Have you suffered a breach of contract? Have you been accused of breaching a contract? Whether the contract you have entered was for residential construction services or for the purchase of goods, there are many issues that you need to address before you take action. This site will provide you with general information about contracts and issues relating to contract formation, contract enforceability, breach of contract, and remedies available to the parties involved.
Our attorneys handle issues surrounding contracts and breach of contracts for individuals and businesses in the Omaha, Nebraska area, as well as surrounding communities. We have the ability to quickly and cost-effectively settle disputes between parties to a contract, helping all parties involved reduce the time and expense of litigating issues of breach of contract. In those cases in which a settlement or compromise cannot be reached, our team of civil litigators can take your claim or defense all the way though trial. Call us today for a free consultation at (402) 506-4444.
What is a Contract?
Quite simply, a contract is nothing more than a promise to do something. Most commonly, a contract consists of two or more parties promising to do something in the future. These types of contracts are referred to as "executory" contracts - that is, each party is offering a promise to do something in the future in exchange for the other party's promise to do something in the future. A typical example would be a contract conerning construction services where one party promises to do the work and the other party promises to pay for those services.
Contracts can be in many forms, including a traditional, written document that outlines each party's rights and responsibilities. However, the precise form of the contract is not always relevant to its enforceability. For example, an exchange of text messages or emails can be enough to form a legally binding contract. Contrary to popular belief, even an oral promise may be a legally enforceable contract. From a legal perspective, there are only the following items necessary to create a contract:
To read more details about what is required to form a legally binding contract and some common issues surrounding contract formation, visit the contract formation page.
What is a Breach of Contract?
Most commonly, a breach of contract occurs when one party fails to perform its obligations according to the contract terms. In our earlier example of a construction contract, a breach would occur if the party that agreed to do the work fails to show up when required or fails to render its work in a good and workmanlike manner. Or perhaps the other party to our construction example fails to pay once the work has been completed. Either of these two scenarious are examples of breach of contract, but the examples are endless.
Most of the time a breach of contract will be obvious. However, some breaches may remain hidden for years or may not be readily apparent - either because one of the parties cannot readily determine if the other party had complied with the contract terms or because the contract was poorly written and the various obligations of the parties are ambiguous. If there is a question about what a party's obligations are under an ambiguously written contract the ambiguity should be resolved as soon as possible. Often, with the help of counsel, such as the breach of contract attorneys at Johnson, Tabor, & Johnson Law, the parties can negotiate an agreement to cure a poorly drafted contract, ensuring that both parties are clear as to what they are required to do and the parties can avoid breaching the contract.
Another important factor to consider in the face of a potential breach of contract is whether the other party's obligations and duties are discharged as a result of the other party's breach. Again, using our construction contract example, if the contractor hired to perform the work fails to render services in accordance with the contract terms and specifications, the non-breaching party is generally not relieved of its obligation to pay. In fact, if the non-breaching party throws the contractor off the job, the contractor can likely bring a successful action for breach. How is this possible? It is because the law treats various breaches differently, distinguishing between a "non-material" and a "material" breach. The former will generally not discharge the obligations of the other party whereas only a material breach will allow the non-breaching party to refuse its own performance. Determining whether one party's breach is material or non-material may be very fact specific and you should consult with the breach of contract attorneys at Johnson, Tabor & Johnson Law prior to taking any action.
To read more about issues surrounding breach of contract and factors to consider in determining if a breach is material or non-material, visit our contract breach page.
Remedies For Breach of Contract?
We often are asked to pursue things like punitive damages in a breach of contract claim, especially when the party breaking its promise does so at great harm to the non-breaching party or when the breach is done willfully and intentionally. People even ask to be compensated for non-economic harms, such as emotional distress. While a breach of contract may cause trouble and pain for the non-breaching party, the law generally does not allow for the recovery of these types of damages in a breach of contract action. Moreover, punitive damages are not recoverable under Nebraska law.
As a general rule, the law only provides that the non-breaching party be put in the same position it would have been absent the breach of contract. That is, you may be entitled to the "benefit of the bargain" and nothing else. However, if someone's breach of contract causes additional damages, those may be recoverable so long as there is no limitation on consequential damages in your contract. Because you generally cannot recover more than the breach is actually costing you, suing for breach of contract may not be the best solution. Even so, hiring the breach of contract attorneys at Johnson & Associates Law may help resolve the dispute without actually filing a lawsuit. Contact us today for a free consultation at 402-506-4444.