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Legally Speaking
1 Dec, 2008 By: Kenneth D. Morris Landscape ManagementQ: My advertising agency recently designed and posted an aggressively worded billboard that angered my competitor. If I get sued, who pays –my advertising agency or me?
A: That depends. You may have a claim against your agency and who ends up paying will likely depend on a judge or jury determination as to fault. If your state permits comparative negligence claims, you may both pay, depending on a jury's finding as to who is most culpable. Any advertising agency worth its salt, however, will have run a draft of the advertisement by you for approval before displaying it. If you actually approved the billboard before it was displayed, the agency will at least have some defense that you knew of and approved the wording before it was printed. If you have a written agreement with the agency, your attorney should review it before filing the claim. There may be some provision in the agency agreement (such as indemnification language, for example), which is relevant to the claim you will be making against the agency.
Q: Is a verbal agreement worth anything? Am I always required to put service agreements in writing?
A: Contracts for services, which are made orally are just as binding as those made in writing. Oral contracts, of course, present a special challenge since there is no memorialization signed by the parties specifying the terms of the engagement, time period covered, price, etc. You are better served (and have a better opportunity to protect yourself) if the contract is reduced to writing. Even with an oral contract, you should at least have made some notes as to the time of performance, length of service, prices, pest or weed to be controlled, etc.
Kenneth D. Morris, a Philadelphia-based attorney with more than 30 years corporate and law firm experience, offers information on industry legal issues in each issue of LM. Contact him via www.kenmorrislaw.com.
Note:
The above should not be interpreted as offering legal advice in any jurisdiction where such practice is not authorized. Engage competent counsel familiar with your jurisdiction when legal issues arise.
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