Contract Law for Small Business

Overview
For most businesses, there is no more important legal concept than contract law. Businesses couldn’t run effectively without contracts, whether written or oral. There was a time when most business was done with a handshake and some small businesses still function that way. Either way, it’s very beneficial to understand the concepts and principles that underlie contract law.

While oral contracts are valid in many instances, there are certain contracts that must be written depending on state law. Generally, they include:
  • Contracts which have a period of performance exceeding one year
  • Lease for real property that exceeds one year in duration
  • Contract that extends beyond the lifetime of the person performing under the contract
  • Sale of real property (e.g. houses, condominiums, apartments, industrial buildings, commercial buildings, raw land)
  • Promise to pay the debt of another
  • Contract which has a value or consideration exceeding the state threshold
  • Transfer of property in the event of death of the performing party

A Promise

A contract is an exchange of promises that form a binding legal agreement. If that agreement is breached by any party, it is enforceable in court or through arbitration.

A contract is formed through an offer, acceptance, sufficient consideration, and adequate terms to define the obligations of all parties to the agreement. When this occurs, there is a “meeting of the minds” and the contract is enforceable. The consideration for the promise to perform is sufficient if a party: (1) agrees to do what they have no obligation to do, or (2) agrees not to do something they are entitled to do.


Types of Contracts

An “express” contract is formed through an oral or written understanding of an agreement. The terms, conditions, and all the elements of a valid contract are specifically stated as part of the agreement.

An “implied” contract is assumed by the circumstances and actions of the parties, or by operation of law upon someone that receives a benefit he is not entitled to keep. For example, if you order and eat dinner at a restaurant, there is an implied contract that you will pay for it at the stated price before you leave. To deny the existence of a contract would unjustly enrich you at the expense of the restaurant owner.


Contract Analysis

When evaluating the existence of a contract and the remedies for nonperformance by either party, the following questions should be addressed:
  • Was a legal contract formed?
  • What type of contract was formed?
  • Has there been a breach of the contract obligations?
  • If there has been a breach, what remedies are available?
  • Is there a statute of limitations that would prevent any recovery?

Breach of Contract

If any party fails to perform according to the terms of the contract, without a legal excuse, they have breached the contract. The performance failure must be significant enough to be material in nature and cause the injured party to be relieved of further performance.

A minor delay in delivery would not be considered material unless the contract specified that time is of the essence and the schedule milestone is a critical element of the bargain.

If you suffer a breach by another party, you must take all reasonable actions to minimize damages. This duty to mitigate means that even though you are not at fault, inaction on your part is not acceptable when there are things you can do to avoid further damages.


Remedies

If a contract is breached, the non-breaching party is entitled to certain remedies that are summarized below:

  • Compensatory damages – An award of money intended to compensate the injured party, to the extent the damages can be measured in monetary terms.
  • Punitive damages – Used to punish the breaching party and act as a deterrent. While they are available in addition to compensatory damages, punitive damages are rarely awarded in contract cases, and only if a wrong is proved that is independent of the breach.
  • Specific performance – Awarded where monetary damages would not adequately compensate the injured party. It forces contract performance where the subject of the contract is unique, such as the sale of real estate or a work of art.
  • Restitution – This returns the non-breaching party to the position they were in before the contract was formed.

Uniform Commercial Code (UCC)

The UCC is a detailed compilation of suggested laws for dealing with commercial transactions. Most U.S. states have adopted some or all of the provisions contained in the nine articles.

Of particular interest to small business owners is Article 2 that deals with sales and contracts. A full discussion of Article 2 is beyond the scope and space available here, but anyone engaged in commercial sales should gain a basic understanding of its provisions.


Summary

There are legal services available that allow you to develop customized contract templates without the expense of hiring a lawyer. These provide a cost-effective, standardized format that you can use over and over again.

