Don’t Make These Mistakes in Your Breach of Contract Case

Sometimes, you just know that a contract is about to be breached. Something about the other party’s words, behavior, or absence of either, tips you off that there’s a really good chance that the other side is not going to or willing to carry out its obligations under the contract.

But before you rush off to sue, there are things that you should be aware of, which could affect your right to sue, or else, the likelihood that you will win your breach of contract case.

Keep your cool – You may be angry at the breach or perceived, impending breach. You may want to sound “tough” to get the other side to live up to its obligations.

Remember that there is a good chance that the things you text or email, will be evidence in any upcoming breach of contract case. That means you need to keep calm. While being a raving, angry lunatic isn’t a legal bar to recovering, it surely will make you look bad to a judge, when your angry and demeaning emails get into court in your case

Watch your settlement offers – It can be easy to just flippantly say “Ok pay me later,” or “how can we work this out,” or similar things. Before you know it you’ve got new terms and conditions and obligations on the parties.

But be careful, because your email or text correspondence can effectively create a new contract, overriding your previous (now breached) contract. A court can even find that you waived vital rights you had in the original contract, because of new agreements you made in the course of your negotiations over the breach.

Are there conditions precedent? – Often a contract will have steps that you have to take, in order to sue for breach. If you don’t follow those steps, your case will get kicked out of court—even if the other side really did breach the contract.

Often, typical conditions precedent include the requirement that the other side be provided written notice of a breach, or that notices be sent to a specific address, or that the parties meet to go to mediation or some other form of dispute resolution.

Waiting too long – While you’re trying to see if there’s a breach, or even trying to negotiate a way to avoid litigation, the clock is ticking on the statute of limitations. In Florida, that limitation is five years. That’s plenty of time, right?

Except your contract may have a choice of law provision—that is, the law of another state, where that time period is shorter, may apply to your contract.

Mitigating damages – Sometimes, there are things you can do to try to lower, or minimize the damages you would sustain from the breach of contract. Whatever you can do, you should do—failure to mitigate damages is a common defense to breach of contract actions.

Call the West Palm Beach business litigation attorneys at Pike & Lustig today.

Sources:

investopedia.com/terms/c/condition-precedent.asp

supremecourt.gov/qp/21-00328qp.pdf