TABLE OF CONTENTS SUMMARY (3)
Overview; remedies; classification; effectiveness OFFER & ACCEPTANCE (5)
Unilateral contract; invitation to treat; auction; tender
Termination: lapse of time; rejection; revocation; failure of a condition; death of offeror/offeree
Acceptance: communicate; alternative through conduct; battle of the forms CONSIDERATION (7)
Move from promisee and exception; past consideration is not good and exception;
cannot be illusory; must be sufficient ESTOPPEL (9)
when it can be applied; common law; equity 2 types; consolidation; elements to prove; relief
CERTAINTY AND COMPLETENESS (11)
completeness: essential terms; mechanism for determining terms
certainty: to prove un/certainty; agreement to negotiate in good faith; subject to contract
CAPACITY (12)
Minors: common law necessaries; beneficial service; statute proof
Mental disability: mental illness/sickness/drug/alcohol; prove incapacity; sale of necessaries; drunkenness test
REQUIREMENT OF WRITING (14)
Required to land to be enforceable; enforce contract in equity by fraud/part- performance
EXPRESS TERMS (CONTENTS OF CONTRACT) (16)
Prove term vs representation;
incorporation of terms: signature; notice; prior dealings. Parol evidence rule;
collateral contract/or with 3rd party IMPLIED TERMS (19)
Facts of case (formal/informal); law (common/statute); custom; implied term of good faith
CONSTRUCTION & INTEPRETATION OF CONTRACTUAL TERMS (21)
Presumptions in construction; parol evidence rule and exceptions; exclusion clause of entire agreement; classicfaction of terms (warranty/condition/intermediate) CONSTRUCTION OF EXCLUSION CLAUSES (23)
Principles for interpreting; exclusion clause & negligence; deviation cases; four corners rule; exclusion clause and statute and exceptions
MISREPRESENTATION (25)
Vitiating factor; remedies; 3 common law types; 4 requirements (fact, false, to induce and did induce); exclusion clause for misrepresentation
MISLEADING/DECEPTIVE CONDUCT (27)
statute 4 steps to prove (In trade/commerce; engagement in conduct; misleading or intended to be; causation of loss-intention not necessary) no exclusion clause for consumers; remedies
tort deceit/negligence misstatement; to establish fraud or negligence; concurrent liability different damages
MISTAKE (29)
Common; mutual; unilateral mistake; mistake about nature of doc/non est factum DURESS (32)
2 elements; remedies; factors to consider what is illegitimate
3 types: duress to person; duress to goods, economic duress UNDUE INFLUENCE (34)
Weak dominated; Actual undue; presumed undue (special relationship
recognised/facts); undue influence of 3rd parties; rebuttal undue; Yerkey principle when wife/partner is guarantor; remedies
UNCONSCIONABILITY (37)
common law 3 part test (disadvantage, knowledge, exploitation); remedies
statutory unconscionability: ACL trade/commerce; broader; factors considered;
remedies. Contracts Review Act.
DISCHARGE BY PERFORMANCE (39)
Time for performance (express/reasonable/agree on new time); order of performance (independent/dependant); cooperation duty/prevention of
performance; performance full/partial/de minimus rule; substantial performance;
acceptance of part performance DISCHARGE BY AGREEMENT (41)
Abandonment; pursuant to terms of original contract (contractual right, condition precedent, condition subsequent); discharge by subsequent agreement (issue of writing/consideration; accord satisfaction; doctrine of waiver)
DISCHARGE BY BREACH (43)
Actual breach (condition/warranty/intermediate) time stipulations; new notice when time is warranty.
Repudiation. Contractual right to terminate. Effect of termination; notice. Restriction on right to terminate (election to affirm, termination not in good faith) relief against forfeiture
DISCHARGE BY FRUSTRATION (46)
4 elements (intervening event radically changes/impossible; no fault; not contemplated; unjust to hold to contract.
