There are two main categories of contracts. These are written and oral contracts. Jones and Nussbaum had a valid contract that is enforceable. It is vital to note that all contracts whether made orally or written are enforceable if they are valid. Therefore, the agreement between Jones and Nussbaum was enforced breach which entitles the innocent party to redress. The facts in issue in this case are whether Nussbaum is entitled to be compensated for doing work that involved costs and the same was not evidenced in writing. This is despite an express provision within the contract that all work involving cost must be in writing. Another issue that requires a determination is who between the two parties breached the contract.
There is no legal requirement that a contract must be in writing. This being the law in statute, any provisions of the contrary to it are unenforceable. Therefore, subsequent an oral contract can significantly alter the nature of the original contract as long as the parties are at consensus ad idem. This means, therefore that the additional work performed by Nussbaum is part of the contract and Nussbaum is entitled to compensation. Courts have allowed oral alliteration on written contracts, even if an express term required a written contract because neither a written nor an oral agreement is of a higher legal degree. Moreover, the alliteration materially affected the obligations of Nussbaum in the contract. The oral contract did not also change the fundamental character of their contract. Therefore, having established that Nussbaum was entitled to be paid, he, therefore, had a valid cause of action for breach of contract. Jones refusal to pay for the additional costs was in breach of contract. Nussbaum is, therefore, entitled to receive remedies for breach of contract.
A contract between the owner and a contractor is enforceable if it is both valid and legal. Contractors, however, usually subcontract part or whole of their work. Therefore, there exist two contracts in such a case. One contract is between the contractor and the owner and the other contract between the contractor and the subcontractor. All these parties to the contract have the traditionally obligations to fulfill in order to perform the contract. Therefore, a breach by the subcontractor would entitle the contractor to remedies. It would also entitle the owner for remedies from the contractor.
In the circumstances of the case, the owners issued directives to the subcontractors directly. This illustrates that the owners had legally recognized the subcontractors. Therefore, there is a legitimate expectation that the additional work resulting from the new directives directly and expressively from the owners that the additional work would be paid. The owners, therefore, made a new representation to the subcontractors. The subcontractors relied on this representation and therefore, altered a fundamental character of their contract. The owners will be estopped from denying their responsibilities with regards to the new responsibility. This is because the new directives were not part of the initial contract. Therefore, I would rule in favor of the Subcontractors. The subcontractors had relied on that the additional work done, which did not constitute part of the original contract will be paid. The owners did nor rebut this and, therefore, should be estopped from refusing to honor their representation.
Under case study four, a subcontractor has finished fulfilling his obligations under the contract. On a normal case, the contractor is supposed to fulfill his obligation by paying for the work done. However, many contractors decide to use a pay-when-paid or pay-if-paid policy or terms in a contract. Court of law, however, have disfavored the pay-if-paid terms as they infringe on the rights of the subcontractor despite them incurred a lot of cost in performing the contract. While acting as a judge, I would not be guided by the terms pay-when-paid or pay-if –paid. This is because they make the rights of the subcontractor subject to the owner while the subcontractor has no right to remedy against the owner without express provisions. Therefore, I would rule that the contract between the subcontractor and the contractor was an independent contract not subject to third parties. This means that no party will be excused from carrying out his obligations in performing the contract.
The argument that the payment from the owner was a condition precedent to the contractor’s obligation to pay does not stand. This is because it is null and void because it seeks to limit the rights of contractors. Various states have passed legislation to discourage the pay-when-paid terms. They do this by imposing interest rates accruing from the unpaid money. Moreover, having such condition precedent does not eliminate the rights of the subcontractor to get paid for the work performed. However, they will guide a court to force the subcontractors to incur the costs of servicing their debt owed by the contractors until a reasonable time has passed. Therefore, if a reasonable time had elapsed, then the subcontractors have a valid cause of action and are entitled to damages. This is because the defendants have breached the contract by note fulfilling their obligations to pay for the services.
It is extremely vital for parties to a contract to have a meeting of the minds. This shows consensus ad idem. In the circumstances of the case, the parties inferred different meaning to the act remove. If the contractor would not yet have performed the contract, then the contract would be void. However, the position changes because he has performed the contract as he understood. Therefore, the reasonable man test should be applied to determine each party’s rights under the contract. The contractor was within his right in recording a mechanical lien. It is also critical to acknowledge that he is entitled to payment. By applying the reasonable man by stander test, I would rule that a reasonable man will judge that the tree industry meaning was the ideal method for interpretation the word ‘remove’ as used by the parties. Therefore, I would rule in favor of the contractor. It would be unfair to rule on the contrary for the following reasons. First, this is because the owner did not expressively communicate to the contractor that he wanted the tree removed entirely from his property. It would be extremely unjust to expect him to read the owners mind. Secondly, the technical meaning as used by the tree industry is a common reference point. By entering into a contract, to remove the tree, a reasonable man would assume the owner had the requisite knowledge in the contract. The contractor, therefore, is entitled to pay for the performance of his obligations. Moreover, he is also entitled to recover remedies for breach of contract by the owner for having refused to fulfill part of his bargain.
Klass, Gregory . Contract Law in USA. New York: Kluwer Law International, 2010.
Emanuel, Steven . Contracts. New York: Aspen Publishers Online, 2010.