business law

52.203 Bill of Sale

BILL OF SALE

This is to acknowledge that I, ______________________[name of seller], ______________________[address], have this day sold to ______________________[name of buyer], ______________________[address] for the sum of $ ______________________, receipt of which is hereby acknowledged, the following goods: ______________________ [describe goods by type and quantity].
I hereby warrant that I am the lawful owner of the described goods, free from the rightful claims of others, and that I will defend ______________________[name of buyer]’s title to the goods against all persons.
Dated: ______________________.
______________________ [signature of seller]
[typed name]

75.200 Formal Contract

[title, if desired]

This contract is made ______________________[date] between ______________________[name of first party], ______________________[status and capacity if other than individual, e.g., a California corporation or as executor of the estate of ______________________ (name), deceased], ______________________[whose address is ______________________ (specify, if relevant)], referred to as “______________________” [abbreviated reference for identification in context, e.g., “Buyer”] and ______________________[similarly designate and describe each other party to contract].

[Optional]

[Include recitals, if desired, as set forth below; inclusion of recitals is not required for a valid and effective contract, and is a matter of the drafter’s preference (see

§ 75.221

)]

Recitals

______________________ [include statement regarding identity of first party, e.g., Buyer is a California corporation operating as a wholesale distributor of sports cards and memorabilia].
______________________ [include statement regarding identity of each other party, e.g., Seller is a Deleware corporation operating as a manufacturer of licensed limited edition sports cards and other sports collectibles].
______________________[include one or more recitals regarding parties’ respective underlying motive in forming agreement, e.g., Buyer and Seller wish to enter into an agreement under which Buyer will act as the exclusive wholesale distributor of Seller’s products in California].

[Continue with the following:]

[Therefore,] [i]n consideration of the mutual promises set forth below, the parties agree as follows.
1. ______________________[
obligation of first party
]. ______________________[name or designation of first party] shall ______________________[specify what first party agrees to do].
2. ______________________[
obligation of second party
]. ______________________[name or designation of second party] shall ______________________[specify what second party agrees to do].

3. Conditions of Performance. ______________________[specify any terms or conditions that will qualify or otherwise affect duties and obligations of either party.]

4. Indemnification. ______________________[first party] will indemnify and defend ______________________[second party] from all liability for any loss, damage, or injury to persons or property arising from or related to the performance of this agreement, including without limitation all consequential damages, whether or not resulting from the negligence of ______________________[second party] or any agent.

5. Termination. ______________________[name of obligee] may terminate this agreement by giving written notice of termination to ______________________[name of obligor] if ______________________[name of obligor] should:
1. Be adjudged a bankrupt;
1. Become insolvent or have a receiver of assets or property be appointed because of insolvency;
1. Make a general assignment for the benefit of creditors;
1. Default in the performance of any obligation or the payment of any indebtedness under this contract;
1. Allow any judgment to remain unsatisfied and unbonded for 30 days or longer;
1. Institute or allow to be instituted any proceeding for the reorganization or rearrangement of financial affairs.
This right of termination may be exercised without prejudice to any other remedy to which ______________________[name of obligor] may be entitled at law or under this contract.

6. Attorneys’ Fees. If any ______________________[legal action or specify more limited provision, e.g., legal action based in contract law], including an action for declaratory relief, is brought to enforce or interpret the provisions of this contract, the prevailing party shall be entitled to recover reasonable attorneys’ fees from the other party. These fees, which may be set by the court in the same action or in a separate action brought for that purpose, are in addition to any other relief to which the prevailing party may be entitled. ______________________[Add if appropriate: This provision applies to the entire contract or This provision applies only to actions to enforce ______________________ (describe portions of contract covered by provision).] Each party was represented by an attorney in the negotiation and execution of the agreement.

7. Entire Agreement. This contract supersedes any and all other agreements, whether oral or in writing, between the parties with respect to the subject of this contract. This contract contains all of the covenants and agreements between the parties with respect to the subject of this contract, and each party acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except the covenants and agreements embodied in this contract. No agreement, statement, or promise not contained in this contract shall be valid or binding on the parties with respect to the subject of this contract.

