Breach of contract
Where it can be established that the parties to a care agreement intended to create contractual relations and the agreement has broken down, a breach of contract could be argued. A contractual remedy of damages may meet your client’s needs, especially where specific performance may not be appropriate because family relations have broken down.
Is there a contract?
Enforcing a family agreement for exchange of assets for care may be difficult under contract law because:
- The arrangement is usually informal and often lacking documentation of the relevant rights and responsibilities of the parties.
- There is a presumption that the parties, being family members, did not intend to create binding legal relations.
- The terms of the agreement may be uncertain and if the relationship breaks down it would be difficult to identify any useful remedies.
If there are clear difficulties with proving intention to create legal relations and the terms of the agreement are uncertain, an action in contract may not be suitable.