Virginia Contract Interpretation: Defined Terms

Whether lengthy and extremely sophisticated or short and straightforward, contracts are simply the expression of two or more parties.  In many cases, a skilled contract drafter can make even the most complex provisions of a contract understandable.  However, some contracts can seem daunting and complex to parties that are not exposed to them regularly.  In fact, if drafted poorly, even for attorneys some contract language is archaic and difficult to understand; assuming it makes enough sense to even be understood at all.   Generally, however, many people who are unfamiliar with reading or interpreting contracts struggle and find them difficult to understand.  Oftentimes this comes from basic misunderstandings about the way that contracts are intended to be read, which can often lead to poorly drafted agreements by inexperienced parties or attorneys who do not fully understand what the parties are trying to express in writing.

The first thing to understand is that in a contract defined terms reduce length and ambiguity in a contract by replacing lengthy language or an explanation, usually a definition, with a single term or short phrase.  Defined terms should be capitalized and should remain capitalized in a contract when used in that context.  For example, if “Services” are defined to mean and refer to something specifically, such as ‘computer programming and IT support,’ then for the duration of the contract, in place of ‘computer programming and IT support,’ “Services” should be used with a capitalized “S.”  Without such capitalization, ‘services’ could be read ambiguously or with plain meaning and may not capture the expression of the parties. Therefore, it is important to know what the definitions are in a contract, so that you can understand the meaning of the provisions and how that particular definition or similar language is being used.   It is equally important for a contract drafter to use appropriate definitions where applicable and to use the language consistently.  A skilled drafter or contract attorney will use these definitions as a tool to tell the contract’s story and to keep everything clear.  However, contract drafters can quickly make a contract provision complex with many defined terms used in a single expression.  For example, “only Sales made in the Territory by Builder or Sub-Contractor for Services or Goods Delivered will Costs be deducted.”  With so many defined terms used at once the sentence could easily have complex results and restrictions based on the structural combination and use of those particular terms.  Therefore, it is incumbent on the drafter or contract attorney to fully understand the implications of defined terms and how they are being used, especially if combined with other defined terms.

The second important thing to understand is that if the term is not specifically defined, then, pursuant to Virginia contract law, “words that the parties used are normally given their, usual, ordinary, and popular meaning.”  Preferred Sys. Solutions, Inc. v. GP Consulting, LLC, 284 Va. 382, 732 S.E.2d 676 (2012).  Consequently, if the word is not defined within the agreement, you can read the contract to understand it exactly as the word would normally be used.  Many people are worried that the language or the words themselves contain pitfalls or traps outside of their normal understanding in a contract.  This is generally not the case when there are no specifically defined terms in the agreement.   Conversely, this means that the words will not take on specific meaning if you do not define them to mean that.  Great care must be taken by contract drafters to be certain that they are fully capturing the understanding of the parties or their client’s wishes.  If the parties are using the words in an unusual way, then it may be best to specifically define them.  It is also important to understand that under Virginia contract law, typically the contract is bound by the four corners of the document, meaning, no outside language or other documents, including email exchanges, will be used to interpret or explain the parties’ intentions, especially if the document contains a superseding clause.  This is why it is so important that the contract capture the parties’ understandings fully.  However, the ‘four corner’ approach along with the superseding clause is a lengthy topic with some exceptions that we will address in a future blog post when discussing Virginia’s ‘parol evidence rule.’

A third important issue to understand about reading or drafting a contract is that pursuant to Virginia contract law, “[n]o word or clause in a contract will be treated as meaningless if a reasonable meaning can be given to it, and there is a presumption that the parties have not used words needlessly.” Id.  This means that not understanding a clause does not necessarily render it meaningless.  Therefore, it is extremely important to understand the provision, because there is a presumption that those words were not needlessly added to the contract and will be interpreted to have significance and meaning as a result.  Additionally, it highlights the dangers of inexperienced drafters using duplicative language and provisions.  Such inexperienced drafters may attempt to provide a “concrete” expression or be “extra cautious,’ but they may inadvertently provide added significance or meaning to the provision or clause unnecessarily, which could ultimately change the parties’ intentions.

Cost of Employee Turnover: Non-Compete Agreements and Non-Solicitation Clauses

 

In November 2012, the Center for American Progress, a Washington D.C. based independent nonpartisan educational institute, published a study which observed the cost of employee turnover to a business, which is the rate at which an employer gains and loses employees. The results were significant. According to the study, on average, companies pay roughly one-fifth (1/5) of an employee’s salary to replace that employee. Such costs consist of separation expenses, temporary staffing, advertising for the vacated position, and training.

