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Asking Your Opponent For Proof That You Executed The Contract Seems Crazy—But It Might Just Work

Start every contract dispute by asking your opponent whether the contract exists

· Contract Management,Contract Termination,Veeto Tips,Small Business,Hubscriber

Let's pretend that you are a commercial office tenant and that you now find yourself wanting to get out of your lease early. You decide to tell me about your situation, and I ask you to start at the beginning. You state the following:

  • I executed the lease agreement with [your landlord] on [some date in the past].
  • That lease was for a 24-month term.
  • We are only in the 13th month.
  • So 11 months remain under contract.
  • Nonetheless, I want to get out of this lease now.
  • Because [the reasons that you give me that you believe entitle you to early termination].

In your mind, you started your explanation at the beginning. But in my mind, you did not--and that difference is precisely what this article is about.

Why does this difference matter? Because I suspect you will be shocked to learn how often you can make your opponent's legal claim against you--in this case, your landlord's claim that you breached the contract by ceasing to perform your obligations earlier than the lease permitted--immediately weaker simply by asking first whether the contract actually exists.

...even before you open your mouth to issue your first argument.

If that seems like magic, read on--because it's not magic, and you need to know this.

Logic is a lost art.

In the first bullet-point of your explanation (above), you told me that you executed the contract with [your opponent]. But did you? Has your opponent proven this?

I can summarize the entire content of this article by saying this:

Ask your opponent to answer the question: did you execute the contract with [your opponent]?

Then, do not proceed to any other aspect of the contract dispute until you have arrived at a proof-based answer.

Why should you start with that question? Because that is precisely where the court would start if your opponent--who, in our hypothetical case above, is your landlord--were to sue you for breach of contract. It is the very first question the judge would need to answer: did a contract exist between you and your opponent?

Why is that the logical starting point? Because in order for you to have breached the contract, logically, there would first need to have been an executed contract.

Thus, if your opponent cannot prove that the contract exists, then your opponent cannot prove that you breached it by leaving early.

How do you know if the contract exists?

Specifically, you need to figure out whether the required elements have been met. What are the required elements?

(Because there are so many possible "sub-branches" stemming from each top-level element, I'm just going to give you a very basic, 4-part version. But keep in mind that there are different "versions" you could find elsewhere that vary mostly by how granular they get in addressing some of those sub-branches.)

A simple, complete version is (what I'll call) "the 4-part version."

Because there are so many possible "sub-branches" stemming from each top-level element, I'm just going to give you a very basic, 4-part version. But keep in mind that there are different "versions" you could find elsewhere that vary mostly by how granular they get in addressing some of those sub-branches.

A simple, complete version is (what I'll call) "the 4-part version."

According to the 4-part version, your landlord would need to prove at least these four elements to convince the judge that a contract existed:

  1. Offer - One party to the lawsuit made a promise to do (or not do) some specified action in the future.
     
  2. Consideration - Something of value was promised in exchange for the action specified in the offer.
     
  3. Acceptance - The party to whom the offer was made accepted that offer unambiguously.
     
  4. Mutuality - All parties to the contract understood and agreed to the basic substance and terms of the contract--often called “a meeting of the minds.” (Hint: according to law professor Kal Raustiala, in this context, "Substance refers to the deviation from the status quo that an agreement demands.")

If your landlord is hoping to raise a a breach of contract claim against you, therefore, then you can mount a good defense by simply finding problems with one or more of these elements.

As presented above, the 4-part version is surprisingly sufficient in many cases for identifying ways in which the contract failed to form. But you should also know that you can expand this 4-part version to include more nuanced statements of each element and also dozens of possible exceptions to an element being met. Finally, it is not uncommon to see some elements combined into one or broken into separate parts (example: the element of offer and acceptance is sometimes listed as the single element agreement).

How To Figure Out Your Case Strategy In 10 Minutes

Making mistakes in a contract dispute is a luxury few small businesses can afford. This $32 micro-consultation gives you the playbook you need.

If you choose the wrong starting point, it can be hard to recover the opportunities you missed. That's why, even before you start your contract dispute, you would be wise to book with a micro-consultation.

Emotions run wild. Your contract dispute strategy shouldn't.

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