Widespread use of e-mails and the internet has placed new importance on the principles of contract formation. There are five elements which must be present in order for a contract to be legally binding:
- Offer
- Acceptance
- Consideration
- Intention to create legal relations
- Capacity
A contract may be formed orally, in writing, or partly orally and partly in writing. Disputes often arise when the contract terms are not set out in writing as it is unclear what terms were agreed and incorporated into the contract. A contract may also be implied by conduct.
In broad terms if contract terms are breached the remedy is damages to put the claimant in the same position as if the contract had been performed. In order to succeed in a claim for damages for breach of contract the claimant must prove that the defendant breached the terms of the contract, the breach caused the loss and that the claimant has not unreasonably failed to mitigate that loss.
Concurrent liability in contract and tort: Sometimes there is a breach of duty in contract and in tort and consideration will need to be given as to the damages claimed. In breach of contract claims the damages seek to put the claimant in the position they would have been had the contract been properly performed; in tort claims i.e. claims in relation to a civil wrong-doing, the damages seek to put the claimant in the position they would have been in before the tort occurred.
In light of the global market in which the world now operates, consideration also needs to be given to jurisdiction.
If you think that you may have a claim for breach of contract the Dispute Resolution team at Thompson Smith and Puxon can help. For more information on the subject or to arrange an initial consultation please do get in touch here.
