Trick or Tree

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Q: Yesterday, my husband and I went to my friend’s tree farm to pick out a Christmas tree, same as always.  A storm had pounded us the previous evening, and the fields were covered by snow.  We boarded a wagon, got out and walked toward the trees.  Some trees had been cut down, so they were missing.  It turned out that some of the stumps were covered with snow.  I tripped over one, hit another stump and fractured my elbow.

My friend had not warned me about snow-covered tree stumps.  There were no signs, and there was no marked-out path.  My husband had already picked out a tree (he didn’t notice my fall).  Then my friend pulled out a waiver.  I signed it so long as she’d give us the tree for free and deliver it.  This morning, they delivered the wrong tree.

A: An attorney would say that there was a ‘condition precedent’ that she give you the tree for free and deliver it.  Was this condition oral, or did your friend write it into the ‘waiver’?  If this condition was not written in, then does something written-in contradict it?  For example, does the waiver say that you get the tree at 50% off, so long as you pick it up by tomorrow?  If nothing written-in contradicts the condition precedent, then a court should be willing to hear your oral testimony about it.

If the waiver contains a ‘merger clause’ things can get stickier.  Such a clause states that all understandings are merged into and superseded by the written piece of paper.

As you can appreciate, each case is different and calls for its own direct detailed discussion with an attorney.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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