Chapter 3: Rights of Parties Undertaking Disposition

Who might contracts be made with a funeral home?

Between the funeral home and the decedent's estate, family, or a third party

Cash Transaction

Contract might stipulate that the sale is a cash transaction and not a credit. Credit transactions involve lots of disclosures, these don't need to be made if the funeral home doesn't qualify as a creditor defined in the Truth-in-Lending provision

Itemization

Funeral Rule requires this majority of contracts will spell out the goods and services purchased by the consumer

Joint and Several (individual) Liability

It's holding all people responsible for paying the bill

What do some states say in regards to If there are multiple people with the level of right?

Some states say that the majority of the class with the highest legal standing have to be in agreement

Who is protected by the rights and duties imposed by law?

The deceased, survivors, and the public

T/F the right of custody is not absolute

True

Collection Fees

a contract may stipulate that in the event of default, the undersigned (person or persons making funeral arrangements) agree to pay all costs of collection including reasonable attorney's fees. state law should be consulted to insure that a collection provision is permissible

Valid Contract

a contract which will be enforced by the court

Late Payment Charge or Penalty Charge

a funeral home may charge a late payment charge or penalty charge for unanticipated late payment. if imposed, state law should be reviewed to determine if any ceiling to the penalty applies

Simple Contract

any contract other than a formal contract, whether written, oral or implied

When can the offeror revoke the offer?

any time before acceptance

There is no right until a valid _______ is entered between the ______ _________ and another, either expressly or implicitly.

contract, funeral director

The person with the right of custody has the right to choose

disposition; ground burial, cremation, etc.

The individual undertaking disposition has the power to exercise control over all matters relating to the ________.

funeral

Estate Liability

in many states the primary liability for payment of a funeral bill is the estate of the decedent. the contract should include a statement that the person signing the contract is liable for payment of the funeral contract in addition to the liability imposed by law upon the estate.

A right and duty may exist as a _____ or ______ matter.

moral, legal

The right of custody is....

not absolute a limited right given for a specific purpose subject to revocation if the party possessing it does not exercise it for a proper purpose

trustee

one who holds a position of trust to beneficiary; in funeral arrangements, the person who has the right to control the funeral on behalf of all survivors

In addition to the FTC Funeral Rule and the Truth-in-Lending provisions what do some states require?

other disclosures

Consideration can also be __________ from doing an act that you have the legal right to do

refraining

The person in charge of funeral arrangement is not compelled to share the ____ with others.

right

The party who legally undertakes to dispose of a dead body is vested with certain ____ and ______

rights and duties

Granted rights

rights defined and provided by the statutes, ordinances, and regulations of jurisdiction examples: transporting, embalming, services

Where does the right to exclude people from the funeral extend to?

services conducted in cemeteries

Consideration

something of value exchanged for something else of value; what a promisor demands and receives as the price for his promise

Disclaimer of Warranties

statement which limits the liability of the seller for any defects of their goods The funeral director will be liable for any defaults unless there is this disclaimer not lawful in Kansas

The person having priority for disposition of the body also has the right to:

superintend the funeral, do that which is necessary to effect final disposition, act as a trustee

Offeror

the person who makes the offer

Actual custody

the physical possession of the dead human body or other property

What is the consideration in a bilateral contract?

the promise

Constructive Custody

the situation whereby one a party has a right to acquire actual custody/possession of the dead body although another party has actual physical possession.

What does it mean to superintend the funeral?

they may choose whether they want a public or private, they can also choose who to invite and who to exclude.

What are the elements of a binding contract?

1) a binding agreement 2) mutual agreement 3) supported by consideration (something must be exchanged) 4) made for a lawful purpose 5) between competent parties 6) in the form required by law

Bilateral Contract

A type of contract that arises when a promise is given in exchange for a return promise.

Unenforceable Contract

A valid contract rendered unenforceable by some statute or law.

Contract

An agreement between two or more competent parties that is enforceable in court

Unilateral Contract

promise in exchange for an act

Forbearance

restraint

Where are the rights of the funeral director undertaking primarily derived from?

1) Granted rights 2) Rights imposed by a statute and arising out of contract

What are the requirements of an offer?

1) Must be definite (will end) 2) Must be seriously intended 3) Must be communicated to the offeree

Where do the requirements for a final disposition come from?

1) Standards of care expected of the profession 2) Community standards 3) Considerations of: wishes of the deceased, wishes of the survivor, and public interest 4) Statutes and ordinances

When is the offer terminated?

1) Withdrawal of the offer by the offeror 2) Rejection or counteroffer made by the offeree 3) Lapse of time failure to accept within a reasonable time it was set as a condition by the offeror 4) Death or insanity of either party 5) Illegality

What are the disclosures that should be on the contract?

1) the price of the funeral and a list of all services and merchandise included in the funeral 2) the price of each supplemental item of service or merchandise 3) a list of the cash advances made by the funeral director on behalf of the person making the funeral arrangements 4) method of payment

Void Contract

A contract having no legal force or binding effect.

Express Contract

A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.

Formal Contract

A contract that by law requires a specific form, such as being executed under seal, to be valid.

Implied Contract

A contract that comes about simply from actions of the parties.

Executed Contract

A contract that has been completely performed by both parties.

Executory Contract

A contract that has not yet been fully performed.

Voidable Contract

A contract that may be legally avoided at the option of one or both of the parties.

Offeree

A person to whom an offer is made.

Offer

A proposal by one party to another intended to create a legally binding agreement.

dead body -property

It is a tangible object over which the dominion is granted to the party undertaking disposition

What conditions should be imposed by the funeral director if the next of kin wishes to exclude others from the service?

The obituary should note that the services are private and no date or time listed Have the next of kin sign indemnification agreement If a disruption is possible, have the next of kin hire a security service to exclude uninvited individuals

Who is granted the right to take possession of and control the dead body?

The person exercising the right of disposition

Who has the ability to convey custody to a funeral director?

The person having priority for disposition of the body

What are the terms of acceptance?

absolute and unconditional in the form required by the offeror only the offeree can accept communicated to the offeror

Funeral contract

an agreement between a funeral director and another competent party of legal age where by the consumer purchases and the funeral director agrees to furnish merchandise and services.

What is a right?

an entitlement

The right to arrange the disposition is what kind of right?

an exclusive right

What is a duty?

an obligation