party in default

In some jurisdictions, the party in default could also face the original action being restored.

Sometimes the party in default makes an offer to put things right, e.g. the seller offers to buy back defective goods.

The courts will enforce the settlement: if it is breached, the party in default could be sued for breach of that contract.

First, the draftsman may provide for the substitution of a different index to be agreed between the parties or determined by a third party in default of agreement.

Oral contracts are possibilities in situations where well-established trade customs can be proved, and contain principles of exemption from liability upon which the party in default can rely.

Assuming a valid haulage contract has been made and one party is in breach of one or more of the terms, the usual remedy is to sue the party in default for damages.

First, the simple clause which seeks to exclude liability for death or personal injury caused by the party in default to the innocent party can only have applic ation where the innocent party is a natural person.

This liability is owed to the third party in tort by the party in default, and the terms of the contract between the party in default and the innocent party can have no effect on it.

Equally, total exclusion of liability for failure to perform a contract at all because of circumstances beyond the control of the party in default (ie reasons of force majeure or an act of the other party) will conversely be reasonable in nearly all circumstances.

The only other type of clause which operates to shift liability is a counter-indemnity whereby the innocent party ( "indemnifier" ) indemnifies the party in default ( "indemnitee" ) for any claim made in respect of death or personal injury caused by the indemnitee's own negligence.

Total exclusion of liability for failure to perform a contract at all is unlikely to be reasonable where it occurs because of acts or omissions within the control of the party in default, which are caused by negligence, incompetence or inadvertence but not wilful default ( "inadvertent default" ).

He may wait if he chooses; and if the market turns against him this cannot increase the liability of the party in default; similarly, if the market turns in his favour, the liability of the party in default is not diminished.'