One of the things I enjoy most about practising law is helping people make sense of situations that seem straightforward on the surface, but are often more complicated once the law is involved.
Over the years, I’ve noticed there are certain phrases I hear again and again. They’re understandable assumptions. They’re just not always legally correct.
Here are five examples. It’s a bit of a grab bag but hopefully someone will learn something.
“But I never actually signed anything.”
Many people assume that if nothing was signed, there can’t be a legally binding agreement.
In reality, many verbal agreements can be legally enforceable. The real challenge is often proving exactly what was agreed, particularly if the parties remember the conversation differently or there is little written evidence.
A signed contract is often the clearest way to record an agreement. It isn’t the only way one can come into existence.
“But they didn't hold up their end, so I don't have to do my part.”
This is a common assumption, but the answer is rarely that simple.
Whether you’re entitled to stop performing your own obligations, terminate a contract or seek other remedies depends on a range of factors, including the terms of the contract and the nature of the alleged breach.
Acting too quickly can sometimes create legal problems of its own.
“But I never got a lawyer to read it.”
People sometimes believe a contract can’t be enforced because they didn’t obtain legal advice before signing it.
Legal advice can help you understand your rights, obligations and risks before you commit to an agreement. But choosing not to obtain advice doesn’t usually prevent a contract from being legally binding.
“But there's a sign that says 'No refunds'.”
Businesses are generally free to set their own policies about change-of-mind returns, where a customer simply changes their mind about a purchase.
But consumer guarantees under the Australian Consumer Law are a different matter, and they can’t simply be excluded by a sign or store policy. In some circumstances, consumers are entitled to remedies regardless of what a “No refunds” sign says.
The law can provide protections that businesses cannot contract out of.
“But that's just what we've always done.”
Long-standing practices can be useful, but they don’t necessarily override clearly agreed contractual terms.
It’s not uncommon for businesses to develop informal ways of working over time. Problems often arise when those informal practices differ from what the contract actually requires.
When a dispute arises, the written agreement is usually the starting point.
A common theme
Each of these statements has one thing in common: they’re based on assumptions that seem perfectly reasonable or that are consistent with real experiences people have had.
The difficulty is that the law doesn’t always align with common sense or everyday expectations.
If you’re unsure about your legal position, getting advice early is often simpler, and less expensive, than trying to resolve a dispute after decisions have already been made.
