Contract Legal Disclaimer

[surayu]

Hello all, i have the impression that this legal disclaimer is just being added to take off any responsability from the "legal expert" that drafted it, in such a way that if a court would find any part of it to be invalid, illegal or incorrect than the tenant, the landlord or both would be responsible for it but not the hired "professional", am i just misunderstanding it or what's your opinion about it? Thanks

Disclaimer : The Party prepared or provided this agreement in no way accept responsibilities of any claims, nor suits, arising from interpretation, judgment, or understanding of this entire agreement. Both Landlord and Tenant have taken considerable time and effort to read, understand and accept the bindings of this agreement on their own accord.

[bojo]

Looks fairly straightforward to me, I'd say you understand correctly, the party who drafted the document want to shift any onus of blame/responsibility in the event of error to anyone but themselves.

regards Bojo

[surayu]

Thanks Bojo, i am just wondering how an agency selling legal services could just give you something like this? what's the point of hiring a "legal professional" if he just come up with something that basically says: " i have absolutely no clues of what i am doing and as a such if a made a mistake it will be all your fault for have trusted me" how inconsiderate and irresponsible is such attitudes? i am sure if i would have gone to the somtam lady dowstairs she would have showed me much more pride and honesty in what she's doing than this big professional company....after already 4 attempts to make them understand my point of view they just say it's not possible to modify or take off that disclaimer and no other guarantees given, i am going after a full refund of my money soon, perhaps Mr Greg would have some suggestions to make about this matter????

[jcon]

Thanks Bojo, i am just wondering how an agency selling legal services could just give you something like this? what's the point of hiring a "legal professional" if he just come up with something that basically says: " i have absolutely no clues of what i am doing and as a such if a made a mistake it will be all your fault for have trusted me" <snip>

I agree. I would not accept that disclaimer in a legal document. After all, what is the point of hiring a LAWYER if the lawyer does not/cannot/will not hold himself responsible for what he/she documents. Ridiculous.

In addition, if I may add, who is to stop the "landlord" from being the one who "drafts" the document, thereby relinquishing all responsibility should something go sour. Good for him, bad for you. I expect any dodgy businessman to do exactly that. It's a horrible clause, and you should not accept it as it is worded. Just my opinion, I'm not a lawyer (but judging by some of the lawyers I've dealt with in Thailand, I could be).

[thaiwanderer]

Hello all, i have the impression that this legal disclaimer is just being added to take off any responsability from the "legal expert" that drafted it, in such a way that if a court would find any part of it to be invalid, illegal or incorrect than the tenant, the landlord or both would be responsible for it but not the hired "professional", am i just misunderstanding it or what's your opinion about it? Thanks

Disclaimer : The Party prepared or provided this agreement in no way accept responsibilities of any claims, nor suits, arising from interpretation, judgment, or understanding of this entire agreement. Both Landlord and Tenant have taken considerable time and effort to read, understand and accept the bindings of this agreement on their own accord.

Without seeing the entire agreement, IMHUP:-

The disclaimer does appear to be aimed at absolving the drafter from liability arising from its use. Whether it would be effective is another matter.

Where a pro forma contract is bought off the shelf such a disclaimer is not necessarily a suprise (the drafter prepared a general form contract, cannot know the *Parties* individual circumstances, is not instructed by any of the Parties and it is for the Parties to decide whether they should use that particular contract)(*i use the capitalised 'Parties' here to indicate those entering the contract - more on this below).

Such a disclaimer may also be included in a pre-prepared contract package for a development and again is not necessarily suprising.

However from your comments it appears you may have directly & solely instructed the legal adviser, is this the case? (If so, I would certainly demand a refund if they refuse to remove the disclaimer as it stands). (Although a clause that specifies that the Parties have taken their own advice, fully understand & enter the agreement freely and the agreement contains the entire contract between them is not of itself objectionable).

Also, are they registered lawyers or legal 'advisors' / 'consultants'?

In any event, the use of the capitalised 'Party' in the disclaimer is confusing. Is the drafter a 'Party' to the agreement as defined therein? (doubtful - and would raise concerns about the quality of the drafting of the rest of the agreement).

In relation to Jcon's comment that if the landlord drafted the agreement the landlord may therefore not be liable, I disagree - they would be liable according to their role as the landlord.

[quiksilva]

Some of you assume they hired a lawyer to draft this.

There are a lot of cheap skates in this town who sometimes wish to avoid legal expenses by forcing the hand of the agents by threatening to withhold commissions and try to make the drafting and provision of an agreement part of the agents responsibility.

