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Bluewaters2812 · 22-10-2012, 15:43

I cannot see how a $50k clause such as this (or any $k clause for that matter) can be upheld as a legal clause in any contract. It effectively says that you are contracted to pay the service provider the amount "before" you can sue him/her. The law already paves the way and allows for you to sue and no contract can override that right.

Essentially, it is therefore a null and void contract. There is no law that provides for a contract that can "outweigh" or overule the basic rule of civil law that entitles you to, and makes provision for you to sue the other party. Methinks Topicale has yet to have this so called "clause in his contract" tested?

Oh, by the way I have studied Law outside the USA, so this is not legal advice, just an educated opinion.

Mark1977 · 22-10-2012, 15:46

This thread has gone a drift............Has the OP got his boat back?

Bluewaters2812 · 22-10-2012, 15:50

Quote:

Originally Posted by Mark1977

This thread has gone a drift............Has the OP got his boat back?

I doubt it ... seems that he may be too busy hunting this shyster down right now. I really hope he gets him.

tomfl · 22-10-2012, 15:55

Quote:

Originally Posted by Bluewaters2812

I cannot see how a $50k clause such as this (or any $k clause for that matter) can be upheld as a legal clause in any contract. It effectively says that you are contracted to pay the service provider the amount "before" you can sue him/her. The law already paves the way and allows for you to sue and no contract can override that right.

Essentially, it is therefore a null and void contract. There is no law that provides for a contract that can "outweigh" or overule the basic rule of civil law that entitles you to, and makes provision for you to sue the other party. Methinks Topicale has yet to have this so called "clause in his contract" tested?

Oh, by the way I have studied Law outside the USA, so this is not legal advice, just an educated opinion.

Just because part of a contract is not enforced does not always mean the entire contract is not enforced. Contract law is a huge part of the US legal system (and what is taught in law school). As a rule a large US company will have a top notch lawyer who specializes in contract law and often specializes in how to break part of a contract while keeping another part of the contract.

In real estate there were often covenants about not selling property to specific groups (like Jews or blacks). Of course trying to enforce this type of thing would go no where in the courts. Without seeing the wording of tropical's $US50k thing it is hard to say what would happen. If the wording is along the lines of "if you sue me and you lose you have to pay me an extra $US50k because you are a bozo" the courts might well go along with it. If it simply said any suit can not proceed until you pay me $US50k it would not survive pre trial.

Dansante85 · 22-10-2012, 16:05

To digress from the boat discussion for a bit, I must remind all that this guy Steadley has my mast as well secreted somewhere since he picked it up in Charlotte on Sept 21. To speak to Tropicalescapes points, in my case I paid the full transport price he asked for the day before he picked up my mast, I put it directly into his BOA account. Second, as to delivery dates, it is true that there is not a specific date written on the contract (which he wrote at pickup and I was not present) but he did verify to me, my wife, and the SparCraft rep in Seabrook that delivery would be on Saturday, Sept 22. The SparCraft rep even made arrangements to have his personnel there on a weekend to offload it. I also took the precaution to get in touch with his insurance company and get a copy of his policy prior to pickup.
The very latest is that he says he is going to my mast back to SparCraft in Charlotte, even though he says it is somewhere in Dallas. SparCraft doesn't want it back any more than you can take your Chevy back to the Detroit factory that made it. They don't own it. Seems like just delivering it to Seabrook as per the contract might be an idea, just saying. Okay guys, go at it.

tomfl · 22-10-2012, 16:17

Quote:

Originally Posted by Dansante85

To digress from the boat discussion for a bit, I must remind all that this guy Steadley has my mast as well secreted somewhere
SNIP

Which goes to intent when combined with the OP's boat also being at an undisclosed location.

There are a lot of DAs and judges that really do not like coincidences. Probably a lot of defense lawyers that do not like coincidences. As bad as this sounds the real problem is DOT really does not like coincidences, in fact the DOT tends to be real bad about making the same mistake twice.

I would contact BOA and tell them you suspect fraud, especially effective if you can get a LEO to go along with this. Even if the guy has multiple accounts you should be able to find some of them. Which brings us back to too many coincidences.

Rocketman · 22-10-2012, 16:18

Dansante85, you have said that you have been in contact with the OP, I would assume you know if the same guy that has your mast is the one responcable or not for the OP's boat. Can you at least say if it wasn't the same guy, if you know the answer to the queston.

SurferShane · 22-10-2012, 16:39

Quote:

Originally Posted by tomfl

I am not sure how interesting an exam question it would be. Last summer I had an interesting conversation with a law student from OZ who was attending the FSU Law School for a year and I know there are some differences between the US and Oz, but this case seems clear cut to me. The trucker is in hot water on several levels.

Legal principles are similar in common law counties. While the decisions of other countries are not binding they may be considered.

My personal opinion is that the transporter has gone AWOL, out-of-control, renegade etc...., Best thing he could do is try to remedy the situation by returning the property to its rightful owners while this could still be seen as a mitigating factor in his favour against any further action.

As the baillee, the transporter should realise that he is responsible for the care of the property while it is in his possession. Likewise, he just can't dump the property on another party. That is, if it gets damaged he is responsible. While he has insurance the insurance company is likely to argue that he is responsible for damages due his out of contract actions.

Agape39 · 22-10-2012, 16:55

Quote:

Originally Posted by tropicalescape

I see Agape but I hear the Koran!

