Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
Is the company in question a sole trader, partnership or ltd company please?
Thanks for your reply. The company is Synergy Music Ltd, but the name used in the contract was "Play Something" which is a trading name the company no longer uses. Basicly, we have had to back out of an exhibition we had booked at we are closing down our music shops. We are hoping the contract will not be enforceable as it is not in the Company name.
Thanks. Is it clear from the contract and any associated correspondence that the trading name relates to your company - i.e. by reference to the address, emails or letters exchanged? From what you say the trading name was historically used by your company and on this basis presumably it would not be overly difficult to make the historical connection - would this be correct?
Thanks. Yes making the historic connection would be easy, as that is the trading name we used up until last December. However, from what I can see the contract or correspondence makes no reference to the Company title, just Play Something. It is signed by my co-director and the address on it is the trading address.
Thanks. I am afraid I am not likely to be able to tell you what you want to hear much as I would like to. The position in law is that there is no need for a written contract to exist in order for there to be a contractual agreement. A contract can be perfectly binding based on a verbal agreement. The purpose of a written contract is to remove or reduce the element of doubt in the event of dispute. Here from what you say there is a written contract with the wrong name on it. You are quite correct that a trading name cannot contract. However a trading name incorrectly being entered will not prevent the contract being binding if it is clear from all the circumstances that your company did at the time intend to contract. The other party will presumably be able to relatively easily show that the party with whom it was contracting was your ltd company by virtue of the signature of the co-director, the historical use of the trading name and the address on the contract. On this basis unfortunately I regret that it would like not be difficult to establish a legal obligation on the part of your company under the contract.
The only principal ways to avoid the contract would be to demonstrate that the other party is unable to provide the service(s) under the same, to show a fundamental misrepresentation under the contract on the part of the other party or to demonstrate that it was not your company that contracted.
If you cannot show any of the above you can cancel the agreement but this would place you in breach of contract. However it does not follow that your company would necessarily be liable for the entire amount under the contract...
The other party has a common law duty to mitigate its losses and accordingly you can ask them to remarket your space (if this is possible) to try to find a replacement exhibitor. If they can they your company would only be liable for any difference in price they are able to achieve between you and the new exhibitor and any minor administrative expenses.
Is there anything above I can clarify for you?
Okay, thank you very much for your help. I will see what we can do. Kind regards. Geoff