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Category Archives: Rules/Legislation

7 Required Elements of an Enforceable Contract

By: Bernadette A. Safrath

A contract is a legal document between two parties. In order to be enforceable, the contract must contain seven elements. While more specific requirements may differ by state, the basics of contract law require that these seven elements exist regardless of where the contract is formed. If even one is missing, a contract may be voided and the parties will be excused from any obligations.

7 Required Elements of an Enforceable Contract

Offer

An offer is the beginning of a contract. One party must propose an arrangement to the other, including definite terms. For example, if the proposal is an offer to purchase shirts, it must include quantity, price and a delivery date. When the offer is communicated to the other party, he has the right to accept, reject or amend the offer. If he rejects it, the offer dies. If he amends the offer, the original offer dies and his amendments become a new counteroffer that the other party can accept or reject.

Acceptance

An offer can be accepted in writing, in person or over the phone. The acceptance must simply be communicated to the offering party, with an obvious declaration that the accepting party intends to be bound by the buyer’s terms. Under the “Mailbox Rule” used in most states, an offer is deemed accepted when the accepting party places it in a mailbox or sends an email, even if the offering party never actually receives it.

Consideration

Consideration is something of value that the parties are contracting to exchange. Generally, one party exchanges money for property or services, but the parties can both exchange property or services, as long as a court would find that each party’s consideration has sufficient value.

Competence/Capacity

Competence, also called legal capacity, is a party’s ability to enter into a contract. The most common reason for incompetence is age. A party must be at least 18 years old to enter into a contract. If a minor signs a contract, she has the right to cancel it. Another reason for incapacity is mental illness. A person incapacitated by a disease or disability, who does not understand the terms of a contract he entered, has the right to rescind his acceptance of an offer, voiding the contract. Lastly, a person under the influence of drugs or alcohol may be considered incompetent if the other party knew or should have known that the person’s impairment affected his ability to understand and freely consent to the contract.

Mutual Consent

Generally, the law assumes that a competent party freely consents to a contract. However, if consent was obtained on the basis of frayed, due to duress or because of the exercise of undue influence, a party’s consent is considered involuntary and the contract is void.

Legality

A contract is only enforceable if the activity in the contract is legal. For example, a person cannot contract with someone to commit assault, murder or another criminal act. Additionally, contracts to split lottery winnings in states where gambling is illegal have been delayed unenforceable.

Writing

Not all contracts need to be in writing, but under the Statute of Frauds, certain contracts must be in writing in order to be enforceable. A written contract is required for all transactions involving real estate (i.e., lease or sale of a home), any promises to marry, any agreements to pay a third party’s debt and any transaction in which performance cannot be completed within one year of the contract signing.

https://www.sapling.com/11368503/7-required-elements-enforceable-contract

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Supplemental Comments – Agency ANRPM for RIN 2126-AC10

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Avoid getting stiffed: New flag on brokers with bonds pending cancellation can be effective recon tool

In early November, FMCSA stood up what amounts to a new flag on brokers/forwarders and motor carriers whose surety bonds/insurance have been marked  for cancellation by the provider.

This example of a new surety notice of pending cancellation is in the FMCSA’s Licensing and Insurance public-facing page for a broker who notified its surety provider, Transport Financial Services, it was voluntarily ceasing business at the end of the year, says TFS President Marold Studesville. Brokers whose bonds have been cancelled after a run-up in claims, too, will be thus flagged, partially sealing a loophole that allowed dishonest brokers to conduct business with no intent to pay even as they went under — or were formed with no intent to pay to begin with.

“The goal is to help the public who does business with these regulated entities know that an insurance company or financial institution that made the initial filing has submitted a pending cancellation of the entity’s policy in our system,” say reps from FMCSA’s Licensing and Insurance division. “The notice will remain in place until either the effective date of the updated filing has occurred, or that the authority has been revoked, due to the failure to comply with the insurance requirements.”

Read the complete article here.

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Highway robbery: Combating dishonest brokers

Small fleet owner Scott Jordan once had something of a maxim he’d repeat about his business dealings. “In all the years I’ve been in business,” around seven years as an independent, he’d say, “I’ve never been screwed over by the broker or shipper, only the trucker.”

