What Is An Undertaking In Law?

What Is An Undertaking In Law
Should I Enter an Undertaking? | rhw Family Law Solicitors in Guildford Undertakings are a common part of the Court process, and are defined as a legal promise to do, or not do, something. An undertaking is a promise to the Court, and if you break it there are ways that it can be enforced.

  1. If broken, you could be at risk of being fined, or put in prison for a short period of time, but these are the most extreme consequences.
  2. Undertakings are commonly given in cases, either in financial matters or in respect of children.
  3. If undertakings are given in children matters, it is normally to prevent one parent from doing something or to ensure another parent does do something.

Restrictive undertakings may be things such as one parent promising not to leave the country for a specific period or agreeing to certain requirements relevant to their case. In financial matters, an undertaking can be given where it is not always possible for one party to complete a financial action straight away.

  • For example, if one party is given the former matrimonial home but still requires their ex-partner to stay on the mortgage, it is not unusual for the receiving party to undertake to try and obtain a mortgage and release the other party.
  • This can also be applied to releasing one party from the liability of loans.

In most situations, it is best to clarify that the party making the promise will do so to their “best endeavours”, This avoids the possibility of placing the promising party in an impossible position whereby they cannot release the other party despite their best efforts.

A case was heard recently which shows the dangers of entering into an undertaking without comprehending the full implication of doing so. In, the parties entered into a consent order which detailed how the couple had decided to divide all of their joint assets. This order is sealed by the court, and it is very rare that these can be varied.

The court encourages that they be seen as “final” and not something people can keep coming back to, to change. Within this consent order, Mrs Birch made an undertaking to try and release her ex-husband from their joint mortgage. This is very common in consent orders, as it provides sufficient flexibility for the receiving party, as well as reassurance for the other.

However, in this case, Mrs Birch was given until 30 September 2012 to release her ex-husband, and if she failed then the property was to be sold. This would be two years on from the consent order. On 18 November 2011, Mrs Birch made an application to vary the consent order to extend the time she had to release Mr Birch from the mortgage to until their youngest child turned 18 or until either of their children completed full time education (commonly 18).

This was an attempt by Mrs Birch to change her undertaking. Unfortunately for Mrs Birch, they denied her application. It was argued that her undertaking was part of the true nature of the consent order, and to change it would be to change the whole order which could not be justified.

What this case shows is that you must be very sure when you agree to make an undertaking in Court, as it is very difficult to alter them in the future. It is also important that you consider how they will affect you in the near future, and to be aware of your circumstances going forward. If you’re asking “what is an undertaking”, thinking ” should I enter an undertaking?” or you have any further queries about this subject, then please contact rhw family law Solicitors in Guildford on, complete the or you can email us: This article about undertakings in family law was first published on the 7th of August 2015 and last updated on the 8th August 2021.

: Should I Enter an Undertaking? | rhw Family Law Solicitors in Guildford

What is an example of an undertaking?

Example Sentences The restoration of the old theater is a huge undertaking. He advised us against such a risky undertaking.

What does it mean to undertaking in court?

An undertaking is a legal promise to the court. This can be either to complete an action or to prevent an action taking place.

What does it mean to give an undertaking?

Idiom. British, formal. : to make a promise. The newspaper gave an undertaking not to disclose his identity.

What is an undertaking in Canadian law?

An undertaking is a piece of paper that an accused signs instead of being held for a bail hearing. Usually it will contain conditions you agree to comply with as part of your release from custody. If you don’t follow the conditions of your undertaking you can be charged with failing to comply.

What is the point of an undertaking?

It is common practice for many solicitors to give undertakings on a daily basis. However for the ordinary client involved in family proceedings, undertakings are an unfamiliar territory and we are often asked to explain what an undertaking is. A client is usually required to provide an undertaking in financial settlement cases and children proceedings.

  1. An undertaking is ” a promise given by one party to the Court, frequently of mandatory nature and relating to an obligation to the other party in proceedings.” Undertakings are a legally binding promise which carry severe consequences if breached.
  2. You should only make an undertaking if you are certain that you are capable of adhering to the terms of the undertaking.

They are used as a way of incorporating a term into an order which falls outside the remit of orders that the Court has the power to make. There are several types of undertakings such as:-

To Do or Abstain From Doing

For example, in financial settlement proceedings you may undertake to release your partner from the mortgage. You could also undertake not to do something, This does not mean that you would be admitting past wrong conduct. It simply means that if you break the undertaking you will subjected to the below consequences:

  • Contempt of Court
  • Imprisonment
  • Fine and/or assets seized.

