Who Said You Should Perform
Don’t perform if you don’t want to, but be prepared to pay damages. The law does not require you to do something that is pointless or useless.If the other party has already refused to accept your performance and breach of contract, or if they have unequivocally repudiated the contract, you are not required to perform your obligations under a contract. However, if you do not have a legitimate belief that the other party cannot fulfill their obligations, you are still required to try to perform your own obligations.
A party to a contract cannot sue for breach of contract if they themselves have not fulfilled their obligations under the contract. Additionally, a party cannot sue for breach of contract if the other party has fully fulfilled their obligations or is not yet required to do so under the terms of the contract.
Example: The construction loan agreement gave the lender the right to require flood insurance. However, there was nothing in the agreement that required the lender to obtain a flood insurance certificate before funding construction draws. Therefore, the lender met its obligations under the agreement when it funded draws, even though the borrowers alleged that the house was constructed in a defective manner because it did not meet flood-zone requirements.
They Didn’t Perform Either
If the promises in a contract are independent, each party must still perform their obligations even if the other party has not performed theirs. If one party fails to perform, the other party can still sue for breach of contract. Similarly, if one party breaches one contract, the other party cannot cancel a separate independent contract.
Inspection or Approval of Performance? Better be Clear
A contract provision that requires the approval of a third party before payment or liability can be considered a condition precedent. However, this condition can be waived, either expressly or impliedly, by the actions of the parties. In the case of a construction contract between a general contractor and a subcontractor, the courts require that the contractual language establishing conditions precedent to payment of the subcontractor —Including the conditions of approval of the work by a third party and payment of the contractor by the property owner —Be particularly clear and unambiguous.
This is because small subcontractors will not ordinarily assume the risk of the owner’s failure to pay the general contractor. If a party to a contract has failed to fully perform their obligations due to errors made by both parties, which made the first party’s attempt to obtain the necessary approval useless, the first party may still recover the contract price, minus any damages caused by their own errors in failing to fully perform their obligations under the contract. In other words, if both parties made mistakes that prevented the first party from fully performing their obligations, the first party may still be able to recover some of the money they were owed under the contract. However, they will not be able to recover the full amount, as they will be responsible for any damages caused by their own mistakes.
Should I Give Notice
If a written contract requires that you give notice before filing a lawsuit, you must do so unless you have a valid excuse. In general, you do not need to give notice before performing your obligations under a contract, unless the contract specifically requires it or the nature of the contract makes it necessary. If a contract requires that both parties perform their obligations at the same time and time is not important, neither party is in default until one of them has performed their obligations and demanded that the other party do the same.
Performance or Breach of Contract?
When Do You Need a Contract Attorney?
When it comes to contracts, there are a lot of things to keep track of. You need to make sure that the terms of the contract are clear and enforceable, and that both parties are meeting their obligations. If something goes wrong, you may need the help of a contract attorney.
A contract attorney can help you with a variety of tasks, including:
- Drafting and reviewing contracts
- Negotiating contract terms
- Resolving contract disputes
- Litigating contract claims
If you are involved in a contract dispute, it is important to contact a contract attorney as soon as possible. A contract attorney can help you understand your rights and options and can represent you in court if necessary.
Here are some common contract issues that may require the help of a contract attorney:
- Breach of contract: A breach of contract occurs when one party fails to meet their obligations under the contract. If you believe that the other party has breached the contract, you may be able to sue for damages.
- Unenforceable contract: A contract may be unenforceable if it is not in writing, if it contains illegal terms, or if it is signed by someone who does not have the authority to sign it.
- Modification of contract: If you want to modify a contract, you will need to get the consent of all parties to the contract. A contract attorney can help you negotiate the terms of a modification agreement.
- Termination of contract: A contract can be terminated for a variety of reasons, such as breach of contract, material change in circumstances, or mutual agreement. A contract attorney can help you terminate a contract in a way that protects your rights.
If you have any questions about contracts, it is important to contact a contract attorney. A contract attorney can help you understand your rights and options and can represent you in court if necessary.