 

With its close proximity to Washington D.C. and the federal government, including the United States Patent and Trademark Office (“USPTO”) in Alexandria, Virginia, as well as multiple, high quality universities,  Virginia is an extremely competitive marketplace for businesses.  Virginia is one of the most favorable states to start a business, with Fairfax County being one of the largest and highly employed counties in the Commonwealth.  With such a competitive marketplace, especially with some industry areas being overly saturated, comes the struggle of retaining quality employees and reducing employee turnover, particularly with those employees who the business has trained for a particular skillset.  

 

Employers may ask themselves, “can I keep my employee from going to a competitor?” or “can my employee start a competing company? What happens in these cases is often that an employee leaves a particular organization to go to work for a competitor who is willing to provide a larger salary and compensation package. In other cases, an employee starts his or her own business similar that of the previous employer and attempts to bring prior co-workers to the newly formed organization. Consequently, as a business owner, in order to maintain a competitive edge and reduce expense it is important to take precautionary measures to account for such a competitive environment and employee loss.

 

One of the most important contractual, precautionary measures that an employer can take is to require all employees to execute a written contract prior to employment that contains (a) a covenant not to compete, also known as a non-compete agreement or clause, and (b) a covenant not to solicit, also known as a non-solicitation agreement or clause.  The Non-Compete Agreement (NCA) essentially restricts the employee both during and after leaving his or her current employment from starting a competing company or leaving the employer to work for a competing company, and if drafted well, includes a well detailed scope for a limited duration and in a limited geographical area.  The Non-Solicitation Agreement (NSA) essentially restricts the employee both during and after leaving his or her employment from soliciting business from the employer’s customers and soliciting the employers other employees, and if drafted well, includes a well detailed scope for a limited duration and in a limited geographical area.

 

Does my business need non-compete agreements or non-solicitation clauses?  ABSOLUTELY

 

As a practical matter these agreements or clauses are by no means absolute veils of protection.  They are not perfect defenses and are the subject of constant judicial scrutiny.  In fact, very many of them are found to be unenforceable entirely or to have unenforceable terms, which in the circumstance of a severability clause, are stricken from an otherwise enforceable contract.  This requires the drafters of such contract language to be extremely careful in understanding what the current judicial trends are so that they can be certain the language will be enforceable.  As the study at the beginning of this article suggests, an ounce of prevention today may save you over a fifth of an employee’s salary tomorrow.

 

Sales of Goods vs. Services under Virginia Contract Law: Importance of Reducing a Service Contract to Writing

As in many jurisdictions throughout the country, the sale of goods and services in Virginia are treated differently and are recognized under completely separate legal, frameworks.  Although implementation is not mandatory, the Uniform Commercial Code (the “UCC”) is a recommendation of laws that should be adopted by all jurisdictions in the United States for uniformity regarding the sales and leases of goods as well as many other commercial transactions. Under Virginia law, the sale of goods is codified in great detail in the Virginia Code, which is a direct result of Virginia’s adoption of the UCC.

Virginia’s Uniform Commercial Code (the “VUCC”) defines “Goods” to mean all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale (§ 8.2-105) other than the money in which the price is to be paid, investment securities (Title 8.8A) and things in action. “Goods” also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (§ 8.2-107). Unfortunately, the VUCC does not cover “Services” and rather leaves such up to judicial interpretation, application of various other statutes, and common law rights established through case law.

The Virginia Antitrust Act (“VAA”) does shed some light on the definition of “Services,” at least with respect to the prohibition on restraints of trade and monopolistic practices that act or tend to act to decrease competition in the Commonwealth of Virginia (§ 59.1-9.2). Specifically, the VAA defines “Services” to include any activity that is performed in whole or in part for the purpose of financial gain, including but not limited to personal service, rental, leasing or licensing for use (§ 59.1-9.3). It important to note that this definition is not listed under the VUCC and the distinction is important. The more detailed codification of the sale of goods under the VUCC allows for more consistency in how contractual issues regarding goods are resolved in a Virginia law applied contract dispute and the Virginia case law reflected is therefore very consistent. This can be very helpful in a breach of contract situation, as the rules and procedures are often well defined.

As a result of Virginia’s thorough codification of contracts with respect to the sales of goods, it is important when drafting or negotiating a contract for the sale of goods to be sure to understand the applicable statute, especially as the drafting party, in order to understand when the contract is departing from the statute.  In most circumstances, as long as a contract for the sale of goods is reasonable and not for the sale of illegal goods or an illegal purpose, the contract can somewhat depart from the statutory rules and guidelines. Nevertheless, it is important to understand the implications of deviance as it could restrict or lessen a party’s rights in an event of a breach of the contract or other contractual dispute.