So not only are they cheap but stupid too. To adequately protect their own legal interests both parties should always engage their own legal counsel, just as they would anywhere else in the world.

If this is the case here a disclaimer is perfectly reasonable as agents are not lawyers and have no business drafting legal agreements. Agents certainly dont get paid lawyers rates to accept that sort of responsibility.

But if their hand is forced they should at least be able to deflect claims of liability from either party in the event of a dispute over the content / interpretation of the contract. Hardly ideal but the parties get what they pay for.

The bottom line is the agent really should do a better job of convincing both parties involved of the benefits of using their own independent legal adviser.

[chiangmaibruce]

I can't give a Thailand-specific answer, only a layman's experience in Australia (and mainly in relation to public liability).

Disclaimers are widely misused ... being used as little more than a bluff to stop people investigating and pursuing their rights under the law. In this case they might be laws governing the conduct of solicitors (if the agreement was drafted by a solicitor), laws governing the making of contracts, and laws governing the renting of property (Thai civil and commercial code i think). These laws are the 'bottom-line' not the disclaimer in the agreement.

In some jurisdictions it is actually an offence in itself to seek to use a disclaimer to side-step responsibility or duty of care protected by or guaranteed under the law.

So a well-worded disclaimer has value if it identifies or clarifies a persons rights under the law (and under the agreement/where consistent with the law) ... or they can have no value or legal punch at all, if just a tool of bluff that tries to make people think they have signed-away rights that would otherwise have been protected by law.

Phew, and now maybe a Thaivisa lawyer member might care to comment ...

[surayu]

Hello all, thanks for stating your opinion, just to make a bit more light on the story, i have been offered a free contract by the Landlord which i refused because the need of the many changes we agreed verbally and also to make sure we stand by the law, so i offered to pay for a new contract been draft and after have been looking around for a company that provide these kind of services, i choose to use a VERY well know company that also provide many other services around, if you use this website you know what i am talking about as it stands almost like a "sun in the sky", so very visible, i paid more than 10.000 baht and after almost 3 weeks and keeping sending back what they wrote for the reason you already know and others, i just got the last e-mail now that say they cannot change it as it's their policy....i just ask for a full refund and wait to see what the response will be, in the mean time i would just ad "stay well away from them"!......they are just like a "belt" being used to hanging customers rather then help! what a shame....

[thaiwanderer]

you get what you pay for and unfortunately 10000thb pays for a pro forma contract (and not a very good one either)

depending on the lawyer thats the charge out rate for about one hour (i doubt a lawyer even looked at the file)

[Orangutan]

surayu,

Point taken.

Thank you,

-O

[surayu]

you get what you pay for and unfortunately 10000thb pays for a pro forma contract (and not a very good one either)

depending on the lawyer thats the charge out rate for about one hour (i doubt a lawyer even looked at the file)

Hi Thaiwanderer, well i found many thai lawyer wishing to do much more for much less (please note that it was all done in Thailand, not New York eh?), they all had a proper well mantained office and seemed professional enough, i opted to pay 10 times more what i was asked for, with this much bigger company to have some sort of peace of mind as from the way they advertise they seemed to be the best one around, i wouldn't mind to have paid more to not compromise the validity of the rental contract, however as i already mentioned, seen what is offered around it appears to be a bit disproportionate, i believe is very important we keep updating each other about this kind of experiences so hopefully the next person can avoid getting this sort of big disappointment....even bigger when there is an expat on top of the company IMO....

[surayu]

surayu,

Point taken.

Thank you,

-O

....sorry i am not sure of what you mean by this, can you be more detailed? thanks

[surayu]

UPDATE:

Ok, after have received my request for a refund, they just avoid it and send a reply to an e-mail they already had replied to in the past, please note that these people will never send you an e-mail of their own initiative unless you send them a request first, if they don't like what you ask them they will just pretend you are talking about something else and tell you something that basically doesn't answer your questions, how irritating is that? if i just would have known this before!!!!!

[chiangmaibruce]

So all you need is a well-worded but otherwise stock standard residential lease agreement?

You should be able to find one you can use just by making enquires amongst your personal network. I even saw a thread in thaivisa recently where someone was asking people if they could send him/her a copy of a good one. Maybe you can track down that thread and PM the relevant member - it wasn't that long ago.

Even if you end up using the one you have paid (dearly) for I am not sure why you can't simply strike out the disclaimer clause you don't like. You initial it and the landlord initials it (the cancelled clause) and bingo, you should have what you want.

