QUESTION

Are notarized documents legally binding in NYS

Asked on Feb 25th, 2019 on Breach of Contract - New York
More details to this question:
A friend of ours has recently been incarcerated, we are considering using our home is a property Bond to bail him out of jail with that being said a document is being drawn up that States that if he defaults on the terms and conditions within the contract that he would have to pay a substantial amount of money as Wed lose our home, is a notarized document sufficient for this in new York state for this type of contract and is it legally binding?
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1 ANSWER

Appellate Practice Attorney serving New York, NY
Most contracts do not have to be notarized to be enforceable (many don't even have to be written).  However, the contract you describe sounds as if it would not be enforceable.  Whan a contract is breached, the non-breaching party is entitled to recover from the breaching party the actual damages that person suffered due to the breach (which certain qualifications.)  Sometimes, the partes can specify in the contract what those damages would be.   This is known as a liquidated damages clause.  However, for such a liquidated damages clause to be enforceable, certain conditions have to be met.  1, it has to be difficult or impossible to calculate the actual damages which would be suffered, and 2, the liquidated amount must bear some relation to the actual damages that would be anticipated from a breach.  It can't be a penalty. You can just say that if you fail to pay me back the $500 you owe me, you will owe me $10,000. More practically, if you put up your home for a bond, you may lose your home if your friend skips bail.  If he skips bail that means that he will be on the run and hiding.  Thus, even if your contract was enforced, how would you collect?  Indeed, since it appears that he doesn't have the wherewithall to post bond without your help, how could he have the money to repay you even if he didn't skip out? In short, you had better be very sure that your friend will not skip out on bail before you put up your house to bail him out.
Answered on Feb 26th, 2019 at 7:16 AM

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