Breach of Contract
Contracts form the basis of all transaction, whether verbal or in writing. Unfortunately in today's day and age, it is advisable to reduce the terms of your contract to writing. Saying that, except in the case off a few exceptions, a verbal agreement is just as binding as a written contract.
Faced with a breach by the other party - what now?
Written agreements will often guide a party as to the process to follow and often a contract will require that the breaching party be notified of its intended breach and be granted a period within which to rectify it. Once you have delivered the breach notice and the other party failed to rectify the breach, you must consider your next step very carefully, since you have an important decision to make - You must decide whether to keep the contract in place OR whether you wish to cancel the agreement. Once you have made your decision, you will be bound thereby and cannot change it. Depending on the decision you make and the facts of the matter, there may be some unintended consequences to your decision and it is therefore very important that you seek legal advice prior to making this decision. If you do not make any decision within a reasonable time, it can be construed that you have decided to keep the agreement in place, binding you to certain remedies. Should you consult us, we will advise you on the actions required from you in terms of your contract, if you intend to take any action. In addition, we will guide you in the drafting of any prescribed breach notice and your decision on whether to cancel the agreement or not. Further, we will advise you of the possible consequences of your decision in your specific matter and the possible damages that you can claim as well as how to prove such damages. Finally, should you instruct us to assist you, we will draft all the necessary correspondence and/or documentation to institute legal proceedings.
Can I claim on a verbal agreement?
Often referred to as "hand shake deals" these type of agreements are, as the name implies, not recorded in writing. As a result, clients are often unnecessarily concerned that they "do not have a foot to stand on" should they seek to institute legal proceedings based on verbal agreements. Clients are often concerned that it will not be possible to prove their claims due to a "he said, she said" scenario. Most often, such concerns are unnecessary. Verbal agreements are just as enforceable as written agreements - your approach to prove your claim will differ however. To prove the terms of a verbal agreement, one would for instance consider: • the conduct of the parties after conclusion of the contract; • terms implied by law and trade usage; and • terms implied from the facts of the transaction.
Considering legal action?