Rights and Duties of the Funeral Director

Sources of Duties1) Laws and Regulations2) Common Law3) Funeral Contract

Laws and Regulations

State Laws: a) permits

b) health laws and regs.

Federal Laws

Local Laws

Common Law/Operation of Law

Reasonable/Prudent Standard2 duties:

1) not to interfere with the right of burial

– Wrongfully withholding a body– Loss of body– Mutilation of the body

2) exercising reasonable care and remaining prudent

– Injury to invitees– Injury to pallbearers and clergy

Funeral Contract

With the person who has the right to disposition

FD has no obligation regarding a particular dead body until a contract has been initiated

Contract

“an agreement between two or more competent persons which is enforceable by law”

Agreement:

All contracts are agreements but not all agreements are contracts.

4 Req’ts of a Valid Contract

1) mutual assent/”meeting of the minds”

2) competent parties

3) legal/lawful purpose

4) consideration

Mutual Assent/”Meeting of the Minds”

offeror, offeree, offer

An advertisement is not an offer; it is an invitation to trade.

Handing a consumer a GPL is not an offer but is an invitation to trade.

Duration of an offer:

Novation:

Acceptance:

Mutual Assent May Be Undermined

A) mistakefraud

Misrepresentation

B) duress

C) undue influencefiduciary relationship

Competent Parties

A) legal age

B) mental capacity

C) intoxication

Legal/Lawful Purpose

A) usury

B) contracts of unreasonable restraint of trade

Consideration

“ that which the promisor demands and receives as the price for a promise”

Invalid Consideration

Forebearance

Contracts Used in Funeral Service

Promissory Note: “a negotiable instrument containing a promise to pay”

Preneed Contract:

SFGSS is not a contract in NJ

Contract Suggestions

written is always preferred

follow-up oral agreements

use clear, specific terms

include a deadline

sign and initial changes

include material items

Statute of Frauds

“certain types of contracts which could only be enforced if in written form”

1) transfer of interest in real property

2) terms cannot be completed in 1 year

3) agreement to assume debt

4) executor/administrator pays debts of an estate out of personal funds

5) contracts of marriage

6) sale of goods is $500 or more

7) personal service contracts

Types of Contracts

Void contractVoidable contract

Executed contractExecutory contract

Oral contractWritten contract

Types of Contracts (cont’d)

Express contractImplied contract

Quasi contractUnenforceable contract

Bilateral contractUnilateral contract

Types of Contracts (cont’d)

Formal contract

Simple contract

Divisible contract

Joint and Several contract

Conditions of Termination

1) performance

2) operation of law

3) voluntary agreement

4) impossibility of performance

5) acceptance of breach