The Enforceable Promise

Contracts have been protecting buyers and sellers for centuries. Here is a Sumerian contract from circa 2600 BC that details the selling of a field and a house. Guides and outfitters should consult legal counsel to draft contracts that help protect their financial interests and shield them from litigation.

Photo credit: Image from Wikimedia Commons

At its most basic level, a contract is a legally enforceable agreement between two or more parties. A professor from my first year in law school referred to a contract as an “enforceable promise,” and it can be formed by words, writing, and, in some cases, action. For outfitters who book clients and hire guides and other staff, contracts are of the highest importance.

The basic elements that are necessary to create a contract are competent parties, proper subject matter, proper consideration, mutuality of agreement, and mutuality of obligation. Let’s look at each in more detail.

Competence
In terms of contracts, only a “competent” person—generally defined as a person who is of legal age, of sound mind, and not under “undue restraints”—can sign. The age of majority in most states is 18 years old and means that adults are considered responsible for the majority of the things they do. If a contract is signed by someone younger than the age of majority, it is voidable. The sound-mind standard has been construed to mean the individual must possess sufficient mental capacity to understand in a reasonable manner the nature and effect of the act. This has been a fairly low standard and courts presume competence unless the person is under guardianship, is mentally ill, or intoxicated.

Proper Subject Matter
While it can sound confusing, “proper subject matter” means that a court will not enforce an agreement that violates either a statute, a law, or is otherwise contrary to public policy.

Proper Consideration
Books have been written on proper consideration, which is the most heavily covered topic in classes related to contracts. A simple way to look at consideration is that it is a “bargained-for exchange” that the promiser, in the case of most people reading this article is the outfitter, induces the promisee (the client) to incur a legal detriment and/or provide a legal benefit sufficient enough to induce the promisor to make the promise. An example of proper consideration is a client who books a guide and places a deposit that may be forfeited (or partially forfeited) if the client cancels.

Mutuality of Agreement
This is commonly referred to as a meeting of the minds, which means the parties mutually assent to all material facts.

Mutuality of Obligation
This means that both sides must be held under obligation by the contract—if one side is not bound by the agreement, then neither side is bound by it. Put another way, if one side is bound to perform, but the other is not, the agreement is not enforceable. A classic example of an unenforceable agreement is when a person says, “I will pay you to do X… if I want to pay.”

Include the Wild Cards
What does this mean for business owners and guides? It means that they must (it may be required in your state) use a written agreement that is signed by competent parties and supported by consideration, such as a deposit. The agreement should cover issues that are unique to the business. For guides and outfitters, this would include weather, mother nature, strict adherence to game laws and regulations, and cancellation.

Since a long agreement can be a turn-off for customers, I often advise clients to use a short-form agreement that covers the essential and basic terms of the agreement. I stress, however, that this style of agreement should:

• Identify the proper parties and include contact information. In an ideal world, the guide or the outfitter uses a corporation or a limited-liability company. In that case, the proper party is the entity. The agreement should clearly indicate that. The signature line should indicate the party signing on behalf of the business is an “authorized” signer. If it does not, the business owner is opening the door for personal liability.
• Limit liability of the guide or outfitter to the amount that is charged. While this may be determined to be void (if there is negligence, and it causes great bodily harm or death), it is good policy to include that language because it will remove the incentive for frivolous lawsuits.
• Have an “assumption of risk” clause. This informs the client that there are risks involved with the activity.
• Include a “choice of venue” clause. This means, if you are sued or you need to sue the other side, the litigation must occur in your local jurisdiction. You won’t have to fly to somewhere else to defend yourself.
• Recover legal fees. Include a provision that says the outfitter (or the prevailing party) is entitled to recover legal fees if it must go to court to enforce its rights.

The rules for contract construction may vary slightly from jurisdiction to jurisdiction. You should consult local competent legal counsel to help you draft a template to be used for your customers.

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Michael Van Tubergen, a hunter and lawyer, has represented many clients in the sporting industries.