Effect: common law; statute ILLEGALITY (48)
Express statutory illegality; implied statutory illegality; common law illegality not in public interest: crime/unlawful intention/defraud tax /prejudicial to justice/oust court jurisdiction/sexual immorality/restraint on trade (common law/statute);
remedies or effect PRIVITY (51)
Privity rule (no sue for 3rd party benefit); problems (nominal damages/no specific performance); statutory exceptions; agency exception; trust exception
OFFER & ACCEPTANCE
The objective test is the reasonable person test.
OFFER:
Definition: Promissory content, not ambivalent: Gibson v Manchester no offer.
Unilateral contract: An offer but no contract until condition is fulfilled: Carlill v Carbolic
Invitation to treat:
Display of goods are invitation to treat: Pharmaceutical Society v Boots Cash Products on shelves not offer.
Exception if words of ads indicate intention to be bound: Lefkowitx v Great Minneapolis offer of first come first serve discount.
Auctions: offer to sell to highest bidder and acceptance by highest bidder: Barry v Davies
Tender:
Usually invitation to treat and tenderer makes the offer
Tender may be offer and submission acceptance to consider duly submitted:
Blackpool & Fylde v Blackpool administrative error, lost tender. Damages due to loss of opportunity.
TERMINATION OF OFFER:
Lapse of time: set time or reasonable time decided by facts.
Rejection:
rejection or counter-offer terminates offer: Hyde v Wrench counter-offer to buy property at lower price.
Request for further information/clarification does not terminate offer:
Stevenson, Jacques v McLean SJ sought credit terms. This was an inquiry not counter-offer.
Revocation:
Must be communicated to offeree. Information given is from reliable source: Dickinson v Dodds Dickinson tried to accept after aware that Dodds to someone else. Knew offer revoked, no contract.
Offer can be withdrawn prior to acceptance, unless option contract,.
Possible relief from equitable estoppel if gratuitous promise to keep open.
When communication occurs- non-instantaneous/ Instantaneous communication
Partial performance valid if it brought benefit to offeree: Mobil Oil v Lyndell increased level of sales. Invalid if offeree completed fully or got no benefit from partial performance.
Revocation of unilateral offer communication in the same way
Failure of a condition: An offer subject to express/implied condition, offer lapses fundamental change in circumstances: Financings v Stimson car was significantly damaged.
Death of offeror or offeree: cannot accept if aware of death. If unaware of death, it depends of personal service or other. Death of offeree terminates offer.
ACCEPTANCE: If offer not terminated, agreement occurs if accepted.
Acceptance must be unequivocal. Nothing to negotiate.
Acceptance must be in reliance upon offer: R v Clarke Clarke gave police information to clear own name not for reward. Not acceptance.
Acceptance must correspond with the offer: cannot add/change agreed terms.
Exception: Can make a non-conditional request: Dunlop v Higgins accepted and request delivery on a particular date. Valid.
Acceptance can be express or implied. Silence is not: Felthouse v Bindley
Acceptance must be communicated to offeror:
Postal acceptance rule: When reasonable, contemplated or authorised, acceptance is when posted. Bressan v Squires rule can be excluded.
Contract formation by conduct. Must unambiguously indicate intention to contract.
Offeree conduct reasonably interpreted as nothing other than acceptance:
Brogden v Metropolitan Railway. Contract existed.
Place of contract: Where the offeror is when communication of acceptance takes place. If postal acceptance rule applies, it is the place from which the letter was sent.
ALTERNATIVES TO OFFER AND ACCEPTANCE:
Battle of the forms cases. Each accept on own terms, court decides. Butler Machine v Ex-Cell-O. Three approaches:
'last-shot' doctrine based on final document.
'higher-status' doctrine where the terms on the form with higher status established the terms of the contract.
'global' approach based on facts that parties agree to incur promissory obligations. Clarke v Dunraven enter yacht race is agreement to be bound.