Nice, personal attacks! Did that outburst make you feel better?

downunder · 22-10-2012, 17:05

Quote:

Originally Posted by tropicalescape

The clause in my contract keeps litigues scum from suing me,An example:I hire some low rent bottom feeder to clean the bottom of my boat and he tries to say he bumped his head on the boat and wants to sue me,fine he has that right,but first he has got to give me 50,000 before he sues me..Nips all the problems in the butt in this situation,now if only the OP would of thought of that he would be sailing right now..."If" you can read you will see where I said several times I wasnt for the truck driver in this matter,and yes I do support small business and the protection of the right to conduct it in a law abiding way,

I bet you have been knocked down in the rush to have your boat cleaned.

Rather inciting reply to a post

tomfl · 22-10-2012, 17:11

Quote:

Originally Posted by SurferShane

Legal principles are similar in common law counties. While the decisions of other countries are not binding they may be considered.

SNIP

While he has insurance the insurance company is likely to argue that he is responsible for damages due his out of contract actions.

While I understand your point some folks claim the reason the US economy is the biggest and strongest in the world (with all due respect to China which as Johnny Cash would say "is riddin hard to catch that herd, but they ain't caught it yet") is due in some part the legal system and how transparent and fair it is.

Some where early on there was mention of the trucker being bonded which is different than insurance (both are often required by law for some business deals) and will pay off the OP if the boat is gone.

This is why I posted earlier if a trucker breaks down he will normally call another trucker to pick up the load and deliver it on time to avoid problems with getting insurance and getting bonded; not to mention getting the OK from the DOT to be a commercial trucker.

xymotic · 22-10-2012, 17:31

Quote:

Originally Posted by Bluewaters2812

I cannot see how a $50k clause such as this (or any $k clause for that matter) can be upheld as a legal clause in any contract. It effectively says that you are contracted to pay the service provider the amount "before" you can sue him/her. The law already paves the way and allows for you to sue and no contract can override that right.

Essentially, it is therefore a null and void contract. There is no law that provides for a contract that can "outweigh" or overule the basic rule of civil law that entitles you to, and makes provision for you to sue the other party. Methinks Topicale has yet to have this so called "clause in his contract" tested?

Oh, by the way I have studied Law outside the USA, so this is not legal advice, just an educated opinion.

Yup. So they sue, without paying first... that puts them in breach of contract... then what? They would presumably be sueing you for breach as well, so then a Judge gets to decide. And unless it's a totally frivolous suit, there's NO WAY a judge will hand someone 50 grand for nothing.

Contracts are also usually construed against the writer as well, so any 'tie' gets decided in favor of the other guy.

Bluewaters2812 is totally right that a contract cannot negate a law... (the exception being binding arbitration instead of a trial) which is why I think arbitration clauses are total BS. Especially in an employment contract.

AT BEST such a clause would make a judge very suspicious of every claim you make in a trial.

tropicalescape · 22-10-2012, 18:06

Quote:

Originally Posted by Agape39

Nice, personal attacks! Did that outburst make you feel better?

I wasnt trying to attack you ,but what I gathered from your comments was that you belive in an eye for an eye(Sharia law). Of course the Tora makes referance also so maybe I should have written" I see agape but I hear the Tora "...Naw that didnt sound as good as the Quaran thing! We have our feelings about handshakes and what a wonderful world it would be if it worked ...and of course I do not support this guy that drives the truck "stealing" the mans boat but, he didnt "steal"(i dont think) it he made a deal to haul it and somewhere along the way things went wrong and one man posted a one sided story and some here ran with it as a fact that it was stolen! Hell I dont know what happened to the boat. I think that a man with a viable business would not risk a career for a few thousand dollars either ...But as far as the law is concerned with the senerio persented there was no theft,if later it comes to light that the driver got mad and then sold the boat he has then commited a crime...of course we could all find this guy and put him before a tribunel made up of all the bad asses on here and let them deal with him...Viguilante justice works hand in hand with an eye for an eye and all the other screwed up logic that some think should pass for law....I dont know this fellow or drive a truck ,but I have been in business long enough to know that a contract is a prime prequisent for success this day and time and to have such an antiquited notion(regardless how noble)that a handshake should work is just silly...You are going to need a contract even to sell those pies, lest you get ripped off by some fat guy who changed his mind after you baked all those pies ...I bet the guy gets his boat back and will avoid court and or hiring the Zetas...just a hunch..

tropicalescape · 22-10-2012, 18:13

Quote:

Originally Posted by xymotic

Yup. So they sue, without paying first... that puts them in breach of contract... then what? They would presumably be sueing you for breach as well, so then a Judge gets to decide. And unless it's a totally frivolous suit, there's NO WAY a judge will hand someone 50 grand for nothing.

Contracts are also usually construed against the writer as well, so any 'tie' gets decided in favor of the other guy.

Bluewaters2812 is totally right that a contract cannot negate a law... (the exception being binding arbitration instead of a trial) which is why I think arbitration clauses are total BS. Especially in an employment contract.

AT BEST such a clause would make a judge very suspicious of every claim you make in a trial.

Quite the contre, the judge looks at the 12 page(wavier) contract and after seeing that I gave this person every excuse and out not to strap this engine on his back and run across the ground until airborne he does it anyway,well you get the picture...