How to defend against implied contract claims

The implied covenant of good faith and fair dealing is an enigma to many lawyers. One reason for the mystery is that there is no concrete rule to guide us in determining what the standard is or what constitutes a breach. Instead, courts address claims on an individualized, fact-specific basis. What’s more, each state has varying jurisprudence on the inquiry, making the criteria difficult to decipher.

The overarching concept of the implied covenant is that even when there is a binding, enforceable written contract between two parties, there exists yet another implied duty imposed upon each of the parties to act in a fair and equitable manner. Plaintiffs often utilize this claim to allege that they are entitled to relief even if there is a contract between the parties that does not specifically prohibit the defendant’s conduct. Defending against this claim can be a challenge because it may be counter-intuitive to basic rules of contract law and because the case law is somewhat erratic.

This article first reviews what the implied covenant of good faith and fair dealing is, and then discusses several approaches for defending against a claim of breach of the implied covenant.

The Implied Covenant of Good Faith and Fair Dealing

A covenant of good faith and fair dealing is implied in every contract. See, e.g., Rest. 2d Contracts § 205; U.C.C. § 1-304. Nevertheless, there is no bright-line rule or single definition of the doctrine.

The implied covenant is governed by state law, and the particular standard thus varies from state to state. But in broad strokes, the implied covenant can generally be described as an obligation imposed on the parties to a contract to act in a way that is consistent with the spirit of the parties’ agreement, and a promise that neither party will intentionally do anything that will injure the right of the other to receive the benefits of the agreement.

The Restatement (Second) of Contracts does not provide much to illuminate this nebulous standard, but it lists several examples of the types of conduct that might be considered to be in breach of the implied covenant:

A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.

Rest. 2d Contracts § 205.

The obligation imposed by the implied covenant is separate and apart from the obligations imposed by the written terms of the contract. Accordingly, even if a party acts in a way that is not specifically or expressly prohibited by the written terms, that conduct could still be considered a breach of the implied covenant of good faith and fair dealing if it goes against the overall purpose or spirit of the agreement.

The Pennsylvania Superior Court’s decision in Stamerro v. Stamerro, 889 A.2d 1251 (Pa. Super. Ct. 2005), provides a simple illustration. That case concerned a divorce agreement that permitted the husband’s alimony to be modified if his income fell below $200,000 per year. The husband voluntarily left his high-paying executive job to take a position with his new wife’s business at a much lower salary, and then sought to reduce his alimony payments. The appellate court upheld the trial court’s denial of the husband’s petition, explaining that, under the implied duty of good faith and fair dealing, “Husband should not be allowed to evade the spirit or abuse the terms of the agreement by unilaterally and voluntarily reducing his income,” because “[t]o do so would destroy Wife’s right to receive the fruits of her bargained-for agreement.” Although the agreement “did not expressly state that Husband could seek a reduced alimony payment only upon an involuntary salary reduction, to infer otherwise would give Husband the power to unilaterally defeat the purpose for which the alimony agreement was made, and destroy Wife’s right to receive the benefit of the support for which she bargained.” Id. at 1261-62.

Defenses to an Implied Covenant Claim

The most straightforward method of defending against a claim for breach of the implied covenant is to show that the complained-of conduct was permitted by the terms of the contract. A party cannot base a claim for breach of the implied covenant on conduct authorized by the terms of the agreement. See, e.g., Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 441–42 (Del. 2005); Nemec v. Shrader, 991 A.2d 1120, 1125–26 (Del. 2010). This is likely the best defense to pursue when the objective is to get the claim dismissed pursuant to Rule 12(b)(6) because the argument is one based on law and contractual interpretation, rather than a factual inquiry requiring discovery. In pursuing this approach, the goal would be to point to specific, unambiguous language in the agreement indicating that the conduct was permitted. The implied covenant cannot trump express provisions of a written contract. See, e.g., John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696, 706 (Pa. Super. Ct. 2003).

Another option for defending against such a claim is to show that the parties anticipated the circumstances surrounding the conduct that gave rise to the dispute. The implied covenant exists for the purpose of inferring equitable contractual terms when new developments arise that neither party anticipated. E.g., Nemec, 991 A.2d at 1126 (“The implied covenant only applies to developments that could not be anticipated.”); Nationwide Emerging Managers, LLC v. Northpointe Holdings, LLC, 112 A.3d 878, 896 (Del. 2015). Accordingly, it stands to reason that an implied duty claim will not survive if it can be shown that the parties did in fact anticipate the circumstances at issue, but chose not to prohibit them in the contract. The best evidence in support of this approach would be the parties’ negotiation history.