To Pay Money

You may be required to undertake to pay a sum of money, either in one lump sum or in instalments. If you fail to make payment (whether that be a lump sum or one of instalments) the person receiving the payment can apply to Court to enforce the undertaking.

  1. If the Court finds that you have the means to pay the sum agreed but you either refused or neglected to pay, you can be sent to prison.
  2. When making an undertaking, you should sign to confirm that you understand the consequences of breach and how serious they are.
  3. If you would like to discuss this further, please contact Lynn Gooch on 020 8502 3991 for more information.

https://www.foskettmarr.co.uk/index.php/our-team/litigation-solicitor-essex/

Is letter of undertaking binding?

A letter of intent is generally not legally binding unless both parties intended that it should be enforceable and it does not refer to a resulting future contract. On the other hand, the law imposes an obligation to pay a reasonably price for work done pursuant to a request under the principle of quantum meruit. A letter of undertaking is contractual in nature and failure to comply with it will result in a breach of obligation.

LETTER OF INTENT

A letter of intent (LOI) is a document which expresses the intention of a party to enter into a contract at a future date by outlining the terms which are intended to be included in a finalised agreement. As a general principle, a LOI is not legally binding save in exceptional circumstances. However, many LOIs contain provisions that are binding such as non-disclosure agreements, a covenant to negotiate in good faith, or a “stand-still” or “no-shop” provision which promises exclusive rights to negotiate.

The Supreme Court in Ayer Itam Tin Dredging Malaysia Berhad v. YC Chin Enterprise Sdn. Bhd.2 AMR 32:1631 held that generally, an arrangement made “subject to contract” or “subject to the preparation and approval of a formal contract”, and similar expressions, would be construed to mean that the parties were still in a state of negotiation and did not intend to be bound unless and until a formal contract was exchanged.

However, having said that, there are still exceptional circumstances which can cause a LOI to be legally binding despite having a “subject to contract clause”. In determining whether any liability shall attach to the person who issues the LOI, the Court will scrutinise the terms of the document and the circumstances in which it came to be written (See Turriff Construction Ltd. and Turriff Ltd.v. Regalia Knitting Mills Ltd.9 BLR 20 (QBD)). Where the LOI indicates that both parties intend that it should be enforceable and it does not refer to the execution of a formal contract in the future, the LOI can constitute an agreement between the parties.

On the other hand, it is to be noted that even if both parties expect a formal contract to eventuate, but one party requests the other to commence work, the work done is treated as having been done under the expected contract, and if no contract is entered into, the party carrying out the work at the request of the other, can claim payment under the principle of quantum meruit, i.e. a reasonable price for work done pursuant the said request.

LETTER OF UNDERTAKING

An undertaking from a bank is similar in effect as that of a bank guarantee, performance bond or standby letter of credit. The definition of a valid undertaking adopted in Public Bank Bhd v Perwira Affin Bank Bhd (2001) 7 CLJ 447 HC was “a pledge, a promise and a guarantee”.

The construction to be given to an undertaking is similar to that applied to an ordinary contract (See Michael C Solle v. United Malayan Banking Corporation 1 CLJ 151). Thus, a breach of an undertaking attracts damages in the same manner as a breach of contract.

FRANCHISE AGREEMENTS vs LICENSE AGREEMENT Licensing Requirement for the Import of Heavy Construction Equipment into Malaysia

Should I accept an undertaking?

Undertakings are a fundamental part of the practice of a solicitor and their importance cannot be stated too strongly. It is essential that they be observed whenever they are given and so should only be given when it is clearly possible for them to be honoured.

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What is the legal effect of an undertaking?

An undertaking is a promise to the Court which is as binding as a Court order. If a person gives an undertaking that they will take certain action, the Court requires that person to take the action, as if the Court had made an order. A breach of an undertaking is treated the same way as a breach of an order.

Is an undertaking the same as a court order?

Once an undertaking has been given it has the same effect as a court order. This means if it is broken then it will be contempt of court and an application can be made for committal to prison.

Can anyone give an undertaking?

Undertakings are given on behalf of the firm and not an individual. You should only give an undertaking if you are duly authorised by your firm to do so. If you are so authorised, you must ensure you comply with any procedures your firm has in relation to undertakings.

