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what should you do if you find mistake in the fully executed contract May 8, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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what should you do if you find mistake in the fully executed contract
May 8, 2018
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what should you do if you find mistake in the fully executed contract
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    The most common mistake is the subscriber's name; it's correct name.  Unfortunately this is one mistake that you probably won't notice until you need the contract for collections, defense or sale. If you have a [very good] practice of matching up the name on the contract with the check you get when you send your first invoice [assuming you missed it or didn't get one when the contract was signed] then you can catch the mistake relatively quickly.  
    Will you need a new fully executed contract?  No.  You need to get something in writing approving the change in name on the existing contract.  That could be an addendum or rider or simply a letter or email from the subscriber authorizing you to correct the name on the contract.  Be sure to attach that authorization to the contract for later reference in case you need to prove your authority to make that name change.  
    Once the contract is signed by the subscriber you can't make any changes without the subscriber's written consent.  That applies to all changes.
    Other mistakes could involve equipment or charges.  If the mistake is clearly a "mutual" mistake you can ask the subscriber to correct it.  If the mistake is extensive enough it may require a new contract be signed, but a change in a few words may be accomplished by a few cross outs or additions.  You can use the Supplemental Rider that we provide with the All in One agreements because that is an "after execution" addendum to the agreement.
    A mistake that you made may not be so easily corrected.  What if your "proposal" had a mistake in pricing that was included in the Agreement.  Once the contract is fully executed you find it and ask the subscriber to change it, which request is refused.  The general rule is that a mistake by one party, one that is not mutual, cannot be corrected without the consent of the other party - the one who didn't make the mistake.  Exceptions may apply if the mistake is so obvious that the other party could not possibly claim it didn't realize there was a mistake.  For example, an installation price on the proposal is $1200 and the installation price on the contract is $120.  
    Getting your subscriber to authorize a correction in the contract is always going to be more work than being more careful and getting it right the first time.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com