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Ask Maverick Your Own Question
Maverick, Attorney
Category: Legal
Satisfied Customers: 5717
Experience:  20 years experience as a civil trial and appellate lawyer
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I signed a contract with a security alarm company on August

Customer Question

I signed a contract with a security alarm company on August eleventh in which it has a three day no cancellation agreement. I was okay with until I kept getting the run around about the equipment installation. I received most of the equipment on the first installment and then the installer shows up two more times without the other equipment and finally arrives with the other equipment yesterday September sixth. As we leave our residence today and go to work we log on our phones to check security cameras and notice they weren't working until 10am four hours after we had left. We tried to cancel and were told last week that we couldn't because the three days to cancel was over. What can we do ? We would just like to cancel and have them pick their equipment up and be over with it.
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Texas
JA: Has anything been filed or reported?
Customer: As to what being filed or reported ?
JA: Anything else you want the lawyer to know before I connect you?
Customer: No, just that we have talked to several people inside the company.
Submitted: 1 month ago.
Category: Legal
Expert:  Maverick replied 1 month ago.

Welcome to Just Answer! My name is***** give me a few minutes to review, analyze and/or research your inquiry and I will be back.

Expert:  Maverick replied 1 month ago.

You may be able to argue that the alarm company has materially breached the contract due to all the mishaps and thus you are now excused from having to perform your end of the contract. I have cited the TX law on that below. You may need to file or threaten to file a declaratory judgment action and use the leverage of attorney's fees to get this resolved quickly. I am happy to do a phone call on this explaining all the details for $59.00. Please see my offer.

When one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004). Generally, the issue of whether a breach rises to the level of a material breach that will render the contract unenforceable presents a question of fact [i.e. usually decided by the jury] . Cont'l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 394-95 (Tex. App.--Texarkana 2003, pet. denied). The Texas Supreme Court noted five factors significant in determining whether a failure to perform is material, i.e., whether the breach is material:

1) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

3) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;

4) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of the circumstances including any reasonable assurances; and

5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

Mustang Pipeline, 134 S.W.3d at 199.

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