A final tactic is to show that the actions taken by the defendant were in line with the parties’ reasonable intentions and expectations at the time the contract was formed. See, e.g., Nemec, 991 A.2d at 1126 (“[W]e must assess the parties’ reasonable expectations at the time of contracting.”); Hanaway v. Parkesburg Grp., LP, 132 A.3d 461, 471 (Pa. Super. Ct. 2015) (implied duty calls on “courts to harmonize the reasonable expectations of the parties with the intent of the contractors and the terms in their contract”); Gerber v. Enterprise Prods. Holdings, LLC, 67 A.3d 400, 418 (Del. 2013) (“The implied covenant seeks to enforce the parties’ contractual bargain by implying only those terms that the parties would have agreed to during their original negotiations if they had thought to address them.”). The parties’ intent may be demonstrated by the contract language, the conduct of the parties, and the course of dealings between them. Even if the plaintiff claims that its intentions were contrary to what the defendant believes, that subjective intention still must be objectively reasonable under the circumstances to hold up.

In short, defending against a claim for breach of the implied covenant can be a challenge, but such claims can be defeated by showing that the defendant’s conduct was reasonable in light of the circumstances.

There are many different defenses to a breach of contract action – reasons why you were not able to do what you were supposed to do under the contract, or why there never was a contract in the first place. It is common to argue all the defenses that are available to you, which might include one or more of the following reasons:

In Writing

Some contracts, including those involving real property, are required to be in writing. This is called the “ statute of frauds .” If the contract is supposed to be in writing, but is not, a court may find that the contract is not enforceable against you – that is, you are not legally required to do what the other party says you were supposed to do.

Indefinite

All the essential terms of a contract must be clear ― that is, the contract must be “definite” ― or the contract may not be enforceable. If you believe that one or more essential terms of the contract are not clear, you may try to argue that the contract is too indefinite to be enforceable.

For example, a painter and restaurant owner may agree that the painter will paint the restaurant in the next 6 months, but they do not agree on a price. In this case, an essential element of the contract ― payment ― is missing. If the restaurant owner tries to sue the painter for failing to perform the contract, the painter can argue that the contract was too indefinite to be enforceable.

Mistake

A contract requires Mutual Assent , or a “meeting of the minds,” on all the essential terms, to be enforceable. If you and the other party made a mistake regarding a basic assumption on which the contract is based, you may be entitled to “rescind” the contract, meaning it will not be enforceable.

For example, if you agree to buy an original drawing signed by Picasso, but both you and the seller later find out that the signature was a forgery, you may be entitled to “rescind” the contract and get your money back. Also, if you and the other party actually did agree on all the essential terms of the contract, but made a mistake it writing down one or more of the essential terms, you may be able to have to written contract changed to correct the mistake back to what you actually agreed. This is called “reformation.”

Lack of Capacity

Both parties must have the legal ability ― called “capacity” ― to agree to the terms of the contract. If you were not legally able to agree to the contract, you might argue that you lacked capacity.

For example, if a fast-talking salesman got you to agree to buy a home exercise machine, but you are a minor, you can argue that the contract is not enforceable against you because you lacked capacity. Or, if you were just home from the hospital, recovering from a serious car accident, and on so much pain medication that you were not able to think clearly, you might argue that you lacked capacity to enter into a contract when you answered a phone call from a salesman, offering to sell a home exercise machine “payable in just 12 easy installments of $199.99” – and you said “Yes,” because you thought he asked you whether you liked to exercise.

Fraudulent Inducement

Parties must truly intend to agree to each essential term of a contract. If the other party deceived you regarding an essential term of the contract, you can argue that you never intended to enter into the contract because you would not have agreed to it had you known the true facts ― that is, you were “fraudulently induced” to enter into the contract.

For example, if a car salesman tells you the car you agree to buy is new, but later you find out that the car was used when you bought it, you can argue that the contract is not enforceable because you were induced to enter into it by the salesman’s fraud.

