LET ' S MAKE IT LEGAL , CONTINUED FROM PAGE 34 specificity where the terms of the written contract are going to be interpreted . �WHY IT ’ S IMPORTANT : I recently handled an ownership dispute case in which one breeder / co-owner was located in Canada , one breeder / co-owner was located in Massachusetts and the third co-owner lived with the dog in Oregon . When an ownership dispute arose , there was nothing in the contract determining the proper jurisdiction , leaving open for interpretation where the terms of the contract would be interpreted and which laws would apply .
You can protect yourself by stating that jurisdiction of all disputes regarding the canine shall be interpreted in the state and county where the relinquishing party ( usually the breeder ) resides . Without this language , you face the potential of having a lawsuit filed against you that you are forced to defend on the opposite side of the country , making an already costly process even more so .
SEVERABILITY CLAUSE : This is a clause that provides that if any other portions or clauses of the contract are deemed by the court to be invalid or unenforceable , only that clause shall be stricken and all of the remaining clauses shall be enforced . �WHY IT ’ S IMPORTANT : In some jurisdictions , any invalid clause can invalidate the entire contract . Only by having a severability clause can you avoid facing the prospect of the entire contract being deemed invalid .
SIGNATORY VALIDITY : Every contract should have a clause that deems facsimile , electronic and counterpart signatures , as well as a photocopy of the contract and signatures , as valid . �WHY IT ’ S IMPORTANT : We now operate in the digital age , and it is common to utilize facsimile , electronic PDF and other methods to expedite signing of documents . Nonetheless , the law cannot possibly keep up with advancing technology , and there are some states that will only deem an original “ hard ” signature as valid . By contractually agreeing to treat alternative methods as “ originals ,” you can avoid the need to produce an original if a dispute should arise .
ATTORNEY ’ S FEES CLAUSE : In the event you find yourself in a legal proceeding over your dogs , the last thing you want to face on top of dealing with the dispute is to have to incur attorney ’ s fees in either enforcing or defending your contract . Unfortunately , recovery of your costs and attorney ’ s fees are generally not allowed . This means that even if you are right in the dispute and you prevail , you will still have to pay an attorney to represent you . This clause provides that
Many judges and juries quite simply do not understand the dog fancy .
attorney ’ s fees and court costs shall be awarded to the prevailing party . �WHY IT ’ S IMPORTANT : In addition to hopefully avoiding the additional expense of a lawyer , this is an effective deterrent for a party that otherwise might decide to intentionally breach the contract .
DAMAGES FOR BREACH : This is a clause where the parties agree what the monetary or other remedy shall be if one of the parties breaches the contract . �WHY IT ’ S IMPORTANT : Many judges and juries quite simply do not understand the dog fancy . The thought of a dog being worth $ 2,000 , $ 5,000 or $ 10,000 is not something that the average person can comprehend , much less future lost profits from breedings , collections , artificial inseminations , etc .
Frequently , without an established clause that determines the damages for a breach , the prevailing party is left with inadequate compensation for the breach . Contractually agreeing on a determined value , let ’ s say $ 5,000 per breach , takes the guesswork out of the hands of a judge or jury not adequately familiar with the sport .
Another particularly helpful reason for this type of clause is that it allows the contracting parties to be extremely detailed in what will occur in the event of a breach : From relinquishment of the canine , to compulsory loss of ownership , to a requirement that the losing party be compelled to sign necessary AKC transfer of ownership documents , this clause is limited only by your creativity . However , there is a caveat here : A remedy — even one agreed to in the contract — cannot be overly oppressive or onerous . For example , a court would be unlikely to enforce a provision that provided for a $ 50,000 remedy for a breach of contract , finding it would be unconscionable — better to keep the remedy as reasonable as possible , and thus more likely to be enforceable .
JOINT / SEVERAL LIABILITY CLAUSE : In the event your agreement involves a third , fourth , fifth or Super PAC of co-owners and / or backers , your contract should provide that in the event of a breach involving multiple parties , they shall be held jointly and severally liable . This simply means that should more than one co-owner commit a breach in conjunction with another co-owner , they shall be deemed to be equally liable for the breach and any damages flowing from that breach . �WHY IT ’ S IMPORTANT : There is no one on the planet more frustrated than a prevailing party who has a favorable judgment that they cannot collect or act upon . This clause
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