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Question 4
Question 4
A contract engages each party to perform the specified duties agreed. In other words,
a contract is a legally agreement that recognizes and governs the rights and duties of
the parties of the agreement.
A contract may be either oral, written even the fact that a solid contract is preferred to
be in writing.
Contract originates from the contract law which within the civil law tradition, is a
branch of the law of obligations. Contract law is in brief the body of law that governs,
enforces and interprets agreements, thus explaining the legal binding responsibility
part of the parties in a contract and the fact that a contract is the center of many
business dealings.
For a contract to be valid, regardless of its type, it must fill in the following elements:
It is important to note that there are laws which govern contracts at the federal, state
and local levels, though most contracts are subject to the laws of the state in which it
was created. The fact that the laws governing contracts vary by jurisdiction, most
contracts include the law provision under which it is governed. This is a section of the
contract itself in which it is specifically stated which state’s laws will apply to
interpreting and enforcing the contract should a dispute arise. Many contracts also
specify how a dispute is to be dealt with, often stating that the parties will use
arbitration, mediation rather than go to court over a dispute.
There is breach of a contract in two ways, notably, actual breach when one party to
the agreement fails or refuses to honor his part of, or complete his duties under, the
contract and an anticipatory breach where there is an intended or anticipated failure of
one party to perform his duties under the contract. Anticipatory breach occurs when
one party informs the other party of his unwillingness, or inability, to perform under
the contract ahead of time. In addition, a breach to a contract can be either minor
where a party does not perform a part of the contract but does not violate the whole
contract or material breach which is a total breach given the breach is so substantial
that it impairs the contract as a whole.
Conflicts within a contract and agreement are to be managed. Therefore once a breach
of contract occurs, the parties can first use mediation to solve the issues. Mediation is
an amicable dispute resolution process. It provides a space of confidentiality and trust
which allows entities and people to negotiate and explore by themselves a mutually
acceptable solution to their dispute. The mediator uses a wide variety of techniques to
guide the process in a constructive direction by managing interaction between parties
and by facilitating open discussion. If consensus is not reached through mediation
which is considered in law as an alternative dispute resolution in law, the parties go
through arbitration.
Arbitration is a jurisdictional method of resolving conflicts outside the courts. The
dispute will be decided by one or more persons (the "arbitrators", "arbiters" or
"arbitral tribunal"), which renders the "arbitration award". The arbitrators, selected on
the basis of their competence and availability ensure rapid access to justice by means
of a flexible process. An arbitration award is legally binding on both sides and
enforceable in the courts. Arbitration consists of a neutral and impartial third party or
parties, who will hear and decide on the dispute by applying rules of law or trade
usages and customs. Arbitration is often used for the resolution of commercial
disputes, particularly in the context of international commercial transactions.
The legal framework for arbitration in Mauritius is governed by the following texts:
International Arbitration Act 2008
International Arbitration (Miscellaneous Provisions) Act 2013
Supreme Court (International Arbitration Claims) Rules 2013
The Convention on the Recognition and Enforcement of Foreign Arbitral
Awards Act 2001 (as amended in 2013)
Code de Procedure Civile
When no agreement is found under arbitration, the parties may seek to enforce their
contract rights in a court of law. This is called Litigation or lawsuit which is a civil
action brought to Court with the plaintiff party requesting a legal or equitable remedy.
The types of legal remedies available for breach of contracts depends on the everity of
the breach. Generally, damages awarded are categorized into four groups:
In the light of this, it is clear that disputes are corrected in the three mentioned ways
but the most important is that the contract itself must be clear regarding the method to
adopt in case of breach of contract and the legal instance at which to bring the case in
an event of arbitration or mediation.