Unconscionable

A contract may not be enforced if you were unfairly pressured into agreeing to it and its terms are grossly unfair. In that case, you might try to argue that the contract is “unconscionable.” That is, the other party, who had a greater bargaining power, took advantage of you.

For example, your refrigerator breaks down, your food will spoil if you do not get a new one today, and your kids will not have anything to eat. You only have $300 to pay for a new refrigerator, including installation. A salesman says you can have a refrigerator in the store that usually costs $250, with delivery that day, but only if you pay the $300 you have and also agree to pay another $100 every month for the next 15 months. You can argue that you do not have to pay the full contract amount because you were under pressure to get a new refrigerator and the salesman took advantage of your need to set a grossly inflated price.

Illegality

A contract must be entered into for a legal purpose. If the purpose of the contract is not legal, you can argue the contract should not be enforced. For example, if someone offers to pay you to tell them when the police are coming to break up an illegal drug deal, you would not be able to enforce the contract.

Duress

Both parties must willingly agree to enter into a contract. If you were not really free to make an agreement, you might argue that you entered into the contract because you were under “duress.” This usually happens when you feel that you have no other choice.

For example, if you are paying for a family member’s medical bills and you miscalculated and now have very little money to pay for this month’s rent (which is due in two days), you may argue that, under duress, you agreed to your landlord’s offer to take your car in exchange for one month’s rent, when in reality the car was worth much more than that.

Undue Influence

Both parties must willingly enter into the contract. If you believe you did not willingly enter into the contract, you might argue that the other party, or a third party, used excessive pressure to get you to enter into the contract.

For example, if you are elderly and cannot leave your house, and your caregiver nephew threatens to stop taking care of you unless you sign a deed giving him the house, you might argue that your nephew exerted undue influence over you to get you to agree to give him the house.

Impossibility

You might argue that it would be impossible to carry out the terms of the contract. For example, if you are a mobile home park owner, and the park is flooded by water, you might argue that it is impossible for you to provide a space for a seasonal tenant who just showed up to park his mobile home for the spring and summer, as required by the agreement you signed last fall.

Waiver

You might argue that the other party gave up the right to sue you for breach of contract. Knowingly giving up rights is sometimes referred to as a “waiver.” For example, imagine you are a baker and the other party ordered a giant chocolate cake for 60 people, but when you went to the supply room you saw you did not have enough chocolate for the whole cake, but only for the frosting. You called the other party, told her about the problem, and she said: “Mmm. Sounds good.” So, you made a vanilla cake with chocolate frosting instead. She comes and picks up the cake, pays for it, and then calls you a month later demanding her money back. You might argue that she waived her right to sue you for not providing a chocolate cake because she approved the vanilla cake over the phone (and ate it!).

Legal Editor: Robert A. Sternbach, November 2014

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

Businesses depend on the services and support of other businesses and individuals in order to operate. Nearly every relationship between businesses, or between a business and an individual, is based on a contract. If one party to a contract fails to fulfill its obligations, another party may recover damages for breach of contract. If you have suffered damages because of a breach of contract, or if someone is claiming that you breached a contract, an experienced Chicago contract lawsuit lawyer can help you by evaluating the contract at issue and identifying all available claims and defenses to maximize your recovery or minimize the impact of defending against such a claim.

Types of Contracts

It would be impossible to provide a comprehensive list of all business and commercial contracts without occupying multiple volumes of text. We have, however, seen certain types of contracts that are common in breach of contract claims:

  • Employment contracts: employee or independent contractor agreements, non-compete agreements, non-solicitation agreements, trade secret disputes.
  • Commercial contracts: purchase and sales agreements, vendor agreements, trade agreements, supply contracts, parts contracts.
  • Service contracts: construction contracts, utility contracts.
  • Real estate contracts: real property sales contracts, lease agreements.
  • Business contracts: partnership agreements, business sales and merger agreements, investment and capital agreements, joint venture agreements, franchise agreements, disputes over fair market value.

A contract is essentially any agreement in which one party makes an offer, another party accepts, and both parties are obligated to do something. A party’s contribution to the agreement, known as “consideration,” could involve payment of money or something else of value, abstention from a specific action, or a promise to perform a service or other action. Except in certain circumstances, a contract need not be in writing to be enforceable, although the burden is on the party claiming breach to prove the existence of a contract.

