MAKING CONTRACTS

MAKING CONTRACTS

A contract is a legally binding agreement between two or more people to perform or to refrain from some act now or in the future.
A valid contract must contain the following:

1. An offer
2. An acceptance
3.  Consideration which is the duty either party will be performing.
It is important to note that a contract comes into existence upon acceptance i.e. When the offer has been accepted by the other party.

 Also the following factors must be satisfied as well:

Contractual Capacity/ competent parties: Both parties must be competent to enter into the agreement
 Legality: The contract’s purpose must be to accomplish some goal that is legal and not against public policy;
Genuineness of Assent (Arguably part of agreement): The apparent consent of both parties must be genuine; and
Form: The agreement must be in whatever form (e.g., written, under seal, etc.) the law requires.Every contract involves at least two parties  the offeror/ promisor, who makes the offer/promise to perform, and the offeree/promisee, to whom the offer/promise is made.
A contract could be an:
•    Express Contract: A contract in which the terms of the agreement are fully and explicitly stated orally or in writing.
•    Implied-in-Fact Contract: A contract formed in whole or in part by the conduct (as opposed to the words) of the parties. In order to establish an implied-in-fact contract,
(1)  the plaintiff must have furnished some service or property to the defendant,
(2)   the plaintiff must have reasonably expected to be paid and the defendant knew or should have known that a reasonable person in the plaintiff’s shoes would have expected to be paid for the service or property rendered by the plaintiff, and
(3)   the defendant must have had the opportunity to reject the services or property and failed to do so.
•     Quasi or Implied-in-Law Contract: A fictional contract imposed on parties by a court in the interests of fairness and justice, typically to prevent the unjust enrichment of one party at the expense of the other. 
FORMAL AND INFORMAL CONTRACTS  
•       Formal Contract: A contract that requires a special form or method of formation (creation) in order to be enforceable. 
•     Contract Under Seal: A formalized writing with a special seal attached. 
•     Recognizance: An acknowledgment in court by a person that he or she will perform some specified obligation or pay a certain sum if he or she fails to perform (e.g., personal recognizance bond).
•     Negotiable Instrument: A check, note, draft, or certificate of deposit — each of which requires certain formalities (to be discussed later).
•     Letter of Credit: An agreement to pay that is contingent upon the receipt of documents (e.g., invoices and bills of lading) evidencing receipt of and title to goods shipped.
•     Informal Contract: A contract that does not require a specified form or method of formation in order to be valid.
•     The vast majority of contracts are informal (without a seal)
•     An executory contract [4302.10]is a contract that has not yet been fully performed by one or more parties.
OTHER TERMS  
•   Valid Contract [4302.13]: A contract satisfying all of the requisites discussed earlier —   agreement, consideration, capacity, legal purpose, assent, and form. By contrast;
·  A void contract [4302.14]is a contract having no legal force or binding effect (e.g., a contract entered into for an illegal purpose);
·  A voidable contract [4302.15] is an otherwise valid contract that may be legally avoided, cancelled, or annulled at the option of one of the parties (e.g., a contract entered into under duress or under false pretenses); and,
·An unenforceable contract is an otherwise valid contract rendered unenforceable by some statute or law (e.g., an oral contract that, due to the passage of time, must be in writing to be enforceable).

MEDIATION; A form of ADR

MEDIATION; A form of ADR


What is Mediation?
Mediation is a voluntary process in which two or more parties involved in a dispute work with an impartial party, the mediator, to generate solutions in settling their conflict. It is a type of Alternative Dispute Resolution (ADR) but unlike a Court or an arbitrator whose decisions subject one party to win and the other party to lose, mediation is about finding a solution that works for both parties.

Cases may be self-referred by anyone who is involved in the dispute or by counsel or judge by contacting the Centre for Conflict Resolution. There is a mediation centre in the Lagos State High Court, Igbosere Complex and also in the F.C.T High Court, Abuja.

Cases mediated upon are usually civil in nature, Mediation is not applicable to criminal matters under Nigerian Law. Mediations may involve tenants and landlords, families, neighbourhoods, juvenile offenders, the workplace, corporate, employment, construction, real estate, health care, church and community disputes. It is not necessary for cases to have legal issues and/or lawsuits pending.
Mediation is always an option if you are thinking about taking your dispute to court. It is a better option if you want to preserve a relationship being affected by the conflict, if the dispute is upsetting and affecting your daily life, if you cannot afford the time and cost involved with litigation, if you would like to speak to the other party so they may hear your concerns, or if you would like to resolve the dispute yourself without a third party judgment.

The Mediator
The mediator’s role is to facilitate communication between the parties, not to impose solutions. Mediators do not advise, take sides or render a judgment. Instead, the mediator will work with all the parties to help them reach a mutually acceptable resolution.
Mediators are certified, trained volunteers from various professional backgrounds including attorneys, social workers, human resources specialists, therapists, teachers, managers, executives, ministers, doctors, consultants, police officers and students.

The Mediation Process
The participants in the mediation are the actual parties involved in the dispute. At a minimum there are two parties involved; however, mediated disputes may include multiple parties. Participants of the mediation must have full authority to settle the case at the mediation session.
Stage 1: Mediator’s opening statement. After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.
Stage 2: Disputants’ Opening Statements. Each party is invited to describe, in his or her own words, what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt.
Stage 3: Joint Discussion. The mediator may try to get the parties talking directly about what was said in the opening statements. This is the time to determine what issues need to be addressed.
Stage 4: Private Caucuses. The private caucus is a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of his or her position and new ideas for settlement. The mediator may caucus with each side just once, or several times, as needed. These private meetings are considered the guts of mediation.
Stage 5: Joint Negotiation. After caucuses, the mediator may bring the parties back together to negotiate directly.
Stage 6: Closure. This is the end of the mediation. If an agreement has been reached, the mediator may put its main provisions in writing as the parties listen. The mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review. If the parties want to, they can write up and sign a legally binding contract. If no agreement was reached, the mediator will review whatever progress has been made and advise every one of their options, such as meeting again later, going to arbitration, or going to court.

Adedunmade Onibokun Esq.
@adedunmade