You must only give undertakings which the firm will be able to comply with. You shouldn’t, for example, undertake to make a payment on behalf of your client unless your firm holds sufficient and unallocated funds for that client. You must ensure your client is aware of the nature and effect of any undertaking, and any obligations it imposes on them.

Your firm should have in place a method of recording when undertakings are given and when they have been discharged by performance. When giving an undertaking, you must ensure your status and position within the firm are made clear to the recipient. Undertakings may not be accepted where they are not given by a solicitor.

Is an undertaking enforceable?

An undertaking is a commitment by a solicitor to do something. It can be enforced against the solicitor by the courts. Failure to comply with a solicitor’s undertaking can also be professional misconduct leading to disciplinary action by the SRA or Solicitors Disciplinary Tribunal (SDT).

Is an undertaking an agreement?

In a finance or property law context, in some cases, an agreement or promise to do or provide something, or to refrain from doing or providing something, which is meant to be binding on the party giving the undertaking.

Is an undertaking a conviction?

Understanding an Undertaking Undertakings are recorded on the court file, but they are not binding or enforceable as a court order. This means that should the Respondent breach the Undertaking, they cannot be charged with a criminal offence.

Who is liable for an undertaking?

Claims for compensation by disgruntled clients are an occupational hazard of professional life. Claims arising out of undertakings that have not been performed are less frequent but can raise difficult issues for private client solicitors and their insurers.

  1. There are two important preliminary points.
  2. The first s that when giving an undertaking a solicitor assumes liability to a third party, and sometimes liability for what a third party is or is not going to do.
  3. This a rare exception to the principle that solicitors are not generally liable to third parties, even when they answer enquiries before contract mistakenly as happened in the case of Gran Gelato v Richcliff Ch.560.

The second is that liability for breach of undertakings is strict – the ‘fault’ is to be found in the failure to comply with the undertaking; doing your best to comply is not a defence. This article considers the following issues:

  • What is an undertaking?
  • Enforcement of undertakings
  • Coverage of undertaking claims
  • Undertakings to redeem charges

A – What is an undertaking? An undertaking is defined in the SRA Handbook Glossary 2012 to mean: ‘a statement, given orally or in writing, whether or not it includes the words “undertake” or “undertaking”, made by or on behalf of you or your firm, in the course of practice, or by you outside the course of practice but as a solicitor or REL, to someone who reasonably places reliance on it, that you or your firm will do something or cause something to be done, or refrain from doing something.’ Thus the concept of an undertaking is defined very broadly to include promises made by a solicitor whether or not the noun itself is actually used.

The usual principles of modern contractual interpretation apply. Where the existence or construction of an undertaking is in doubt, it will generally be construed in favour of its recipient. The critical question is how the promise would reasonably have been understood by the recipient in the circumstances he received it.

An example from practice: A solicitor acts for who a client who owes money; a third party CW claims to have been assigned the debt; the client expects to receive a sum of money from the sale of shares. The solicitor writes to CW in the following terms: ‘We hold funds in our client account which can be released to you provided that we are fully satisfied that the debt owed by our client to DEM Limited has been formally assigned to you.’ The solicitor later writes to solicitors instructed by CW: ‘When this sale has been completed we will hold the sum of £60,000 with a view to the whole of the monies being applied to discharge in part payment of our client’s outstanding debt to your clients.’ He subsequently confirms that the sale has completed and that he is instructed to hold the sum of £60,000: ‘on the basis that it will be applied to reduce our client’s outstanding indebtedness to your clients.’ All of these promises were construed as undertakings by the solicitor to CW.

    1. By an action at law if there is a cause of action. Since consideration has normally been given for an undertaking, the claimant could sue in contract using the CPR Part 7 procedure.
    2. By an application to the court to exercise its inherent supervisory jurisdiction (codified at section 50 of the Solicitors’ Act 1974). This is done under CPR Part 8 and is by far the most common approach.
    3. By application to the Law Society, who can take disciplinary action for professional misconduct.

The starting point for the modern jurisprudence on the law relating to the enforcement of undertakings by the second method is the decision of the Court of Appeal in Udall v Capri Lighting 3 W.L.R.465. The relevant passage is in the judgment of Balcombe LJ at pp916-918.

‘The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally The matter complained of need not be criminal.

It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears.

