OK, I must tell you firsy that I am not an attorney
As a CFP with 28 years of experience in the tax law, estate law, finace & securities law areas, - and as a final term Law School student having completed all of Contracts, Torts, Employment Discrimination, Federal Taxation, constitutional All and all of the other core classes (finishing up wil Corporate Law, Business Planing, Electronic Legal Research, Cross Profession Ethics and Legal Analysis & Writing this term ...
... I CAN
tell you the following:
We are at the point now where you DO need to speak with an attorney IN THE JURISDICTION
where the company has it's home office. The disclaimers on our site here will tell you that the attorneys here are not providing actual legl advice. WHAT we CAN do for you is get you ready for an efficient appointement WITH an attorney, licensed in the appropriate state.
Here, the jurisdiciton
(unless the contract has a forum saving clause, stating where any legal action must be taken, or an arbitration clause stating where and how an arbitration must be tried before taking legal action) should be the state of the Company's home office - where the offer eminated.
ALSO, now that your husband IS now employed with the company you MAY want to speak with someone calling themselves a labor law attorney. Understand, however, that Employment Law is the body of law that governs the employee-employer relationship, i.e., the right to organize, collective bargaining, Title VII and other employment law issues, such as employment discriminaltion against a protected class, hostile work environment, employment at will iussues, wage & hours, health & safety, etc.
Here, in MY opinion what you have is a contract law issue. Some OVERLAP does exist as EMPLOYMENT CONTRACTS do come under the purview of labor law. What you have HERE, however, is a contract issue relative to the job OFFER (an important, although not neccesarily an overriding, distinction).
As you speak with an attoney, point out that distinction; that you believe that he/she should look at whether this JOB OFFER and acceptance was handled as part of an EMPLOYMENT CONTRACT or stands as a separate contract (that will become abundantly clear when you ask the attorney whether your husban is an at will employee or is WORKING under an employment contract.)
Where you have the most leverage, either way, is in the area of THE CONTRACT
The essential elements necessary to form a binding contract are usually described as the following: i
• An Offer
• An Acceptance
in strict compliance with the terms of the offer
• Legal Purpose
• Mutuality of Obligation – also known as the “meeting of the minds
• Competent Parties iiOffer
An offer is defined as the manifestation of the “willingness to enter into a bargain so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it.”iiiAcceptance
Acceptance of an offer can occur in several ways: Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.iv
An acceptance must not change the terms of an offer. If it does, the offer is rejected.v
A material change in a proposed contract constitutes a counteroffer, which must be accepted by the other party.viLegal Purpose
The objective of the contract must be for a legal purpose. For example, a contract for illegal distribution of drugs is not a binding contract because the purpose for which it exists is not legal.
Mutuality of Obligation
This element is also known as the “meeting of the minds”. Mutuality of obligation refers to the parties’ mutual understanding and assent to the expression of their agreement.vii
The parties must agree to the same thing, in the same sense, at the same time. The determination of a meeting of their minds, and thus offer and acceptance, is based on the objective standard of what the parties said and did and not their subjective state of mind.viii
Unexpressed subjective intent is irrelevant. In determining whether mutual assent is present, the court looks to the communications between the parties and to the acts and circumstances surrounding these communications.ix
The offer must be clear and definite just as there must be a clear and definite acceptance of all terms contained in the offer.x
Where a meeting ofthe minds is contested, the determination of the existence of a contract is a question of fact.xi
If the fact finder determines that one party reasonably drew the inference of a promise from the other party’s conduct, that promise will be given effect in law.xii
To be enforceable, the parties must have agreed on the essential terms of the contract.xiii
However, parties may agree upon some contractual terms, understanding them to be an agreement and leave other contract terms to be made later.xiv
Full agreement on all contractual terms is the best practice and should be the norm. It is only when an essential term is left open for future negotiation that there is nothing more than an unenforceable agreement to agree.xv
Such an agreement is void as a contract.xvi
Any contract or mutual understanding between parties that differs materially from the original offer is open to legal challenge. Should any component of a negotiation tend toward a final result where a contract or agreement differs materially from the offer, that component of the negotiation should cease. If the component in question is critical to
the provision of a service or goods, the issuance of another offer that incorporates that component should be considered.Certainty of Subject Matter
In general, a contract is legally binding only if its terms are sufficiently defined to enable a court to understand the parties’ obligations.xvii
The rules regarding indefiniteness of material terms of a contract are based on the concept that a party cannot accept an offer so as to form a contract unless the terms of that contract are reasonably certain.xviii
Thus, the material terms of a contract must be agreed upon before a court can enforce the contract.xix
Each contract should be considered separately to determine its material terms.
