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BH
BH, Attorney
Category: Business Law
Satisfied Customers: 313
Experience:  NY and CA Attorney 8+ Years
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I dislike notice clauses that say notice "shall be deemed to

Customer Question

I dislike notice clauses that say notice "shall be deemed to have been given..."
Seems more reasonable to have notice received based on return receipt or other formal acknowledgement rather than be at the mercy of the front desk on a bad day.
Please supply language that addresses this concern. Here's the "bad" language:
21. NOTICES. All notices, requests, demands and other communications to be given under this agreement shall be in writing and shall be deemed to have been duly given (a) on the date of service, if personally served, (b) two (2) business days after mailing by U.S. express mail or other overnight courier, postage prepaid, (c) three (3) business days after being sent by U.S. certified or registered mail, return receipt requested, postage prepaid, or (d) when confirmation of delivery is received by facsimile on the same business day or if not sent on a business day, then the first business day thereafter, properly addressed to the party at the address on the signature page, or such other address as the party may designate by written notice in like manner.
Submitted: 1 year ago.
Category: Business Law
Expert:  CalAttorney2 replied 1 year ago.

I understand the issue here. Unfortunately, the policy decision chosen by legislators is to use a system that gives a specific amount of time for a piece of mail to be delivered, and add that period of time to the date of mailing to give a "deemed" date of service.

So if two documents are issued by the party on the same day, one by personal service, and one by US Mail, the document served by personal service is "deemed" served on that day, and the responding party must calculate their response accordingly, while the document served by mail is not deemed served until 5 days later (giving the recipient an additional 5 days - this is true whether it takes 2 days for the parcel to be delivered, or 5).

I do understand the frustration (and I sympathize with it, I am a civil litigator and I have to deal with these codes daily, dates of service are not uniform, and some codes give additional time for mailing, others do not, it is incredibly frustrating), but unfortunately, this is the system that we have to work with. Until legislature changes the system, as litigants we must work within it or we will compromise our claim.

Customer: replied 1 year ago.

Mr. B, I disagree. I have seen notice clauses written requiring return receipt, just not recently. If you don't have something like this, please cite chapter & verse on code requiring "deemed" notice or return my request into the pool for another attorney to respond.

Thank you,

--jeff

Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

I do not believe we are communicating very well. The California Civil Code is complicated, but it has fairly clear requirements for when mailing extends the service, and when it does not. See for example: http://www.litigationbythenumbers.com/about-julie/julies-articles/ccp1013, but I am not prepared to do an exhaustive search of the CCP tonight to reiterate this issue.

I am going to "opt out" and allow another expert to follow up with you.

Please do not post any further at this time as it will delay the next expert's ability to follow up.

If you need any assistance in the meantime, please contact our customer service at: http://ww2.justanswer.com/help

Thank you for using our forum, and I do wish you the best of luck.

Bill

Expert:  BH replied 1 year ago.

Hi Jeff,

Here is a notice provision requiring return receipt (please note that I am not opining on the previous attorney's comments, simply providing a notice provision):

"Any notice, request, demand or other communication to be given between the Parties under this Agreement will be in writing and delivered either (a) in person, (b) by first-class, registered or certified mail or an internationally recognized courier service, return receipt requested, postage prepaid or (c) by facsimile to a number that has been provided hereunder; provided that either Party sending a notice by facsimile will, on the same day as the facsimile is transmitted, send a confirming copy by means of certified or registered mail, return receipt requested, or overnight courier delivery. The notice will be considered delivered on the day that the confirming copy was received. All other notices are considered delivered in accordance with the relevant proof of delivery. The Parties’ addresses for notice purposes will be the addresses below unless a Party provides written notice to the other of a change of address:"

Feel free to remove the "facsimile" portion if you do not want notice provided by fax. Alternatively, you can replace it with email while still requiring that a copy be sent by mail on the same day.

Let me know if you have any further questions.

Customer: replied 1 year ago.

This is wonderful. Should I have any concerns under the California Code of Civil Procedure with the language you suggest?

Expert:  BH replied 1 year ago.

No, it shouldn't be a problem for regular notices under the contract (e.g., if you require that the other party gives you notice of exercising an option or providing notice of availability of goods). The only area where the CCP would trump the contract is in the context of litigation. Some notices such as filing a law suit, motion, counterclaim, etc. would be governed by the CCP rather than your notice provision because extra time is needed for responses.

Let me know if you have any further questions. If you are satisfied with my answer, please rate it so that I may be credited for my time.

Expert:  BH replied 1 year ago.

Let me know if you need any further clarification. Please be sure to rate my answer so that I may be credited for my time. Thanks!

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