If a party does not fulfil an obligation of a clause, and the other party ignores the failure for a long time, is the clause still legally valid? Say there's a clause (art. 14) that creates an obligation for party A, from which an obligation for party B follows. Say it looks like this: art.14. Every year, no later than six months after the end of that calendar year, Party A will provide Party B with a section-by-section overview of the costs for service A. art.15. What appears from the overview, taking into account advance payments made by Party B to Party A, whether Party A has been paid in advance too little by Party B or Party B paid in advance too much to Party A, must be paid or repaid within one month after the overview has been provided to Party B. These articles happen to be in a General terms and conditions document that is part of the contract, through an article in the contract that says that the general terms and conditions are part of the contract. Party B happens to have been negligent and considered the advance payments as flat rate for the service. This understanding came to Party B partly because, according to Party B, that is how the agreement was presented by Party A, contrary to the letter of the agreement. This understanding comes also partly from previous clients of Party A, who also considered the fixed monthly payments as flat rates that do not need settlement. These clients used the service for years, stopped using it, and never received an overview for settlement according to art.14. For more than 5 years, party A ignores their obligation regarding art.14. and never mentions it. Party B does not try to enforce art.14, because, in their mind, such an article was never part of the agreement. In the second half of the 6th year, Party A tries to enforce art.14, by providing an overview for settlements over the previous 2 years going backwards from the moment of submitting the overview. Considering that: Party A demonstrated a history of not fulfilling their obligations according to art. 14 in relation with Party B, but also in relation with other Parties with whom it had similar agreements. Party A never mentioned article 14 from the general terms and conditions at signing. Party B never objected to Party A not fulfilling their obligations. I would argue that there was an implied in fact agreement that the advance payments are fixed flat rates for service A, because both parties met in mind and abided by this agreement through their actions, i.e. Party A never submitted an overview, and Party B always paid the advance payments in time. This implied in fact agreement of parties goes in conflict with art.14. Provided that the implied in fact agreement stands legal scrutiny, and considering that meeting of minds must have happened after the signing of the written agreement, the implied in fact agreement is newer, thus supersedes art.14 of the written agreement. For what is worth, the situation stems from a rental agreement in the Netherlands, so EU/Dutch law applies to the original case. Nevertheless for the purpose of this question, I am interested in what principles of law apply, especially from civil law, but I am also curious of an interpretation according to common law. I am not a legal expert, but I am familiar with some principles of laws. The above is a working example, but my general question is whether a clause in a written contract is valid and enforceable, if all parties took regular actions contrary to the clause for a very long time without any dispute. An analogy to the above situation would be a written agreement of parties that monthly, 10$ would be exchanged for a selfie, for a period of 20 years. Then 19 years pass and nobody ever sent a selfie, or 10$ in exchange, or took any action with respect to that agreement, but one party starts sending selfies (many years later) and asks for their rightful 10$. In my mind, that's just crazy, but then again, I'm not a lawyer. What do the experts think?
Party A has breached the contract Party A had an obligation that it did not fulfil, providing the section-by-section overview of the costs. To the extent that Party B suffered damage from each breach, for example, because Party A owes a refund, Party B can recover that plus interest subject to any statute of limitations on actions for contract breach. To the extent that Party A suffered damage, tough - they don’t get to benefit from their own breach. Party A might wish to argue that Party B has waived their right to adjust the payment but this would be difficult to prove. It doesn’t appear that there is an explicit waiver but neither is their an implied waiver: Party A would need to show that Party B was aware of and condoned the breach in some way. You are right that a contract can be altered after it is entered into and that such a change can be implicit rather than explicit. But that would require showing some action rather than inaction by the parties to effect a different arrangement. In practice, where one party affirms the written contract, without clear and compelling evidence that the contract has subsequently been changed, the written contract will prevail. For an example, Yale University periodically collects the interest due on a perpetual bond originally issued by the Dutch water board Lekdijk Bovendams on 15 May 1624. Originally issued with a principal of &quot;1000 silver Carolus gulders of 20 Stuivers a piece&quot;, as of 2004 the yearly interest payment to the bondholder is set at €11.35 (15€ as of 2018 = 16$). According to its original terms, the bond would pay 5% interest in perpetuity, although the interest rate was reduced to 3.5% and then 2.5% during the 18th century. Providing it is physically presented to the successors of the board (the Dutch Water Authority) interest must be paid even if it has been many decades since the last payment. Of course, practically, crossing the Atlantic to collect 15€ every year is not commercially viable so they do it every decade or so when someone from Yale is going there anyway and then, only for the historical value. So long as the Netherlands continues to exist as a legal entity, this obligation will continue.
