The implementation of transaction agreements is an important aspect for all of us. Whether you are an applicant, defense lawyer or mediator, our common goal is to reach a transaction that would satisfy you and your clients. None of us like the idea of investing time, money and effort in making and designing agreements on what we consider important settlement terms, just to realize that keywords have been omitted or left uncertain. And we are frightening when we think that the transaction agreements we have designed could be considered unenforceable if challenged, which could result in lost customers, lost money and abuse actions. • Transaction agreements that are in writing (or evid. Code, §1118) and signed by the parties themselves. • If multiple claims have been negotiated, you determine whether the settlement of one claim is related to the settlement of another right. Consider any other terms that may affect billing. • Identify the subject of the transaction agreement yourself (for example. B to settle all claims and causes of appeal resulting from the remedy). The transaction agreement must specify the date of a possible settlement, any conditions precedent for payment and the method of transfer of this payment. Other considerations include whether you wish to assign the right to receive payment to related companies and, if so, whether such assignment can take place with or without the agreement of the other party. For example, California Civil Code Section 1542 provides that a general release of claims does not extend to claims that the released party “does not know or suspect exist” at the time of release and that, if known, “would have had a significant impact” on the comparison.
If your settlement agreement is governed by California law or has another connection to California, there must be a provision stating that the parties agree to waive Section 1542 to release unknown claims. • If the transaction document constitutes the entire agreement of the parties and supersedes the oral agreements and all prior written agreements, include this information. Otherwise, you will identify all additional documents that together constitute the full consent of the parties. Although Section 664.6 of the Code of Civil Procedure is the most effective method of enforcing a settlement in an ongoing dispute, there are other formal options for imposing comparisons that do not have the same strict requirements and were the only options available before the adoption of Section 664.6 of the Code of Civil Procedure in 1981. Prior to 1981, these options (including amending the pleadings to include the transaction as a defence or affirmative remedy, and then seeking a summary judgment or bringing a separate infringement action) were considered insufficient before 1981, with uncertain procedures and even more uncertain outcomes. Below is a comprehensive overview of the transaction rules to consider before mediation and to discuss with clients that will be included in a draft transaction agreement. .
