Contracts provide the foundations of personal and commercial dealings worldwide. Breaching a contract regardless of circumstances may result in serious consequences and therefore should always be taken seriously. Before you can claim breach of contract, the first, and most commonly overlooked a step in this process is one must first determine whether a legally binding contract actually existed in the first instance.
To form a legally binding contract(or agreement) between two or more parties, it is necessary that all parties must first have understood what they were doing and have the legal capacity to do so. Under Australian law, there are 3 main elements which must exist for a legal contract to be formed:
1. An agreement about the essential terms of the contract
An agreement is reached where one party makes an offer and that offer is accepted by the other party/s. For example, Joe offers to sell a shovel for $20 to Peter, and Peter accepts the offer made by Joe.
2. Agreement Consideration
Consideration of an agreement is constituted by each party agreeing or promising to do something or to provide something of value. A common example of consideration occurs when one person pays money to another person in exchange for that person providing goods or service. For example, Joe pays $20 to Peter in exchange for his shovel.
3. Intention to create a legally binding agreement
Parties to an agreement must also have the intention to enter into a legally binding agreement. For example, Joe and Peter must have the intention to enter into a binding agreement where Joe has paid Peter $20 for his shovel, in exchange for which Joe takes up ownership of that tool.
Types of legal contracts
In general terms, contracts can be oral, written or a combination of both oral and written terms.
What this means in a practical sense is that enforceable contracts can be constituted in different ways, and as such, is it not always the case that a contract needs to be in writing in order to be enforceable. It is pertinent to note that certain types of transactions may be regulated to require that the parties do so.
What to do if you think you have breached a contract
If you breach a contract you can be exposed to a number of different actions from the innocent party. Ideally, Court imposed actions may result in an award for damages for financial losses or specific performance, based upon the breach.
If you believe that a contract is being breached or alternatively that you have breached a contract, then it is best to obtain legal advice as soon as possible with a view to minimising your exposure and risk. Forge Legal’s experienced Contracts Division has over 30 years of expertise assisting hundreds of businesses to reclaim millions in lost revenue. We have the knowledge and know-how to cost-effectively reduce the amount you write off each year in bad debts. Contact us to learn how our experienced team can be of assistance to you in relation to enforcing your business contracts.