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Re: Tally's post 12331 concerning te guarantees of a contract

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  • tally ho
    Then Mike, you are wrong, because you have not shown any shred of documented evidence stating in writing there is a guarantee in the benefits from IBM. As the
    Message 1 of 2 , Apr 21, 2004
      Then Mike, you are wrong, because you have not shown any shred of
      documented evidence stating in writing there is a guarantee in the
      benefits from IBM. As the Plaintive you have the burden of PROOF and
      you nor other have not shown anything that "guarantees benefits" and
      in stead the "defindant has shown that there is no guarantee" simply
      by the statement in writing that "IBM has the right to change,
      admend, or cancel anything regarding benefits" and it is in writing,
      so show me where there is "written documentation" that states that
      these benefits are for a life time - that is all you have to do. A
      manager claiming it, or someone saying it is "hearsay" according to
      contract law - and you do know this. When it is about this much
      money it has to be in writing and you know it - you told me
      about "statue of Fraud" which I pointed out included this phase.

      Why don't you read this case Mike and see if you see something
      familiar here:

      <<Lawrence C. Winger, Esq.
      Attorney At Law
      75 Pearl Street, Suite 217, Portland, Maine 04101
      Phone 207-780-9920 • FAX 207-780-9923
      E-Mail to: lcw@...
      URL: http://w3.ime.net/~lcw

      Maine Wrongful Discharge Law Update
      by Lawrence C. Winger, Esq.
      On April 30, 1998, the Maine Law Court decided the case of
      Popanz v. Peregrine Corporation, 1998 ME 95, and reaffirmed two basic
      rules of Maine wrongful discharge law: (1) an oral promise of
      employment for a definite term in excess of one year is unenforceable
      because of the statute of frauds, and (2) an employer's personnel
      policy which does not expressly restrict an employer's right to
      discharge an employee cannot be the basis of a wrongful discharge

      In the Popanz case an employee who was laid off during a
      corporate restructuring claimed that she had been laid off (1) in
      violation of an oral promise of employment until she retired at the
      age of 65, and (2) in violation of her seniority bumping rights under
      the employer's policies. She sued in Maine Superior Court for
      wrongful discharge, but the Superior Court granted a summary judgment
      dismissing her claims, and the Maine Law Court affirmed that

      The employee's first claim was that she had been promised by the
      Executive Director of the company that "she would have her position
      until she retired at 65," and that in reliance on that promise she
      had earlier passed up a promotion opportunity. She claimed the
      promise made to her was an oral promise, not a written promise. She
      had no written document signed by the employer which contained this
      alleged promise. The Court held that even if the Executive Director
      made such an oral promise to her, and even if she relied on it to
      some extent, the promise was not enforceable under the Statute of
      Frauds, 33 M.R.S.A. §51(5), which requires that a contract to be
      performed in more than one year be in writing and signed by the party
      to be held to the contract. The Court said: "To enforce a multi-year
      employment contract an employee must produce a writing that satisfies
      the statue of frauds or must prove fraud on the part of the
      employer. . . . An employee cannot avoid the statute of frauds based
      solely upon [her] detrimental reliance on an employer's oral promise
      of continued employment." Since this was not new law in Maine, see
      Stearns v. Emery Waterhouse Co., 596 A.2d 72 (Me. 1991), and since
      the employee did not claim fraud, one can only conclude that the
      employee's claim was doomed from the start, and her lawyer apparently
      was unfamiliar with the Stearns case.

      The employee's second claim was that under the employer's
      personnel policies, she should have been allowed to "bump" a less
      senior employee when her position was eliminated, and that therefore
      she should not have been discharged. In general, an employer may have
      an expressly-stated "bumping" policy, and such a policy may be
      enforceable, but in this case the problem with the employee's claim
      was that the employer had no such expressly-stated "bumping" policy.
      The only relevant employer policy stated: "Work performance being
      equal, seniority within [the company] shall be considered in
      determining employees to be placed on layoff." That policy does not
      mention "bumping" at all. The Court held that the policy "merely
      directs the employer to consider seniority. Written language within a
      personnel policy distributed to an employee that [only] implies
      restrictions on the employer's rights to terminate an employee's
      employment is insufficient to bind the employer." (emphasis added).
      The employer's right to terminate the employee's employment was not
      limited or restricted by the stated layoff policy.

