Giving an Undertaking

Author: Lorna Elliott

In some circumstances, it is appropriate to give an ‘undertaking’ to act or not to act in a particular way. An undertaking is a means by which you promise to do something, but it is a legally binding promise and there are consequences in the event that you break it.

Undertaking Examples

An example would be if A sought an injunction against B because B was intending to use A’s confidential information in relation to a business deal. If A and B were able to come to some kind of an agreement without having to go to the High Court for a full hearing, part of the terms upon which they might agree could be that B gives an undertaking that he would promise not to use the confidential information.

Providing such an undertaking does not mean that B would be in effect admitting some past wrong conduct, (the intention to misuse the confidential information)or accepting any other kind of liability. It does however mean that if B then goes on to break the undertaking he will be dealt with as though he had broken a court order.

Domestic Undertakings

Undertakings are frequently used in family law cases in which the court does not consider there to be a need for a full injunction. Undertakings are not used for serious domestic violence cases or in situations in which a mother or child may be at risk of significant harm.

However, in less dangerous cases the defendant (partner against whom the injunction would be sought) can be given notice to come to court (at least two days notice is required) and give an undertaking about his or her behaviour that would prevent any recurring problems in the past. Again, there is no requirement for any blame to be apportioned, although undertakings are not always appropriate in very serious family cases.

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Breaking an Undertaking

An undertaking should never be given lightly and you should only agree to this kind of promise if you are sure that you are capable of keeping to the terms of the agreement. If you do not, you may be subject to a committal order. A committal order is an order of the civil court that has the effect of sending you to prison. However, it is important to note that breaking an undertaking in this way does not entitle the police to a Power of Arrest, nor is there a criminal offence for breaking an undertaking.

Procedure

If you are a party to proceedings and it is you who is giving the undertaking you must record the undertaking in writing. A copy must be given to the other side, either by hand, post or through their lawyer. If this is not possible, the court officer can deliver the undertaking to the party for whose benefit the undertaking has been given, so that they can serve it without delay. (County Court Rule 29 1A).

Your situation may be slightly different. ask a question below ↓ and our editorial team will reply with our advice.

Solicitor Giving an Undertaking

It is common practice between solicitors to give undertakings to other solicitor’s firms, to courts, and other public bodies. For example, if a court requires original documents before it can fix a hearing date, a solicitor may fax the documents to court with a written undertaking to send the originals by first class post. Often the court will proceed as though they are in possession of the originals, on the strength of this undertaking. Note that the solicitor is not promising that the original documents will be in the court’s possession the next day – as whether that occurs relies on the postal service and is out of the solicitor’s control.

A Note on Undertakings

Undertakings drafted into contracts aren’t as a general rule enforceable. To have a party sign an undertaking that they will in effect adhere to the terms of the contract and not challenge them at a later stage is therefore not advisable.

The Next Step

Now that you have read through the advice above, you might want to put it into practice. Our Contract Red Flag Checker lets you describe a contract you are about to sign and get a plain English summary of the clauses that could hurt you. Takes about 2 minutes. Try it now →

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Sweety 30/05/2020 at 9:46 pm

Whether undertaking is equivalent to affidavit? Can it be executed on 50 Rs. Non judicial stamps in M.P.

genie 07/05/2020 at 8:14 pm

@sub did anybody get back to you? Not sure how to see comments to these post?

Sub 18/03/2019 at 4:59 pm

Hi. I hope some one can help me. My wife left with my son one day and took out a non molestation order on an ex parte basis against me. She made false allegations against me and I had proof she was lying about some but instead of going to another hearing I agreed to an undertaking that I wold not contact her and she did likewise. I contacted her solicitor the other day asking for some photos of my son and contact then to my shock I received some messages from my wife on her number on whats app. She has sent some photos and asked me to call her to discuss seeing my boy. She may be trying to trick me to breach the undertaking I made although she has breached the undertaking herself by contacting me directly. I want to see my son but dont want to get in trouble by replying to her messages or calling her. What should I do?

