Contracts Midterm Flash Cards

Front 1

Canadian Dyers Assn v. Burton*

Back 1

to have a contract you must have offer and acceptance. A statement of price is not an offer. Statement of price and suffiecent conduct can be an offer. Test for an offer Is based on the totality of the circumstances.

Front 2

Pharmaceutical Society v. Boots*

Back 2

a shop display is an invitation to treat, not an offer.

Front 3

Carlill v. Carbolic Smoke Ball Co*

Back 3

You can make a unilater contract with the whole world. You need not communicate acceptance in a unilateral contract.

Front 4

Goldthorpe v. Logan*

Back 4

a guarentee can be an offer. Look to the words and actions of the parties to see if an offer has been made. Offerer bears burden of extravagent promises.

Front 5

Harvela Investments Ltd. v. Royal Trust Co of Canada*

Back 5

an invitation to treat is an invitation to make an offer.

Front 6

R. v. Ron Engineering & Construction*

Back 6

once submitted you cannot revoke contract A in a tender.

Front 7

M.J.B. Enterprises Ltd. v. Defence Construction*

Back 7

it is an implied term of contract that a tenderer will only accept a compliant bid. A privledge clause cannot apply to a non compliant bid

Front 8

Double N Earthmovers Ltd. v. City of Edmonton*

Back 8

no implied duty to see if the parties will do as promised. Test for implying terms in to contracts is 1. based on custom, 2. the legal implications pf a certain type of contract, 3. pressured intentions of the parties.

Front 9

True construction v Kamloops

Back 9

a bid is non compliant when it fails to meet essiential terms.

Front 10

Blair v. Western Mutual Benefit Assn*

Back 10

an offerer must intend to make an offer for it to be capable of acceptance. Offer must be communicated directly to offeree.

Front 11

Williams v. Carwardine*

Back 11

Motive is not relevant in acceptance

Front 12

R. v. Clarke*

Back 12

you need to know an offer is in existance in order to accept it.

Front 13

Dickinson v. Dodds*

Back 13

an offer can be revoked any time before acceptance even if they say they will not take it back. (unless they give consideration)

Front 14

Byrne v. Van Tienhoven*

Back 14

offeree must have knowledge of revocation.

Front 15

Errington v Errington and Woods*

Back 15

in a unilater contract you cannot revoke your offer once preformance begins

Front 16

Dawson v. Helicopter Exploration Co*

Back 16

when promises are exchanged and a bilateral contract is formed you cannot revoke an offer after acceptance.

Front 17

Livingston v. Evans*

Back 17

A counter-offer constitutes a rejection.

Front 18

Barrick v. Clark*

Back 18

an offer remains open as long as the offerer wants. If reasonable time is not stipulated an objective test is so look at industry customs and conduct of the parties in the past.

Front 19

living stone v evans

Back 19

An offer can be renewed after a counter-offer through ambiguous language.

Front 20

Manchester Diocesan Council of Education v. Commercial*

Back 20

if not accepted in a reasonable amount of time the offer is treated as withdrawn.

Front 21

Butler Machine Tool v. Ex-cell-o*

Back 21

In a battle of forms generally the last shot wins unless its unclear. In that case take hollistic approach read documents together to see if they can be interpreted harmoniously.

Front 22

Tywood Industries Ltd. v. St. Anne*

Back 22

you must draw attention to a powerful term. No being sneaky. Represents a move away from classical contracting model to reasonable contracting.

Front 23

ProCD v. Matthew Zeinberg and Silken*

Back 23

Clickwrap licences constitute a reasonable offer and clicking I accept such a licence constitutes acceptance.

Front 24

carbolic smoke ball

Back 24

silence can constitute acceptance in a unilateral contract where its clear by the actions that an offer has been accepted.

Front 25

Felthouse v. Bindley*

Back 25

cannot have silence as acceptance in bilateral contract. Cannot write acceptance out of the contracting process in the terms of your offer.

Front 26

Dawson v Helicopter exploration

Back 26

when in a contract, a letter of repudiation without a response from the other party is not null.

Front 27

Saint John Tug Boat Co. v. Irving Refinery*

Back 27

silence does not mean acceptance unless it can be implied by the test of the objective reasonable person.

Front 28

Eliason v. Henshaw*

Back 28

Offeror is the master of the terms of the contract and can specify the means of acceptance that must be followed.

