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The Contract

A promise is a declaration or assurance that one will do something or that a particular thing will happen. In our everyday lives, promises are made left, right, and centre, the same promises can or may be broken. In a business, every promise that is made is stipulated in what you may know as a contract.

Contracts are the bane of almost every business’ existence. In simple terms, a contract is a promise enforceable by law. To define it further, a contract is a legally enforceable agreement that creates, defines and governs the mutual rights and obligations of its parties.

As you run your business, you may be curious as to what amounts to a contract. A contract can either be written, oral, or partially written and oral. During the drafting of a contract, statements made during negotiations can be determined as terms, but they may also be determined as conditions if they are found to be a statement of fact made by one party which induces the other to enter into the contract. 

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Until a contract is signed, nothing is real

Glenn Danzig

Terms and conditions are usually evidenced by what the parties wrote or said, when there is a breach of contract, a court must determine what the parties intended. A breach of contract occurs when one or both parties fail to keep the promises or agreement or fail to live up to or their responsibilities stipulated in the contract.

It is possible for the whole contract or part of the contract to be breached. A plaintiff’s remedy depends on whether the statement is classified as a condition or a term. A contract awards certain expectations to the parties who are privy to it. Therefore once these expectations are not met, there is cause for the non-breaching party to seek remedy from the court. 

Here are a few remedies available for any party seeking recourse;

1. Damages 

These are the most common legal remedies given for a breach of contract. This is solely based on the actual losses you have sustained as a result of said breach. When one party fails to perform their end of a contract, they are expected to pay for the losses the other party has incurred due to that breach.

2. Specific performance 

Have you ever been forced to do something you do not want to do? Well, specific performance is where the court orders the breaching party to perform their end of the bargain. This remedy is usually available once monetary damages would not adequately compensate an aggrieved party.

3. Injunctions 

Injunctions and specific performance are quite similar. The major difference is while in a specific performance a party is ordered to do something, injunction orders stop a party from doing something. Injunctions may be permanent or temporary, the latter being awarded to a party probably while litigation is pending and the former can be given as the final ruling in a proceeding. 

4. Rescission 

As the word plainly states, a non-breaching party is allowed to cancel the contract as a remedy to its breach. A party is allowed to simply refuse to complete their end of the bargain putting parties back in the position they had as though they had never entered the contract in the first place. 

Rescission however is not one remedy that someone just wakes up in the morning and receives. The breach that one is claiming must be at the heart of the contract. In other words a condition.

These are just a few of the remedies that may be available to you in case of any misgivings as to your contract.

But as always, it is best that you seek professional advice.

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