04 December 2015
Dear Mentor, we act for a vendor in a business sale contract. A condition precedent has not been satisfied and our client has exercised its right to terminate the contract. The condition precedent also allows our client to retain an amount of the deposit on account of termination due to non-satisfaction of the condition relied upon.
The purchaser has responded that the contract is not dated and, as such legally, has never been exchanged and that our client cannot retain any of the deposit monies which it would otherwise be entitled to retain.
Is it correct to say that because a contract is not dated it is not enforceable - particularly given that it has been signed by all parties and exchanged with the intention to contract? We look forward to your comments on the above.
The dating of the contract is evidentiary of the date of exchange only and not essential. The contract could in fact be oral subject to the normal rules as to offer and acceptance. For the contract not to be binding on the parties as at the date of exchange there would need to be agreement to that effect.
Regards Mentor
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