  • It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction.
  • It need not involve personal obliquity.
  • The term professional misconduct has often been used to describe the ground on which the court acts.
  • It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the court and to realise his duty to aid in promoting in his own sphere the cause of justice.

This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ.

Although the jurisdiction is compensatory and not punitive, it still retains a disciplinary slant. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof.

If the misconduct of the solicitor leads to a person suffering loss, then the court has power to order the solicitor to make good the loss occasioned by his breach of duty.

Failure to implement a solicitor’s undertaking is prima facie to be regarded as misconduct on his part, and this is so even though he has not been guilty of dishonourable conduct. However, exceptionally, the solicitor may be able to give an explanation for his failure to honour his undertaking which may enable the court to say that there has been no misconduct in the particular case.

Neither the fact that the undertaking was that a third party should do an act, nor the fact that the solicitor may have a defence to an action at law (e.g. the Statute of Frauds), precludes the court from exercising its supervisory jurisdiction. However, these are factors which the court may take into account in deciding whether or not to exercise its discretion and, if so, in what manner.

The summary jurisdiction involves a discretion as to the relief to be granted. In the case of an undertaking, where there is no evidence that it is impossible to perform, the order will usually be to require the solicitor to do that which he had undertaken to do.

If it is inappropriate for the court to make an order requiring the solicitor to perform his undertaking, e.g. on the grounds of impossibility, the court may exercise the power referred to at 9.3 above and order the solicitor to compensate a person who has suffered loss in consequence of his failure to implement his undertaking.

In Coll v Floreat Merchant Banking Ltd EWHC 1741 (QB) Hickinbottom J considered, and dismissed, an application to commit a solicitor at Mishcons for breach of an undertaking under CPR 81.11. Para. of the judgment sets out the principles on such an application to commit but acknowledges that in circumstances where the jurisdiction of the High Court runs in parallel with the regulatory functions of the Law Society not performed by the SRA that this summary jurisdiction is ‘extraordinary’ and should be exercised sparingly.

  • All partners in a firm are liable for the undertakings of anyone who is held out by the firm as representing it.
  • A solicitor cannot assign the burden of an undertaking without the consent of the recipient nor will a solicitor who acquires the practice of another become liable for its undertakings unless they are adopted.
  • The recipient of an undertaking cannot assign the benefit of that undertaking without the consent of the person giving the undertaking.
  • There is no statute of limitation on the enforcement of an undertaking.
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C – Coverage issues Clause 1.1 of the Minimum Terms and Conditions provides as follows:The insurance must indemnify each insured against civil liability to the extent that it arises from private legal practice in connection with the insured’s firm practice, provided that a claim in respect of such liability: ‘1.1 Civil liability is first made against an insured during the period of insurance; or is made against an insured during or after the period of insurance and arising from circumstances first notified to the insurer during the period of insurance.’ Private client solicitors often give undertakings on behalf of their clients, e.g.

that a debt will be discharged from a sale of shares. What is sometimes overlooked when these undertakings are called upon is the important question of whether the undertaking has been given in the course of private legal practice. The decision of HHJ McCahill QC in Halliwells LLP v NES Solicitors P.N.L.R.30 contains a useful review and discussion of what the judge described as ‘solicitorial function’.

The facts were that on 22nd December 2008 a firm of solicitors, NES, gave an undertaking on behalf of their client to Halliwells for the benefit of their client, a finance company, GCF. The undertaking was to pay the sum of £1.5m on or before 10th March 2009.

  • NES did not have the funds to hand to meet its commitment under the undertaking and played no other part in the transaction other than to give the undertaking. In the claim to enforce the undertaking NES’s insurer, Quinn, was joined as third party. Quinn defended, successfully, on the basis that it was not liable to indemnify NES in respect of work not normally taken in the course of business as a private solicitor.
  • The relevant passages in the judgment are paras. – where the judge referred to the decision of the Court of Appeal in United Bank of Kuwait v Hammoud 1 WLR 1051:

‘ two requirements must be fulfilled before an undertaking is held to be within a solicitor’s ordinary authority. First, in the case of an undertaking to pay money, a fund to draw on must be in the hands of, or under the control of, the firm; or at any rate there must be a reasonable expectation that it will come into the firm’s hands.

Solicitors are not in the business to pledge their own credit on behalf of clients unless they are fairly confident that money will be available so that they can reimburse themselves. Secondly, the actual or expected fund must come into their hands in the course of some ulterior transaction which is itself the sort of work that solicitors undertake.