Front 29

Household Fire v. Grant*

Back 29

acceptance is made and a contract is created when the letter containing it is put into the mail

Front 30

Holwell Securities v. Hughes*

Back 30

where the offeror stipulates a specific method for effecting the acceptance, sometimes the offeror will not be bound by a purported acceptance unless it satisfies those stipulations... but the offeror can accept the irregular acceptance.

Front 31

Brinkibon v. Stahag Stahl*

Back 31

In cases of instantaneous communication, the contract is only complete when the acceptance is received by the offeror and the contract is made at the place where the acceptance is recieved.

Front 32

R. v. CAE Industries Ltd*

Back 32

if meaning can be attached to a word then it is not too vague. Look to the reasonable person standards. best effort clauses are enforceable.

Front 33

May v. Butcher v. R*

Back 33

agreement to agree is not enforceable when the agreement is about an essiental term.

Front 34

Hillas v. Arcos *

Back 34

when a contract has a clear intention with vague terms a count can imply meaning by reading in a term.

Front 35

Foley v. Classique Coaches*

Back 35

agreements to agreee on price are enforceable if the reasonable price can be infered from the past preformance. They are enforceable because they are certain. Acception to may v butcher.

Front 36

Bhasin v. Hrynew*

Back 36

there is a new duty of honest performance, which should not be thought of as an implied term, but as a general doctrine of contract law

Front 37

Empress v. Bank of Nova Scotia*

Back 37

agreements to renew a contract hold two obligations when the terms are unclear. 1) negotiate in good faith, 2) do not withhold unreasonably.

Front 38

Mannpar Enterprises Ltd. v. Canada*

Back 38

There is no common law obligation to negotiate in good faith; it must be in the contract, either expressly or impliedly.

Front 39

Wellington City Council v. Body Corporate*

Back 39

An agreement to negotiate in good faith is unenforceable for uncertainty.

Front 40

Bawitko Investments Ltd. v. Kernels Popcorn*

Back 40

An oral agreement is not enforceable unless terms are mutually agreed upon. You can contract to contract as long as all essiential terms are certain.

Front 41

Balfour v. Balfour*

Back 41

Arrangements made between husbands and wives are not generally contracts as the parties do not intend to be legally bound by the agreements.

Front 42

Rose and Frank v. JR Crompton Bros*

Back 42

It is generally assumed that parties in business relationships intend to be legally bound. If parties expressly state in an agreement that they do not wish to be ;egally bound, the courts must respect their actual intentions.

Front 43

TD Bank v. Leigh Instruments Ltd*

Back 43

Letters of comfort are not legally binding.

Front 44

Canadian Taxpayers Federation v. Ontario*

Back 44

political promises are not binding.

Front 45

Royal Bank v. Kiska*

Back 45

writing the word seal on a contrat does not actually make it sealed legally.

Front 46

Dynamic Transport Ltd. v. O.K. Detailing*

Back 46

parties are obligated to employ their best efforts in order to meet the conditions of a contract. Where best efforts are employed and the condition is not met the parties may be released.

Front 47

Deglman v. Guaranty Trust Co*

Back 47

there is a writing requirement. Unjust enrichment – he is entitled to recover what he put in to the contract, otherwise it would be unjust enrichment

Front 48

Thomas v. Thomas*

Back 48

Consideration must have value in the eyes of the law. Motive is not sufficient consideration.

Front 49

Governors of Dalhousie v. The Estate of Boutiller*

Back 49

A statement that there is consideration does not make a promise enforceable if, in fact, there is no consideration. A gratuitous promise (promise to give a gift) does not have sufficent consideration to be a binding contract unless the money was given for a speciffic purpose.

Front 50

Wood v. Lucy, Lady Duff Gordon*

Back 50

For a term to be implied in a contract it has to be very obvious. The common law of contracts has extended beyond formalism.

Front 51

Eastwood v. Kenyon*

Back 51

past consideration is not good consideration.

Front 52

Lampleigh v. Brathwait*

Back 52

A promise made after performance can be enforced (opposite of eastwood), only if it was understood by the parties that there will have some kind of reward prior the performance.

Front 53

D.C.B. & Arkin V Zellers*

Back 53

Forebearance to sue is valid consideration for a contract unless forbearance is made on a bogus claim that wouldn’t win in court. Exception: if payment has already been made for fornearnace, the suer does not know its invalid, it is reasonable that they intend to sue.

Front 54

Pao On v. Lau Yiu Long*

Back 54

a promise to preform a pre existing duty already owed cannot constitute good consideration. Past preformance can be consideration in limited circumstances when 1, act is done at the promisors request, the parties understood the act would be rewarded (like in lampleigh), or the reward is legally enforceable.

