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ARTICLE · 25 JUNE 2023

Can you enforce an unwritten contract?

Madgwicks
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In certain circumstances, an unwritten contract can be enforced – it all comes down to the evidence.

AustraliaCorporate/Commercial Law
Catherine Ballantyne
Catherine Ballantyne

Can you enforce an unwritten contract?

Contracts can be written, oral or inferred. Where they are not written down the Court has to decide what the terms were.

The Court

Generally in the case of an unwritten agreement, the Court will consider:

  • The terms of the contract are those which the parties intended to include in the contract – what a reasonable person would objectively infer from the words and conduct of the parties in relation to the agreement.
  • Often the terms of a contract are clear from what the parties say to each other, however sometimes the parties intend to include other terms which they haven't specifically said to each other.
  • A Court can imply a term in the contract.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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