As a general rule, an agreement simply to enter into negotiations for a contract later also does not create an enforceable contract. Parties may agree on some of the terms of a contract and understand them to be an agreement, and yet leave other portions of the agreement to be made later. xx
Sometimes terms are omitted from contracts and assuming the omitted term is not an essential term, the courts have implied terms to preserve the enforceability of the contract should a legal challenge arise. A court may uphold an agreement by supplying missing terms.xxi
Historically, courts prefer to validate transactions rather than void them, but courts may not create a contract where none exists and they generally may not insert or eliminate essential terms. Whether or not a court will imply or supply missing contract terms will depend on the specific facts of the transaction. An example of terms that have been implied or supplied are time and place of performance.xxiiConsideration
Consideration is an essential element of any valid contract.xxiii
Consideration consists of either a benefit to the promisor or a detriment to the promisee.xxiv
It is a present exchange bargained for in return for a promise. It may consist of some right, interest, profit, or benefit that accrues to one party, or alternatively, of some forbearance, loss or responsibility that is undertaken or incurred by the other party.xxv
It is not necessary for a contract to be supported by a monetary consideration.xxvi
Parties to a contract must be competent and authorized to enter into a contract.
ALSO, it is important that you understand that contracts are analyzed using an objective
(rather than sunjective) standard
... What hat means is that intent doesn't matter. (It's what a reasonable person on the sidelines hearing this contract take place or reading this contract would think that matters, NOT what one of the parties was TRYING, or intended, to do).
You may also want to remind your sttaorney that the STATUS of FRAUDS does not require that a job offer need to be in writing (the EMPLOYMENT, possibly, but a simple job offer? no). See this: http://en.wikipedia.org/wiki/Statute_of_frauds
Given your situation about having to carry the California house, you may also want to discuss the concepts of Detrimental Reliance
Volumes have been written about all of the possible ins and outs of contracts, but the botXXXXX XXXXXne here is that a promise was made and not carried out.
Below, in fine print are the legal citiations supporting the Contract elements breakdown above.
Sorry for the Data dump but having this basic inderstanding should help you have a much more efficient exchange with an attorney and get you thinking about some of the avenues you may pursue here.
Hope this helps
If this HAS helped, I would appreciate a feedback rating of 3 (OK) or better … That's the only way they will pay us here.
HOWEVER, if you need more on this, PLEASE COME BACK here, so you won't be charged for another question.
i See Buxani v. Nussbaum, 940 S. W. 2d 350, 352 (Tex App.-San Antonio 1997, no writ); and Hallmark v Hand, 885 S.W.2d 471, 476 (Tex.App.-El Paso 1994, writ denied): see also McCulley Fine Arts Gallery, Inc. v “X” Partners, 860 S.W.2d 473, 477 (Tex. App. - El Paso, 1993, no writ).
ii See Roark v. Stallworth Oil and Gas Inc., 813 S.W.2d 492,496 (Tex. 1991); and see also Federal Sign v. Texas Southern University, 951 S.W.2d 401,408 (Tex. 1997) rehearing of cause overruled (Oct 02, 1997).
iii Restatement (Second) of Contracts §24 (1981).
ivRestatement (Second) of Contracts §50 (1) (1981).
v United Concrete Pipe Corp. v Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968).
vi Antonini v. Harris County Appraisal Dist. 999 S.W.2d 608, 611 (Tex.App.-Houston [14th Dist] 1999, no pet.)
