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Breach of Contract

BREACH OF CONTRACT LAWYER SAN DIEGO

BREACH OF BUSINESS AGREEMENTS & REMEDIES AT LAW

In a perfect world, business owners would enter into successful contracts where both parties would actually perform what they promised. In the real world, business contracts are infiltrated with issues such as interpretation and compliance.

Avoid Contract Disputes

The most effective way to avoid contract disputes is to obtain prudent legal advice before entering into contractual agreements. No company or agent should sign a contract without understanding and negotiating the particular terms. If the terms are worded vaguely or phrased in ways subject to different interpretations, either party to the contact could theoretically exploit the lack of clarity in contemplating future litigation.

Breach of Contract Claims

A breach of contract claim is the most common business dispute. There are many different types of contractual disputes, please find a short list below:

Buy/Sell Agreement Applies

Your company should have a buy-sell agreement in place. Call now for help in drafting one. A buy-sell agreement will direct the way in which an owner transfers ownership interest.

Employment Contracts

Wrongful termination, severance pay, employees sue businesses quite frequently.

Non-Compete Agreements

Employers enforce their contracts when certain employees work for a competing company. A company which overreaches can be included in the lawsuit.

Partnership agreements

Partnership disputes arise when parties do not perform. After the contract was signed certain terms not contemplated or are breached.

Vendor Agreements

Failure to perform and fraud in billing are common breaches in vendor contract disputes.

Damages in Contract Disputes

Contract disputes are usually about money and include consequential or general damages, but it is sometimes important to seek equitable remedies.  Equitable remedies include injunctions, easements, and orders by the court.  Most contracts require negotiation, mediation, or alternative dispute resolution techniques such as arbitration before suing in Superior Court.  While I am willing to represent you in court, a negotiated settlement is often in the best interests of the business owner.

Analyze a California Contract

APPLICABLE LAW

What law applies to your contract? Sale of Goods or Service?

 The first issue in approaching any contractual matter is to determine which law applies.  While common law rules generally apply to services, the UCC applies to the sale of goods and special rules apply to merchants. Although the UCC applies to the sale of goods, when coupled with a service, courts look to the substantial part of the contract to determine whether it should be analyzed as a service, a sale of goods, or a divisible contract.

FORMATION STAGE

Was the contract properly formed? 

Formation of a contract requires and offer, acceptance, consideration and no defenses on the part of the opposing party.  An offer is a manifestation of present intent to enter into a contract and contains definite and certain terms which are communicated to the offeree.  An acceptance is an unequivocal assent to be bound by terms of the offer of which the offeree has actual knowledge.

STATUTE OF FRAUDS

Is your contract written?
The statute of frauds requires that a contract for the sale of goods over $500 be in writing.

MODIFICATION

Changing the terms after formation.

A modification occurs when the parties to a contract alter the terms by agreement. Modification must be supported by consideration. Under the UCC consideration is found in good faith.

PERFECT TENDER RULE

Goods must be exactly as described. Under the perfect tender rule, goods delivered which do not comport with the definite and certain terms of the offer results in a breach of contract. Goods are defined as tangible, moveable objects. If you think you have a breach of contract problem, call the number below to contact an attorney.

MATERIAL BREACH

Was it actually a BREACH?

Usually minor breaches don’t count! Use the following test: a material breach occurs when non-performance or non-conformity is so severe that it strikes at the essence of the bargain.

EXCUSE BY IMPOSSIBILITY

Is it impossible to perform?

When performance becomes objectively impossible, performance could be discharged.If the weather was unusually rainy and a painter couldn’t finish, it made the painter’s duty to paint the house by the deadline more difficult. But the weather did not destroy the house or even make painting the house by the deadline completely impossible. The painter could have hired more painters to meet the deadline, but he would have lost money. Objectively, the painter could have met the deadline with more painters, so performance was not impossible. This excuse is likely to fail here.

EXCUSE BY IMPRACTICABILITY

Is performance impracticable?

When performance becomes unreasonably difficult by some unanticipated event, excuse by impracticability applies.

EXPECTATION DAMAGES

Damages to make “whole” the plaintiff. 

Expectation damages are awarded to put the plaintiff in the same economic position as if the contract had been performed.

CONSEQUENTIAL DAMAGES

Foreseeable Damages. 

Consequential damages are awarded for costs incurred that were reasonably foreseeable at the time the parties entered into the contract.

AVOIDABLE DAMAGES – DUTY TO MITIGATE

Duty to avoid damages.

Parties to a contract have a duty to mitigate damages. This means that they should act prudently to correct the situation quickly, at their peril if they do not act.

NOMINAL DAMAGES

Injury to a person’s dignity.  Nominal damages may be awarded where a breach is shown but no actual loss is proven.

PUNITIVE DAMAGES

Damages to punish. Punitive damages are generally not awarded in contract cases unless there was malicious behavior.

QUASI-CONTRACT

Unjust enrichment. If a contract fails or is invalid a party may still be awarded a remedy measured by unjust enrichment.

Contract Dispute Attorney in San Diego 

Your situation is unique. Do not rely exclusively on the above information; it is necessary that you speak with a licensed California lawyer about your particular matter.  For more information or to schedule a free confidential consultation with a San Diego contract dispute attorney, call (619) 800-0676 or fill out the contact form on this website. .