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Baton Rouge Legal Blog

The limitations of a liability waiver

If your business offers a service to the public, chances are you have concerns about the safety of your customers or clients. For example, owning a gym, offering hang gliding lessons or operating a firearms training facility involve activities during which your clients could easily become injured. As part of your customer agreement for using the services of your company, you may require them to sign a liability waiver.

This form explains that your customer is participating in the activity or service with full knowledge of the dangers involved. By signing, your client agrees to release you from liability if he or she gets hurt. If you use or intend to use such a waiver in your business, it is important that you understand its protections and limitations.

What issues could make a contract unenforceable?

When you make an agreement, especially in business, you rely on the courts' enforcement of it if the other party fails to carry through on their obligations. If you don't have a lawyer review your contracts, however, you may find there are problems that make the contract unenforceable. What are some issues that could have that effect?

Is the agreement a contract at all?

In general, a valid contract is defined as one in which the parties come to a meeting of the minds about what is to be contracted. There is an offer and an acceptance of that offer. Something of value ("consideration") is given by each party. The contract terms must be defined sufficiently for a court to enforce them.

Does the contract have to be in writing?

In Louisiana, the law only requires contracts to be in writing when they involve real estate or the payment of certain debts. When writing is required, you may also need witnesses and a date on your contract. Be sure to ask your attorney if a written agreement is required in your case.

Was the other party able to enter into a contract?

Even if the court that agrees you have a valid contract in form, you may still run into trouble if the other party lacked the capacity to contract or was affected by undue influence, duress or misrepresentation. Minors under 18 generally lack the capacity to enter into enforceable contracts. In this context, a misrepresentation is either a false statement of fact, the deliberate concealment of a material fact or the deliberate withholding of information you had a duty to disclose.

We should mention that there is a contract defense called "mistake." This defense only applies when both parties were mistaken about a basic, crucial assumption about the contract at the time the agreement was entered into. It does not relieve parties who do not read their contracts thoroughly.

Is the contract unconscionable, illegal or against public policy?

Courts can refuse to enforce contracts that involve illegal activity or are unconscionable. Unconscionability is something that shocks the conscience of the court. It could involve the bargaining process or the actual terms of the contract. For example, if one party had so little bargaining power as to have no meaningful choice, contract terms that unduly favor the stronger party could be found unconscionable. In some rare cases, courts will also find that enforcing a certain contract would go against public policy.

Having an attorney negotiate, draft or review your contracts can avoid these issues and save considerable trouble.

Suchitra Satpathi Leads Constitutional Amendment Effort

Suchitra Satpathi was the lead lobbyist on the unanimous jury constitutional amendment passed during the 2018 Regular Legislative Session. She was able to masterfully assemble a coalition of conservatives and liberals to support the legislation. The legislation recieved the required 2/3rd's majority of votes in both chambers required for a constitutional amendment to be placed on the ballot. 

Will copyrights protect your business?

Louisiana business owners have a lot on the line when it comes to brand name, design, and the things associated with them. Because of the ties that bind reputation to success, it is important for you to copyright and protect different aspects of your business.

FindLaw takes a look at the basics of copyright law, including what copyrights are used for. In most cases, they are in place to protect your product or idea from being stolen, replicated, or sold elsewhere without your permission. It gives you the full rights to produce, publish, distribute, and monetize the intellectual property in question. You can even transfer your rights to someone else if you feel it is necessary.

Starting a new business involves numerous steps

Perhaps it has been a lifelong dream of yours to start your own business. Instead of continuing to wait for every condition to be just right, you have decided to take the plunge. You know that you must make numerous decisions before you can even open your doors.

After doing your research regarding other businesses like yours and who your customers will be in a certain area, you are ready to take the next steps, but you may not be sure what they entail.

When would I need an NDA?

If you own or work for a company in Louisiana and are looking to hire an external agency to help you with some advertising campaigns, you will likely have to share sensitive business information with them. Similarly, if you are considering a merger with another company, your conversations with people at that business will no doubt involve the disclosure of confidential data about your sales, marketing, products or services.

In order to protect your business in situations like these, Forbes recommends the use of a nondisclosure agreement, also known as a confidentiality agreement. This is a type of legal contract that documents your wish and rights to keep certain information private and prevent another party from disclosing it. It may also give you the ability to pursue legal action if the other party fails to keep the information secret.

Understanding FMLA provisions

If you own a business in Louisiana or work in the human resources department for a company, you will want to understand the various laws governing employment law. One of these laws is the Family and Medical Leave Act (FMLA). Many people may be familiar with this law to some degree, but they may not realize that there are two important components to this law.

One of the key provisions of the FMLA pertains to an employee's right to take leave without pay from a job.

As explained by the United States Department of Labor, the other important component of this law is the protection of an employee's job while they are on leave. Some employees might think that this means they are guaranteed to return to their exact job upon returning from family leave. While in most cases this is what happens, the law actually only requires that a job of equal status and equal pay be provided upon return from leave. 

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