Contract Enforcement

To enforce a contract, the party claiming breach must show the existence of a valid and binding contract and demonstrate the breach. That party must also prove damages, which could be the amount expended in reliance on the other party’s performance of the contract, or the amount of value the party expected to obtain but for the breach of the contract. In some situations, such as a real estate sales contract, a party can claim “specific performance,” meaning the party in breach must fulfill its contractual obligations rather than pay monetary damages. Our contract lawsuit attorneys can advise Chicago clients on which types of remedies they may be able to seek.

Breach of Contract Defense

A first step in defending against a breach of contract claim may be to challenge the enforceability, or the existence, of a contract. Both parties to a contract must have been aware of the intent to enter into a contract at the time they allegedly made the agreement, and in the case of a contract with a business, the person making the agreement must have had the authority to bind the business. A defendant in a breach of contract claim may dispute the claimed damages, or may dispute liability by showing that the plaintiff was also in breach of the contract, thus negating the breach claim.

How to defend against implied contract claims

Breach of contract is one of the most common disputes among businesses, colleagues, and investors. We represent small and medium-sized businesses, professionals, and entrepreneurs suing to collect money owed for breach of contract in Chicago, Wheaton, Waukegan, Joliet, and other cities across the country. Additionally, we defend against unjust breach of contract claims.

The cases are too varied to be easily described. Often our opponents are larger companies who think they can avoid payment simply because they are big. We have successfully sued Bank One, IBM, and other large companies when they wrongly sought to avoid liability. In addition, we have also defended companies and individuals against extortionist demands for payments that were not owed.

The inventory of our breach of contract pleadings, briefs, discovery questions, and jury instructions benefits our clients in two ways. Cases can sometimes turn on subtle matters such as how a complaint is drafted or how questions are framed in discovery. We have already experienced these issues and therefore avoid mistakes. Because of our experience, we are efficient and save money for our clients. We get a head start in preparing all of these documents.

Click below for more resources on different aspects of breach of contract cases.

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  • Agency Contracts
  • Employment Agreements
  • Franchise Offering Circulars
  • Commercial leases

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How to defend against implied contract claimsHow to defend against implied contract claims

In Tolliver Group, Inc. v. United States, No. 2020-2341, 2021 WL 5872256 (Fed. Cir. Dec. 13, 2021), the Federal Circuit vacated and remanded the Court of Federal Claims’ (“COFC”) decision holding that the contractor was entitled to an equitable adjustment for damages caused by the Government’s breach of the implied warranty that satisfactory contract performance will result from adherence to contractual specifications.

The contractor’s underlying claim sought an equitable adjustment to a fixed-price contract for costs incurred to successfully defend against a False Claims Act (“FCA”) suit, claiming the costs as allowable under FAR 31.205-47, Costs related to legal and other proceedings. The FCA suit, brought by a whistleblower, alleged that the contractor violated the FCA in the performance of the contract, but the Government declined to intervene and the FCA suit was ultimately dismissed. The contracting officer denied the contractor’s claim for costs defending against the FCA suit on the basis that the fixed price contract did not permit recovery of costs in excess of the agreed-upon contract price.

In the COFC decision, which we reported on here, the court held sua sponte that the contractor was entitled to recover damages under the Spearin doctrine (citing to United States v. Spearin, 248 U.S. 132 (1918)) because the Government breached the implied warranty of performance. On appeal, the Federal Circuit vacated the COFC’s decision, holding that the contractor did not present a claim for breach of the implied warranty to the contracting officer for a final decision, and therefore the COFC lacked jurisdiction to grant entitlement under the Spearin doctrine.

The Tolliver decision is an example of the tension (discussed here and here) that can exist between the purpose of the CDA—to provide for timely and cost-effective resolution of contract disputes—and the CDA’s procedural requirements when a court or Board determines they have not been met. In this case, after more than four years litigating its claim, the service-disabled veteran-owned small business contractor must now go back to the drawing board, a reminder to all contractors to engage in a thorough claim assessment at the outset of any CDA litigation.

