OT-A Lot Of Smart People Post Here- Any Attorneys Or Retired Ones- I Have A General Legal Question

[DemocratSinceBirth]

The answer is non-binding. I already have two opinions from friends who are attorneys . I'm looking for a tie-breaker.


To a layman that this question can even arise is astounding.

I own a small buiness that is incorporated. It's so small that the only employee is me. I have been entering into contracts for over a decade. Instead of putting the Inc. after my corporation as in Sticky Widgets, Inc. I just refer to it as Sticky Widgets. This has never been an issue because I have never been in a contractual dispute.

Now I have an contract I might have to enforce. One attorney-friend said that the other party can get out of the contract because I forgot to put Inc after the name of my corporation and in the eyes of the law my business doesn't exist because I didn't put Inc. in therefore nullifying the contract. My other attorney- friend strenuously disagrees. He says there is not a court that is going going to nullify a contract over a minor omission like that.

I like the second opinion better.

Thank you in advance.

PEACE
DSB

[CK_John]

1. Not an attorney, but the state your are incorporated in will be the deciding factor and

was your attempt to deceive a factor. Remember we are a 50 state republic.

[Gothmog]

2. I am an attorney

I agree with the second opinion. A court is not likely to nullify a contract over a minor error. Did you sign the contract in a representative capacity, i.e. as president of the company? Have done business with this client in the past and if so did those contracts use the right name? If so, the other side was on noticed that your company was a corporation and I would be shocked if a court would not enforce the contract. This issue normally occurs in the opposite direction, i.e. if the other side wanted to claim that they contracted with you individually and wanted to disregard the corporate veil or existence to seek to hold you personally liable. I would urge you to be careful and to use the correct name in your contracts to keep a client from trying to pierce the corporate veil and try to hold you personally responsible for any obligations of your corporation.

[Hepburn]

3. Retired attorney here....

...and I second the opinion of the above atty.

[Frank Booth]

4. I agree (and I'm also a lawyer, if that means anything).

Depending on what state you live in, you probably should have filed for a DBA for "Sticky Widgets" (assuming what you have on file with the Secretary of State is "Sticky Widgets, Inc.") just to be safe.

But contracts often contain minor omissions and inconsistencies like this, and so long as the intent is clear, it won't be a problem.

[treestar]

5. Lawyer here. As long as you use the corporation's name rather

than your own, and write checks in corp. account and not your own, leaving off Inc. is too minor a consideration to nullify everything. The courts don't have that mentality of exactness, because of equity, which is a concept supposed to keep the law from being overly technical. It's like the Presidential oath, where Obama did not cite the words in strict order, but still got the same thought across.

Equity would require that the other party to the contract not get something for nothing. And they wouldn't be able to pierce the corporate veil unless they could show you dealt with them as DSB and never as SW, leading them to think you were dealing with them personally.

[Milo_Bloom]

6. Ex Contract Attorney here

The first attorney needs to take the sticky widget out of his ass.

I dealt with multi-million dollar contracts and can nearly assure you that putting the Inc before or after the name Sticky Widgets will have 0 effect on the enforcement of the contract.

Courts are absolutely adverse to nullifying contracts over minor issues, but instead look at the entire situation. I have seen courts enforce contracts with far FAR greater problems (including in one case a completely bogus date being in the contract, as the drafters used a form and everyone forgot to update the date from 1989 to 1999). When everything went bad and one party tried to back out, they were shot down cold as they found that the intent was clear.

[jberryhill]

7. Another lawyer here...

The contract was probably made on the part of the corporation.

Since you are the only officer of the corporation, you would not be considered to be acting personally in the name of your corporation, since you have an inherent duty as officer of Sticky Widgets to act on behalf of Sticky Widgets when you are acting in the name of Sticky Widgets.

It is also likely at the time the contract was made that the other part was intending to contract with Sticky Widgets Inc.

I'd be curious to know about how you were identified in the signature section, and what Sticky Widgets was identified to be, if anything, in the preamble.

[JayMusgrove]

8. All present and retired attorneys are providing excellent commentary and background here... yet

the main issue is was there any attempt at fraud, were you misrepresenting your corporation?

I doubt that is the case, but if there is ANOTHER business in your state that goes by the name "widgets" and yet YOU are "widgets, Inc." then you have a problem.

Fortunately, all the above advice is very sound.

Let me give you an example of what I mean. In my state, the Boston Red Sox is commonly recognized as a baseball team in Massachusetts, yet I am not in Massachusetts. A company called "The Red Sox", does business in my state selling sox, red and otherwise. Since there is NO corporation in my state doing business as "The Boston Red Sox, Inc" or even "The Boston Red Sox" or "The Red Sox, Inc." the company which is really "The Red Sox, Inc." can do business as "The Red Sox" and be in no trouble in contracts it signs.

People that deliver yarn and cotton fibers to "The Red Sox" do NOT expect payment from a company DBA "The Boston Red Sox, Inc" the baseball team in another state. Yet there could be confusion, so on every piece of paper coming out of the company the bottom of the page says "not to be confused with......." etc... so all people know that the Boston Red Sox is NOT doing business with their suppliers and servicers.

Edited to add, the actual entities were analogized in my example... no yarn, sox or baseballs really exist in this real life case, but the analogy applies, as the real entities would be as recognizable as "The Boston Red Sox"...