Legal Question in Business Law in California
if there is no proof of delivery of a copy of the contract can the evergreen clause be enforced?
3 Answers from Attorneys
A contract is not a deed. There is no delivery and acceptance requirement, only proof the contract was entered into.
The requirements for a binding contract are competent parties, legal subject matter, a "meeting of the minds," and consideration. If it is a written contract, add signatures to the requirements, and note that while Civil Code section 1626 says "A contract in writing takes effect upon its delivery to the party in whose favor it is made, or to his agent." this provision has never, to my knowledge, been used to require delivery as a precondition to the existence of a contract. The condition of delivery, if there be one, is considered met when a party signs. Possession of a copy of a contract one has signed is not a prerequisite to its enforcement. If it were, people could avoid their contractual obligations by throwing away their copy.
You can argue anything. The outcome depends upon all the documents, facts, evidence, witnesses, etc. That is what makes for lawsuits. If the contract was actually signed by the parties as normal, that is all that is required to make it enforceable. If serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me.
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