It is not in the ordinary business of solicitors to receive money or a promise from their client, in order that without more they can give an undertaking to a third party. Some other service must be involved.’ Applying this test the judge found that NES had not been providing solicitorial services in relation to the underlying transaction: Quinn was not obliged to cover the claim.

Thus if notified of a circumstance or claim which arises from an undertaking, consider first of all whether the promise in question really is an ‘undertaking’, and secondly whether it has been given in relation to the provision of solicitorial services on the basis of funds available to the insured.

D – Undertakings to redeem charges Undertakings given by solicitors acting for sellers to redeem charges on completion can cause problems, most commonly when a particular charge is overlooked (for example: there are two charges to lender A but the solicitor only obtains a redemption figure for one, leaving the other charge on the register and preventing registration of title to the purchaser).

The current attitude of the courts toward enforcement of such undertakings appears to be strict. In Angel Solicitors v Jenkins O’Dowd & Barth 1 W.L.R.1220 the claimants and the defendants were firms of solicitors who had acted for the purchaser and the seller respectively in three residential property transactions.

The defendants replied affirmatively to standard form requisitions on title, thereby undertaking to redeem or discharge the existing mortgages and charges, and to send the relevant form of discharge as soon as it was received from the mortgagee. Having failed to secure the performance of the defendants’ undertakings, the claimants sought to enforce summary jurisdiction of the court to enforce the undertakings.

The claimants applied for summary judgment. The defendants submitted that there was evidence that if they had sought to redeem the relevant mortgages at the time the undertakings were given, the mortgagees would have accepted lesser sums than they were now seeking to recover; that the court should conduct an inquiry to examine what would have been required to comply with the undertakings at the time they were given and breached; and that it would not be appropriate to make a summary order for enforcement in advance of the results of such inquiry.

Summary judgment was granted:

  • The undertakings were to secure the discharge of the existing mortgages and should extend to any sums required for that purpose at the time redemption was sought, including the amount of any further advance.
  • The court had no jurisdiction to interfere with the contractual and equitable rights of the mortgagees and there was no basis on which the court could impose upon a mortgagee a redemption figure merely because it might have accepted a lesser figure at an earlier date.
  • There was no dispute over the appropriate redemption figures which needed to be resolved by directing an inquiry.

In Clark v Lucas Solicitors LLP P.N.L.R.2 the claimant purchasers applied for summary judgment in proceedings for specific performance of an undertaking given by the defendant solicitors in the ordinary course of a conveyancing transaction in May, 2008 to redeem or discharge prior to completion the charges held over the property conveyed.

  • The property formed part of a development over the entirety of which both NatWest and a Mr Kenny held all monies charges.
  • At completion the defendants remitted the net proceeds from the purchase price to the developer’s account at the bank but failed to redeem Mr Kenny’s charge, which secured about £775,000.

As a result the claimants were unable to register their title to the property or to sell or mortgage it. The defendants admitted breach of the undertaking, but argued that the proper remedy was an inquiry as to loss and compensation rather than specific performance, on the basis that specific performance was no longer possible.

  • In the absence of evidence that a solicitor’s undertaking was truly impossible to perform it would be usual to require performance of it.
  • Where it was impossible or otherwise inappropriate to order an undertaking to be performed, the court had a discretion to order compensation instead for the loss caused by the breach of the undertaking. The fact that the undertaking was that a third party should do an act did not preclude the court from exercising its supervisory jurisdiction but was a factor to be considered when determining whether or not to exercise the discretion and if so how.
  • On the facts this was not a case of impossibility. The undertaking given was in standard form and was to pay off charges on completion. The situation could have been avoided if a redemption figure had been obtained and agreement reached before the undertaking was given. The undertaking could be performed by the payment of a cheque, albeit a larger one than might have been payable had enquiries been made and agreement reached at the appropriate time. There is no question but that Mr Kenny would release his charge if he was paid the sum which he was entitled to demand.
  • In deciding whether to order specific performance, the court was entitled to take into account the fact that the performance of the undertaking would be dependent in part upon Mr Kenny, that the amount demanded was much greater than the value of the property purchased and the defendants’ contention that there was uncertainty as to the amount due. Nevertheless, despite the fact that the sum owed to him was approximately double the value of the property, Mr Kenny was entitled to demand it and the defendants should have contemplated that that might well be the case with a development of this sort. It followed that an order for specific performance by payment to Mr Kenny was appropriate.