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An “implied contract” is a principle of law whereby courts will bind a party to an implied agreement when the elements of a contract are not otherwise met (an offer by one party over a matter which each party must provide some form of consideration which is accepted by another party). It is a fundamental principle of law that an implied contract cannot supplant an express contract. However, an implied contract can exist when parties to an express contract act in a way which exceeds the scope of the express contract. A recent case before the Fourth District Court of Appeal clarified this principle. Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

An implied contract (aka implied-in-law contract or quasi-contract) is a legal principle which can establish liability when the parties did not actually agree to terms.

The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it. Because the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other.

Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So. 2d 383 (Fla. 4th DCA 1997).

Typically, when there is an express contract governing the parties’ relationship, there cannot also be an implied contract. “Quantum meruit is premised upon the absence of an express and enforceable agreement; accordingly, the existence of a valid, written contract between the parties necessarily precludes the doctrine’s application.” Daake v. Decks N Such Marine, Inc., 201 So. 3d 179 (Fla. 1st DCA 2016).

Business litigation cases have gone so far as to suggest that any express contract governing the subject matter at issue will prevent the imposition of an implied contract on the same issue. E.g. Atlantis Estate Acquisitions, Inc. v. DePierro, 125 So. 3d 889 (Fla. 4th DCA 2013) (“Unjust enrichment cannot apply where an express contract exists which allows the recovery”); Solutec Corp. v. Young & Lawrence Assocs., 243 So. 2d 605 (Fla. 4th DCA 1971) (“Any proof of an express agreement between the parties as to the compensation to be paid for the services rendered would defeat … an action based upon quantum meruit […]”); Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696 (Fla. 1st DCA 2008) (“[A] plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter”); Kovtan v. Frederiksen, 449 So. 2d 1 (Fla. 2d DCA 1984) (“It is well settled that the law will not imply a contract where an express contract exists concerning the same subject matter”).

However, Florida law does not require an express contract to supplant an implied contract when the express contract does not address the disputed issue. “[T]he law implies an obligation to pay a reasonable cost for the extras not provided for in a contract[.]” Forest Constr., Inc. v. Farrell-Cheek Steel Co., Fla. Diversified Props. Div., 484 So. 2d 40 (Fla. 2d DCA 1986). For example, a contractor that has an express contract with a homeowner to install tile floors is not necessarily limited to the recovery of the contract price. DeLotto v. Fennell, 56 So. 2d 518 (Fla. 1951) (“When parties enter into an agreement or contract for construction work and during the progress thereof alterations or changes are requested in the form of extras and otherwise, then the law implies an obligation to pay the reasonable costs thereof in addition to the stipulated sum named by the parties in the original agreement”).

In the recent case, F. H. Paschen, S.N. v. B&B Site Development, Inc., 4D19-3839, 2021 WL 359487 (Fla. 4th DCA Feb. 3, 2021), Florida’s Fourth District Court of Appeal was considering the issue as to whether the plaintiff should be permitted to claim compensation for matters not addressed in an express contract. The plaintiff was a subcontractor that had an express contract to replace asphalt for a general contractor. Near the project’s completion, the general contractor demanded that the subcontractor replace asphalt for a greater area than was originally contemplated in the express contract. The subcontractor did so to ensure that the project was completed timely, even though it asserted that this area was outside of the express contract. In the ensuing business litigation, the general contractor claimed that it was not required to pay for this additional work, because the asphalt replacement was contained in an express contract. F. H. Paschen disagreed, and held that an implied contract was created through the parties’ conduct for the additional area, because that work was outside the scope of the original contract.

Merely because an express contract exists does not mean that there might be no implied or quasi-contracts. The critical issue is whether the additional matter is outside the scope of the original agreement. Peter Mavrick is a Fort Lauderdale business litigation attorney who also practices business litigation in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Both employers and employees can be in breach of a contract of employment, so it's important to know what this is and what you should do if either you or your employer breaches your contract.

What a ‘breach of contract’ is

A contract of employment is a legally binding agreement between you and your employer. A breach of that contract happens when either you or your employer breaks one of the terms, for example your employer doesn’t pay your wages, or you don’t work the agreed hours. Not all the terms of a contract are written down. A breach may be of a verbally agreed term, a written term, or an ‘implied’ term of a contract.

Your pay has special additional protection and in some situations your employer may be prevented from taking money out of your pay even if this wouldn’t be breaching the contract.

Breach of contract by your employer

If you think there’s been a breach of contract, check the terms of your contract to make sure. If there has, you should try to sort out the problem directly with your employer first of all.