8. Governing . The validity of this contract and each of its terms and provisions, as well as the rights and duties of the parties under this contract, shall be construed pursuant to and in accordance with the law of ______________________[specify jurisdiction, e.g., the State of California].

9. Assignment. ______________________[name of party] has the right to sell, assign, or transfer this contract to any person, firm, or corporation at any time during the term of this contract.

10. Severability. A breach of any provision of this contract shall not affect the right of ______________________[identify party] to recover for any other breach of this contract. If any term of this contract is held by a court of competent jurisdiction to be void or unenforceable, the remainder of the contract terms shall remain in full force and effect and shall not be affected.
Executed in ______________________[specify number of executed copies, e.g., triplicate] on ______________________[date] at ______________________[city and state].
______________________ [signature of first party]
[typed name]
______________________ [signature of second party]
[typed name]

75.220 Identification of Parties

[EITHER]

This contract is made on ______________________[date] between ______________________[name of individual] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), whose address is ______________________[specify], and ______________________[designate and describe remaining parties].

[OR, for sole proprietor]

This contract is made on ______________________[date] between ______________________[name of individual] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), doing business as ______________________[business name] at ______________________[specify address)], and ______________________[designate and describe remaining parties].

[OR, for general or limited partnership]

This contract is made on ______________________[date] between ______________________[name of partnership] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), a ______________________[California or specify other state] ______________________[general or limited] partnership with its principal place of business at ______________________[specify], and ______________________[designate and describe remaining parties].

[OR, for corporation]

This contract is made on ______________________[date] between ______________________[name of corporation] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), a ______________________[California or other state of incorporation] corporation with its principal place of business at ______________________[specify], and ______________________[designate and describe remaining parties].

[OR, for limited liability company (LLC)]

This contract is made on ______________________[date] between ______________________[name of corporation] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), a ______________________[California or other state of formation] limited liability company with its principal place of business at ______________________[specify], and ______________________[designate and describe remaining parties].

[OR, for unincorporated association]

This contract is made on ______________________[date] between ______________________[name of association] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), an unincorporated association with its principal place of business at ______________________[specify], and ______________________[designate and describe remaining parties].

[OR, for guardian or conservator]

This contract is made on ______________________[date] between ______________________[name of guardian or conservator] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), as ______________________[guardian or conservator] of the [person and] estate of ______________________[name of minor or conservatee], a ______________________[minor or conservatee], and ______________________[designate and describe remaining parties].

[OR, for trustee]

This contract is made on ______________________[date] between ______________________[name of trustee] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), as trustee of ______________________[describe trust, e.g., the John W. Smith Family Trust or the trust established by ______________________ (name of settlor) under a ______________________ (will or trust agreement) dated ______________________ (date)], and ______________________[designate and describe remaining parties].

[OR, for executor or administrator]

This contract is made on ______________________[date] between ______________________[name of executor or administrator] (referred to as ______________________[abbreviated reference, e.g., “Buyer”]), as ______________________[executor or administrator] of the estate of ______________________[name of decedent], and ______________________[designate and describe remaining parties].

75.221 Recitals

[E.g., for option contract covering real property]

WHEREAS, Optionors own certain real property (referred to as “the Property”) located in ______________________ County, California, consisting of approximately ______________________ acres fronting on ______________________[name of frontage road], which is particularly described in Exhibit A attached to this contract and incorporated into this contract by this reference; and
WHEREAS, Optionee desires to obtain an exclusive irrevocable option to buy the Property, the option to remain open while Optionee determines the feasibility of building apartments on the Property; and
WHEREAS, Optionors are willing to grant an exclusive and irrevocable option to the Optionee on the terms and conditions set forth in this contract;
THEREFORE, in consideration of the mutual promises set forth below ______________________[and the sum of $______________________, receipt of which is hereby acknowledged], the parties agree as follows:

[Continue with body of contract]

75.222 Consideration

[EITHER]

______________________[
paragraph number and topic
]. In consideration of ______________________[specify consideration], ______________________[name of promisor] agrees to ______________________[terms of agreement].

[OR, for payment of money]

______________________[
paragraph number and topic
]. As consideration for ______________________[specify performance], ______________________[name of performing party] shall be entitled to compensation in the amount of $______________________ to be paid ______________________[on completion of performance or at the rate of $______________________ per ______________________ (e.g., hour or week or year)].

