Electronic Signature Legality for Business Termination Contract in Australia

How to eSign a document: electronic signature legality for Business Termination Contract in Australia

hello welcome to this masterclass on termination and construction contracts my name is Paul darling I'm a barrister Queen's Counsel what I'm going to be doing today is discussing contractual termination and common law repudiation I will be discussing the characteristics of both and the differences between each of them having done that I will then identify some issues that arise in common law repudiation and the circumstances in which that remedy is available and how somebody is able to avail themselves of that by bringing a contract to an end then at the end I will come to some issues that arise in relation to termination for convenience clauses which is an increasingly important area when courts construed termination clauses that they start by looking I'm afraid of the consequence and they start from termination is a Taccone in' remedy which brings out the contract to an end with dramatic consequences so over the years the courts have evolved principles of construction to mean that people can't terminate contracts by accident I think everyone used to think that termination that a contractual termination clause made it very difficult to for a whole number of reasons to use the common law repudiation repair contract to an end the court of appeal has expressed a different view in a case called stop sneer and has basically said that it needs clear words essentially to exclude the right to accept a repudiation at common law the question is is the breach so serious that it goes to the root of the contract now I don't think that's a very helpful way of expressing it even though it is the ancient common law exposition of it or the other way that I've heard it put is is it reasonable to leave the wronged party to his claim in damages or should he be allowed to bring the contract to an end when one looks at all the cases there littered with things that the primer face he looked like repudiation with in fact when one gets down to them are not common law a PDA are have been held by the courts not to be common law repudiation the two areas that I I think our most difficult in that area which our particular interest to construction contracts our case is about delay and cases about non-payment of sums G under the contract when you think something's repeated tree look twice and then look a third time and if you still think that's repeated tree the fourth time that doesn't mean that it doesn't happen it obviously often does but nevertheless one shouldn't rush to find something to be repeated tree one of the things about repudiation and the cases on acceptance and affirmation and waiver are very much the pinnacle of this is that you can find the cases as nearly anything the if one goes to chitti and other textbooks like Keating and looks through the footnotes and reads the cases you read three cases on the same topic and you think to yourself when you've done that and I'm not quite sure that they all point with the same voice termination for convenience the general concept behind it is a party can choose to bring a contract to an end now of course like the termination clauses that I talked about a few minutes ago that they all turn upon their own words many people have suggested that you can only exercise a termination of convenience right however it's expressed if you're acting in good faith I don't think that's right more difficulties the suggestion that you can or can't give the work to somebody else in a construction contract you terminate the contractor's contract for convenience because the new contractor down the road says he'll do it for two thirds of the price I'm quite clear that if the contract is silent as to your right to give the work to a third party the courts would construe it the contract is not permitting termination for convenience to give the work to somebody else more difficult is if the contract expressly says that you can terminate for convenience so as to give the work to somebody else I think the courts would to be blunt except that if the position is that this is a purely voluntary contract that you can perform if you like and not if you don't but there is no a zero obligation then there is a realistic argument that such contracts would be void for or unenforceable for lack of consideration terminations that can be clauses are not straightforward to enforce ultimately I think that there are some weaknesses that can be exploited by by clever argument but overall I think the likelihood is that as time goes on courts will more and more easily give expression to the party's desire to have those sorts of termination clauses