Mediation

Before taking legal action, you are required to try other ways to sort things out. For example, you might try mediation through the Labour Relations Agency.

Legal action

If you can’t sort the problem out with your employer, you can decide to take legal action. Think carefully before taking any legal action against your employer. Ask yourself what you want to achieve and how much it will cost. Remember that you’ll only get compensation (called ‘damages’) if you can prove real financial loss, if for example, your employer doesn’t pay your wages. There’s no compensation for distress or hurt feelings.

You should also remember that taking legal action might prompt your employer to take out a counter claim against you if they feel they have one.

If you are a member of a trade union, it would be a good idea to speak to them before taking any legal action, as some unions provide a legal advice service for their members. Or, you could talk to a solicitor, or Advice NI.

If you do decide to take legal action, it can either be through an Industrial Tribunal or through a civil court.

Industrial Tribunals

To make a breach of contract claim through an Industrial Tribunal, your employment must have ended. There is also a cap of £25,000 on what a tribunal can award. As well as that, you need to know that if you wish to claim more you cannot first seek £25,000 from a tribunal and then go on to seek the balance from a civil court.

There are restrictions on the type of claim that can be made, for example you cannot make a personal injury claim through the tribunal, and there is a three-month time limit on making a claim.

Unlike civil courts, there are no fees for claims through the Industrial Tribunals and they are often quicker than the civil courts.

Civil courts

To make a claim while you are still employed you will normally go through the small claims track of the county court or other civil court. There is a longer time limit than for an Industrial Tribunal, but there will normally be court fees to be paid.

Breach of contract by an employee

If you breach your contract, your employer should try to settle the matter with you informally, but they can sue you for damages in the same way you can sue them.

Your employer would normally use a county court for a breach of contract claim. The only way your employer would be able to make an application to an Industrial Tribunal is in response to a breach of contract claim that you have made.

Damages are only awarded for financial loss, if you don’t give enough notice for example. They might be for the extra cost of hiring temporary staff to do your work, or for lost revenue.

You would still have the right to wages you earned before you left, plus pay for untaken statutory holiday. The most common breaches of contract by an employee are when

  • you quit without giving (or working) proper notice
  • you go to work for a competitor when your contract doesn’t allow it

Common examples of breaches of contract

Most issues about breaches of contract can be answered by checking the terms of your contract. You will find some common ones here.

If an employer docks your pay for being persistently late

You won’t necessarily get paid for time that you’re not at work but your employer should be careful about imposing extra penalties on top of this. If there’s nothing in your contract that allows your employer to do so, they must pay you what you’ve earned and then decide whether to sue for any money they’ve lost because of your lateness.

What to do if your employer always pays you late

Not paying at the agreed time will often be a breach of contract. If you can prove you suffered a financial loss, for example, having to pay overdraft fees, you can claim this back as damages. Talk to your employer first. If it keeps happening, you could try to get a court injunction to stop them repeating this breach.

What wrongful dismissal is

Wrongful dismissal is a breach of contract in the way you were dismissed, for example, without being given proper notice or without following the procedures in your contract. You can take action in the same way as for any breach of contract.

Withdrawing or turning down a job offer after accepting it

It is a breach of contract to withdraw a job offer or turn it down after it has been accepted. The contract is made as soon as you accept the offer and both sides are bound by the terms until the contract is terminated.

Changes to the terms of your contract

Some contracts allow the employer to make changes. If yours doesn’t, you and your employer must agree any change. Making changes without agreement is a breach of contract.

Where to get help

The Labour Relations Agency offers free, confidential and impartial advice on all employment rights issues.

Advice NI offers free and impartial advice.

If you are a member of a trade union, you can get help, advice and support from them.

Seek legal advice from a solicitor or advice agency on contract conditions.

Sometimes you just can’t reach common ground. When workplace disputes cannot be prevented, we deploy the legal resources and skills needed to resolve claims favorably.

Relying on decades of labor and employment litigation experience, our labor lawyers work with employers to prepare a complete case assessment, develop a sensible resolution strategy, and defend the claim, all to accomplish the client’s objectives.

Regardless of the claim asserted (discrimination, wage and hour, harassment, retaliation, implied contract, etc.) or the forum where the case is pursued (federal or state court, government agency, arbitration forum), our team of labor and employment legal professionals has the experience, knowledge, and insight to execute an effective defense strategy.