Can you sue for breach of an undertaking?

Failure to comply – Undertakings are enforceable by issuing:

legal proceedings seeking specific performance and/or damages; or an application asking the court to exercise its jurisdiction to order a solicitor (as a court officer) to comply with his undertaking.

There can be serious consequences for failure to comply. If monies are paid to third parties in breach of an undertaking, the court could order the solicitor (and ultimately, if covered, the professional liability insurer) is liable to restore those funds regardless of whether they are recoverable from third parties.

  1. Undertaking breaches can attract the attention of the Solicitors’ Regulation Authority (SRA) or Solicitors’ Disciplinary Tribunal (SDT).
  2. The SRA does not have the power to enforce undertakings directly but breaching an undertaking can amount to professional misconduct and sanctions can be imposed.
  3. In Aldermore, it was held two solicitors were partners in Austin Law when the firm gave an undertaking (subsequently breached) to advance funds.
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The firm was bound by the undertaking absent any consent to release by the benefiting party. A partner’s resignation was no defence as the resignation post-dated the giving of the undertaking. In Global Marine it was held a solicitor who released funds to third parties in breach of an undertaking had done so without authorisation.

restrict who can authorise undertakings; record when they are given/ discharged; and provide guidance on what to do when given.

Any material compliance failure must be reported to the SRA as soon as reasonably practicable. A firm’s professional liability insurer also should be notified. End : Solicitors’ undertakings back in the spotlight

What happens at court after undertaking?

What is a Bail Undertaking? – Normally a Bail Undertaking form is a pink sheet of paper given to an accused person by the Police (on occasion it is white). Rather than keeping a person in custody to appear before a court the Police will charge and release a person to appear at court at a later date.

What happens after an undertaking?

Should I Enter an Undertaking? | rhw Family Law Solicitors in Guildford Undertakings are a common part of the Court process, and are defined as a legal promise to do, or not do, something. An undertaking is a promise to the Court, and if you break it there are ways that it can be enforced.

If broken, you could be at risk of being fined, or put in prison for a short period of time, but these are the most extreme consequences. Undertakings are commonly given in cases, either in financial matters or in respect of children. If undertakings are given in children matters, it is normally to prevent one parent from doing something or to ensure another parent does do something.

Restrictive undertakings may be things such as one parent promising not to leave the country for a specific period or agreeing to certain requirements relevant to their case. In financial matters, an undertaking can be given where it is not always possible for one party to complete a financial action straight away.

  1. For example, if one party is given the former matrimonial home but still requires their ex-partner to stay on the mortgage, it is not unusual for the receiving party to undertake to try and obtain a mortgage and release the other party.
  2. This can also be applied to releasing one party from the liability of loans.

In most situations, it is best to clarify that the party making the promise will do so to their “best endeavours”, This avoids the possibility of placing the promising party in an impossible position whereby they cannot release the other party despite their best efforts.

A case was heard recently which shows the dangers of entering into an undertaking without comprehending the full implication of doing so. In, the parties entered into a consent order which detailed how the couple had decided to divide all of their joint assets. This order is sealed by the court, and it is very rare that these can be varied.

The court encourages that they be seen as “final” and not something people can keep coming back to, to change. Within this consent order, Mrs Birch made an undertaking to try and release her ex-husband from their joint mortgage. This is very common in consent orders, as it provides sufficient flexibility for the receiving party, as well as reassurance for the other.

However, in this case, Mrs Birch was given until 30 September 2012 to release her ex-husband, and if she failed then the property was to be sold. This would be two years on from the consent order. On 18 November 2011, Mrs Birch made an application to vary the consent order to extend the time she had to release Mr Birch from the mortgage to until their youngest child turned 18 or until either of their children completed full time education (commonly 18).

This was an attempt by Mrs Birch to change her undertaking. Unfortunately for Mrs Birch, they denied her application. It was argued that her undertaking was part of the true nature of the consent order, and to change it would be to change the whole order which could not be justified.

  1. What this case shows is that you must be very sure when you agree to make an undertaking in Court, as it is very difficult to alter them in the future.
  2. It is also important that you consider how they will affect you in the near future, and to be aware of your circumstances going forward.
  3. If you’re asking “what is an undertaking”, thinking ” should I enter an undertaking?” or you have any further queries about this subject, then please contact rhw family law Solicitors in Guildford on, complete the or you can email us: This article about undertakings in family law was first published on the 7th of August 2015 and last updated on the 8th August 2021.