 

Last year, that changed in a big way on a load that Jordan booked for one of his owner-operators. Working with a sizable broker, he was led to believe the freight was something of a need-it-now item. Complications ensued, appointments for delivery were rescheduled repeatedly, and rate confirmations were updated to reflect the changes. After reaching an agreement to store the load for about a week, it turned into a $3,800 load, well over the initial rate.

Written by Todd Dills originally published here. Read the rest of the article.

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New FMCSA head wants ‘productive conversations’ on ELDs, safety

Original article found here.

Nearly a month into his job as FMCSA Administrator, Ray Martinez told an audience at the Truckload Carriers Association (TCA) that he looks forward to “meeting great people” and having “productive conversations.”

Martinez addressed the TCA annual convention in Kissimmee, Fla., the morning of Mar. 26. The week before, Martinez spoke to a less friendly audience at the Mid-America Truck Show about the ELD rule.

“I wish (the conversation) could be more productive rather than just anger,” he said about that previous industry meeting. “I am looking for (TCA) for help on how to move the ball forward.”

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We are happy to announce our partnership with Magellan and their ELD Solutions

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ELD exemption for ag/livestock haulers extended to June

Originally published here.

 

Truckers hauling agricultural products and livestock have received further reprieve from compliance with the U.S. DOT’s electronic logging device mandate. The Federal Motor Carrier Safety Administration announced Tuesday that such haulers will have until June 18 to adopt an ELD. They can continue to run on paper logs in the meantime.

Ag and livestock haulers had already secured a three-month compliance extension beyond the mandate’s December 18 compliance deadline, giving them until March 18 to comply. However, the agency decided to provide such truckers an additional 90 days to comply so it can “continue to work on outreach and communication with the ag community so they have the fullest understanding of the rule and regulations,” said FMCSA head of enforcement Joe DeLorenzo.

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Oilfield operators, trash haulers petition FMCSA for ELD exemption

Four more trucking groups and fleets have filed for exemptions from the electronic logging device mandate that took effect in December.

Trash hauling and recycling fleet American Disposal Services (ADS), oilfield service fleet Cudd Energy Services (CES), the Agricultural Retailers Association (ARA) and the Association of Energy Service Companies (AESC), which includes well service rig contractors, have each petitioned the Federal Motor Carrier Safety Administration for ELD exemptions for five years.

In addition to requesting an exemption from the ELD mandate, ADS is also requesting an exemption from keeping paper logs. The garbage pick-up company, which has more than 300 CDL drivers, operates under the multiple-stop rule, it says, as well as the 100 air-mile short-haul exemption. Its drivers, however, exceed the 12-hour limit more than eight times in a 30-day period, requiring the use of ELDs.

Each route for ADS drivers has between 800 and 1,200 stops per day, and the drivers pick up trash at a home every 22 seconds, on average. Drivers currently leave the yard on driving time, and at their first stop, change their status to on-duty, not driving for the next 500 stops. When they go to a landfill, the switch back to driving status.

ADS says there is “no ELD that can accurately record driving time when the CMV makes constant short movements with the driver often exiting the vehicle.”

CES is requesting the exemption for its “specially-trained drivers of commercial motor vehicles specially constructed to service oil wells.” The exemption would cover approximately 939 drivers and 1,858 trucks. According to CES, the drivers are not eligible for the 100 air-mile radius exemption, so they are required to use ELDs.

The company says in its exemption request it plans to install equipment that would enable tracking of its trucks when communication capabilities exist, but these units would not meet AOBRD or ELD standards. CES adds that poor cell service in certain oilfield locations and prohibitions of cell phones and electronic equipment while on job sites would prevent drivers from logging into ELDs.

ARA is requesting an exemption for its member companies from the mandate, arguing the mandate places “undue economic and other burdens.” ARA relies on trucks to deliver their products and services to farms.

The group says its members need additional information and guidance on the ELD rule, and adds that ELD vendors and manufacturers don’t offer devices that meet their needs.

AESC’s exemption request is on behalf of well service rig contractors, who typically operate under the short-haul exemption but sometimes exceed the requirements of the exemption.