As the legal framework for analyzing service based contracts are often interpreted through case law, with little statutory guidance, Virginia case law has some variance with issues relating to partial performance of the service contracted for under an agreement, which makes it especially important to reduce a service based contract to writing. This can especially be problematic given the large number of verbal contracts or “handshake” agreements, which are often quite prevalent among and between services based organizations. Such agreement types, considering Virginia’s lack of codification regarding service contracts, can lead to unnecessary disputes between parties because it is not always clear to these parties what remedies exist and who is at fault.   In addition, without statutory language the parties are often forced to pay for an attorney on the back-end to analyze the facts of the situation and the case law, as that information is not as easily determinable on their own, which leads to additional costs and expense for the parties involved.

In some cases, services based organizations mistakenly believe they have more protection than they do.  For example, construction firms and contractors may wish or try to rely on something similar to the “cure” language found in the UCC or VUCC (§8.2-508; §8.2-510) in an attempt to mitigate or eliminate damages arising out of a service based breach of contract or other contractual dispute. However, such organizations or individuals fail to realize that such statutory language only applies to the sale of goods and not the services that they contracted to perform.  As a result, there is a heightened urgency for service based agreements to be reduced to writing as there is little statutory language that can be relied upon.  The minimal expense to formalize such an agreement at the onset can save much headache and future expense.

Personally Guarantying Payment on Behalf of Your Company or Another Third Party

Sometimes the only way to persuade another party to enter into a contract is too guaranty that the amount owed will be paid by a third party in the event that you cannot completely pay the amount owed. This provides an extra layer of protection to the non-guarantying party as the guarantying party becomes responsible for any amount owed that is not satisfied. The Personal Guaranty / Guarantee Agreement and its language in the agreement will determine the terms of this deal and when the guaranty to pay by the third party will activate.

A Guarantor, is the party guarantying that the consideration or amount owed will be satisfied; a Guarantee is the party to whom such guaranty is made. For example, with respect to student loans, parents may act as a Guarantor and guaranty that the student loans their child is borrowing will be repaid to the Guarantee organization, such as Sallie Mae, whom loaned the money to their child.

In many business, financial, and commercial contracts, you many times run into guaranty language, either embedded within a contract or as a wholly separate contract attached as an exhibit or addendum that guaranties part or all of a larger agreement.  In a typical business contract, two businesses will contract in a way that Business A agrees to pay Business B an agreed upon amount for the agreed upon good(s) or service(s).  However, in some transactions, such as a commercial lease, commercial loan agreement, or other payment overtime agreement, one of the businesses may want the other business’ owner(s) to sign a guaranty.  Ultimately, this guaranty requires payment by the individual(s) who made the guaranty in the event of a default of payment by the business.

Guaranty clauses or agreements can be drafted very conservatively or extremely aggressively.  For example, many business guaranty agreements have language that in the event of default of payment do not require the Guarantee to exhaust all remedies against a business Guarantor, including even filing a lawsuit against the business Guarantor, before enforcing the guaranty and demanding payment from the individual(s) who executed the guaranty.   As a result, in a breach of contract case, it is common practice for attorneys representing a business Guarantee to sue both the other business and the individual Guarantor(s) who signed the guaranty at the same time as opposed to separate or subsequent lawsuits.  This is why it is extremely important that the drafter or the reviewer or negotiator of a guaranty provision or agreement understand when the obligations of a Guarantor are triggered. A poorly negotiated guaranty provision or agreement could put individual third parties at unnecessary or excessive risk.

As noted above, guaranty language can either be embedded within an overall contract as one or more provisions or clauses, or rather such language can be drafted into its own, wholly separate contract attached as an exhibit or addendum to a larger agreement. In Virginia, as in many jurisdictions, a guaranty is often considered a separate agreement between two or more parties.  A very simple and well-articulated opinion outlining this concept, written  by Judge James Chamblin, can be found in the 1989 Loudon County case Snyder v. Keller, 12132., 1989 WL 646376 (Va. Cir. Ct. Sept. 13, 1989).  As this opinion explains, Virginia guaranty agreements must be in writing and signed by the guarantor.  This opinion is also the likely result of why many organizations use a separate document, or contract, for the guaranty as opposed to simply including guaranty language in a single overall document.

As a result of the common practice of using separate documents, it is that much more important for drafters and reviewers / negotiators to ensure that the language in both documents is consistent.  There have been interesting Virginia Supreme Court cases that highlight the pitfalls of document inconsistency and its unintended consequences. Such unintended consequences give way to exploitation by clever litigators, which only heightens the need for quality contract drafting. Use of separate documents also gives way to the importance of proper use of specific terminology and contract language, such as “attached hereto, incorporated herein, and made a part hereof” language, but that is the topic of another day and another article.