When is a Contract Formed?

For a valid contract to exist, it must include the following four elements:

  1. There was an offer followed by an acceptance;
  2. A “meeting of the minds” between both parties regarding the terms of the agreement;
  3. Mutual consent to the agreement; and
  4. A plan to execute the agreement.

Without these four elements, a valid contract most likely does not exist. A contract may be binding whether it is in writing or an oral agreement between the parties. Contract law can be very complicated and there are several exceptions to these rules. A skilled business litigation attorney will be able to analyze the facts of your case to determine whether a valid contact exists.

Breach of Contract

A breach of contract is simply the failure of one party to satisfy the requirements arising from a contract. However, not every breach will give rise to a cause of action. There are four elements a party must prove before she can bring a cause of action for breach of contract. Those elements include:

  1. Proof that a valid contract existed, either written or oral;
  2. One party performed under the contract
  3. The other party failed to perform under the contract; and
  4. The performing party suffered damages due to the breach.

There are two main types of breaches: material and non-material.

Material Breach of Contract

A material breach of contract is a breach so fundamental to the contract that it allows the non-breaching party to terminate the contract. It shields the non-breaching party from any liability or further contractual obligations under the contract since the breach was so egregious.

Non-Material Breach of Contract

A non-material breach of contract is still a breach; however, it is not as fundamental to the performance under the contract and most likely will not allow the non-breaching party to terminate the contract. If a party commits a non-material breach, they are most likely given a period of time to cure their breach before the contract may be terminated. In this situation, both parties are still bound by the terms of the contract. Contact a Business Litigation Attorney Today If someone in your life has breached a contract, or if you may be in breach, call KIRKER | DAVIS, LLP today to speak with a highly qualified business litigation attorney to help protect your interests.