: Should I Enter an Undertaking? | rhw Family Law Solicitors in Guildford

What happens if you breach an undertaking?

Can I really go to prison, just for breaking a promise? – Johnson Astills Solicitors If you give an undertaking to the County Court and you breach that undertaking, civil contempt proceedings may be issued and you may face a fine or more seriously, be committed to prison.

  • An undertaking, is a formal pledge or promise to do something and it is made to the Court.
  • To put it simply, a person is in contempt of Court if they break that promise.
  • The Court see a breach of an undertaking as a serious offence and that is why sending a person to prison for doing as such, is within the powers of the County Court.

If you are accused of breaching an undertaking, you may need the help of Johnson Astills’ expert Crime Team! So can I really go to prison, just for breaking a promise? The answer is yes! Similarly, if you are subject to an injunction that has been granted under Part 1 of the Anti-Social Behaviour Crime and Policing Act 2014 and you breach that injunction, then you may face breach proceedings.

  • As with breaching an undertaking, you could receive a fine or be sent to prison.
  • With Johnson Astills by your side, your case can be defended to try and avoid any potential prison sentence.
  • An injunction is a Court order requiring an individual to perform, or restrain from performing, a particular act.

For example, you may be subject to an injunction forbidding you from engaging in conduct causing, or likely to cause a nuisance or annoyance to any resident or visitor engaging in lawful activity on your street. For the purposes of legal aid funding, civil contempt of Court cases and breach of an injunction cases are seen as criminal, as there is a risk of being sent to prison.

Who writes a letter of undertaking?

A letter of undertaking is a written agreement of terms between two parties. Most often, a contractor will write a letter of undertaking when hired to take on a project. It is a business agreement, and can be legally binding, so it’s important to clearly outline terms exactly as you have both agreed to.

Can you withdraw an undertaking?

Withdrawing an undertaking Once an undertaking has been relied on, it can only be withdrawn by agreement.

How do you write a simple undertaking?

FAQ’s on Undertaking Letter – Question 1. What is an undertaking letter format? Answer: An undertaking letter is a formal document that provides assurance from one party to another to fulfill an obligation. Question 2. How do you write an undertaking letter? Answer: The following are the guidelines for writing an undertaking letter: Include the exact terms of conditions and any other relevant information.

  1. Ensure that the letter is drafted in a formal tone.
  2. The matter must be unambiguous and short.
  3. Ensure that the letter is signed in good faith.
  4. Proofread the letter before sending it in.
  5. Question 3.
  6. What is the use of a letter of undertaking? Answer: A letter of undertaking is mostly used from a business perspective, to fulfill some deeds or work for a business and in return, getting paid for it.

Question 4. How does an undertaking letter become void? Answer: For an undertaking letter to be valid, all the involved parties should accept the terms and conditions of the letter, else the agreement becomes invalid. Hence, when drafting the letter, do that the terms and conditions are accurate and reasonable.

What do you write in an undertaking?

How to Write a Letter of Undertaking – Note the following. They will serve as a guide to the format of the letter.

  1. Letter of undertaking is a kind of formal letter. And like every other formal letter, it must therefore contain the date, your address and that of the institution (or organization), salutation and heading.
  2. The letter must also contain an introduction which should show clearly if the letter is written by a sol i citor or by the person in need. State briefly the purpose of writing also. For example: I am Henry Divine, a newly or provisionally admitted student of Biochemistry, UNN. I write in respect of the above subject.
  3. You then proceed into the body of the letter. Here, you state your intentions in addition to any other necessary info.
  4. Add a complementary close; Yours faithfully and sign before you put your full names.
  5. Lastly, as you would do to any official document, cross-check to ensure that your letter aligns with your intentions.
  6. Before you submit, make photocopies and keep one or two for future use. Or convert your Letter of Undertaking to PDF format and save in your gma i l (email) account.

Read also: 36 Useful Advice to the Newly Admitted Students on Campus

What do you fill in undertaking?

Mention everything correctly. Usually, you are supposed to mention your name, date of birth, father’s name, official home address, etc. You will then have to sign and date the undertaking. The last step is getting the names and signatures of witnesses.