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Sunday, September 9, 2012

Assignment -- what the heck is that? (contracts)

A former client of ours revisited our shop this week, and asked for help in modifying an employment agreement. Nothing unusual about that -- but the requested paragraph was rather interesting. He asked us to modify/update his Assignment terms.

In contracting, the terms "Assignment" refers to the right of one or more of the parties in the contract to "assign" (give their rights, privileges, or duties to another) their portion of the contract to a third party. Why would anyone want to do that?

Restatement (2nd) of Contracts, chapter 15, deals with assignment of both duties and rights under a contract.

Assignments are generally important to folks for two reasons (most common -- this is not exclusive): (a) death of a party and the liability of the estate, and (b) right of sale of the contract (such as a business).

If one party to an agreement dies, who is responsible for fulfilling the obligations or receiving the rights/privileges of the contract? Generally, it goes to the estate. That is where the terms, "to his (her) heirs and assigns" comes in. This gives full rights to any person that succeeds the party in the agreement. Usually, this is used for real property (land, or vehicles are most common), but can relate to anything in which a clear path of assignment should lie in the event of death (or even disability, if so indicated).

In business, it is not so simple. Suppose you are an independent contractor who is tasked with providing IT services at a government installation. As an independent contractor, you are in charge of the manner and mode of your services delivery. Do you have the right to "assign" another person from your shop to go to the government agency and perform the work? This is, of course, an assignment of duties. On paper, you should be able to do this. However, most contracting agreements provide a block to assignments on the part of the person doing the contractor work. If that block is NOT there, you would be absolutely legally entitled to make the assignment. Might be a short lived contract, but it would be legal.

Another area you often see assignments are in favor of the employer. Often, when an employer sells his/her business, contracts with employees or contractors are expected to continue. However, absent a clause permitting unfettered assignment of the rights and privileges of the contract to the new owner (an assignment), each contract would have to be re-negotiated with each respective employee/contractor, and the new employer would have no privity (see previous article on privity) with the current employees/contractors.

Assignment is usually a small paragraph, and can be written very plainly. An example might be (in this case, decidedly pro-employer):

III. RIGHT TO ASSIGN
1. The company may assign its rights and entitlements under this Agreement to any third party (for example, if the Company is sold) without further notice or requirement to you.

2. Because of the sensitive and critical nature of the work, and your job skills, you may not assign your duties and/or responsibilities to a third party without the express, written consent of the Company.



Do you have a business contract that would benefit from a thorough review? Missing an assignment clause or other critical element of a business agreement? Contact us! We'll take a look and let you know. Equally, as an employee or contractor, it is very important that you understand what you are signing/agreeing to. Let us help you review your agreement and ensure that you are not being snookered!

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Defense to Traffic Stops (no license/etc.)

We have a section of the firm that specializes in criminal law, and a frequent cause of action in this group is (are) traffic stops. Now, for your average ticket, this is not an issue. But what if you are stopped and then fined for having an expired license? For driving without a license? For driving on a suspended license? Even some DUI issues fall into the questionable area of: Do police have the right to stop you for no reason other than to check your credentials or who is in your car?

I spoke with an associate of Hanover Law, Mr. Stephen Salwierak. He is the attorney that handles most of our litigation in Virginia, and often runs into illegal stop questions in traffic matters. He provided a brief explanation out of a recent case filing he made in Fairfax.

(from Mr. Salwierak)

Without violating Fourth Amendment protections, an officer may conduct a brief, investigatory stop when he has a reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968). A reasonable suspicion is more than and “unparticularized suspicion or ‘hunch.’” Id. at 27. To reach the level of reasonable suspicion requires less of a showing than probable cause, but still requires at least a minimal level of objective justification for making a stop. United States v. Sokolow, 490 U.S. 1, 7 (1989).

These Fourth Amendment principles have been applied specifically to traffic stops. Any stop of a vehicle and subsequent detention of the driver is unreasonable under under the Fourth Amendment absent a reasonable, articulable suspicion that the driver is unlicensed or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for a violation of the law. Delaware v. Prouse, 440 U.S. 648, 663 (1979). The Supreme Court of Virginia has applied the rule in Prouse, making clear the requirement that a police officer in the Commonwealth may make a traffic stop only when he has reasonable suspicion that a traffic or equipment violation has occurred. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 925 (2000).

In practice, these summaries would then be followed by a review of the fact for each particular case, and a conclusory statement such as:

"CLIENT'S" constitutionally guaranteed protection against an unreasonable search and seizure has clearly been violated. He was twice pulled over and issued citations for a violation that, but for the illegal seizure and subsequent investigation, would not have been discovered. There are no facts to suggest that "CLIENT" was stopped based on anything other than a “hunch” that may have been felt by the officers. Because it is illegal for an officer to stop a person based on anything less than a reasonable articulable suspicion that criminal activity has taken place, "CLIENT" should never have been stopped, because no such suspicion existed. Finally, because "CLIENT" could not be permissibly stopped, he never should have been issued a citation for driving on a suspended license, and both of the citations should be dismissed.



Note how the summary paragraph cleanly and clearly brings together the constitutional law with the facts of the case (in this case the illegal stops), to reach a conclusion that clearly shows the client is not guilty.

We welcome discussing any traffic or DUI infraction you might have. Traffic and DUI cases can be tricky, and require a skilled, knowledgeable attorney to help navigate the best end scenario (plea or not-guilty as appropriate). Don't make a mistake that could cost your license or even jail! Contact Hanover Law and ask to speak to a skilled attorney in criminal law.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723