In the absence of formal accounting, the authors recommend that the administrator, the beneficiary and his lawyer (well before the planned mediation) have access to all non-privileged fiduciary data sets (extracts from financial institution accounts, cancelled cheques, trust accounts, leases, books, balance sheets, profit and loss accounts, etc.) that would be required to establish formal accounting or to detect errors. This disclosure gives the agent at least the argument that the recipient has been informed of potential problems on request and should help reduce the likelihood of constructive fraud or active concealment. The authors also recommend that the written transaction agreement read the details of pre-billing information on the underlying financial transactions. With respect to the agent`s exemption from liability for future actions, the mere recital of the transaction contract relating to the waiver of the protection of the Civil Code Section 1542 is not necessarily controlling, even if the beneficiary has legal assistance.45 In a subsequent action by the beneficiary against the agent, which arises from a future claim, the court will still consider. whether the beneficiary intended to absolve the agent of liability for unknown claims. 47 But the presence of a lawyer should change the dynamics of the judicial investigation, since the beneficiary`s lawyer (not the trustee) ensures that the beneficiary understood the entire transaction contract before signing.48 More the language is clear and specific in the settlement agreement, with the aim of terminating the current and future litigation. , the more likely the release is. To isolate the agent from future liability for unknown claims.49 Unlike other contracts, written authorizations that are alone are generally enforceable without consideration.54 Authorization is “the task, task or abandonment of a right or right to the person against whom it would have demanded or argued [citations] and its effect is to clear the cause of the appeal.” 55 However, if the release favours the agent, there are additional requirements.56 In such cases, the agent`s consideration must be fair and proportionate.57 If the release in favour of the agent is included in a comprehensive settlement agreement, the consideration granted by the agent for the exemption from liability and other benefits granted to the agent under the agreement must be fair and reasonable. , given the circumstances of all.
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