The principles covered in this article represent basic contract law and its application to your business. There are many complexities of contract law that extend far beyond what has been discussed here. Since the success or failure of your business may depend on the validity and enforceability of your contracts, seek professional advice if you have doubts about signing any contract. If you are unable to solve a contract dispute on your own, find an attorney that specializes in these matters.

Always remember rule #1 when dealing with contracts: carefully read the entire contract before signing it. While this should be obvious, many disputes arise when one or both parties discover a provision that they were unaware of, or did not fully understand.

Michael Sanibel is a freelance writer specializing in business, marketing, personal finance, law, science, aviation, sports, entertainment, travel, and political analysis. He graduated from the United States Air Force Academy and is also licensed to practice law in California and New Hampshire.  Michael wrote this feature article exclusively for Debbie May.com (www.DebbieMay.com), an organization dedicated to helping small businesses succeed.

Vote for Your Success!

Vote for Your Success! How to Edge Out Your Competition
By: Cynthia Bull

As Election Day approaches with candidates vying for your vote, now is the perfect time to take your own poll to see how your business stacks up against your competition. While you may not have millions to spend on your campaign to promote the attributes of your business, you can definitely beef up its selling points. In this election climate, take a few minutes to think outside the familiar box of how you do business and draw a parallel to the upcoming elections by asking these questions about your business:

  • What is your campaign slogan? What is your mission statement, your purpose? Do you need to refine or redefine your goal, your intent, your reason for doing business?

  • Are you an absentee voter in your own business? How much actual time do you spend in and how much attention do you pay to your business on a regular basis? How much of your business do you conduct yourself? How much do you rely on others to make your business decisions? (Hidden profits and losses could be disguised in the answers you find!)

  • How do you get voters to cast their ballot for you, your products and services? What are your marketing tools and how effective are they? Are they creative and do they meet the demands of today’s economic times, or are revisions needed? Is it time to consider adjusting fees?

  • Will voters select your name and company at the ballot box? Who are your competitors and how do you measure up against them? What makes you special? What do you offer that your competition doesn’t offer?

  • Do customers register and vote for you? Are your existing customers buying from you? Are you getting new clients? Is your message strong enough to win clients? Have you explored every possible option to narrow their choice in your favor?

One approach to finding the answers is to simulate a town hall meeting. If your business is brick and mortar, hold a special on-site event that includes a speaker, bonuses and/or special sales items for attendance and participation. Have questionnaires and surveys ready and request that they be filled out before bonuses or other special items are handed out. Using what you already have, like space and products, will automatically reduce your expenses to hold the event.

If your business is virtual, your virtual office allows you to host the event at no extra cost. All questionnaires and surveys can be posted via the Internet as you ask clients for suggestions on how your business can improve and better serve them. A good follow-up strategy is to hold a teleseminar or webinar with a guest and bonuses as a thank you for participating in the virtual town hall event. You might incur a small charge for this post town hall event; it depends on your resources. But more than likely, the payoff will far exceed the expense to find out what is and isn’t working in your business.  

On questionnaires and surveys, be specific and ask about any problems customers might be having with your product or service. Keep all questions simple, clear, direct and relevant. Face-to-face questions can and should be answered immediately. If at all possible, record or videotape any presentations and all Q&A. In the virtual meeting, respond to all questions with a quick email of appreciation that includes information about the upcoming teleseminar or webinar, where you answer all questions as well as any new customer concerns. These days, the ability to interact with clients is easier than ever before. So if you've been reluctant to step out of your comfort zone and try these resources, now is definitely the time for innovative action.    

A dominant characteristic of successful candidates is that they believe in themselves. Not only are they able to persuade others to actively espouse their agenda through the strong qualities they possess, but they openly ask for monetary contributions – and get them!

Claim these characteristics of a successful business person for yourself:

  1. Believe in yourself and your business. If you lack a positive, enthusiastic approach to your business in any way, then you shouldn’t be in business. It’s that simple. Virtually all business owners possess the quality of believing in themselves more than any other person they know, regardless of the sincere support others may offer.

