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64 Cards in this Set
- Front
- Back
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Agreement definition |
An offer containing a promise matched by an acceptance |
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Offer definition |
An expression of willingness to contract under certain terms coupled with an intention to be legally bound by these terms once they are accepted |
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Acceptance definition |
The final and unqualified expression of assent to the terms of an offer |
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Bilateral contract |
Exchange of promise |
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Unilateral contract |
Promise in return for an act |
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Offer 1) 2) 3) 4) |
1) Can be made expressly or by conduct 2) Must be sufficiently certain 3) All essential matters (including price) already agreed 4) Must be communicated from offeror to offerer |
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Certainty of language in Offer an Acceptance Gibson v Manchester City Council 1) 2) |
1) "the corporation may be prepared to sell this house to you" did not constitute an offer 2) Did not contain an affirmative statement declaring a contract |
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Can an agreement to agree be recognised as a contract? Courtney & Fairburn Ltd v Tolani Brothers |
No, price not agreed |
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Uncertainty and duration of agreement Affirmed Walford v Miles |
Agreement not enforceable- no fixed duration of agreement |
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Invitation to treat definition |
A representation whereby another person is invited to make an offer |
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Offer v Invitationto Treat: advert in magazine Partridge v Crittenden |
Generally adverts are invitations to treat |
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Offer v Invitation to Treat Carlill v Carbolic Smoke Ball Co 1) 2) |
1) Advert was unilateral offer not invitation to treat 2) Act of depositing £1000 into Alliance bank to pay winnings held to demonstrate defendant's intention to be legally bound |
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Is display of goods on the shelves of aself-service supermarket an offer or invitation to treat Pharmaceutical Society of Great Britain v Boots1) 2) |
1) Invitation to treat 2) Customer makes offer when he takes product off shelf and to till, cashier then accepts offer |
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Is display of goodsin a shop window an offer or invitation to treat Fisher v Bell |
Invitation to treat |
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Tenders 1) 2) 3) |
1)Invitation to submit tenders is generally an invitation to treat 2) Submission of a tender is usually an offer 3) In the absence of an undertaking to that effect there is no obligation to accept highest price |
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Spencer v Harding |
Generally no obligation to accept the highest bid since invitation to tender is simply an invitation to treat |
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Tenders- Analysis 1 1) 2) |
1) Invitation to tender is an offer 2) Accepted by highest bidder |
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Tender - Analysis 2 1) 2) |
1) Invitation to tender remains an invitation to treat but coupled with a promise to accept best financial terms 2) Unilateral offer which is accepted by submission of the highest bid |
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Courts role in certainty of contracts 1) 2) 3) |
1) Must determine whether contract is fatally uncertain 2) must avoid striking down contracts on grounds of legal pedantry 3) Must avoid re-writing contracrs |
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Uncertainty Scammel & Nephew Ltd v Ouston 1) 2) |
1) Contract void for uncertainty 2)"hire purchase terms" too vague to be enforceable |
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Good faith 1) 2) |
1) Duty to negotiate in good faith is an unworkable practice 2) each party should be contracting to satisfy their own ends |
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Implied Terms defintion |
Terms which are practically written into contracts by the courts under certain circumstances |
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Sale of Goods Act 1979 s8- Reasonable price 1) 2) 3) |
1) Implied term that a reasonable price will be paid by buyer unless the contract fixes the price or provides for method of price determination 2) Precluded if price dtermination mechanism is present but fails 3)Quantity depends on the circumstances of each particular case |
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Reasonable Price precluded May & Butcher v The King 1) 2) |
1)The contract provided for a method of price determination ^ 2)sale of goods "at a price to be agreed between the two parties" |
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Claiming contract void for uncertainty Foley v Classique Coaches Ltd 1) 2) |
1) Sale of goods "at a price to be determined by the two parties from time to time 2) Agreement held to be binding -had operated for 3 years 3) ∴Too late to claim uncertainty |
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Cross Offer 1) definition 2) |
1) Where two parties make identical offers to eachother at the same 2) do not produce contracts in most cases - no acceptance |
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Conduct as acceptance Brogden v Metropolitan Railway |
1) Only if the offeree did the act with the intention of accepting the offer 2) taking delivery of the coal constituted acceptance of D's counter offer |
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Can one accept an offer without knowing it exists? 1) 2) 3) 4) |
1) Bilateral contracts - no 2) There are obligations on both sides - cannot be binding if obligations are unknown 3) Unilateral-maybe 4) Obligations only on one side |
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Communication of Acceptance 1) 2) |
1) Must be communicated to offeror - onus on offeree 2) Offeror controls how offer is to be accepted - method + deadline |
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Suppose there are no instructions on how to accept and offer is received by email 1) 2) |
1) Any quick response method permissible - e.g email, phone 2) Slow method such as post generally not permissible |
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If acceptance doesn't get through 1) 2) |
1) If offeree is aware or there is a reason why he ought to be- should reaffirm acceptance 2) If unaware/ is out of his hands- should not preclude the acceptance from being effective |
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Objective intention |
To determine whether or not an offer has been accepted we must consider whether a reasonable person in the offeror's shoes would conclude that offeree was accepting it |
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Can silence alone constitute acceptance? Felthouse v Brindley |
No, Silence alone cannot constitute acceptance |
