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What is a contract?

The concept of an agreement that courts will enforce is a fundamental building block of Australian law. Sometimes, mere promises or representations can be binding under legislation such as the Trade Practices Act 1974 (C'th). For an agreement to be binding as a contract, and with exceptions to the general rule, a number of elements must exist, including:

• certainty as to who are the people or entities bound by the agreement ("certainty as to parties");
  
• an intention that the agreement would be binding in a Court of law ("an intention to be legally binding");
  
• one party makes an offer that has been accepted by the other;
  
• each party must give and receive something as a result of the agreement ("consideration"); and
  
• the agreement must be clear as to what is expected of - and by - each party ("certainty as to consideration").

For most contracts, it is not necessary (but is almost certainly desirable) for the contract to be set out in writing. Some contracts, such as a sale of land, must be in writing. Some contracts may be unenforceable or simply void because they are illegal, are based on a total misunderstanding or mistake.

Breach of contract

If a contract is breached by a party then another party may seek to enforce the contract in a court of law. Generally, the injured party will seek payment to put them in a position that they would have been if the contract was performed ("damages"). Sometimes they will seek a court order stopping something happening ("injunctions") or requiring something to be done ("specific performance").

How does legislation affect contract law?

Many contracts are governed by legislation that forces the parties to follow statutory requirements. Examples of areas where legislation over-rides the agreement of the parties in Victoria include residential or retail leases, employment relationships, sales of land and franchises.

The perfect contract

The perfect contract is one which clearly sets out what the parties have agreed upon and seeks to reduce the likelihood of a dispute and, if one arises, seeks to minimise the impact of that dispute. Ideally, the perfect contract will be put in a drawer and never be looked at again, because the parties know exactly what they have agreed upon and honour that agreement so that the written contract is not needed. Unfortunately, this is not an ideal world and often the written contract will be needed to ensure that one or more parties do keep the promises made and agreement entered into by the parties. When a dispute does happen, a clear and easily understood document that has anticipated the issues in dispute will often avoid the need for a court of law to be involved at all.