Verbal contracts
Discussion
Hello all, I wonder if you could help. Apologies I can't be overly specific but hope someone could help.
How could someone rely on a verbal commitment, does it create a verbal contract?
For example, on an email someone writes with ' WITHOUT PREJUDICE' at the top, but goes on to write that they will do such and such ...my understanding is anything they state within that cannot be used in a court of law. However if they then go on to confirm their position verbally, with witnesses does this create a verbal contract? If they then don't fulfill their commitment do I have any recourse on them?
I am sorry I know that is very vague!
How could someone rely on a verbal commitment, does it create a verbal contract?
For example, on an email someone writes with ' WITHOUT PREJUDICE' at the top, but goes on to write that they will do such and such ...my understanding is anything they state within that cannot be used in a court of law. However if they then go on to confirm their position verbally, with witnesses does this create a verbal contract? If they then don't fulfill their commitment do I have any recourse on them?
I am sorry I know that is very vague!
Without prejudice privilege works for both written and verbal statements, but only if they are made in an attempt to settle a matter. If the communication is not a genuine attempt to settle the dispute, then it does not benefit from without prejudice privilege and may as well say without underpants.
It sounds like you are in a dispute and someone has made an offer to settle, which will include doing such and such. If you have accepted that, then a contract has been formed. The without prejudice privilege would be waived if you wished to sue them for non-performance of their obligations.
Ideally you should follow this up by asking them to sign a formal undertaking to what they have said they will do. You can then also include provisions for what happens if they don't follow through on their promise.
It sounds like you are in a dispute and someone has made an offer to settle, which will include doing such and such. If you have accepted that, then a contract has been formed. The without prejudice privilege would be waived if you wished to sue them for non-performance of their obligations.
Ideally you should follow this up by asking them to sign a formal undertaking to what they have said they will do. You can then also include provisions for what happens if they don't follow through on their promise.
Start with the five essentials for a contract to exist:
Offer
Acceptance
Intent
Capacity (age, mental state, etc)
Consideration (each party must give something - a pound for a car is a consideration (one party gives up £1, the other gives up his car. I'll give you a pound, and not expect anything in return, does not create a contract).
None of the above are black and white, and any of them may need to be tested in a court. Generally, having the agreement in writing just makes it easier to convince the court.
Offer
Acceptance
Intent
Capacity (age, mental state, etc)
Consideration (each party must give something - a pound for a car is a consideration (one party gives up £1, the other gives up his car. I'll give you a pound, and not expect anything in return, does not create a contract).
None of the above are black and white, and any of them may need to be tested in a court. Generally, having the agreement in writing just makes it easier to convince the court.
peekay74 said:
How could someone rely on a verbal commitment, does it create a verbal contract?
Yep, and it's absolutely valid - right up until the point that the parties disagree about what was said.peekay74 said:
For example, on an email someone writes with ' WITHOUT PREJUDICE' at the top, but goes on to write that they will do such and such ...
So this "contract" was written down...? Without Prejudice doesn't exactly sit in a normal contract situation, though.A bit more context might help.
peekay74 said:
For example, on an email someone writes with ' WITHOUT PREJUDICE' at the top, but goes on to write that they will do such and such ...my understanding is anything they state within that cannot be used in a court of law. However if they then go on to confirm their position verbally, with witnesses does this create a verbal contract? If they then don't fulfill their commitment do I have any recourse on them?
If in a dispute someone heads the communication WP then you generally cannot use the content and any admissions against them in relation to that dispute.However, if you've reached a settlement agreement, this now is a separate agreement, and you would not be barred from using that communication to evidence to a court that a settlement has been reached if as in this scenario your legal action relates to the performance of the settlement agreement.
Additionally, if that settlement has been clarified orally, those factors would also form part of the agreement. The secondary problem is proving that though.
Your recourse would be taking action in the normal way. Formal letter asking them nicely to do what is agreed, then Letter Before Action or whatever the CPRs now call it, then court papers.
lostmotel said:
Without prejudice privilege works for both written and verbal statements, but only if they are made in an attempt to settle a matter. If the communication is not a genuine attempt to settle the dispute, then it does not benefit from without prejudice privilege and may as well say without underpants.
This is correct.You can not simply type Without Prejudice then put whatever you like, it must be an attempt (genuine) to settle the dispute.
So the context of such an email counts as well e.g. if they put "Without Prejudice I will meet you at the pub at 8pm" - this is not an attempt to settle a dispute.
I thought that the "consideration" part has gone following Beavis or similar. Eg parking companies can enforce a contract not to exceed maximum stay in a free car park. If the CP is free, no consideration has been paid.
I could be totally wrong....
Oral contracts are difficult to enforce unless tere are very reliable and independent witnesses, that's why people use written ones
I could be totally wrong....
Oral contracts are difficult to enforce unless tere are very reliable and independent witnesses, that's why people use written ones
I've not kept up to date with any recent changes, but perhaps one could one think of a "free for an hour then wallop" car park in terms of:
"In consideration of Owner permitting Driver to park a car on Owner's car park Driver agrees to pay to Owner £100 per hour for every hour or part thereof after the first hour of each and every visit", all suitably tidied and hedged around.
IANAL
"In consideration of Owner permitting Driver to park a car on Owner's car park Driver agrees to pay to Owner £100 per hour for every hour or part thereof after the first hour of each and every visit", all suitably tidied and hedged around.
IANAL
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