The question is a little confusing because it’s unclear why any of the payments should be refunded. If A has not provided the services, and B wants a refund, then B can sue A for breach of contract. A assigned its right to be paid to C, but it cannot assign its obligations to C (this would be a novation rather than an assignment, which would require both B and C’s consent). If C also agreed with A to perform A’s obligations to B (a subcontract), then A could sue C for any damages A was liable to pay B, but B cannot sue C directly. If A regrets its decision to assign the contract for £1, and wants to recover larger payments made by B to C in discharge of B’s contractual obligations to A, it can’t. A shouldn’t have assigned the benefit of the contract to C. If B has not paid, B can be sued under the contract which still exists between A and B. C can file this claim as assignee of the contract. While A could also potentially file the claim, it would be inconsistent with the assignment for A to receive any benefit from it, which would be held on constructive trust for C.
No. Whatever clauses and terms existed in this contract, a second contract between the parties could modify it to remove such a clause, or to directly make such an amendment, or to annul the contract entirely. You can make it a requirement that amendments be unanimous among the parties (as opposed to e.g. unilateral, allowing one party to make certain changes, variously without approval or without notice). Such a clause may also be unenforceable for another reason, but this doesn't fit any of the general points for unenforceability, except perhaps being against public policy if a jurisdiction happened to regulate contracts to that degree.
In simple terms: Except as expressly set forth in this Agreement, ... Whatever follows next is only limited by what the agreement clearly says is limited. ... the exercise by Company of any of its remedies under this Agreement ... A remedy is something that helps to fix a situation back to what it "should be" in legal terms. There is an implication that the agreement provides for a number of ways of fixing any problems that occur, related to following or breaching the contract. Whatever follows next is assuming that one of those remedies has been used or chosen for fixing a problem. ... shall be without prejudice to its other remedies under this Agreement or available at law or in equity. Having chosen to use one or some remedies, it still has the choice of using any of the others in the agreement and also those available generally under the law. The election by the Company to terminate this Agreement in accordance with its terms shall not be deemed an election of remedies, ... Ending the agreement doesn't count as choosing one of the remedies. ... and all other remedies provided by this Agreement or available at law or in equity shall survive any termination. It doesn't matter if the agreement is ended, regardless of why, the company still has the choice of any remedies as before.
What would the implications be if an employee were to refuse signing an amendment and insist on what was stated in the original signed contract, even if he/she knows it's a mistake? The contract is voidable unless the employer's subsequent conduct reinforces its legitimacy. The employee's attempt to take advantage of something he knew was a mistake contravenes the covenant of good faith and fair dealing on which contracts are premised. South African contract law is not an exception to this: The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing. The employer can resort to records of prior communications between the parties to prove that the stated compensation was intended as yearly, not monthly. Even if those records are not available in a judicial dispute, the employee would have a hard time persuading a court that the salary that was agreed upon is 12 times --or exceeds by a factor of 12-- the market rate for a job position of similar type.
An important doctrine of contract law is privity of contract, to the effect that only parties to an agreement have legal obligations and benefits from the contract. However, there can be third-party beneficiaries, where a third person may gain a benefit, and may rely on that benefit. For example, A agrees to work for B, who will pay C (perhaps because A owes money to C); C can then sue B for non-payment. In order for this right to materialize, C's rights must have "vested", for example C must have relied on the agreement to his detriment, or he has agreed to this with at least one party, or there can be some clause in the contract whereby his rights vest. That said, in order for a person to by obligated by a contract, they must be a party to the contract – they must have agreed to take on an obligation. (A person can also be obligated, without assent, if there is a specific law – e.g. you are obligated to pay the government your taxes, even if yo didn't agree to it).
If two parties agree to the terms of an exchange, then there exists an enforceable contract. A signature is not needed to create a contract. However, an intent to negotiate a contract is not, per se, a contract. Absent some specific and explicit measures (which for major deals may be codified in an MOU or LOI that itself contains contractual terms), if you can't reach an agreement on terms then there is no contract. It's up to the particulars of "the verbal agreement to start the hiring process" whether an agreement on exchange has been reached, or merely proposed. E.g., "You and I agree that I will pay you $X in exchange for Y due Z" is a contract. "You and I agree that we'd like to work together, and we'll hammer out the terms X, Y, and Z by the end of the week" is merely a proposal to contract, not an actual contract. Of course, this doesn't mean you're immune to liability for failing to reach a contract in this hypothetical: you can always be sued!
In the event of a dispute, the person resolving the matter, probably an arbitrator in the case of a commission dispute between two realtors and either an arbitrator or a judge and jury depending upon what your listing agreement says about that issue, would hear the testimony from both parties and decide. The intent of the parties is supposed to govern in cases of clerical errors, but a signed document has a lot of weight, especially in such a prominent term. It is a little hard from the way the question is posed to determine who is willing to correct the typo and who insists on enforcing the contract containing the typo.