• Legal Promises

Promises, Promises

by Noel Bagwell
for ExecutiveLP™

February 1, 2016

Fool Me Once, Shame On You

It’s another Musical Monday, here, on the ExecutiveLP™ blog. Today’s feature: Promises, Promises by Naked Eyes. We’re going to be talking about promises and their legal consequences, but first, the music!

Never had a doubt in the beginning
Never a doubt
Trusted you true in the beginning …
You made me promises, promises
Knowing I’d believe
Promises, promises
You knew you’d never keep

From a legal perspective, at least, these lyrics are meaningful. If you go into a transaction, never having a doubt of the other person’s intentions (and, here, we assume it’s reasonable not to have any such doubts) and trusting someone to be true to their word when they make promises, the legal concept involved is reliance. You have (reasonably) relied on the promisor’s promises–the “promisor” being the person who made the promise, as opposed to the “promisee” who is the person to whom the promise is made.

Reliance is an important concept in the law, because “(r)easonable reliance on another person’s statements may, in some cases, lead to a claim of fraud.” This brings us to the other two parts of the lyrics that are meaningful — “Knowing I’d believe” and “You knew you’d never keep.” If a person has a premeditated intention to deceive and has thought of a scheme to do so, predicated upon the assumption that the person they intend to deceive will be fooled, this implies two more elements of common law fraud: (1) knowledge of the falsity by the party making the false representation and (2) intent to deceive the party by making a false representation.

The entire song is based on the fact that one party communicated to the other a false representation of a fact, and that there was an actual loss suffered by the innocent party, completing the five elements of common law fraud. So, it sounds like Naked Eyes might have a case, here, against whomever it is they’re singing about.

Fool Me Twice, Shame On Me

Fraud is a serious charge. If a person commits fraud in Tennessee, the person injured by the fraud may seek against the person who committed the fraud nominal damages, treble damages, and attorney’s fees. It is unsurprising, therefore, that the law takes each element of a claim for fraud very seriously. One of the weakest elements is often that of reliance, or “reasonable reliance.”

“A legal standard based upon what a prudent person would believe. If reliance is not reasonable, a defendant in certain situations may not seek redress. For example, someone who invested in a machine that allegedly turned rocks into gold could not recover damages for fraud if it could be shown that a prudent person would not have reasonably relied on such claims.”

Who is this “prudent person,” this hypothetical “reasonable man”? The law has struggled to answer that question for decades, but the answer seems to turn on the balance of the evidence and the subjective interpretation of the standard by judge and jury. The lesson, here, is simple: if things seem at all fishy, act reasonably. If someone puts a contract in front of you and asks you to sign it, the reasonable thing to do is to have an attorney review the contract first, which is always your right. If someone wants you to pay a sum of money as an “investment” or in exchange for goods and services, you have the right to use a written agreement for such transactions and to have the terms of said agreement reviewed by an attorney.

RELATED ARTICLE:  Employment Contracts in an At-Will Employment State

The reasonable man, the prudent person consults a lawyer about their legal rights before they sign on the dotted line, pay money, or obligate themselves to pay money to others. When you blindly trust someone and are defrauded, they have fooled you twice: once, they have fooled you by persuading you that you could trust them and that you don’t need to take action to protect your legal rights, and, a second time, they have fooled you by persuading you to enter blindly or recklessly into an agreement or transaction without being fully aware of how your legal rights may be affected.

It’s a Shame You Didn’t Use a Lawyer

When you use a written agreement to record your promises and the other terms and conditions of your agreement or transaction, and when you have a lawyer review that contract, there’s always something there to remind you of your rights and obligations with respect to the transaction. If you forego using a contract, it’s easy to forget who said what and when; and, let’s face it, emails and text messages are usually terrible evidence of what each party’s intentions were and on what, if anything, they had agreed. Courts are interested, after a dispute about a prior agreement has occurred, in determining whether the parties had ever achieved a “meeting of the minds.” The best evidence of such is a written agreement.

Also, a good attorney is going to be able to tell you what you don’t know and what you cannot know. A lawyer’s training and experience are valuable tools, the value of which are universally recognized, even if not fully appreciated, by sophisticated businesspeople. Preventive Law works, and you’re better off buying the ounce of prevention than having to pay for a pound of cure, later.

So, don’t take the promises of others at face value. Don’t accept their promises without a written agreement. Have an attorney review your written agreements and advise you about how your legal rights might be affected. These kinds of preventive law measures can help you prevent your legal risks from becoming expensive legal problems!

To speak with an attorney, please contact ExecutiveLP™ via our quick, easy web form or by phone at (615) 669-6566. Thanks for reading, and feel free to email us if you have a suggestion for a Musical Monday topic. We’d love to tackle the challenge of writing a legal article using any song you might suggest (as long as it’s SFW). Have a great week!


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2017-01-26T15:23:55+00:00

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