March 4, 2014
Clients routinely ask our attorneys if a poorly crafted document is enforceable, whether because of mistakes, errors, typos, or language that just does not make any sense. The easiest answer here is, “maybe.” However, “maybe” is not much assistance to anyone in this type of situation. Whether or not a contract is enforceable can have significant consequences on the parties and people involved. A skilled contract attorney can assist clients in navigating these issues and seeing that your legal rights are protected and enforced.
It would take a review of the contract itself and likely a consultation in order for a contract attorney to properly and effectively determine and advise you in a contract enforceability situation. With that being said, there are some guiding principles and understandings that can assist you in determining the severity of the issues pertaining to the enforceability of the contract. Understanding some of these items will assist you in providing your contract attorney with helpful information that can allow them to more efficiently assess the situation.
If the fundamental issue that you are concerned with is enforceability, then you are likely concerned that the very purpose for which the contract was drafted, or at the very least a provision of the contract, is in jeopardy. You are either very happy about this, meaning you do not want the contract or that provision to be enforceable, or very upset about it, meaning you want to be able to enforce the contract or that provision of the contract.
The nature and extent of the error(s), poor language, or mistake(s) can make a big difference with regards to enforceability. There is not necessarily a definitive line that would make the contract unenforceable, as it depends on the specific facts of the case and the terms and language of the contract. For example, lack of clarity on the date of delivery of goods or services could be a small issue in one case or could be the very essence of the contract in another. If it goes to the heart and core of the agreement and understanding of the agreement between the parties, then the problem may have a greater likelihood of leading to unenforceability of the contract as a whole.
Another major issue in contract enforceability is to consider is what was agreed to in a prior letter of intent or memorandum of understanding, if one even exists, which led to the contract being drafted. Although you may not be able to utilize these in many cases where one party is trying to enforce the contract against another, they can be indicative of what the parties were trying to accomplish.
In addition to pre-contract drafting considerations, another critical issue is whether or not the parties have begun to perform under the contract. Some key items to consider are:
The analysis here can begin to become more complex and this is why understanding the facts of your particular case are critical to understanding the legal rights of the parties. When working with a Virginia Contract Lawyer, it is helpful to provide them with any and all facts that are relevant to understanding what the parties have done under the contract.