      COMMENT: This case breaks no new ground, but it shows (1) that Maine
      continues to be a strong employment-at-will state, (2) that in Maine
      an oral contact for a definite term in excess of one year normally
      must be in writing and signed by the employer to be enforceable, and
      (3) that a summary judgment can be obtained by an employer in a
      wrongful discharge case.

      DISCLAIMER: All information is provided for educational or
      promotional purposes only and not as legal advice on a particular
      matter. The information is provided AS IS with no warranties of
      accuracy, completeness, merchantability, or fitness for a particular
      purpose. Providing this information DOES NOT create an attorney-
      client relationship between Lawrence C. Winger, Esq. and the reader.
      All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All
      Rights Reserved.

      Dated: February, 2000

      More than can be preformed in a year.... sound familiar Mike Notice
      number 2 on this one....

      <<When is a written document needed to enforce a contract?
      By BusinessPowerZone.com
      Topic Guide:

      Written contracts are necessary to enforce some but not all
      contracts. Unless expressly required by law or another contract, a
      written document is not necessary. In fact, most contracts are oral
      agreements. Where a written contract is not expressly required by
      law, an oral contract is just as enforceable and just as valid as a
      written contract.

      Although oral agreements are enforceable for most types of contracts,
      every state requires written documents to enforce certain types of
      contractual obligations.

      The most common law requiring written documents is known as
      the "Statute of Frauds". Originally enacted in England in the
      1600's, every state has adopted this rule in some form. The Statue
      of Frauds requires a written document to enforce contractual
      obligation dealing with the following subject matter:

      1. Contracts for the sale of land.
      2. Agreements where performance exceeds one year.
      3. Contracts for the sale of goods over $500 (the actual amount
      differs from state to state).
      4. Promise to assume the debts of another.
      5. Ratifying a debt created as a minor after reaching the age of
      6. Promises of executors and administrators of estates.
      7. Agreements in consideration of marriage.

      Some states have unique laws applicable to a specific industry or
      subject matter beyond the coverage of the Statute of Frauds.
      Although not covered by the Statute of Frauds, examples include
      subject matter such as:

      Leases of personal property where the payments exceed $1,000 (amount
      differs from state to state).
      The debtor's promise to pay a debt following a successful bankruptcy
      In order to enforce a contract covering any of the above subject
      matter, the parties must have a written contract. These rules are
      intended to reduce fraud and to ensure the maximum amount of evidence
      to prove the terms of the agreements and intentions of the parties
      where the subject matter is the most seriousness and significant.

      Even where an oral contract is valid and enforceable and a written
      agreement is not required, use of a written document reduces the risk
      of fraud and increases the level of evidence to prove the agreement's
      terms and conditions and the intentions of the parties. When
      possible, most parties benefit from reducing their contract to
      writing – whether required by law or not. The company's personal
      attorney can assist with analyzing the applicable legal obligations
      requiring and the pros and cons of using a written document.

      Mike, because the pension "promise" takes more than one year to
      enact, and in fact you are not even vested until 5 years with a
      company to do think this has to be in writing based on the "statue of
      Frauds" simply by the definition of what the statue of frauds covers
      according to "agreements where performance exceed more than ONE
      year". I would state the pension plan falls under this catagority,
      but surprisingly the health plan does not. It is based only on a one
      year term is it, and is not based on the statue of frauds, since
      everyone "signs up per year" for their health benefits. Health
      benefits do not "exceed more than one year" which is why everyone
      signs up per year.

      Mike, you are being a jerk here and you know it. PROVE TO ME THAT
      PLAN and I will back off. You as the Plaintiff have the burden of
      proof that your statement is right - so prove it!

      --- In ibmersbulletinboard@yahoogroups.com, albanyblue2000
      <no_reply@y...> wrote:
      > Tally suggested, in response to my post explaining the guarantees
      > of an employment contract, - that there are no guarantees in work
      > life, and that I, as an attorney should know that.
      > Her position is preposterous. Contracts are written, adhered to
      > and sued upon by the tens of thousands every day. She'll have to
      > better than that to stay on this board.
      > I've deleted her illogical post.
      > Mike.
      > ==================
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