Questions about contractual disputes
Questions about contractual disputes
What disputes arise from contracts?
Important practical issues include existence, interpretation, payment, defects and late performance. The claim and appropriate remedy depend on the contract type. The contractual wording must be compared with actual events and evidence.
When should I seek legal advice?
Seek advice early for substantial claims, threatened loss of evidence or short deadlines. Discussion can help but must not replace preservation of deadlines. Save the correspondence before taking irreversible steps.
Must a contractual dispute go to court?
No. Negotiation, mediation or settlement may be suitable. Success, duration and costs are not guaranteed. Court action may nevertheless be necessary in urgent cases or where deadlines are approaching.
Complex questions from practice
How can I document the condition of a defective item reliably before it is repaired or altered?
Photographs, independent findings and, where appropriate, court-ordered precautionary evidence-taking may be necessary. Depending on the legal position, the counterparty should have an opportunity to inspect. Repairs can remove decisive evidence.
Record the delivery date, discovery and nature of the defect in a chronology. Original files, inspection reports and correspondence about inspections may later be decisive. Where possible, urgent repairs should be preceded by documentation. Appropriate preservation of evidence depends on the contract type and the risk of losing evidence.
Is the limitation period for my claim interrupted when I negotiate a settlement with the counterparty?
Not automatically. A waiver of the limitation defence or a suitable interrupting action must be considered in time. A simple reminder is generally insufficient.
Record maturity and possible interrupting actions independently of the negotiation history. The prospect of agreement does not automatically suspend the time limit. A limitation waiver should clearly identify the claim, parties and scope. Without sufficient protection, examine in time which formal action is required.
Under what conditions may I set off the counterparty’s claim against my own counterclaim?
Mutuality, maturity and eligibility for set-off must be examined. Contractual and statutory exclusions may apply. A disputed counterclaim is not necessarily worthless but must be supported by evidence.
Compare the principal claim and counterclaim, identifying their respective parties, amounts and due dates. A contractual exclusion of set-off may also be relevant. Set-off should be clearly declared and supported by evidence. Reducing an invoice indiscriminately without assessment may widen the dispute or cause your own default consequences.
How should a settlement be worded to avoid inadvertently waiving unknown or expressly reserved claims?
The settlement clause, covered claims and expressly reserved rights must be precise. Payment, deadlines and consequences of non-performance should be regulated. A blanket discharge may extend further than expected.
Specify which disputed matters are finally resolved and which expressly remain open. The effects of payment and any non-performance should also be clearly regulated. A settlement may have far-reaching waiver effects; wording such as full and final settlement or all claims therefore deserves particular attention.