  1. Be bold enough to take the necessary risks of business. This means succeeding in some parts of your business and missing the mark in others; the very definition of risk. And while it’s easy to become discouraged during disappointing times, hanging on when it’s tough separates ultimate winners from losers.

  1. Remain flexible in your approach to business. It makes rolling with the punches easier and helps you to keep an accurate finger on the pulse of your business. Nothing remains the same, and feeling uneasy about your business may be an indicator that it’s time for a change. It doesn’t have to be extreme, but pay attention to your instincts.

  1. Offer the best product and/or service you possibly can, because a competitive marketplace will recognize and reward the best of what it sees. Research what others offer in your niche and adjust your business model so that it measures up, not only to your standards, but also to what the marketplace determines. Set your own yardstick, but rate your progress to that of others as objectively as possible using measureable databases.  

  1. Always think forward rather than backwards. Meeting one goal is always replaced by another goal (a natural condition of business), but prioritize goals in results that can be measured. Stay focused on one goal at a time and maximize what can be achieved at each level.    

Remember, you already have the popular vote of your active customers because they buy from you. But in today’s uncertain economic climate, it may be necessary to restructure your platform in order to meet the needs of your clients as well as outshine your competition. Innovative thinking and actions teamed with minor changes where necessary go a long way to keep your business successful.

Now ~ Go Out and Vote!

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CYNTHIA BULL (www.cynrje.com) is an internationally published writer and editor who helps international authors, marketers and speakers add greater value to their products through her top-quality writing, editing and transcription services. She is the author of How To Be A Medical Transcriptionist and Winning At Work While Balancing Your Life, a contributing author of Walking with the Wise Entrepreneur (Mentors Publishing House), cited in Make BIG Profits on eBay (Entrepreneur Press), and Managing Editor of Mentors Magazine Think & Grow Rich Edition. Cynthia has created over 200 book products in the past two years for her clients and, as mentor, helps clients reach their goals through her products, experience and genuine caring. Cynthia writes this feature article exclusively for Debbie May.com (wwwDebbieMay.com), an organization dedicated to helping small businesses succeed.

The Benefits of Blogging

The Benefits of Blogging

By Heather Gooch

The term “blog” is a shortened form of "web log," which is essentially an online journal. Blogs can have as wide or narrow of a focus as the author sees fit, offering opinions, analysis or even just a diary entry of how one's day went.

In fact, some companies have taken things to the next level: Their business models are based on such niches as offering, on a specially designed and hosted site, engaged couples the chance to chronicle their wedding preparations online (http://www.mywedding.com, for example) or new parents keep friends and family updated on the trials and tribulations of their pregnancy and beyond (http://www.babyjellybeans.com, for example).

For artisans, though, blogs can have several benefits:

Blogging can strengthen your relationship with your customer base. By adding a blog component to your established website — or even serve as your main website page — you let people get to know who the artist is behind the designs or products. For the most part, consumers like to buy from someone whom they feel they know and trust, even if they may never meet you in person. And for customers who have met you at a show, shop, class, etc., it’s a way to keep that connection going.
• Blogging can keep your business focused. By consistently (and yes, consistency is key when maintaining a blog) setting aside some time each day, week or month to focus on what you want to say to the online world, you start to develop a deeper understanding of what your business is all about. Writing about how personally excited you are about your holiday card line, for example, can help you fine-tune your sales points for your next show.
Blogging is an easy way to optimize your site for search engines. In laymen’s terms, the more times key words and phases like your company’s name and product names are mentioned on a given Web page, the more likely it is to be ranked near the top of a search engine’s results for those particular words. This is essentially what that buzzword phrase “search engine optimization,” or SEO, is all about. Posting something like the inspiration behind your new Halloween soap, for example, and using the name of the soap throughout your explanation, will raise the visibility of your new product’s name when customers go searching for it on Google, Bing.com, etc.
Blogging is an inexpensive way to spread the word about news for your business. If you’re stuck with fall inventory, create a post with product photos and the announcement that you have a clearance sale going on. Host a contest, with your merchandise as prizes. Survey your readership to get input on your spring color palette. Treat your blog space as you would a conversation with a guest in your studio.
Blogging can lead to feedback on how the public perceives you and what they like about your business. As alluded to above, the interactive nature of blogs — letting readers comment and/or contact you — is a very important feature. Even negative feedback can at least spark some thought about “What could I be doing better?” However, some negative comments should be taken with a grain of salt —the anonymity of the Internet lets some people hide behind a username and say things they would never otherwise say.

