Is your contract unenforceable - Don't get caught out
Sometimes as lawyers, we forget that things we take for granted clients don’t always understand.
Today I talk about 2 examples where clients are mistaken about a contract's enforceability. I give you some quick tips to make your contract watertight.
If you have any questions about how you create a contract and how to make sure it is enforceable, contact me
VIDEO TRANSCRIPT
Ross Millen:
Hi. Sometimes, as lawyers, we forget that things we take for granted, perhaps our clients don't quite understand. I had two examples this week. I had a client that we were trying to advise them about a potential breach of a contract, and they said, "Oh, well, we don't really have a contract with the other side because there's nothing in writing." And I said, "Well, you don't have to have... Some contracts, you must have in writing, like guarantees and things like that, but you don't necessarily have to have a written contract." The contract could be verbal or it could just, as in this case, arise out of three years of dealing with each other in a certain particular way. So a course of dealing can create a contract. So the client was pleased to know that in fact he really did have a contract and the other side breached it, and so he's got a claim for damages.
Another thing about contracts this week, I had a situation where we were negotiating a contract and my client said, "Well, we're going to accept their offer, but on different terms." And I said, "Well, that's not really a contract, because if you go back and say that you've got different terms, you're really making what we call a counteroffer. You're not accepting their offer and making a contract happen, you're coming back with a different type of offer." The client said, "No, I'm accepting their price and this, I just want different terms." I said, "That is not a contract. Until the parties actually agree on all the key elements, there's no contract." So they have to agree on the parties and all the key terms. You can't accept some and not others and still think you've got a contract.
So these concepts, we understand them, but perhaps sometimes you don't. So if you've got any queries about, have you got a contract, how do we create a contract, how do we make sure we've got something that's enforceable? Contact me or anyone else at Millens and we'll be able to help you. .
