Breach of Contract & Contract Termination: Key Remedies for Litigators

Program Overview:

Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. Breach occurs when a party to a contract fails to fulfill its obligation(s), whether partially or wholly, as described in the contract. Where there is breach of contract and contract termination, the resulting damages will have to be paid by the party breaching the contract to the aggrieved party.

This course on Breach of Contract and Contract Termination is designed to help participants to know when a breach has occurred and the necessary steps to take on contract termination clauses such as identify the key elements of contractual liability and improve your analysis of a contract dispute for necessary action. Recent cases studies will be used.

For whom:

This course is designed for contract administrators, contracts directors and managers, contract professionals, and project coordinators and managers. It will equally be of benefit to; supply officers, buyers, purchasing & procurement professionals, project, construction, cost and quantity professionals. Claims personnel, including corporate legal advisers, Heads of legal, senior business development executives and contracts managers in organizations will also benefit from this course.

Learning Objectives:

At the end of this program, participants will be able to;

■ Analyze the risks inherent in contract formation and management

■ List and explain key contract provisions, clauses, and how to manage contract risk effectively

■ Interpret key contract clauses and understand the specific terms and conditions as they impact on contract execution and management

■ Develop skills to negotiate effectively on contract provisions to protect their organization’s interests

■ List out where things can go wrong and mitigate their effects through well drafted contracts and good management

■ Identify areas of possible disputes and be prepared to deal with them effectively if the need arise

■ Analyze and understand the importance of key contractual clauses and their effects

■ Allocate contract risk appropriately

■ Develop good contract management and administration skills

■ Develop the ability to avoid costly contract disputes through good negotiation skills

Course Outline:

Day 1: Contract Formation and Risk Evaluation

■ Formation of a business contract

■ Quantifying the Risks

o The Benefits of Understanding Contracts

o The Pitfalls of Getting It Wrong

■ Controlling the Contract Process

o Understanding the Deal

o Controlling the Negotiation

■ Contract Formation

o Offer and Acceptance

o Battle of the Forms

o Consideration and Intention

o Does a Contract have to be written?

■ Pre-contractual Issues and Documents

o Due Diligence, Permits, and Financial Stability

o When are you committed?

DAY 2: Key Contract Provisions: Clauses, and Terms

■ Pre-contracts and Post Contract

o Subject to Contract

o Without Prejudice

o Subject to Client Comment

■ Securing Payment

o Payment Obligations

o Non-Payment Remedies

o Letters of Credit

o Guarantees

■ Delivery, Ownership, and Risk

o Time and Place of Delivery

o Late and Failed Delivery

o Damage in Transit

o Ownership and Acceptance

o Transfer of Title and Risk

o Retention of Title

o Time is of the Essence

■ Liquidated Damages

Day 3: The elements of breach of contract

■ Material breach and conditions

o Notices to remedy and the Heisler qualification

o Repudiatory breach and innominate terms

o Affirmation and waiver

■ Causation, direct and consequential loss

o Quantifying loss and damages

o Limitation of liability

■ Equitable causes of action: mistake and rectification

■ Misrepresentation

■ Classification of the type of breach including repeated, material and irremediable

■ Counterclaiming for wrongful termination

DAY 4: Contract Termination and Liability

■ Contract Liability

o Managing Liability

o Limits of Liability

o Damages

o Insurance and Indemnities

■ Product Liability

o How a Claim is Brought in Contract

o How a Claim is Brought in Negligence

o Practical Risks

■ The frustration of a Contract

o Force Majeure

■ Notices and Service

■ Entire Agreement & Waiver

■ Interpretation and Signing

o Authority to Sign a Contract

o Power of Attorney

■ When do Contracts End?

o Termination / Discharge

o Transfer

o Variation

o Mistake


Day 5: Disputes Resolution and Compliance Management

■ Choice of Dispute Resolution

o Negotiated Settlement

o Litigation

o Arbitration

o Mediation, Adjudication, and Experts

■ Settlement Issues

o Enforcement of Judgments and Awards

o Jurisdiction

■ The Importance of Business Integrity

o Bribery

o Corruption

o Money Laundering

o Competition Law

Training Methodology

Lectures, discussions, exercises, and case studies will be used to reinforce these teaching/learning methods.