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Must the offeree know of the offer to accept it? 1) 2) |
1) In most cases yes 2) generally if one does not know of an offer he had no intention of accepting it |
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When is email acceptance/revocation communicated? The Brimnes 1) 2) |
1) When it should be read in the ordinary course of business 2) This depends on context |
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Postal Acceptance Rule Adams v Lindsell 1) 2) 3) |
1) Binding contract is formed from the moment acceptance is posted 2) Whether or not the acceptance reaches the offeror is irrelevant 3) Shifts burden of communication from offeree to offeror |
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PAR precluded if 1) 2) 3) 4) |
1) Post not an accepted method of communication(Quenerduaine v Cole) 2) Postal service is known to be disrupted 3) termsof the offer preclude the PAR by expressly or impliedly requiring communication (Howell Securities Ltd v Hughes) 4) Acceptance is not properly addressed or stamped through carelessness |
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PAR and email Chwee Kin Keong v Digiland Mall |
PAR doesn’t apply to email |
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Binding even if acceptance never reaches offeror Household Fire Insurance Co Ltd v Grant |
Binding even if lost in the post |
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Revocation definition |
The rescinding, annulling or withdrawal of an offer |
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PAR and revocation Byrne v Van Tienhoven 1) 2) 3) 4) |
1) Offeror posted offer then tried to revoke 2) Offeree had already accepted by telegram(PAR applies to telegram) 3)∴Revocation ineffective, contract already formed through PAR 4) PAR only applies to acceptance (not revoccation) |
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Battle of Forms/counter offer Butler Machine Tool v Ex-Cell-O 1) 2) |
1) A counter offer destroys the previous offer 2) A contract is concluded on the terms submitted by theparty who is the last to communicate those terms before performance commences |
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Does requesting further information destroy previous offers? Stevenson, Jacques & Co v McLean |
no, offer kept on table |
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Implied rejection |
If the offeree does nothing, after a reasonable time the offer will expire through lapse of time |
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Requirements of revocation 1) 2) |
1) Must be communicated 2) Offer can be revoked at any time prior to acceptance |
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When is a unilateral contract accepted? 2 possibilities 1) 2) |
1) On commencement of performance 2) On completion ofperformance |
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If accepted on completion should we have sympathy for offeree part way through performance? |
Depends, context must be considered |
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Should we have sympathy for offeree who has not commenced performance but has invested a lot of time (money) in preparation? |
1) no, uncertainty- what constitutes preparation? 2) unworkable- every revocation of unilateral contract would be problematic |
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Bending the rules The Eurymedon |
1)"If it necessary to bend the rules of contract formation so that contract law matches commercial reality, then the rules of the law of contract will so be bent" 2) finding a way to give effect to the intention of the parties |
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Collateral contract 1) 2) |
1) Contract which is ancillary to or supports a main contract 2) Aids efficacy of the main contract |
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Collateral Contract and auctions (with no reserve price) 1) 2) 3) 4) |
1) Auctioneer makes invitation to treat 2)When you make the highest bid you make an offer in response to the main contract 3) Collateral contract then comes into existence between and auctioneer when no higher bid made 4)If auctioneer does not accept this highest bid he is in breach of this collateral contract |
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Intention to create legal relations (Contractual Intention) 1) 2) 3) |
1) Merely intention that agreement is to be legally binding 2) Always required 3) never presumed |
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No Intention tocreate legal relations between family members Balfour v Balfour |
Agreement not enforceable- general presumption that there is no intention to create legal relations in between family member |
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Formalities 1) 2) 3) 4) |
1) Generally contracts need not be written down 2)contract for sale or disposition of interest in land must be made in writing 3) A guarantee must be evidenced by a signed note 4) Customers must be notified of their consumer rights in writing |
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Common Mistake |
a doctrine which operates when a contract is illegal or impossible due to a pre-contractual event that neither party is aware of when they enter the contract |
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Common mistake 3 types 1) 2) 3) |
1) Res extincta - mistake as to the existence of the subject matter of the contract 2) Res sua - mistake as to the ownership of the subject matter of the contract 3) Mistake as to quality |
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Mistake as to quality Great Peace Shipping v Tsavliris Salvage |
Contract void for mistake as to quality only if the mistake is sufficiently fundamental |
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Mutual Mistake 2 types 1) 2) |
1) Mutual mistake as to the subject matter of the contract 2) Mutual misunderstanding as to terms of the contract |
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Unilateral Mistake |
One party is mistaken as to the contract and the other party is aware of the mistake |
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Unilateral Mistake 3 types: 1) 2) 3) |
1) Identity of one of the contracting parties 2) terms of the contract 3) nature of a signed document |
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Identity of one of the contracting parties 2 requirements 1) Cundy v Lindsay 2) Boulton v Jones |
1) The identity is of fundamental importance 2) This is made clear by the party who is mistaken before or at the time of the contract |
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Terms of the contract Traditional rule in Smith v Hughes |
1) Mistake as to the terms of the offer by one party 2) and other party must have known of the mistake |
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Development on Smith v Hughes Hartog v Colin & Shields |
1)Where there is a mistaken statement of intent by one party 2)and the other party knows of it then, or should reasonable have known of it the mistake is operative and the contract is void 3) Cannot "snap up" an offer which contains an obvious error |
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Non operative mistake remedies 1) 2) 3) |
1) rescission (not available for common mistake) 2) rectification 3) refusal to order specific performance |
