What evidence is required to succeed in a claim for breach of contract?

What needs to be proved?

Before a claim for a breach of contract can be brought, it must first be shown that there was a valid contract in place. This can be written or oral but to be valid, there must be:

An offer

One or more parties must offer something to the other party. That may be an offer to sell goods or provide services or an offer to buy goods or pay for services.

Acceptance of the offer

The party to whom the offer is made must accept the offer on the terms presented. Acceptance need not be express, but can be implied by the conduct of a party as long as it is clear that the party to whom the offer is made is accepting the offer.

Consideration

Each party to the contract must have something to give to the other. Generally, one party will be giving a service or goods and the other party will be giving money for the service or goods.

Intention to create legal relations

The parties to the contract must intend for the contract to be legally binding.

Breach of contract

A party pursuing a claim for breach of contract will have to persuade a judge that the other party did not carry out their obligations under the contract.

A breach of contract can arise, for example, if someone doesn’t pay for a service, fails to pay on time, does not deliver services or goods or is overly late in delivering goods or services without a good excuse. The main types of breach of contract will be minor, material, and anticipatory.

A minor breach is where the a party fails to fulfil all the stipulations of the contract, but the failure to do so is inconsequential and the remaining obligations under the contract are capable of being carried out. In such cases, the non-breaching party will be able to sue for damages if they have suffered loss, but they won’t usually be allowed to terminate the contract.

A material breach of contract is where one or more of the main terms of the contract has not been carried out and/or it is impossible for the contract to be completed. In these cases, the contract can be terminated and the non-breaching party could claim damages if they have suffered loss.

An anticipatory breach of contract is where one party to the contract tells the other that they won’t be able to abide by the terms of the contract. In these situations, the contract can be terminated and damages sought.

Evidence will be required to prove a breach of contract, which could come in a variety of forms, including written, oral, expert or photographic.

Written evidence

There may be a formal written contract, but often written contracts are created by a series of letters, faxes or emails. Even where there is a formal written contract, any letters, faxes or emails sent around the time the contract was created often provide useful evidence to show what the parties intentions were if the formal written contract is unclear or fails to deal with a point which has arisen since the contract was formed.

Often a contract will be governed by a party’s standard terms and conditions. These will provide evidence of the terms of the contract. The party who is relying upon the standard terms and conditions will, however, also have to provide evidence to show that they were incorporated into the contract. In most cases they will simply have to show that the other party was aware of the existence of the standard terms and conditions. Such evidence typically consists of correspondence referring to the standard terms and conditions or reference to them on order forms.

Written evidence of a breach could arise where the breaching party writes to the other party and admits that they can no longer afford to pay for the goods or services they contracted to buy. This letter would be evidence that a material term of the contract had not been carried out.

Oral evidence

Where there is no written evidence of the existence or terms of a contract the parties will have to rely on their own oral evidence. To succeed in a civil case, a party will have to persuade a judge that their version of events is more likely than the other party’s version of events.

If someone else was present when the contract was entered into, they could provide valuable evidence in situations such as this.

Expert evidence

In cases which involve specialist knowledge on a matter and where it would assist the court for an expert in a particular field to explain a technical point, it is common for an expert to give evidence to the court, usually in the form of a written report. The evidence of a surveyor would, for example, provide useful evidence in a dispute involving building works.

Other types of evidence

In some cases photographic or video evidence will be valuable. For example, in a claim brought by a holiday maker who was sent to a hotel of a different standard to that which was shown in the brochure.