vii Weynand v Weynand, 990 S.W.2d 843, 846 (Tex. App.-Dallas 1999, pet. denied).
viii Copeland v Alsobrook, 3 S.W.2d 598, 604 (Tex. App. - San Antonio 1999, pet. denied).
ix Wiley V. Bertelson, 770 S.W.2d 878,882 (Tex. App.-Texarkana 1989, no writ).
x Gulf Coast Farmers Co-op v. Valley Co-op Oil Mill. 572 S.W.2d 726, 737(Tex. Civ. App. - Corpus Christi 1978, no writ).
xi Runnells v. Firestone 746 S.W.2d 845, 849 (Tex. App. - Houston [14th Dist.] 1988), writ denied per curiam, 870 S.W.2d 240 (Tex. 1988).
xii Copeland, 3 S.W.3d at 605
xiii T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).
xiv Komet v. Graves, 40 S.W.3d 596, 602 (Tex. App.-San Antonio 2001, no pet.); Hardin Constr. Group, Inc. v Strictly Painting, Inc. 945 S. W. 2d 308, 313 (Tex App. - San Antonio 1997, orig. proceeding): Texas Oil Co. v. Tenneco Inc., 917 S.W.2d 826, 830 (Tex. App.-Houston [14th Dist.] 1994), rev’d on other grounds sub nom. Morgan Stanley & Co., Inc. v. Texas Oil Co., 958 S.W.2d 178 (Tex. 1997).
xv T.O. Stanley Boot Co., 847 S.W.2d at 221; Scott v. Ingle Bros. Pac., Inc. 489 S.W. 2d 554, 555 (Tex. 1972); Texas Oil Co, 917 S.W.2d at 830; Komet, 40 S.W.3d at 602.
xvi Texas Oil Co, 917 S.W.2d at 830. T.O. Stanley Boot Co. v Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).
xvii Fort Worth Indep. Sch. Dist. V. City of Fort Worth, 22 S.W.3d 832, 846 (Texas. 2000) (quoting Texas Oil Co. v. Tenneco Inc., 917 S.W. 2d 826, 830 (Tex. App.-Houston [14th Dist] 1994), rev’d on other grounds, 958 S.W.2d 178 (Tex. 1997)).
xix T.O. Stanley Boot Co., 847 S.W.2d at 221.
xx Scott v. Ingle Bros. Pacific., Inc., 489 S.W.2d 554, 555 (Tex. 1972); City of Fort Worth v. Gene Hill Equip. Co., 761 S.W.2d 816, 820 (Texas.App.- Dallas, 1991).
xxi Texas Oil Co., 917 S.W.2d at 830.
xxii When a contract leaves open the time and place of performance, the law may imply that the time of performance was to be reasonable time. Moore v. Dilworth, 142 Tex. 538, 542 179 S.W.2d 940, 942 (1944). What is reasonable depends on the facts and circumstances as they existed at the date of the contract. Heritage Resources, Inc. v. Anschutz Corp., 689 S.W.2d 952, 955 (Tex.App.-El Paso 1985, writ ref’d n.r.e.). See also Solomon v. Greenblatt, 812 S.W.2d 7 Tex.Appl.-Dallas, 1991) (court implied the time and place of performance in a ‘consulting services’ contract for management consulting.).
xxiii Smith v. Renz, 840 S.W. 2d 701, 704 (Tex.App.-Corpus Christi 1992, writ denied).
xxiv Roark, 813 S.W.2d at 496.
xxv Solomon V. Greenblatt, 812 S.W.2d 7, 15(Tex.App.-Dallas 1991, no writ).
City of Crystal City v. Crystal City County Club, 486 S.W.2d 887,888 (Tex.Civ.App.-Beaumont 1972, writ ref’d n.r.e.); see also Jennings v. Radio Station KSCS, 96.3 FM, Inc., 708 S.W.2d 60, 61 9Tex.App.-Forth Worth 1986) rev’d on other grounds, 750 S.W.2d 760 (Texas 1988) (plaintiff/listener entitled to collect contest proceeds; consideration to radio station was gain in new listeners who hoped to win contest).