Getting started
First, decide how you want to handle your blog. Is it a feature that can just be turned on by your website provider, or will you have to sign up for WordPress, Blogger or other third-party blogging platform site? Many of these sites offer free hosting and easy setup.

Next, decide on content. Ideally, try to sketch out how often you want to update it, and even some ideas for each post. For example, this week maybe you want to talk about your most recent show (ending with a plug for where you can be seen in the coming holiday season). Next week, you might give a sneak peek at what you’re currently working on. The week after that, give a shout-out to other artisans who inspire you — it brings the added opportunity of starting dialogues with them. Regardless of how you approach it, having at least a few “evergreen” ideas waiting in the wings helps you avoid the “What am I going to write about?” panic that can otherwise set in. Only you know your editorial schedule, so only you would know when you stray from it. This means you can include an inspirational photo from your summer hike, for example, when you had on your calendar to write about how to dye yarn. After all, there’s always next week!

Photos and links enhance the reader’s experience, so try to incorporate both whenever possible. Also, an occasional guest blogger can change up the pace (and give you a break!).

Finally, promote your blog as much as possible. Put a link to it on your main site (and vice versa), include it on your business cards, share it wherever you can. The goal is to incorporate your blog as an everyday part of your business.

For excellent tips specifically for artisans who blog, check out Etsy’s Guide to Blogging here: http://www.etsy.com/storque/how-to/etsys-guide-to-blogging-2460.

Gooch is an editorial marketing specialist and co-owner of Gooch & Gooch LLC, Medina, OH. Visit her blog at www.positiveyarn.com.  Heather Gooch wrote this feature article exclusively for Debbie May.com (www.DebbieMay.com), an organization dedicated to helping small businesses succeed.

How To Stay Cool When Giving A Speech

Sooner or later, as a business owner, you will be asked to give a speech—be it at a Rotary luncheon or at your local Chamber of Commerce event. 

Does that make you scared?  You are not alone—universally, public speaking frightens many people. Some research shows that most people have a greater fear of public speaking (glossophobia) than even death (necrophobia)!

While you may feel completely at ease talking one-on-one or even to a small group, standing before a large crowd can unnerve even the most extroverted of artisans. 

What can you do to calm your jitters—or even your sheer terror—of giving a speech?   Here’s how:

Admit You are Afraid

It can be embarrassing—even to yourself—to be afraid of giving a speech.  After all, you are an adult and what is the worst that can happen?  It is good to admit to yourself that you are afraid, that it’s okay to be afraid, and also to think about what exactly you are afraid of.  Is it that people will be staring at you? Or you might lose your train of thought? Or you might lose your notes, or trip over your feet?  Take time to write down exactly what your worse fears are about giving a speech.

Prepare

Based on each fear you list, think about how you can prepare for the worst.  For example, if you are afraid that you won’t know what to say, or lose your train of thought, write your speech (or the points you want to cover) all on 3x5 index cards.  “It may feel like you are giving a book report in 4th grade, but it will keep you on track and focused,” says Jacqueline Wolven, a small business marketing consultant and strategist with Moxie Works (www.moxieworks.com).

