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Can you breach a breached contract?

(20 Posts)
jampots Mon 15-Aug-05 17:16:28

Simple enough question!

If a contract has been breached by one party, can they claim that the other party has subsequently breached the same contract?

hunkermunker Mon 15-Aug-05 17:18:28

Will ask DH and get back to you

jampots Mon 15-Aug-05 17:22:44

thanks hunker

Kaz33 Mon 15-Aug-05 17:36:56

I am afraid the answer is probably not as simple.
The question is what is the damage that has been caused. Remedies are different for different breaches, and damages generally depend on the seriousness of the breach.

But saying that I am plumping for YES

hercules Mon 15-Aug-05 17:39:15

I have no legal expertise but have heard once a contract has been breached it is null and void so can be broken by further party. I repeat though I have no legal knowledge!

Freckle Mon 15-Aug-05 17:42:05

Would need to know more. What was the original contract intended to achieve, what was the original breach and what damage did it cause and what is the subsequent breach?

A minor term of a contract could be breached without bringing about the collapse of the whole contract, whereas a major term would probably render the contract null and void.

Katemum Mon 15-Aug-05 17:45:54

Not such a simple question then

hunkermunker Mon 15-Aug-05 18:33:52

DH says that if a contract has been breached, it is null and void. But he'd like to know what's happened to say that for definite - is this an evil boss thing again, JP

jampots Mon 15-Aug-05 18:36:50

its the old employment thing again

previous employer made an offer of settlement, i accepted, i hand delivered signed agreements to him for his signature - END OF!

He wont sign (although maintains he has) and send them on, nor the actual settlement. I wrote to the Tribunal - they say they cant do anything because ACAS informed them it has settled, he now alleges that I have been discussing "my money" with his members of staff which I havent. All in a bid to not conclude. ACAS conciliator says ex boss has already breached the contract by not settling "forthwith" and wonders whether he can then allege my further breach.

Whatever the answer he is an ARSE!

jampots Mon 15-Aug-05 18:39:45

also there is a chance if I take him to the County Court the Judge could say as there's no documentary proof, he has to assume there was no settlement - so Im in a no win situation

Freckle Mon 15-Aug-05 22:56:12

Did you not keep a copy of the signed agreements before you hand-delivered them?

You could get signed affidavits from the ACAS and tribunal people to the effect that an agreement had been reached. These would be admissible in court. The actual amount of the agreement might not be provable, but, if he alleges there was no agreement and your affidavits prove that there was, then it is likely the court would accept your statement of the amount.

jampots Tue 16-Aug-05 07:24:39

I know Freckle - I should have copied it but it was only my signature on the document. I have obtained a copy of the agreement wording from ACAS (along with the agreed wording on the reference) so I guess if I should signed that it would look the same. He told my dh he posted it on 2nd August but then stated in an email to me that he signed and posted it on 25th July (clearly bullshit on both counts).

Freckle Tue 16-Aug-05 09:54:20

To be honest, I'd tell him that if he doesn't provide the signed agreement and the settlement within 7 days you will be issuing proceedings in the county court. And then do it. Chances are he'll cough up before you have to present any evidence in court.

He's clearly an *rse who thinks you'll run scared because he's a lawyer.

KiwiKate Tue 16-Aug-05 10:46:52

Jampots - a lawyer here to clarify.

As a general principle, yes you can definately breach a breached agreement - it depends on what clause was breached and the exact terms of the agreement.

What you have to consider is whether the agreement has been terminated by the first breach (or by subsequent cancellation). If the first breach terminated the agreement, then there is no agreement to breach (and any subsequent "breaches" are immaterial, because there is no longer an agreement to breach). In your case, where your employer has simply not paid (as I understand it this is the breach on his part that you are referring to) the agreement would probably not terminate, but would need to be enforced. This means that you must take care not to breach any of the terms that relate to you. If both parties to an agreement make material breaches, then a court may well decline to enforce the agreement.

Not sure what breach you have (or intend to) commit, though. If you are referring to your employer's allegation that you breached confidentiality of the agreement - well, that is for him to prove (and you say you didn't, so he would not be able to prove it). Sounds like he is just trying to scare you.

Difficulty that you have, of course, is proving that an agreement exists (and on what terms). However, the copy (with your signature on it) together with your employers email saying that he has countersigned and returned the agreement to you, and the documents from the tribunal should be enough to prove that an agreement was reached and on what terms (and can be enforced).

Hope this helps.

jampots Tue 16-Aug-05 13:21:24

la la la la la!!! my post has arrived this morning

Freckle Tue 16-Aug-05 13:47:31

Wow! With a cheque or just the signed agreement??

jampots Tue 16-Aug-05 13:59:20

i cannot divulge the exact contents but can say that no agreement was enclosed

Freckle Tue 16-Aug-05 14:02:39

LOL! Well done you. You must be feeling extremely satisfied for sticking to your guns and not letting the *rse get away with it.

hunkermunker Tue 16-Aug-05 14:03:55

Fantastic, JP!

jampots Tue 16-Aug-05 14:44:39

Thank you all soooo much ladies - you really dont know how much support (legal and otherwise) you have been through all of this. I really feel it has a line underneath it now.

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