Quote:
Posted By TimB4 on 03/05/2019 3:34 PM
If you agree to it in writing, it's likely a binding contract.
For this to be a binding contract*, both sides must give up something of value (either a good or service, with service including, inter alia, a commitment not to do xyz). The HOA and Board have given up nothing of value. But the director has given up his or her rights to comment online. It's like signing an agreement where one agrees to gift something to another:
"I promise to give you, Sally Jones, $100. Signed, Augie de La Sierra"
"I, Sally Jones, promise to accept the $100. Signed, Sally Jones"
This agreement is not a binding contract. This is because Sally is giving up nothing of value in exchange for the $100. If Sally went to court, she'd say, "Your honor, Augie promised me $100. Here's the original signed agreement. Please order him to pay up." Augie's attorney responds, "Your honor, the law of contracts requires that each side give up something of value. What has Ms. Jones given up?" Ms. Jones responds, "Nothing. But Augie signed. I want my money." Judge: "Ms. Jones, I rule in the defendant's favor. Please go home and google on the subject of contractual 'consideration.'"
*"Binding contract" is actually redundant. There either is an agreement whose terms satisfy the definition of "contract," or there is not. If there is such an agreement, then it is called a "contract." By definition, when a contract exists, it is enforceable.