Common Mistakes in Breach of Contract Cases

When you or your business have a contract with another party and they breach the contract, they are the party in the wrong. As the non-breaching party, and the party complying with the terms of the agreement, it may be hard to imagine that you could do anything wrong that would prevent you from winning a breach of contract case.

But even though you are the one that complied with the contract and the other side did not, there are actually some crucial mistakes that you can make that could prevent you from obtaining damages from, or from enforcing the terms of the contract.

Conditions Precedent

The first thing to do is obvious—read the contract (or have your business lawyer read it), and make sure there are no conditions precedent. A condition precedent is something that you must do, before you have a right to sue for breach of contract.

A typical condition precedent is sending notice and opportunity to cure, before you can sue. Other conditions may include going to mediation. What you have to do before you can sue will depend on what your contract says, but if you sue without complying with notice provisions, or other conditions precedent, you could have your case kicked out of court.

Workouts and Settlements

Another error that parties to a contract make is working out temporary settlements, without putting them in writing.

For example you may let the other party pay late, or perform parts of the contract later than they are supposed to. You may look the other way if the other party’s performance is routinely substandard. You may feel that you are “being nice,” and avoiding litigation, and encouraging cooperation, and those are all good things.

The problem is that you could be waiving your right to go to court, and enforce the contract, if you need to do so later on. Your course of performance, post-breach, can alter the written terms of your contract.

Lessening Damages

Many parties also don’t mitigate their damages. To the extent that you can, you have an obligation to “stop the bleeding,” by taking actions that lessen or minimize your financial damages from the breach of contract.

Yes, many contracts do say that a party has no obligation to mitigate its damages. But even so—a court will look to see that you did whatever you could, to stop or lessen your own financial damages before you sued the other side for the full amount of your losses.

Be Kind and Civil

Being civil is just common sense.

Will being rude, hostile, obscene or nasty legally prevent you from winning a breach of contract case? No. But if you’re in a position of having to convince a judge or jury of whether you, or the other side, is correct, you don’t want to come off as irrational or hostile.

Keep that temper in check, and let your business attorney do the fighting for you.

Call our Fort Lauderdale business litigation lawyers at Sweeney Law P.A. at 954-440-3993 today for help with your breach of contract case.

Source:

law.cornell.edu/wex/duty_to_mitigate