Without an exemption from the ELD mandate, AESC says, these drivers would have to monitor the number of days they exceed the requirements of the short-haul exemption. Contractors would also have to purchase ELDs, train drivers on them and monitor compliance, the group says.

The group adds these drivers spend little time on public roads and can spend between two and five days parked at a single location. Contractors are required to obtain state permits to drive well service rigs on public highways, and the rigs are then escorted as they move to their next location. If granted the exemption, AESC says drivers would continue to keep paper logs when necessary.

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Drivers meet with Sen. Ted Cruz to talk hours of service rewrite

Wednesday, January 17, a group of truckers took a meeting with United States Senator Ted Cruz in order to press concerns over the Department of Transportation’s electronic logging device mandate and the current hours of service rule.

Originally called for by trucker Dave McCauley after he made contacts with Cruz’s office on a trip McCauley and other haulers made to D.C. early this year, the meeting was also attended by a bevy of owner-operators and drivers regular readers may be familiar with from Overdrive‘s coverage of October demonstrations in D.C. and those in early December around the country.

Topics discussed included related issues of parking and training, but hours and ELDs were central to much of the discussion. Shelli Conaway, speaking Wednesday night in this edition of the Hammer Lane Radio network on Blogtalkradio.com, said Cruz and aides have asked for further information from the participants in order to assess potential legislative efforts in future. The Senator “wants us to come up with general ideas” for revisions to the hours of service, training protocols and parking fixes, Conaway said.

Several truckers in attendance are associated with the Monday Information Facebook group, originally formed to coordinate state-by-state efforts during the grassroots ELD Media Blitz of Dec. 4, 2017. That group said it had put out a call for hours revision ideas and today released a poll on several hours of service options at this link, where truckers can weigh in on their preferable option.Results, later, would be shared with Cruz’s office.
New Hampshire-based hauler John Grosvenor, speaking as part of this broadcast on the Hammer Lane network, said he came away with the impression that while Cruz was generally “very concerned” about issues presented by the ELD mandate, “he’s not as concerned about repealing the mandate as he is about the hours of service rules. …  Something’s got to give.”

Grosvenor endorsed the notion of a “pause button” for the 14-hour on-duty clock, which the Federal Motor Carrier Safety Administration is attempting to study in a Flexible Sleeper Berth Pilot Program that would allow a small group of truckers to utilize a multitude of options between the currently allowed 8/2-hour split to break up the duty day. If such research showed no safety-negative, it could further set the stage for hours of service revisions to allow greater such flexibility.

FMCSA put out a call for commentary on the study plan, which it was then set to deliver for White House Office of Management and Budget approval, in late October and received fewer than 150 comments. The research request remains at OMB awaiting review and approval, said FMCSA external affairs rep Duane DeBruyne. The request “was submitted to on November 29, 2017,” two days after the comment period closed.

The ability to pause the clock with mid-duty-period rest could effectively combat pressure Grosvenor and plenty others see building up on drivers to maximize driving hours no matter the situations ahead. On-highway accidents, weather, unforeseen delays at shipper and receiver locations — “with a continuously running clock,” he said, drivers are more likely to push through and “burn up your time” when otherwise a nap or other break might allow for the situation to resolve itself without hurting the trucker’s productivity — and income in the end.
Meeting attendees continue to urge drivers supportive of these efforts to engage their own representatives locally and/or in the nation’s capital. With an infrastructure bill a definite priority this year, there could be chance for legislative change in truckers’ favor, a point the Senator was said to have emphasized.

Have you been engaged with your rep and/or senators on these or other issues?

 

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FMCSA Grants Agriculture and Livestock Haulers ELD Waiver

Federal trucking regulators have granted a 90-day waiver to agricultural commodities and livestock haulers from installing electronic logging devices in their trucks, and issued a separate clarification on potential miles that are exempt from hours-of-service requirements for agriculture haulers.

In a pair of announcements, the Federal Motor Carrier Safety Administration said it is granting the limited ELD waiver in response to a request by the National Pork Producers Council on behalf of eight organizations that represent transporters of livestock and other agricultural commodities.

The ELD waiver for agriculture and livestock haulers, published in the Federal Register on Dec. 20, will be in effect through March 18.

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