CONTRACT A EXAM SCRIPT
To determine whether D is contractually bound by [insert contract], four elements of a contract must be satisfied.
[Plaintiff] would be the plaintiff in a breach of contract action, and would have the burden of proving that a contract exists between [plaintiff] and [defendant], as they are seeking to rely on the benefit of the purported contract, which is [insert benefit].
Bilateral Contract: The possible contract in this case is a bilateral contract as there are two parties to the contract [insert parties] who have each exchanged an executory promise.
Unilateral Contract: The possible contract in this case is a unilateral contract as en B performs the stipulated tasks, and the contract is formed at the same time B performs their obligations under it.
Unilateral can also be an offer made to the general public which is accepted by performance
AGREEMENT: The first element is that the parties must reach an agreement, often expressed in an offer and acceptance, whereby one party must make an offer that is accepted by the other party
traditional approach to agreement, an agreement may be achieved without conventional offer and acceptance, so long as the parties remain to The element of agreement is generally met when the offeror makes an offer in which the offeree accepts.
Agreement may be satisfied without distinct offer and acceptance as applying an objective test will enable consideration as to whether an agreement can be inferred (Brambles)
Offer
Element Script Personal Notes
Definition Offer is an expression of willingness to enter into a contract on certain terms. (Australian Woollen Mills Pty Ltd v Cth) The issue is whether an offer has been made by [offeror] to [offeree].
Test In determining whether an offer has been made, the objective test applies whereby, X must prove that a reasonable person (RP) would believe an offer was made, and the acceptance of which is binding (Gibson).
On the facts, X will argue that [insert reasoning], which indicates to a RP that Y intended to be bound by [insert contract].
However, Y may argue that [insert reasoning], which hence indicates that a RP did not intend to be bound by the contract. However, X would counter that the test is objective, and hence only the outward manifestations of the offeror is to be considered, not their subjective intentions.
On balance, it is likely that Y was/ was not bound by the contract Distinguish Offers
From.
Mere Puff: D may counter that P did not actually make an offer, (Carbolic). D would argue that the claim of the offeror that [claim/promise] was not meant to be taken seriously or literally, as [insert reason]. However, P may counter that the claim should be taken seriously and hence considered an offer because [insert reason]. On balance, the court is likely to conclude that the purported offer was/ was not a mere puff.
Invitations to Treat: D may counter that P was not actually making an offer, but rather an invitation to treat, as the purported offer lacks sufficient indication of a willingness to be bound as
Non-Promissory Language: Words that are used which make it impossible to construe the document as a firm contractual offer (Gibson)
Mere Puff: exaggerated sales talk is not an offer, and hence would not be taken seriously (Carlill v Carbolic)
Invitations to Treat: invitations to negotiate/ make an offer:
Shop Sales: treated as an invitation to treat and not an offer (Boots) o
acceptance would not be effective until communicated to the offeror, so a sale must on any interpretation take place at the checkout.
(1) It consisted of goods being displayed in a shop (Boots) D would argue that the display of [item] in itself was not an offer, and instead, the offer was made when the custom brought the goods to the cash register (Boots).
(2) It consisted of goods being offered for sale online (s 14B, ETA)
D would argue that [good/ service] offered online is an invitation to treat because it was not addressed to one or more specific parties (s 14B(1)(a)), as [insert reason], and it was generally accessible (s 14B(1)(b)), considering that [insert reason].
However, P may counter that this is merely a presumption, and the legislation will not apply as there is a clear intention to be bound by acceptance, as evidenced by [insert reason].
(3) It consisted of
at an auction (AGC v McWhirter)
D would argue that the auction of [property] is an invitation to treat rather than an offer, which is instead the bid by [person] and is auctioneer claimed that the property was [on the market/
advertised for auction (AGC v McWhirter).
D may argue that there is no contractual claim even though the auction was cancelled (Harris v Nickerson).
D may argue that the bidder is entitled to withdraw their bid, which is the offer, before it is accepted (Payne v Cave).
(4) It consisted of a request for tenders (Harvela; Hughes) D would argue that the request is merely an invitation and the offer is the tender from the interested supplier.
However, P may analogise with the case of Harvela and counter tender as meant to be treated as an offer rather than an invitation to treat, as it expresses a willingness to be bound.
Online Proposals:
s 14B Electronic Transactions Act
A proposal to form a contract made through one or more electronic communications that
o Is not addressed to one or more specific parties; and o Is generally accessible to parties making use of information
systems
Is to be considered as an invitation to make offers, unless it clearly indicates the intention of the party making the proposal to be bound in case of acceptance (3) Auctions: Auctioneer does not make an offer to sell but merely invites offers from those present at the auction (AGC v McWhirter)
Each bid constitutes an offer, and the auctioneer communicates
acceptance of the final bid by the fall of a hammer and hence there is no contractual claim if the auction is cancelled or if the bidder withdraws before accepted
Announcement that an auction was to be held without reserve did not alter the general rule as it did not constitute an offer and did not bind the vendor to sell to the highest bidder
By holding an auction with reserve, an auctioneer makes an offer to sell to the highest bidder and if not accepted, no contract arises between the bidder and the vendor, but the bidder is able to sue the auctioneer for damages under a separate, collateral contract
Auction being without reserve did not bind them to accept highest bid Seller can withdraw the property before acceptance of a bid, can refuse
to accept a bid
(4) Tenders: prospective purchaser of goods/ services will assess potential suppliers through a tender process (Harvela; Hughes Aircraft)
Involves each interested party submitting a single bid without knowing what other bids have been made and sometimes used for the sale of commercial/ residential property
Call for tender is invitation to treat, but tender is an offer
(5) Advertisements: except for those which promise a reward (Carbolic) Terminating an
Offer Even though P has made an offer to D, it is possible that the offer has been terminated, meaning that any purported acceptance to follow will not be effective.
Revocation/ Withdrawal: D would argue that the offer was revoked, as the words or actions of P was inconsistent with the continuance of the offer (Dickinson), given that [insert reason]. D would point out that an offer can be withdrawn at any time before acceptance (Dickinson). D would argue that the revocation became effective when it was communicated to the offeree by [insert source] (Dickinson) P may counter that D promised to keep the offer open, and hence could not be revoked. However, D would successfully counter that a promise to hold an offer open for a specified period of time is not binding, and hence does not constitute revocation of the offer, unless the offerree has given consideration for that promise (Goldsborough Mort). P may counter that P did provide consideration for the
(1) Revocation: Offer can be revoked any time before it is accepted (Dickinson v Dodds)
A promise to hold an offer open for a specified period is not binding unless the offeree has given consideration for that promise
Withdrawal of offer must be communicated (no exception if withdrawal is sent by post)
For unilateral offers, revocation should be published in the same manner as the offer was originally made.
Options: Agreement between an option holder and grantor where the option holder is entitled to enter into a contract