[surayu]

Hi ChiangMaiBruce, thanks for the suggestion, i taught about just modify the agreement by myself but i declined to do this because i need someone aware of the local laws to take full responsability about all parts of this contract, just in case something goes wrong, i just don't want to see myself in front of a thai court with a judge telling me that what is wrote in that piece of paper cannot be legally accepted and i signed to take all the blame for it, that's why i hired a lawyer, because the job of the lawyer is to make sure everything there is valid and should never have any issues to guarantee that what he did doesn't have any legal falls and if he can't guarantee for the works he provides then he should change career me thinks....

[donx]

... and if he can't guarantee for the works he provides then he should change career me thinks....

Perhaps he can go into the business of selling buritos...

[thaiwanderer]

I am talking about Thailand and of course yours is an english language contract

i have no idea where you get the notion that this fee is disproportinate - i would agree if you were saying its disproprtionately low against what you are expecting it to entail

you will often come across many 'wishing to do much more for much less' (as you say) but that is just it, wishing

you really expect someone to take full responsibility for the drafting of this document for 10,000thb or thereabouts? you are not buying pad thai

your talk of a lawyer taking responsibility for his / her work otherwise should change career is a bit much - it would appear you have engaged them to buy a pro forma lease they hold as a precedent - the extent of the work would appear to be inserting the parties' names, property and price perhaps

typically the fee would not be anywhere near what would be expected for taking your instructions, advising you and drafting a lease for you specifically

if that is what was promised then thats shoddy on their part but alarm bells should of rung if thats what you thought you were going to get for that fee

the firm with which you appear to be alluding might perhaps be a legal factory which have their place but not it seems in satisfying your requirments for which i would recommend a 'proper' firm but it looks like you might have a heart attack at their fees

please take this post in the spirit it is intended, i feel unfortunately your expectations are way off

what is the value of the lease?

[surayu]

Hi again Thaiwanderer, the value of the lease it's 8.000 baht, i honestly taught that what they asked me was much more the average price as i say i have been looking around a bit too, so just as a curiosity, what do you think will be the average price for a one page drafted rental agreement in your experience? thanks

[surayu]

... and if he can't guarantee for the works he provides then he should change career me thinks....

Perhaps he can go into the business of selling buritos...

...yes you right there, maybe he had already taught about it too, just lets hope he get the ingredients right in there

[quiksilva]

I think he meant the value of the total rental consideration to be paid over the term of the lease, not how much it cost to have the contract drafted.

I believe he wants to understand why having such a carefully drafted agreement is so important to you.

[surayu]

I think he meant the value of the total rental consideration to be paid over the term of the lease, not how much it cost to have the contract drafted.

I believe he wants to understand why having such a carefully drafted agreement is so important to you.

Hi Quiksilva, because even if it's almost rent free for the size of the building, it just need a considerable amount of cash to refurbish it and even do some building work inside, the Landlord verbally agree to either refund me of the cost i had to sustain if after 10 years the lease for any reasons will not be renewed or just allow me to take away anything i paid for from my own pockets, the original free contract he had showed me at the beginning was stating that anything i put inside of the building will remain his own when i leave and no refunds whatsoever, that's why a new contract was required and he had no problem with it, however the "legal professional" seemed to have MANY problems....

[thaiwanderer]

matters such as these could not possibly be adequately dealt with in a one page lease

not 100% clear

is 8,000thb the fee to the legal advisor for drafting?

so i can get a handle on it - how long is the lease intended to be for, what is the rough total rental price and what is the rough cost of the improvements you intend to make?

[surayu]

matters such as these could not possibly be adequately dealt with in a one page lease

not 100% clear

is 8,000thb the fee to the legal advisor for drafting?

so i can get a handle on it - how long is the lease intended to be for, what is the rough total rental price and what is the rough cost of the improvements you intend to make?

Montly rent: 8.000 ("lawyer" is 10.000)

Lease = 3 years + 3 years + 3 + 1 = 10 years

Very rough cost of improvements : 2 - 3 millions baht ?

[surayu]

UPDATE:

after have seen that nobody would bother tell me what action would they take about my request for a refund, i managed to get the mobile phone number of their managing director, which obviously was busy but at least i can credit him with an email sent after a few hours to tell me his version, his answer basically says that because his staff taked a considerable time to provide me with their service then there is no refund....now i explained to him that the reason it took so long is simply because of the inefficiency of his staff and all the trouble i had to make them understand that i am not going to pay for something that goes against me, what's the point? again i told him that a company should have at least the decency to guarantee his own services/product but like his own employees he doesn't seems to get that, i guess he gave them the training.....still waiting

[thaiwanderer]

given the relative cost of the improvements doing the lease on the cheap would potentially be very risky here

the lease term seems a little strange - appears it is not going to be registered - is that the case?