Lana 14/10/2018 at 7:04 am

My son and his girlfriend had a argument and broke up they have a son who was 10 months in March 2016 she took us to court to get an injunction order against us I done nothing wrong to her and thought we was going to court to get visitation to my grandson the judge even ask if we knew why we was there we said to see the baby she said no it’s for an injunction order I said no I’m not having that so the judge said to except an undertaking at the time I was in so much pain as I have very bad arthritis and it was gone dinner time when we finally got in the court and it said on the papers morning session I said ok to the undertaking thinking I could take it back to court and put my case and have it took off it’s been 18 months now I have not been in touch with the girl nor seen my grandson can I take it back to court and get this removed or how long do they last as I’m in I’ll health and don’t want to die with this undertaking over my head is there anything I can do thank you

A 29/09/2018 at 7:04 pm

I was attacked by my next door neighbour I am a 57 year old disabled woman my next door neighbour admitted attacking another neighbour that day and my landlord tried to serve me with an injunction. My landlord have lied in there sworn statement to the County Court the police have interferes with community resolution forms. My solicitor would not take my Direction and he recommended signing an undertaking he told me that they would need concrete proof if any allegation was made against me. After I signed this undertaking he pointed out to me that I could be in contempt of Court. If I break this undertaking where do I stand legally. And why would my solicitor not give me the information about being in contempt of Court is that the correct way for a solicitor to act

Man 21/03/2018 at 5:14 am

Me and mine gf in relationships for 02yrs after that we breakup due to some misunderstanding after I drop lot of emails to her by using bad words,now she gave complaint application against me to nearest police station and police taken 5k from me and asked me to gave undertaking to not to contact/behaved like this in future.

Bt I asked police whether it will be crossed undertaking Bz supposed after that she can logged a fake complaint against me or my parents then.what will be the security for me,Police told me she is nt bound to give any undertaking to u. Pls help.

ContractsAndAgreements Editor 08/02/2018 at 2:18 pm

It depends what you have signed up to and the contents of the agreement. If you have the agreement in writing that the owners would sign the building off in the October, then you will have a case. However, if the undertaking was verbal, you don't really have much recourse to complain and you are obliged to keep to the contents of the signed agreement. However, you may wish to seek legal advice and get a second opinion regarding this.

Darrell 07/02/2018 at 3:04 am

I visited a commercial property with the intention of using it for my business. I was told that the building was not signed, but will be at then end of next month October 2017. We had liked the building but told the agent that it is needed before next year.

I was told, all I would need to do is make an offer and get things started. I made and offer and it was accepted, which then meant sending undertaking later on.

I sent undertaking in thinking all is well, to be later told in November that the building is still not signed off. I could not believe this and it needs to be signed off for our business to obtain contents insurance.

I patiently waited and was told that it will be signed off on Decemeber 2017. It is now February and I now have been told only once all the buildings have been built will they be signed off.

I was not told this at the start, they just seem to of strung us along.

Where do our rights stand as we would like our undertaking back?

What can or what should we do?

doc 05/04/2017 at 4:15 am

i left my wife( though there was no statutory marriage procedure) due to her violent acts . at the police station i was verbally and physically threatened to write an undertaking to provide certain finance but i am unable to meet up. does the police have tbe legality to imprison me for this without taking me to court??

Guggis 30/07/2016 at 11:22 pm

I ex-partner want to collect my daughter out from me because of benefit, my partner hold dictionary leave remain, and I don't have stators, because of he convince the social work, and their joined tram against me, to collect my daughter from me, my ex-partner didn't Care my daughter, but because of benefit and want stay, he want collect my daughter out from me, the man round away from me when was pregnant, he disappear she 9 weeks. I was delivered a lon, on till 3 months later before he came back began me covered me to coming to joined him, when I and my daughter came to joined him, and he started appeared benefit, gorvnment paid house including council tax, when he started crimes that benefit , and started beaten house areast and he told me that he don't needs me he want my daughter, and he trecten me that if I don't like I given him my daughter and go whether ways he killed me and cut me into pieces and throw me to direst being, even police cannot investigation my body, later on the man luck me and daughter out, and he sent me into court, not he didn't take my daughter , and am not corefiying public funds, and am not working, the man also didn't take my daughter care, the social work also treat me the under section 20 collect my daughter, the social work Harris me and treat me very bad, she leasing to my ex-partner as well, my daughter is 4 years now the social work want 4 years child going to spending three days per every week, mean why the man is very dranker , and every body knows weeks and people enjoyed, In case the drinking, what about safety about you child, and the man leaving a lon, I told the social work and adimmistration but still their not leasing to me, and I fell fear with my child, please I having the next court please I need advice from people, because in case my child going to spending days to the my ex-partner, and some thing happen to her, the social work can denie ( I need advice for my next court, because I don't have money taken the lawyer)