[OR, for cancellation of claim]

______________________[
paragraph number and topic
]. In consideration of the cancellation of the claim of ______________________[name of promisee] against ______________________[name of promisor] in the amount of $______________________, [optional: arising out of ______________________ (specify basis for claim),] ______________________[name of promisor] agrees to ______________________[terms of agreement].

75.230 Condition Precedent

[EITHER]

______________________[
paragraph number and topic
]. ______________________[name of promisor] promises to ______________________[specify promised performance], provided that first, ______________________[specify nature of condition].

[OR]

______________________[
paragraph number and topic
]. The obligation of ______________________[name of party] to ______________________[specify obligation subject to condition] is conditioned on the prior performance by ______________________[name of other party] of ______________________[specify terms of condition]. If ______________________[name of other party] fails to perform, then ______________________[specify effect, e.g., ______________________ (name of party) will have no further obligation whatsoever].

[OR, for denial of condition]

______________________[
paragraph number
]. No Conditions on Performance. The obligations of ______________________[name of promisor] are not conditioned on any performance by ______________________[second party], and ______________________’s ______________________ sole remedy in the event of nonperformance shall be a suit for damages.

75.232 Concurrent Conditions

______________________[
paragraph number and topic
]. ______________________[name of promisor] promises to ______________________[specify terms of promise], provided that ______________________[name of other party] concurrently ______________________[specify terms of condition].

[OR]

______________________[
paragraph number and topic
]. At the time ______________________[name of party] ______________________[performs the acts required under or pays the sum of $______________________ as specified in] Paragraph ____________ of this agreement, ______________________[name of other party] shall concurrently ______________________[specify terms of other party’s promise, e.g., execute an assignment transfer of any and all interests of ______________________ (name) in the subject property, on the official government form for registering such assignments].

75.233 Condition Subsequent

______________________[
paragraph number and topic
]. ______________________[name of promisor] promises to ______________________[specify terms of promise, e.g., file a transfer of the vendor’s permit currently on file with the City and County of San Francisco], provided that if and when ______________________[name of other party] should ______________________[specify terms of condition, e.g., give written notice of intent to terminate that permit or to seek a issuance of a new permit under a different name], the obligation of ______________________[name of promisor] to perform shall be discharged.

75.234 Limitation of Liability

[EITHER]

____________ [paragraph number]. Release of Liability. ______________________ [first party] agrees to release ______________________[second party] from all liability arising from or related to ______________________[describe transaction at issue]. This includes, but is not limited to, all liability for damages resulting from the active or the passive negligence of ______________________[second party] or ______________________[his or her or its] agents.

[OR]

____________ [paragraph number]. Indemnity. ______________________ [first party] will indemnify and defend ______________________[second party] from all liability for any loss, damage, or injury to persons or property arising from or related to the performance of this contract, including, without limitation, all consequential damages, whether or not resulting from the negligence of ______________________[second party] or ______________________[his or her or its] agents.

75.235 Force Majeure; Vis Major; Act of God

[EITHER, for performance excused]

______________________[
paragraph number
]. Act of God. If ______________________[name of party] is prevented from performing ______________________[his or her or its] obligations under this contract by an act of God or by any other occurrence that is beyond the control of the parties to this contract, then ______________________[he or she or it] shall be excused from any further performance of ______________________[his or her or its] obligations and undertakings under this contract.

[OR, for performance suspended]

______________________[
paragraph number
]. Act of God. If the performance by ______________________[name of party] of any of ______________________[his or her or its] obligations or undertakings under this contract is interrupted or delayed by any occurrence not occasioned by the conduct of either party to this contract, whether that occurrence is an act of God or public enemy, or whether that occurrence is caused by war, riot, storm, earthquake, or other natural forces, or by the acts of anyone not a party to this contract, then ______________________[name of party] shall be excused from any further performance for whatever period of time after the occurrence is reasonably necessary to remedy the effects of that occurrence.

[OR, for loss apportioned]

______________________[
paragraph number
]. Act of God. If the performance by ______________________[name of party] of any of ______________________[his or her or its] obligations or undertakings under this contract is delayed or prevented by an act of God or by any other occurrence that is beyond the control of the parties to this contract, then the resulting loss shall be ______________________[specify how loss will be apportioned].

