A daughter drafts and has signed a contract for services by her elder mother who may have contractual incapacity but which may not be able to be proved. So consider the contract for language and enforceability on its own merits first please...
Please note the following...November 17, 2011
To whom it may concern:
I, Jane Doe, want to and agree to pay Judy Doe, my daughter, the sum of $2000.00 for the month of November 2011, for services, assistanceand advice needed to allow our mother to continue to function, effective as of today. This payment each month is for attending to her finances, including but not limited to bookkeeping, bill paying, correspondence and assistance with care facilities (i.e. assisted living facilities, nursing homes, hospitals, etc.) and submission of monthly accounting, etc.
Notorized November 17, 2011
1. the 1st person point of view of most of the first sentence.
2. the 3rd person point of view of the phrase 'our mother' in the first sentence
3. the specificity of the time period of 'the month of November 2011' int he first sentence
4. the phrase 'This payment each month' in the second sentence
5. the 3rd person point of view of the phrase 'for attending to her finances...' in the second sentence
6. the reference to 'monthly accounting' in the second sentence seems complimentary to the idea of multiple months
7. there is no extrinsic evidence that can be entered in the case of an 'ambiguous' determination
8. acceptance can be claimed by the daughter's efforts to perform the services
9. the daughter, acting as attorney in fact for the mother, has only taken one month's worth of payment and is now claiming the rest in response to a claim by suit by the mother of self-dealing, unjust enrichment, fiduciary failure
In order to avoid the contract and in pondering a defense I am considering the following...
A. unambiguous vs. ambiguous
1. The specificity of the first sentence setting the term to the one month of November 2011 conflicts with the vagueness of the apparent meaning of multiple months in the second sentence.
2. Both sentences can be harmonized in general by their common theme, their consideration of service. In the first sentence consideration is listed as 'for services, assistance and advice needed to allow our mother to continue to function...' relates nicely with '...attending to her finances, including but not limited to bookkeeping, bill paying, correspondence and assistance with care facilities...and submission of monthly accounting, etc.' notwithstanding the change in point of view with the use of 'our mother' and 'her'. Clearly a reasonable person can understand and conclude the intent of the agreement as to the consideration of service in exchange for the offer of $2000, to wit, a list of expected services.
3. The offer of $2000 for the month of November 2011 clearly is not harmonious with the phrase 'this payment each month'
Looking to the entire four corners of the agreement, can a determination be made that it is unambiguous in its intent for a single payment for November 2011, with the phrase '...each month...' as surplusage? To rule that the intent is for multiple months would do violence to the clearly stated single month language, it seems. The phrase 'each month' if removed brings clarity to the intent of the agreement. In converse, removing '...for the month of November 2011...' does the same. So, to me, it seems that two reasonable interpretations can be made and thus ambiguity.
If the court doesn't find two reasonable interpretation then, it seems, that confusing language is the next argument. When confusion or vagueness results from the language and other methods of interpretation have been exhausted then the penalty of the resulting confusion goes against the drafter of the agreement, which is the daughter and her claim for multiple months.
Please give your thoughts on the construction of the contract, its enforceability and ideas on the best method to avoid the contract.