“What the big print giveth, the small print taketh away. ”
A contract is a legally binding promise or agreement. Contract law covers various kinds of situations, including deeds of agreement, written agreements, verbal agreements, agreements which are a combination of these and others. Just because it isn’t in a written and signed contract doesn’t mean it isn’t part of the agreement or isn’t a relevant factor which a court would take into consideration when looking at the enforceability of an agreement. Contract law overlaps with other areas of law and equity such as misleading and deceptive conduct, estoppel, unconscionability, undue influence and others so it is important that your individual situation is properly considered by one of our commercial litigation team so that we can advise you as to the status of what you think is your agreement and whether or not it is enforceable.
Have you been negotiating but never got around to signing a contract and now the deal has fallen apart? In certain circumstances, we can help. It is possible, depending on the relative bargaining strength of the parties, representations which were made, conduct which was in accordance with or as a result of the negotiations, disclosures which were made, information given and other factors that courts will step in when one of the parties denies that they should be held accountable in circumstances where negotiations weren’t finalised.
Uncertainty about uncertainty
There has been much litigation about what words in a contract mean and about whether or not specific terms ought to be implied into a contract. To some extend this is a changing area of the law with different standards in different courts as to what constitutes ambiguity and how this should be dealt with by judges. Generally speaking, a term in a contract which requires parties to agree some aspect of the transaction (known as “an agreement to agree”) won’t be enforced by courts. An example of this would be an option to renew an agreement “on terms to be agreed”.
Breach of contract
Failure to perform obligations under a contract often seems like a clear cut issue but all sorts of questions can and do arise. What performance was actually required? Was the performance offered adequate? Was late performance sufficient? What does non-performance or partial performance entitle the other party to do and if termination is possible what will the results be of an election to terminate? Proper advice is essential here as an unjustified attempt to terminate a contract may itself be seen as a repudiation entitling the innocent party to terminate the contract and sue for damages.
Remedies where there has been a breach of contract may include damages, the court enforcing the agreement (specific performance) or the court ordering an injunction, for example stopping the seller of a business from breaching a restraint of trade clause. It can also be possible to avoid contracts altogether where a party was induced by fraud or misleading and deceptive conduct to enter into a contract. Equitable remedies (which aren’t strictly contractual) may be available such a