Front 55

Stilk v. Myrick*

Back 55

promising to do what you already agreed to do is not good consideration.

Front 56

Gilbert Steel v. University Construction*

Back 56

promising to do what you already agreed to do is not good consideration. Variation of your contract is not a new contract. A new contract would require new consideration.

Front 57

Williams v. Roffey Bros*

Back 57

preexisting duty to promisor may be valid consideration only if promisor derrives practical benefitm and the promisee does not make the promise under economic duress.

Front 58

Fredericton Airport Authority Inc. v. Nav Canada*

Back 58

post-contractual modification, unsupported by consideration, may be enforceable as long as it is established that the variation was not procured by economic duress.

Front 59

Foakes v. Beer*

Back 59

payment of lesser sum is not sufficent for greater sum if no consideration

Front 60

Re Selectmove*

Back 60

partial payments are not valid consideration because there is not practical benefit in receiving payment in installments.

Front 61

Foot v. Rawlings*

Back 61

Accepting terms that benefit the creditor for convenience can amount to consideration. A negotiable instrument such as a cheque, or an object of a value less than the debt, can be consideration even if the amount is less then the cash debt.

Front 62

Process Automation v. Norstream Intertec Inc*

Back 62

if less is accepted under duress or undue influence it is not valid.

Front 63

Hughes v. Metropolitan Railway*

Back 63

If a promise is implied in negotiations and one party relies on that promise then it is inequitable to allow the other party to act as though the promise does not exist.

Front 64

Central London Property v. High Trees House*

Back 64

if a party makers a promise that another party relies on, the promisor cannot take it back.

Front 65

Collier v. P & M J Wright*

Back 65

The rule in Foakes v Beer [1884] applied, whereby the part payment of a debt is not satisfaction for the whole becaue no consideration. However, estoppel prevented the defendant from revoking his promise (reliance)

Front 66

John Burrows v. Subsurface Surveys*

Back 66

In order for a promise to be capable of being relied upon and having estoppel available as a defence, it must be a promise or assurance intended to alter the legal relations between the two parties. (had to have had a contract)

Front 67

D & C Builders v. Rees*

Back 67

agreement to accept less at common law requires consideration. Agreement to accept less in equity does not require consideration. If creditor accepted less because they were under duress estoppel does not apply.

Front 68

Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co*

Back 68

You can take back a promise without giving rise to estoppel if it hasn't been relied upon, and as long as reasonable notice is given.

Front 69

W.J. Alan & Co. v. EL Nasr*

Back 69

Detrimental reliance is not required for promissory estoppel to apply.

Front 70

The Post Chaser*

Back 70

Reliance need not be detrimental. the representee may have benefited from the representation, and yet it may be inequitable...

Front 71

Combe v. Combe*

Back 71

Estoppel is not a cause of action. It does not give you a right to do something, its only a defense.

Front 72

Walton Stores. v. Maher*

Back 72

a leading case in Australian contract law. The Australian High Court decided that estoppel, in certain circumstances could be a cause of action. can only enforce voluntary promises when a departure from the parties’ basic assumptions is unjust.

Front 73

M. (N.) v. A. (T.A.)*

Back 73

Estoppel is not a cause of action in Canada.

Front 74

Tweddle v. Atkinson*

Back 74

no stranger to a contract can take advanatge of it, even when made for their benefit. Love is not consideration.

Front 75

Dunlop PneumaticTyre v. Selfridge*

Back 75

Only parties to a contract can sue for a breach of the contract. The only exception to this rule is if a party named in the contract was acting as an agent of an unnamed party

Front 76

Beswick v. Beswick*

Back 76

Executors of wills (not named in dead persons contract) can sue for specific performance of promises made in contracts with the deceased. They "step in to the shoes of the dead."

Front 77

London Drugs Ltd. v. Kuehne & Nagel*

Back 77

limited liability clause can over employees in exception to general privty rules if.... 1, the limitation of clause (expressly or impliedly) extends the benefit to the employee(s); and 2, the employees were acting in the course of their employment performing the services provided for in the contract.

Front 78

Edgeworth Construction Ltd. v. N.D. Lea*

Back 78

third party can benefit from limited liability clause (if not named in the contract but are doing the work) when they do not have power to enact a contract themselves. If you do have the power take care of yourself.

Front 79

Fraser River Pile & Dredge v. Can-Dive Services*

Back 79

The test in London Drugs for limited liabiloity clause applies to other relationships other than employee employer.