Terms And Conditions To Include In A Commercial Litigation Agreement?

September 7, 2021    Civillawyers
Terms And Conditions To Include In A Commercial Litigation Agreement?

Australian commercial law includes common law and some statutory principles. Commercial litigation agreements are usually formulated in written agreements with the help of commercial litigation solicitors. But it is not mandatory for the contract to be in writing. The contracts are often formed orally in an informal manner which leads to arguments. Commercial disputes are primarily mitigated through the process of litigation.


Therefore, it is mandatory to know the terms and conditions to be included in such a contract before forming them. Let us know about them here:


Offer And Acceptance

A binding contract can only exist if all the parties are in agreement. This requires one party to accept the order given by another party. An agreement can be written or made orally, provided the contract is clear to both parties. An offer must be distinguishable from a statement of price or a mere invitation to treat. A contract becomes valid only when the accepting party shows a clear intention to accept the offer.


The courts interpret commercial liability contracts as pragmatically as possible. The parties are expected to yield commercial outcomes. Therefore, the contracts should involve terms that are convenient for commercial purposes. The background of the transaction and the market in which the parties operate are taken into keen consideration. The context of any contract is understood from the contract itself and the documents referred to.



Consideration is compulsory for a contract to be enforceable. However, if the parties get involved in a formal agreement under a seal, it is not essential. Valuable consideration includes any profits, benefits, interests, or rights surrounding one party. It may also have the responsibilities undertaken by one party or losses suffered by the other party. Consideration needs to be sufficient but not adequate. It is not required to prove the degree of consideration. The degree of consideration does not form a proportionate exchange for the promises under the contract.


Intention To Develop Legal Relations

The commercial litigation lawyers ensure that the parties hold an intention to develop legal relations. However, in the case of commercial contracts, this is not an issue. The parties forming a commercial contract are presumed to create legal connections. But in the case of domestic agreements, a presumption exists against intention.


The element of intent is determined by referring to the content of the deal. The language of the parties and their conduct will be taken into consideration as well. Moreover, the relationship between the parties and the whole context of the agreement is significant.


Certainty And Completeness Of Terms

The fundamental terms of a contract are required to be agreed upon by both parties. Furthermore, the terms will have to be unambiguous to make the contract enforceable. The basic terms of a contract include identification of the parties involved and the price of their agreement. The subject matter of the agreement has to be clear and concise. Additionally, Australian law requires the contract to be complete.


Civil law lawyers ensure that the contract is eligible for performance. The agreements are upheld by Australian courts. The contract should imply reasonable terms to ensure its validity. Therefore, the intention of the parties is put into effect. Australian courts seek to give commercial efficacy to the terms mentioned in commercial agreements.


Conditional Contracts

According to Australian law, the terms in a contract are conditional. Most agreements contain a condition precedent. This implies that the provision will be in effect regarding the parties’ intention. Commercial contracts include stipulated time limits. The parties give essentiality to the time limits. Subject to contract agreements receive a lot of consideration in Australia.


The court determines the existence of the binding contract. It is the court that determines if the parties are bound to all the terms or only some of them. Commercial liability contracts are usually based on the characterization of the factual circumstances.


Forms Of Pre-contractual Liability

Sometimes the legal requirements for signing a contract are not met adequately. However, pre-contractual negotiation can still lead to obligations or enforceable rights under Australian law. Pre-contractual liabilities can occur through an implied contract. It can possibly rise in fraud and negligence. The law of equity can also give rise to pre-contractual representations. Australian consumer law states that it can stem from misleading conduct during negotiations.


Final Thoughts

The terms and conditions mentioned above are required to be included in commercial litigation agreements. It ensures that both parties accept the agreement. Therefore, the contract comes into effect and becomes enforceable. You can appoint civil lawyers in Perth to ensure that the commercial litigation agreements include clauses for dispute resolution.


These clauses put forward a definite process to be followed in the event of any dispute. A discretionary process leaves room for confusion and further complicates the issue. It is a good idea to opt for a multi-tiered approach to mitigate conflicts. That helps in maintaining clarity between the disputes that are inside and outside the regime.

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