75.240 Termination at Will

______________________[
paragraph number
]. Termination. This contract may be terminated by either party at any time by giving ______________________[specify time requirement, if any, e.g., 30 days] written notice to the other party.

75.241.1 Specific Event

______________________[
paragraph number
]. Termination. In the event that ______________________[specify event, e.g., renewal of financing is not obtained], ______________________[name of party] may terminate this contract by giving notice to ______________________[name of other party] by registered mail.

75.241.2 Unsatisfactory Performance

______________________[
paragraph number
]. Termination. If ______________________[name of party to whom performance is due] becomes dissatisfied at any time with the performance of ______________________[name of performing party] under this contract, then ______________________[name of party to whom performance is due] may terminate this contract by giving written notice to ______________________[name of performing party]. Termination will be effective ______________________[specify effective date of termination, e.g., on receipt of notice or 10 days after receipt of notice].

75.241.3 Default

[EITHER]

______________________[
paragraph number
]. Termination. If ______________________[name of obligor] defaults in the performance of any term or condition of this contract, ______________________[he or she or it] must cure that default by a satisfactory performance within ______________________[specify time, e.g., 10 days] after service on ______________________[him or her or it] of written notice of the default. If ______________________[name of obligor] fails to cure the default within that time, then ______________________[name of obligee] may terminate this contract without further notice.

[OR]

______________________[
paragraph number
]. Termination. If ______________________[name of obligor] defaults in the performance of this contract or materially breaches any of its provisions, then ______________________[name of obligee] may terminate this contract by giving written notice of termination by registered mail to ______________________[name of obligor]. For the purposes of this paragraph, the following actions are material breaches of this contract: ______________________[specify].

75.241.4 Bankruptcy, Insolvency, or Similar Event

______________________[
paragraph number
]. Termination. (a) ______________________[name of obligee] may terminate this contract at ______________________[his or her or its] election by giving written notice of termination to ______________________[name of obligor] if ______________________[name of obligor] should:
1. Be adjudged a bankrupt;
1. Become insolvent or have a receiver of ______________________ [his or her or its] assets or property appointed because of insolvency;
1. Make a general assignment for the benefit of creditors;
1. Default in the performance of any obligation or the payment of any indebtedness under this contract;
1. Suffer any judgment against ______________________ [him or her or it] to remain unsatisfied and unbonded for 30 days or longer; or
1. Institute or suffer to be instituted any proceeding for the reorganization or rearrangement of ______________________ [his or her or its] affairs.
(b) This right of termination referred to in (a), above, may be exercised without prejudice to any other remedy to which ______________________[he or she or it] may be entitled at law or under this contract.

75.242 Automatic Termination

[EITHER]

______________________[
paragraph number
]. Termination. This contract shall remain in force for a period of ______________________[specify period, e.g., five years] and shall terminate automatically at the end of that period unless ______________________[specify condition, e.g., it is renewed in writing at least six months before the date set for termination].

[OR]

______________________[
paragraph number
]. Termination. This contract shall terminate automatically on the happening of any of the following events: ______________________[list terminating events, e.g., the death of a party or the insolvency of a party or the assignment of the agreement].

75.243 Termination on Payment

______________________[
paragraph number
]. Termination. This contract may be terminated ______________________[specify time limit, if any, e.g., at any time during the first year] by either party on the payment of $______________________ to the other party as compensation for relinquishing that party’s rights under this contract.

75.250.1 General Arbitration Provision

____________ [paragraph number]. Arbitration. [Notwithstanding every other provision of this contract,] [Any controversy between the parties regarding the construction or application of this contract, and any claim arising out of this contract or its breach, shall be submitted to arbitration on the written request of one party after the service of that request on the other party. ______________________ [add, if desired: The parties shall each appoint one person to hear and determine the dispute. If these two arbitrators cannot agree, then the two arbitrators shall choose a third impartial arbitrator whose decision shall be final and conclusive on both parties. The cost of the arbitration shall be borne by the losing party or in such proportions as the arbitrators shall decide.]

