If you’ve been sued for breach of contract, first, I’m sorry, and second, please know that it is really important to have someone in your corner who knows how to defend you. It’s not enough to just deny the claims! You will want to raise affirmative defenses.

What is a breach of contract case?

When someone brings a claim against you, they must be able to show all of the basic elements of a breach of contract claim under Ohio law. In Ohio, those elements are
1. The existence of a contract
2. The plaintiff’s performance
3. The defendant’s breach and
4. The existence of damages caused by the breach.
Each of these elements needs to be dissected by a lawyer who knows what they are looking for.

Is the contract even valid?

A good lawyer will take a detailed assessment of the facts and circumstances that went into the formation of the contract. So, what were you texting or emailing about, what promises were you making or excluding as you discussed the project with the customer? Those facts are super important because they shed light on what people were thinking as they formed an agreement. For example, was there a clear offer, was their clear acceptance of the offer or was there a counteroffer? Was there “consideration” meaning…were you paid / was value exchanged? Is this contract of the type that needed to be in writing? Were the terms reasonably certain? These are just a few technical aspects of contracting that need to be examined by a lawyer with an eye towards defending you!

Ok, ok, you might have breached a little….so was the breach material?

Customers can be picky! Sometimes, technically, maybe there is a small breach, maybe there is a slight variation from the contract…so what do you do? Again, this requires a detailed examination of the facts, was the breach significant, what are the facts surrounding the breach. COVID-19 has caused all sorts of complications when it comes to sourcing materials and many, many contracts are technically breached due to backlogs in production of goods. Does this mean the breach is material if the deadlines are missed due to delays caused by COVID? Probably not!! Did the angry customer make the entire situation worse by…doing something, or not doing something? Also, very important to examine those facts that point toward contributory negligence.

Has the Plaintiff suffered damages or are they just angry?

You can’t sue someone because you’re mad! You must show real tangible harm because the contract wasn’t performed. It is the responsibility of the plaintiff to show they suffered some loss.

Common defenses

Below are some common legal defenses to breach of contract:

1. Fails to state a claim upon which relief can be granted.
2. Barred by equitable doctrines of waiver and estoppel
3. No valid contract for lack of consideration
4. Statue of frauds problems
5. Contributory negligence
6. Duress
7. Assumption of risk

As always, this list is not exhaustive, and you mist definitely should consult a lawyer for the details on how each defense applies!

Listen, friends – if you have an unhappy customer or a client that gives you that not so great “gut feeling”…reach out and get some advice before you end up in a lawsuit! And if you have been sued, give yourself your best shot and hire a seasoned lawyer. Contact Wick Law today for more information.

Wick Law, LLC is a small business legal practice, representing owners, investors, and entrepreneurs in all aspects of commercial, corporate, and business law, estate planning, contracts and negotiations, business litigation, and real estate. For more information: Contact 614-572-6366, visit www.mwicklaw.com, or email us at mwick@mwicklaw.com. Wick Law, LLC is located in Columbus, Ohio.

(Materials in this article have been prepared by Wick Law, LLC for general informational purposes only. This list is for educational purposes and is not to be considered exhaustive. More items could be added to this checklist based upon the type of transaction or industry standards. These materials do not, and are not intended to, constitute legal advice. The information provided is not privileged and does not create an attorney-client relationship with Wick Law, LLC or any of the firm’s lawyers. This checklist is not an offer to represent you. You should not act, or refrain from acting, based upon any information in this checklist. Wick Law, LLC maintains offices in Columbus, Ohio, and has lawyers licensed to practice in Ohio and in the United States District Court, Southern District of Ohio. The firm does not intend to practice law in any jurisdiction where the firm is not licensed.)

Copyright ©2022 Wick Law, LLC. All rights reserved.