Take the Mystery Out

Visit the place where you’ll be giving the speech.  You can even sit in a few chairs where your guests will be seated in the room.  “The more you take the ‘mystery’ out of what to expect, the less nervous you will be,” says Mark Grimm, a professional speaker and author of Everyone Can be a Dynamic Speaker: Yes, I Mean You!  This means also taking the mystery out of your audience.  Find out who you will be speaking to by researching the group that will be listening to your speech.  You can easily do this by asking the person who asked you to speak in the first place: Will the audience be students, professionals, mostly men or women? Ask what the audience want to learn from you and why.  This will give you a clearer idea of what you will talk about.

Practice

The more you rehearse, the more confident you will become.  Skip the mirror and practice in front of family or friends and ask for feedback (or take a camcorder and film yourself). Keep your tone conversational, as if you are talking to one person rather than a crowd of a hundred.  “Never simply read the text,” suggests Barry Maher (www.barrymaher.com) an author and professional speaker who has appeared on NBC Nightly News and CNBC. “Speak from notes, glancing down when necessary, and then looking up to make eye contact with the audience member, holding each person’s glance for an entire thought then moving on to continue carrying the conversation with another individual (in the audience),” says Maher.

Don’t Let Them See You Sweat

While many people do this before a speech, don’t make the mistake of telling your audience you are nervous, says professional speaker Steve Siebold (www.speakerstevesiebold.com). “No matter how hard your heart is beating or how much you sweat, no one in the audience can hear or see it unless you tell them. Calling attention to nervousness is a distraction that minimizes your message,” says Siebold.  Maher adds not to worry about little vestigial nervousness. “Use that nervousness to make your presentation more lively. As a professional speaker, I get worried if I'm not a little nervous. I'll actually try to make myself a little tense to get my energy level up,” says Maher.

Talk to People Before the Speech

It helps to ease the jitters if you connect with some members of your audience before the speech so that you are not talking to a roomful of strangers.  Greet people, shake their hands, make small talk.  You’ll feel like you have some friendly faces in the audience.

Don’t Think of it as a “Speech”

Think of your talk as a “conversation” not a “presentation,” says Michael Souveroff, presentation skills consultant and owner of Natural Speech Coaching (www.naturalspeechcoaching.com). “Delivering your speech as if you're talking to one person as opposed to many can be very freeing, and thus relaxing,” says Souveroff.

Stay Grounded in the Moment

Souveroff also notes that it helps to focus only on the segment of the speech you are talking about at the moment.  “By staying grounded ‘in the moment’ or the ‘here and now’ the fear of thinking, ‘My God, I’ve got 45 minutes to get through how will I ever do it?’ can be dissipated,” he says.

Focus on Your Audience, Not Yourself

Public speaking coach and presentation specialist Debbie Fay says that every audience member is like every 15 year old you have ever known: they only care about themselves.  “You’re shaking, sweating? They could care less.  In fact, they don’t even notice it because its got nothing to do with them and why they’ve come.  Remember that! Focus on them and your message to them, not on yourself.  It will make you way less nervous,” says Fay, who is founder of Bespeak Presentation Solutions.  www.bespeakpresentations.com

Lastly, Patricia Johnson, a writer who has given many presentations, says that the best advice she has ever received about giving speeches it to practice it six times before your presentation.  She adds that the common advice to visualize the audience in their underwear has never helped ease her jitters.  But she does have one recommendation before walking on stage: “Men should check their zipper; women, their bra straps.”

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Article Author:  Marcia Passos Duffy

MARCIA PASSOS DUFFY (www.backporchpublishing.com) is a freelance business writer based in New Hampshire and is a member of the state’s artisan and business organization, NH Made.  Marcia’s articles have appeared on Yahoo Finance, CNBC, Bankrate.com, NFIB.com, Smart Business Magazine, The New York Times Lifewire, The Weather Channel, among others; she is the author of the book, Be Your Own Boss. She is also the publisher and editor of Our Local Table magazine (www.localtablemonadnock.com) and The Heart of New England magazine (www.theheartofnewengland.com).  Marcia wrote this feature article exclusively for Debbie May.com (www.DebbieMay.com), an organization dedicated to helping small businesses succeed.