Filing a breach of contract lawsuit requires a few steps. Here is a brief summary of the process:
Determine whether you have a contract
See whether the other party has breached the contract
See if there is any way to settle out of court
Decide which county is the right place to file
File the petition and summons with the court clerk
If you’re wondering how to file a lawsuit for a breach of contract, read about these steps in more detail. If you have any questions about this process, please reach out.
Determine whether you have a contract with the other person
The first step in the process includes determining if there even is a legal contract between you and the other person. To have a contract, there must be three elements:
Offer
Acceptance
Consideration
1. Offer
An offer is a promise, undertaking, or commitment to enter a contract. For an offer to be effective, the offeror must communicate the offer to the offeree.
2. Acceptance
The offeree must accept the offer.
3. Consideration
For there to be consideration, there must be:
A bargained-for-exchange
A detriment to the promisee
Here’s an example, from the book I used to study for the bar exam:
“Jeff promises to sell his used television to Kristen for $100 in exchange for Kristen’s promise to pay $100. Both elements of consideration are found in this example. First, Jeff’s promise was bargained for. Jeff’s promise induced a detriment in the promisee, Kristen. Kristen’s detriment induced Jeff to make the promise. Second, both parties suffered detriments. The detriment to Jeff was the transfer of ownership of the television, and the detriment to Kristen was the payment of $100 to Jeff”
From Bar Review: Multistate, Copyright © 2007 by BarBri.
So, in general, if there is an offer, acceptance, and consideration, there is a contract.
Most contracts do not need to be in writing
For most contracts, an oral agreement will be enough to form a contract; writing is not necessary. (However, a written contract can be important to present as evidence in court.)
However, some contracts must be in writing. The Oklahoma Statute of Frauds (available here) says that the following contracts must be in writing:
An agreement that, by its terms, is not to be performed within a year from the making of the contract;
A promise to answer for the debt of another;
An agreement made upon consideration of marriage;
A contract for the sale of real property, or for the leasing of real property for a period longer than one year.
Defenses to Contract Formation
Even if you have a valid contract, there may be certain defenses available. Some of the commonly asserted defenses to contract formation include:
Mutual mistake
Fraud, misrepresentation, or nondisclosure
Public Policy. For example, a contract to perform an illegal act is invalid.
Lack of mental capacity (this includes intoxication)
Duress
One of the parties is under eighteen
Unconscionability. The defense of unconscionability comes into play when there is unequal bargaining power between the parties, and terms of the contract are so one-sided as to create a result where enforcing the contract would be unjust. For example, one Oklahoma court found a contract to be unconscionable when a Laotian immigrant, who could not read English, signed a contract for the purchase of land. The contract contained a clause stating that the buyer must construct a poultry litter shed on the property, place litter from the buyer’s poultry house in the shed, and the seller would have all the rights to the poultry – for free – for the next thirty years. The court explained, "[a]n unconscionable contract is one which no person in his senses, not under delusion would make, on the one hand, and which no fair and honest man would accept on the other."
If you have a contract, and there are no defenses, next ask: Has the other person breached the contract?
If the other party has not performed the contract as promised, then the other party has breached the contract. If the other party has breached the contract, you may file a breach of contract suit.
Before you sue, though, you may want to attempt to settle the case with the other party. Going to court is costly, time-consuming, and emotionally exhausting. Most parties to a contract will be glad to negotiate if there is a way to go to court.
But, if you do sue, here’s how to do it:
Decide where to file
You must file in the proper county. Check the Oklahoma venue statute, here, to see where to file. Some of the commonly used terms of the venue statute say:
If real property is the subject of the action, you must bring the suit in the county where the real property is located.
A lawsuit against a corporation must be filed in the county where the corporation is situated, where the corporation has its principal office or principal place of business, or in which any of the corporation’s principal officers live, or in the county where the lawsuit arose, or any county where a co-defendant of the corporation may be sued.
A lawsuit against a non-resident of Oklahoma, or against a foreign corporation, may be brought in any county where there may be property or debts owed to the defendant, any county where the defendant may be found, or any county where a co-defendant of the non-resident may be sued.
A lawsuit for the collection of an open account may be brought in any county where the debt was contracted.
Any other breach of contract suit must be brought in the county where one of the defendants resided at the time the claim arose, or in the county in which the claim arose, or where one of the defendants may be summoned.
You can see, from the above list, that, in many cases, there may be several counties where you may file your suit. If the law allows for more than one county where you may file, then you may file in any county permitted by law.
File a petition and a summons
Once you decide where to file your suit, you must file a petition and a summons with the court clerk in the appropriate county.
If your claim is for less than $10,000, you may file in small claims court. If you file in small claims court, you can usually do so without a lawyer. The court clerk will have the form for a petition and summons; ask the clerk to give you this form. Fill out the form and file it.
If your claim is for more than $10,000, you will have to write your own petition and summons. Most people can’t do this without a lawyer; if you need help preparing a petition and summons, contact our office.
If you decide to draft the petition and summons yourself, the rules for writing a petition are here, and the rules for writing a summons are here.
After you file the petition and summons, serve the petition and summons on all the defendants.
There are several ways you may serve the defendants:
Personal Delivery. Either a sheriff or a licensed process server may deliver the documents to the defendants.
By certified mail.
By publication. If you can’t serve the defendant any other way, ask the judge to allow you to serve by publication. You must publish notice of the lawsuit once a week for three consecutive weeks in a newspaper of general circulation in the county where you file the lawsuit. If the defendant doesn’t respond within 41 days after the first publication, you may win your case by default.
After you serve the defendant
You now have an active lawsuit. In an earlier post, “What does a Civil Attorney Do?” I describe what a civil lawsuit is like. Because a breach of contract lawsuit is a civil lawsuit, that post will give you a good idea of what you’ll be going through, if you file a breach of contract lawsuit.
Work with an Attorney to File a Breach of Contract Lawsuit
There are entire law school courses – as well as shelves full of books – on every aspect of contract law. A post of this length can only scratch the surface. If you would like additional advice on a breach of contract lawsuit, contact our office.
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