By Charles McElwee and Melissa Morris, Attorneys
Interviewer and Coach Flanigan of the UNM Lobos Women’s basketball team joking during an interview:
Interviewer: “Do you wear boxer shorts or jockey shorts??”
Coach Flanigan: “Depends….”
Coming from your attorney, it isn’t so funny. In most cases, though, an attorney cannot begin to answer a legal question without gathering information. The law is made up, not of straight-forward rules, but of questions, answers, analyses, facts and opinions. There may be a statute that seems to cover the issue, but after repeated readings, the statute becomes less and less clear. Does the phrase, “written notice must be sent within one month…” mean that notice must be sent within twenty-eight, thirty, or thirty-one days? Does it mean something different depending on which month a contract was signed or on what month it is when the notice is sent? These are the questions that drive attorneys crazy when they are advising clients or writing demand letters, and that often make case law when a judge interprets the statute.
There seldom is a “simple” question or a “simple” answer. Many times, the best an attorney can do is to discuss various options and possible outcomes in order to give a client some guidance on how to proceed.
Here’s an example:
“How can I get out of this contract?”
Members often want to know how to break a contract or a lease. The law doesn’t provide us with step-by-step instructions for doing that. Contracts are generally enforceable according to their terms unless they are illegal or violate public policy, and not many fall into that category. So the simple, straight-forward answer to that question would be “You can’t.”
But there may be other, more useful, although less straight-forward, answers or suggestions that will become apparent after a discussion. If the contract isn’t written out, there will be many more questions to ask, because the “intention of the parties” will determine what the terms of the contract are, and how it may be terminated. Obviously, the “intention of the parties” can be very ambiguous and your attorney can argue your understanding of the contract in a letter or phone call to the other side.
However, even a written contract can sometimes be broken. After reading the contract, your attorney will know if there is a termination date written into the contract. If not, an argument might be made that either party may terminate at any time. Even if there is, there are other events which can give a PPL member the opportunity to “break” or end a contract early. One is if the other party to the contract has breached it by failing to do something agreed to, or by doing something prohibited by the terms of the contract. If an important technical requirement was missed, such as obtaining the signature of another person who is necessary to the contract, it might not be enforceable at all. If a contract has terms that are mutually contradictory, your attorney may also argue that it is not enforceable.
A contract may also be terminated by the mutual agreement of all the parties. After a discussion, the attorney might suggest sending a letter to the other side offering a reasonable amount of money to cancel the contract, or just offering to forgive the other side of all of its obligations in exchange for the same release for the PPL member.
A party who wants out of a contract can as a last resort just stop doing what the contract requires. Obviously, this approach has risks, chief among them the risk that the other party will sue to recover damages. After talking to the attorney, the PPL member may decide that is still the best step. One reason is that when one party does breach a contract, the other party has the duty legally to minimize the adverse consequences of the breach. This is called the duty to “mitigate” damages. For example, a landlord has an obligation to try to rent the premises to a new tenant, rather than simply letting it sit vacant with the intent of charging the tenant the full rent. Or, a seller of a unique item should try to find another buyer. A failure to do this could be a good defense to a lawsuit. Another reason might be that the PPL member does not have any assets that the other party could seize to pay a judgment, even if the other side were to go to court and get a judgment.
A no charge phone consultation with one of us at Davis Miles could give you helpful suggestions about how to think about your choices and the chances that one or the other will have a better result for you. In many cases the document review benefit and the letter / phone call benefit spelled out in your membership agreement and available at no additional charge, can get the ball rolling or in some cases get the problem resolved.
Call the number on your New Mexico PPL membership card today: 1-800-435-3290