75.250.2 Provision Specifying Arbitration Procedure

____________ [paragraph number]. Arbitration. [Notwithstanding every other provision of this contract,] [A]ll questions and disputes with respect to rights and obligations of the parties arising under this contract ______________________ [add, if desired: except ______________________ (specify exception)] shall be resolved by arbitration.
(a)  Demand for Arbitration. A party may demand arbitration by delivering a written demand to the other party within ______________________ [specify time, e.g., 60 days] after occurrence of the dispute.
(b)  Appointment of Arbitrators. The parties may agree on one arbitrator. If they cannot agree on one arbitrator, there shall be three: one named in writing by each of the parties within five days after demand for arbitration is given, and a third chosen by the two appointed. Should either party refuse or neglect to join in the appointment of the arbitrator(s) or to furnish the arbitrator(s) with any papers or information demanded, the arbitrator(s) may proceed ex parte.
(c)  Hearing. A hearing on the matter to be arbitrated shall take place before the arbitrator(s) in ______________________ [city and/or county], California, the time and place to be selected by the arbitrator(s). The arbitrator(s) shall give each party written notice of the time and place at least ____________ days before the date selected. At the hearing, any relevant evidence may be presented by either party, and the formal rules of evidence applicable to judicial proceedings shall not govern. Evidence may be admitted or excluded in the sole discretion of the arbitrator(s). The arbitrator(s) shall hear and determine the matter and shall execute and acknowledge the award in writing and cause a copy of the writing to be delivered to each of the parties.
(d)  Award. If there is only one arbitrator, his or her decision shall be bindingand conclusive on the parties, and if there are three arbitrators, the decision of any two shall be binding and conclusive. The submission of a dispute to the arbitrator(s) and the rendering of a decision by the arbitrator(s) shall be a condition precedent to any right of legal action on the dispute. A judgment confirming the award may be given by any superior court having jurisdiction, or that court may vacate, modify, or correct the award in accordance with the prevailing provision of the California Arbitration Act.
(e)  New Arbitrators. If three arbitrators are selected, but no two of the three are able to reach a consensus regarding the determination of the dispute, then the matter shall be decided by three new arbitrators who shall be appointed and shall proceed in the same manner, and the process shall be repeated until a decision is agreed on by two of the three arbitrators selected.
(f)  Costs of Arbitration. The costs of the arbitration shall be borne by the losing party or shall be borne in such proportions as the arbitrator(s) may determine.

75.250.3 Provision Adopting American Arbitration Association Procedure

____________ [paragraph number]. Arbitration. [Notwithstanding every other provision of this contract,] [A]ny controversy or claim arising out of this contract, or the breach thereof, ______________________ [add, if desired: except ______________________ (list any exceptions, e.g., controversies involving less than $5,000),] shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.

75.251 Liquidated Damages

[EITHER]

____________ [paragraph number]. Liquidated Damages. The parties agree that, if ______________________ [name of party] breaches ______________________ [his or her or its] promise to ______________________ [specify] by ______________________ [specify nature of breach that will activate liquidated damages provision], then ______________________ [he or she or it] shall pay the sum of $______________ to ______________________ [name of other party] as liquidated damages.

[OR]

____________ [paragraph number]. Liquidated Damages. If ______________________ [name of party] breaches ______________________ [his or her or its] promise to ______________________ [specify] by ______________________ [specify nature of breach that will activate liquidated damages provision], then determining the resulting damages would be impracticable or extremely difficult, because ______________________ [specify reason]. Therefore, the parties agree that, in the event of such a breach, [name of party] shall pay the sum of $______________ to ______________________ [name of other party] as liquidated damages.

75.252 Recovery of Attorney’s Fees

[EITHER]

____________ [paragraph number]. Attorney’s Fees. If any party to this contract resorts to a contract action ______________________[add, if appropriate: or arbitration] to enforce or interpret any provision of this contract, the prevailing party shall be entitled to recover reasonable attorney’s fees in addition to any other relief to which that party may be entitled. This provision applies ______________________[to the entire contract or only to actions to enforce ______________________ (describe portions of contract covered by provision, e.g., Paragraph 7) of this contract; and each party to this contract was represented by an attorney in the negotiation and execution of the agreement].

[OR]

____________ …