We can assist you in contract disputes, contract revision, contract drafting and contract creation. Contact us now.
What is a contract?
The concept of an agreement that courts will enforce is a fundamental
building block of Australian law. Sometimes, mere promises or
representations can be binding under legislation such as the Competition & Consumer Act 2010 (Cth). For an agreement to be binding as a contract, and with
exceptions to the general rule, a number of elements must exist,
For most contracts, it is not necessary (but is almost certainly
desirable) for the contract to be set out in writing. Some contracts,
such as a sale of land, must be in writing. Some contracts may be
unenforceable or simply void because they are illegal, are based on a
total misunderstanding or mistake.
- certainty as to who are the people or entities bound by the agreement ("certainty as to parties");
- an intention that the agreement would be binding in a Court of law ("an intention to be legally binding");
- one party makes an offer that has been accepted by the other;
- each party must give and receive something as a result of the agreement ("consideration"); and
- the agreement must be clear as to what is expected of - and by - each party ("certainty as to consideration").
Breach of contract
If a contract is breached by a party then another party may seek to
enforce the contract in a court of law. Generally, the injured party
will seek payment to put them in a position that they would have been if
the contract was performed ("damages"). Sometimes they will seek a
court order stopping something happening ("injunctions") or requiring
something to be done ("specific performance").
How does legislation affect contract law?
Many contracts are governed by legislation that forces the parties to
follow statutory requirements. Examples of areas where legislation
over-rides the agreement of the parties in Victoria include residential
or retail leases, employment relationships, sales of land and
The perfect contract
The perfect contract is one which clearly sets out what the parties have
agreed upon and seeks to reduce the likelihood of a dispute and, if one
arises, seeks to minimise the impact of that dispute. Ideally, the
perfect contract will be put in a drawer and never be looked at again,
because the parties know exactly what they have agreed upon and honour
that agreement so that the written contract is not needed. Unfortunately, this is not an ideal world and often the written contract
will be needed to ensure that one or more parties do keep the promises
made and agreement entered into by the parties. When a dispute does
happen, a clear and easily understood document that has anticipated the
issues in dispute will often avoid the need for a court of law to be
involved at all.
If you require assistance with contracts or contract law, don't hesitate to contact us today.
Tuesday, 4 October 2016
Are you a franchisor? ...or a financial services provider with authorised representatives? …or a credit provider? …or a service provider? Do you have a standard form contract that you wheel out when you take on board a new business partner or customer?
Monday, 14 December 2015
Chrisco is a well-known provider of Christmas hampers, supplying to customers across Australia. Its business model allows customers to pay for hampers through instalments during the year - this was referred to as the ‘HeadStart Plan’. However, its standard form contracts recently caught the attention of the ACCC, which brought proceedings against Chrisco in the Federal Court in November.
Thursday, 16 October 2014
Here are the last of the key things you should know about contracts – even if you have a lawyer acting for you.
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