Boomie 07/07/2016 at 2:50 pm

My Ex partner has applied for and been granted a temp protection order. I opposed it because it was frivolous and not necessary. She has now decided she doesn't want to go to a hearing and will drop the order if I sign an "undertaking" which basically says must comply with all the conditions of a protection order without there actually being an order. I don't want to contact or see this woman again - but I don't want to be marked indirectly with this threat of action against me hanging over my head.

Im tempted to decline to sign the Undertaking and refer back to court. Im happy for there to be a hearing because I do not believe an order will be granted by the court.

Thoughts? My main objection is where if I am complying with all the rules of a PO, I have to depart any premise she happens to enter and I am there. Not fair and I would resist that.

Sebbie 09/04/2016 at 2:55 pm

Hi i am trying to find how to have an undertaking removed from a court order. I made one with the court that i would not allow my daughters contact with my current partner until social services had completed their assessments this has all be sone but i dont seem to be able to find the information on how to remove it

Lotus 26/12/2015 at 3:48 pm

Hi there

Recently, Court had an undertaking from my ex's new wife to present when my children are with the ex, however on 2 occasion she wasn't there and I have decided that I am not going to sent my children again. I don't have a solicitor, is there anything to solve this problem as this will be a breach from my side.

ash 29/11/2015 at 11:21 pm

Hi. Can anyone help me with the following. My husband was not good enough to be a husband and attempted to physical abuse on several occasions and threatening with object. Now he realised that his behaviour was completely wrong and asked me to give him a chance and willing to give an undertaking to me or my parents that he would not done this and and apologies for past happened. Would the undertaking be valid and whether I can used it against him if he break the undertaking.

Aid Editor 21/09/2015 at 2:06 pm

@tez - A breach (without reasonable excuse) of an order may be seen as a criminal offence under the Domestic Violence, Crime and Victims Act. Speak with your solicitor who will advise. The breach may actually happen accidentally, but even if it happens accidentally you could find yourself in court - therefore prevention is always better than cure.

tez 20/09/2015 at 5:35 pm

Hi,
My younger brother has mental health issues and last year convinced a solicitor that I meant to harm him.he wanted a non molestation order and I was called to court.His accusations were so lengthy that my solicitor advised me go for dismissal due to my not being able to afford legal help.My brother agreed to undertakings which I signed to avoid any further stress.One of the agreements was to stay 200m away from anywhere he is residing.This is fine as he lives 300miles away..however he is staying with my other brother this Christmas..he lives in my area and within a short distance to my local shopping area.How do I stand on this...I love my brother dearly and this upsets me not to contact him but have to live with that but how will this effect me legally if our paths should cross.I cant stop him visiting but so stressed if our paths cross and he acuses me of something.Please advise..thank you.

ContractsAndAgreements Editor 04/08/2015 at 10:57 am

@Maddy - you would need to seek legal advice on this matter, or contact the police directly if you have evidence to prove this to be the case.

Maddy 01/08/2015 at 8:46 am

I'm the mother trying to defend my daughter from a pedophile ring, the judge in court took an undertaking from the applicant (wanting to take my daughter away and have PR) and has broken that undertaking. I'm really worried and feel that this man is going to make a move on my daughter. What can I do?

ContractsAndAgreements Editor 07/01/2015 at 11:37 am

@Eddie- as specified in the article an undertaking should never be given lightly and you should only agree to this kind of promise if you are sure that you are capable of keeping to the terms of the agreement. Regardless of the size and stature of the letter, company A would have a case, should company B decide to renage on the terms signed in the agreement.

Eddie 07/01/2015 at 7:55 am

Hi

I am in a midst of a business transaction (Sale and purchase of a company - A and buyer). Company A in its management accounts, says that it has payable to Company B. However Company B gives a letter of Undertaking to the Buyer that it will ever claim from the Buyer. If this letter of undertaking is a simple 1 page letter, I would like to understand how strong it is, to legally enforce the undertaking should there be a breach by Company B. Please advice. Thanks

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