What is a contract? A contract is a legally binding agreement that is made between one or more parties.
These agreements essentially set out the terms and conditions of a transaction. For a contract to be enforceable by a court, it has to be properly formed. However, it is important to note that not every document that is called a so called “contract” is actually enforceable.
In determining whether a contract is enforceable, several factors can be considered including the intention of those entering into the agreement, the terms of the contract and the legal capacity of the parties involved.
Entering into a Contract
In Australia, a contract does not have to be in writing to be valid: it can be entered into verbally. However, whether contract is in writing or verbal, there are four essential elements of a contract: offer, acceptance, consideration and intention.
An offer is a proposal by one party to enter into a contract with another party. The offer must be clear and unambiguous, and it must be communicated to the other party.
An acceptance is the unconditional agreement of the other party to the terms of the offer. Acceptance can be given in writing, verbally, or by conduct that implies acceptance.
Consideration is something of value that is exchanged between the parties. It can take many forms, including the exchange of money, goods, or services.
The final requirement for the formation of a contract is the intention to create legal relations. To satisfy this requirement, the parties must have a mutual intention to enter into the contract. This means that they must intend for the agreement to be legally binding at the time they form the agreement.
Enforceability of Contracts
In Australia, contracts are generally enforceable if they meet the above criteria for formation.
However, there are certain situations where a contract that meets this criteria is still unenforceable or void. For instance, a contract may be void if it is based on misrepresentation.
This can occur when one party makes a false statement that induces the other party to enter into the contract.. Duress is another factor that can void a contract. This might happen if one party is forced to enter into the contract under duress or undue influence.
A contract may also be found to be void if it involves illegal or immoral activities.
Additionally, a contract may not be enforced if one or both parties lacked the necessary legal capacity to enter into the contract. For example, minors, intoxicated persons, and mentally ill persons may lack the capacity to enter into a contract.
Breach of Contract
A contract is binding on both parties, but if one of the parties breaches the contract in an important way, the other party may be entitled to terminate the contract and not fulfil their part of the bargain.
, It is integral that you receive legal advice before terminating a contract on the basis of the other parties’ breach. If it turns out the that first party was in fact not in breach, the person purporting to terminate on the basis of the breach will be in the wrong.
If one party breaches a contract, the other party may seek remedies for the breach. The two main remedies available for breach of contract are “damages”, which is monetary compensation awarded to the innocent party for losses suffered, and “specific performance”, which is when a court order requires the party in breach to perform the contract.
In addition to the above, the court may also make orders including “rescission”, when the contract is cancelled and the parties restored to their original position, or “injunction”, when the court restrains one party from acting in a way that would breach a contract.
Tzaneros Investments Pty Ltd v Walker  is a case where a contract was voided due to misrepresentation. The case involved the sale of a property in New South Wales.
The plaintiff, Tzaneros Investments Pty Ltd, was the vendor of the property, and the defendant, Mr Walker, was the purchaser. In this instance, the contract for sale contained a clause stating that the property was zoned for “B4 Mixed Use” under the relevant planning scheme. However, at the time of the sale, the property was actually zoned for “R3 Medium Density Residential”. The purchaser later discovered this fact and sought to rescind the contract on the basis that they were misled.
The court held that the vendor had made a material misrepresentation by stating that the property was zoned for “B4 Mixed Use”. The misrepresentation had induced the purchaser to enter into the contract, and the court held that the vendor had breached the contract by failing to disclose the true zoning of the property.
The court also held that the purchaser was entitled to rescind the contract and receive a refund of the purchase price, as the vendor had breached an essential term of the contract.
This case demonstrates the importance of accurately disclosing information in a contract for sale, and the consequences that can arise if a party makes a material misrepresentation. It also highlights the importance of ensuring that contracts are clear and unambiguous so that they meet the essential elements of contract formation to be found enforceable.
While a contract need not be in writing to be enforceable, there are essential elements that must be present when making the contract to determine whether it is valid as only a valid contract can be enforced by a court.
If you intend to enter into a transaction with another party, we recommend that your agreement be in writing and be prepared or reviewed by an experienced lawyer.
The information in this article is general in nature and does not constitute professional advice.