(you previously mentioned renewal after 10 years, that may be the least of your problems here - regardless of the 'service' you feel you should have received for 10,000thb (which i still strongly disagree on), it appears may be heading into a very bad deal indeed - depending on the full story there is potential here for your lease to end as soon as the improvements are completed)

Edited April 29, 2009 by thaiwanderer

[surayu]

given the relative cost of the improvements doing the lease on the cheap would potentially be very risky here

the lease term seems a little strange - appears it is not going to be registered - is that the case?

(you previously mentioned renewal after 10 years, that may be the least of your problems here - regardless of the 'service' you feel you should have received for 10,000thb (which i still strongly disagree on), it appears may be heading into a very bad deal indeed - depending on the full story there is potential here for your lease to end as soon as the improvements are completed)

i have been told that by registering this contract on the Land Registry office is one way to make sure this will not happen, so obviously there are additional expenses on top, do you think there are more issues other than that?

[surayu]

Update:

The owner of the company is still giveing the same story, so basically because his staff spend time giveing me a badly drafted contract which is totally useless to me, then he feel he's on the right side, great! ...i am reporting this crook to the Office of Consumer Protection Board here in Bangkok, beside this, there is any other action i should consider to regain what he stole? thanks

[thaiwanderer]

I still disagree that your legal advisor has done anything wrong as such - perhaps poor communication at the outset (and subsequently) but you cannot possibly expect a decent lease for that fee or for them to stand by it. You can of course make any complaint you wish but that is not likely to make them become liable for any losses arising from the use of the contract.

Separately and more importantly you are considering (even for one moment) paying 1-2 million THB on improvements to a rental property without a lease registered at the land office? You may as well just give the landlord that money now and walk away.

A lease needs to be registered at the land office otherwise its only (theoretically) valid for 3 years. If the landlord kicks you out during those 3 years or otherwise breaches the lease you are then in a contract dispute (given your horror at the cost and difficulty of dealing with your current 'legal advisors' i would counsel against your enjoying that experience or being successful).

The maximum length of lease that can be registered is 30 years (for residential property, 50 years for commercial).

You talk of hoping to renew after 10 years (asuming even get that far).

Given your proposed outlay for improvements is there any reason why you are not just going for a 30 year registered lease?

As to renewals (however long the registered lease is for) you will find lots of threads on this subject. Essentially (although not exclusively) there are no guarantees on renewals.

Its difficult to see on the basis of the information provided but unless you absolutely must have this particular property why not rent, long (registered) lease or buy another and perhaps one that doesn't need the improvements?

Please forgive the questions but I am a little confused at why you would be doing this.

[stgrhe]

you get what you pay for and unfortunately 10000thb pays for a pro forma contract (and not a very good one either)

depending on the lawyer thats the charge out rate for about one hour (i doubt a lawyer even looked at the file)

I do agree to that. Expect to pay in the order of 4,000 to 6,000 baht per hour for a top Thai lawyer.

[quiksilva]

I still disagree that your legal advisor has done anything wrong as such - perhaps poor communication at the outset (and subsequently) but you cannot possibly expect a decent lease for that fee or for them to stand by it. You can of course make any complaint you wish but that is not likely to make them become liable for any losses arising from the use of the contract.

Separately and more importantly you are considering (even for one moment) paying 1-2 million THB on improvements to a rental property without a lease registered at the land office? You may as well just give the landlord that money now and walk away.

A lease needs to be registered at the land office otherwise its only (theoretically) valid for 3 years. If the landlord kicks you out during those 3 years or otherwise breaches the lease you are then in a contract dispute (given your horror at the cost and difficulty of dealing with your current 'legal advisors' i would counsel against your enjoying that experience or being successful).

The maximum length of lease that can be registered is 30 years (for residential property, 50 years for commercial).

You talk of hoping to renew after 10 years (asuming even get that far).

Given your proposed outlay for improvements is there any reason why you are not just going for a 30 year registered lease?

As to renewals (however long the registered lease is for) you will find lots of threads on this subject. Essentially (although not exclusively) there are no guarantees on renewals.

Its difficult to see on the basis of the information provided but unless you absolutely must have this particular property why not rent, long (registered) lease or buy another and perhaps one that doesn't need the improvements?

Please forgive the questions but I am a little confused at why you would be doing this.

Great post.

The OP would be wise to consider the points raised here very carefully.