In appropriate cases, we consider all options for early resolution, either through dispositive motions or through alternate dispute resolution. When circumstances require a vigorous defense, we vindicate employers’ positions with the highest level of professionalism, focus, and skill.

Recent Accomplishments

The Labor & Employment Litigation team has a long track record of obtaining summary judgment orders in state and federal courts dismissing claims asserted by former employees alleging wrongful termination, age discrimination, sex discrimination, harassment, retaliation, breach of contract, and related employment claims. Whether defending an employer’s disciplinary decision or a difficult reduction in force, our employment litigators have an extraordinary breadth of experience analyzing cases, marshaling evidence, and posturing cases for dismissal at the summary judgment stage.

How to defend against implied contract claimsThe real estate and construction defect litigators of Mark Anchor Albert and Associates are skilled in handling express and implied indemnification claims.

In general, indemnity refers to “the obligation resting on one party to make good a loss or damage another party has incurred.” Historically, the obligation of indemnity took three forms: (1) indemnity expressly provided for by contract (express indemnity); (2) indemnity implied from a contract not specifically mentioning indemnity (implied contractual indemnity); and (3) indemnity arising from the equities of particular circumstances (traditional equitable indemnity).

Although the three forms of indemnity were once regarded as distinct, California courts have held that there are only two basic types of indemnity: express indemnity and equitable indemnity. Though not extinguished, implied contractual indemnity is now viewed simply as “a form of equitable indemnity.” Prince v. Pacific Gas & Electric Co. (2009) 45 Cal. 4th 1151, 1157.

The right to implied contractual indemnity is predicated upon the indemnitor’s breach of contract, the rationale being that a contract under which the indemnitor undertook to do work or perform construction or design services necessarily implied an obligation to do the work involved in a proper manner and to discharge foreseeable damages resulting from improper performance absent any participation by the indemnitee in the wrongful act precluding recovery. An action for implied contractual indemnity is not a claim for contribution from a joint tortfeasor; it is not founded upon a tort or upon any duty which the indemnitor owes to the injured third party. It is grounded upon the indemnitor’s breach of duty owing to the indemnitee to properly perform its contractual duties. West v. Superior Court (1994) 27 Cal. App. 4th 1625, 1633.

An implied contractual indemnity claim, like a traditional equitable indemnity claim, is subject to the rule that a party’s liability for equitable indemnity is based on its proportional share of responsibility for the damages to the injured party. Prince, supra, 45 Cal. 4th at p. 1165.

Express indemnity provisions are contained in all of the form construction industry contracts; namely, the AIA A201-2007, Consensus DOCS – 2009, and EJCDC C-700. The AIA Family of Construction Documents are prepared by the American Institute of Architects (“AIA”) and are the most popular form construction documents used in California and nationally. See http://www.AIA.org. The Consensus DOCS were developed by a coalition of twenty-three leading industry organizations representing owners, contractors, subcontractors, designers, and sureties, as an alternative to the AIA form documents. See http://www.consensusdocs.org. The EJCDC Documents are prepared by the Engineers Joint Contract Documents Committee (“EJCDC”) and are issued and published jointly by the (1) National Society of Professional Engineers, (2) Consulting Engineers Council, (3) American Society of Civil Engineers, and (4) Construction Specifications Institute. See http://www.EJCDC.org. All three families of form construction documents contain express indemnity provisions.

Builders and contractors sued by owners, for example, for construction defect customarily cross-claim against subcontractors, seeking indemnity to the extent of their liability. Indemnification obligations are typically insured under a Comprehensive General Liability (CGL) insurance policy. Accordingly, CGL insurers for contractors, subcontractor, and vendors typically will retain defense counsel in complex construction defect litigation in a complicated risk allocation process based on indemnification principles and comparative fault. The process usually is worked out during discovery and destructive testing to determine the nature, scope, extent and likely cause of the defects, and the time and money that will be required to repair them. Mediated settlement discussions informed by expert reports placing the relative blame and responsibility among the various parties often lead to a global compromise funded by a consortium of CLG insurers representing the parties involved, which also may include Errors and Omission (E&O) insurers representing design professional who also may have been sued, such as architects and engineers.