disuse in legal writing.
The parties to the contract have not changed; they are still the purchaser company and the scrap vendor. The obligations have not changed; they are presumably based on amounts of stock and monetary value. The only changes are in the name of one party and its ownership, so unless the contract permits termination for those reasons (not unheard of, if a contract has been intended to provide/avert support from/by a particular party or symbolism) the contract still stands with all its terms. A novation is not needed.
The basic option that one has when a contract has been breached is that the harmed party sues the damaging party, seeking compensation. Sometimes, contracts contain arbitration clauses which limits how disputes can be resolved – for example "disputes shall be subject to binding arbitration by Jones Arbicorp". Whether or not such a clause is legal would depend on the jurisdiction. A clause which states that there can be no legal remediation of breach means that the contract would be unenforceable, and is not in fact a contract. Courts generally strive to construe anything that looks like a contract as being a contract, and they can set aside a particular aspect of a contract. If the other party attempted to have the suit thrown out because of a "there is no remedy" clause, the court would most likely find that to not be a valid term in the contract. It does depends on what exactly the clause says. Your attorney would need to look at the language of the contract to advise you as to the best course of action (asking us for legal advice makes the question off-topic).