Normally there are four questions dispute lawyers ask when determining whether a party has breached the contract.
- Is There an Enforceable Contract?
- an agreement between the parties that is sufficiently certain and complete,
- consideration (i.e. parties exchange something of value) (note that this component may not be required in all jurisdictions), and
- intention to create legal relations
- What are the Terms of the Contract?
If a court is required to resolve a dispute, it must first identify the terms of the contract, the meaning of those terms and their legal effect. A contract does not need to be in writing for a party to enforce its terms. A contract can be either in writing, verbal, implied (by way of conduct) or a combination of them.
- Are There Any Implied Terms?
Implied terms may also bind the parties. Implied terms could for example be those that the industry accepts as standard and are obvious but which are not spelt out in the contract.
- Has the Contract Been Breached?
Normally a party must establish that the other party’s performance has fallen short of the required standard under the contract. The relevant standards required should be clearly set out in the contract.
Before you commence legal proceedings against another party, it is important to get advice on the terms of your contract. Many court cases involve parties fighting over the true meaning of a contract or even whether there is a contract between the parties. It is useful to have this information at an early stage of the dispute. This can assist with negotiations and ascertaining bargaining power.
This article contains general legal information and does not contain legal advice. GLOMACS is not a law firm or a substitute for any attorney or law firm. The law is complex and changes often. Stay up to date with contracts by taking GLOMACS Contracts Management Courses.