Contract Law in Commercial Transactions
THE POWER OF SCRIPTA MANENT
When dealing with daily commercial transactions you need to ensure that any type of business venture is backed up by a written agreement. This will ensure that your interests are well protected in case where a counterparty decides to act contrary to what was initially agreed or goes default on a payment schedule. A Court of Law will always read behind the actual wording and labeling of a contractual provision to assess what was mutually and originally intended by the parties in case where a contractual clause calls for interpretation.
Whether you’re a plaintiff or a defendant in breach of a contract for the sale of goods or services, our Firm will assess any damages stemming out of such a breach and advise you on your rights, duties and obligations as well as your chances in fighting a claim in a Court room or an Arbitration Procedure. Alternatively, our Firm may recommend you in settling the case via out of court negotiations, in order to mitigate your loss, cut down litigation costs, recover damages in a fast – track manner and protect the operational part of your business from time consuming court proceedings which may prove to be unworthy taken especially if the defendant will not have the financial means to satisfy a favorable Judgment.
Intention of the Parties matters
In common law, when there is a dispute as to the terms of the contract such as failure to perform one’s contractual obligations, the test that applies relates to the original and actual intention of the parties when initially entered the contract. In addition, the Court will look into the terms of the contract whether agreed in writing or orally, to conclude if a material breach took place, a factor that is decided on general principles and guidelines set forward by precedent case law while in harder cases adjudicated upon interpretation of the terms. The financial / economic position of the stronger party may be taken also into consideration in applying the proportionality test, especially where the weaker party was not in a position to negotiate fairly the terms regulating its contractual relationship with the other party, which sometimes may be deemed as unfair, oppressive, unilaterally imposed without being negotiated and effectively struck out as null and void.
The Court or Arbitrator will look into the actual damage suffered by the claimant in deciding the seize and kind of the award that will be granted to the prevailing party. Damages are distinguished between special and general, the first being damages sustained out of calculated economic loss directly resulting out of the breaching party’s failure to perform, while the latter being estimated on various peripheral parameters such as reliance interest, loss of expectation, loss of amenities and loss of opportunity principles which often apply to tort claims.
Our Firm can provide the following legal services pursuant to a contractual claim:
- Negotiate / review the terms which will regulate your contractual relationship with the other party and draft customized contract agreements to fit the exact nature and scope of your business in a contractual context which shall reflect the express intention of the parties;
- Act as Escrow Agent in effectuating custodian services and money transfers according to the terms of the contract;
- Assess the terms of your contract and consult you in fighting the case in court or negotiating settlement out of court;
- Represent you in court proceedings for the recovery of damages stemming out of a breach of contract;
- Represent you in Arbitration Proceedings for reaching a Dispute Resolution Settlement;
- Garnishee proceedings;
- Debt Collection via out of court settlements and/or instituted court civil and criminal proceedings;
- Enforce interlocutory measures in court for restraining the other party from alienating assets such as account freezing (Mareva injunctive relief order) in light of a substantial claim brought forward once being notified;
- Applying for an interim injunctive order in forcing the other party to deliver and/or freeze goods which form part of the contractual claim;
- Take up enforcement proceedings in satisfying a Judgment issued in your favor such as filing applications for monthly payments, securing a writ of delivery, writ of attachment, writ of possession, company liquidation / dissolution proceedings and bankruptcy proceedings;
- Defend you in Court from a malicious / frivolous claim and/or for contesting and challenging unfair contract terms and where applicable counterclaim for any damages suffered as a result of the claimant’s acts and omissions;