Breach of Contract Elements

Before you can successfully bring or defend a case involving a breach of contract you need to be certain that you can make out the elements of the case. 

Is There A Contract?

Firstly, there must be a contract to begin with. A simple contract generally requires the following elements: -

• agreement - often there is an offer on one side, and acceptance of by the other side. Sometimes there isn't a neat offer and acceptance in which case agreement can be inferred. 
• intention to create legal relations - the parties must intend to be bound by what they are agreeing to. Some handshake deals mean no more than being bound by honour rather than creating legal consequences. 
• consideration - this is also known as quid pro quo or a back scratch for a backscratch. The role of consideration can be dimished throught he use of estoppel. 
• capacity - the parties need to have the capacity to enter into a contract e.g. minors may lack such capacity. 
• consent - a contract needs to be validly consented to and not made under duress. 
• lack of illegality - a contract to do something illegal e.g. supply prohibited drugs will not be upheld. 
• completion - finally the terms must be certain and complete. Sometimes terms can be implied but where the essential terms are missing the contract could fail. 

Is There A Breach of the Contract?

Once there is a contract, the next question often is whether it has been breached. A contract can be breached in many ways and only some breaches will permit termination. Slight breaches could entitle the innocent party to nominal damages whereas serious breaches could sound in substantial damages. Generally, only serious breaches should be litigated. 

Generally, litigation is considered where the breaches of contract are serious: -

• a breach of a fundamental term;
• a breach of an essential term.  

For more information on a breach of contract in Sydney, NSW contact our commercial litigation lawyers. In some cases were urgent relief is needed, such as for cease and desist cases, there is an added need to act promptly. 

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