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38 Cards in this Set

  • Front
  • Back
What is awarded for a breach of terms and not representations?
Damages and/or rescission
Terms vs Representations- what is considered?
1. How important was the statement
2. Time period between statement and agreement?
3. Was the statement made with the intention of preventing the aggrieved party from finding defects?
4. Was the statement such that the aggrieved party would not have contracted unless it was true?
5. Did the party making the statement have any special knowledge or skill?
6. Was the statement later omitted when the contract was reduced to writing?
Case example for term v representation?
Bently Productions v Harold Smith

Smith sells car saying it had only done 20000kms
What is the Parol Evidence Rule?
Prevents a party to a written contract from presenting extrinsic oral evidence that contradicts or adds to written term in a contract that appears to be whole (as if it was left out of contract, must have been for some reason)
Terms can be classified as?
Conditions or Warranties
What does a breach of condition entitle?
Injured party may claim damages and rescind the contract
What does a breach of warranty entitle?
Injured party may claim damages only
In a breach of warranty or condition, what does the court consider?
1. Did the term induce the promisee to contract?
2. Did promisee expect the term to be strictly performed?
3. Should promisor have known the importance of the term?
4. Will breach of term cause serious loss to promisee?
Give an example cases of breach of terms?
Tramways Advertising Pty Ltd v Luna Park
Give another example cases of breach of terms?
Poussard v Spiers
Give another example cases of breach of terms?
Hong Kong Fir Shipping v Kawasaki Kisen Kaisha

Ship leased was out of action for 15 weeks of 2 year contract. Not deemed enough to end contract
What is a condition precedent?
A condition that must be satisfied before a contract can be enforced (ie finance before purchasing a house)
What is a condition subsequent?
A term contained in the contract to provide that on the happening of a particular event the contract will terminate.
What is Agency?
Where one person (principal) authorises another party (agent) to act on their behalf, creating a contract between the principal and the third party
What are the three types of agent?
General Agent, Special Agent, Universal Agent
Special Agent?
Appointed to carry out a specific task or one not in normal business
General Agent?
Appointed to act for the principal in relation to a particular trade or profession or in normal course of business
Universal Agent?
Power of attorney, unrestricted authority to do all acts for the principal
What are the four types of agency creation?
1. Agreement or Actual Authority or Implied Authority
2. Estoppel or Apparent Authority
3. Ratification
4.Operation by Law
What is Agreement or Actual Authority?
That which has been expressly conferred on the agent by the principal.
That which is implied in the agency itself.
That which arises from necessity or operation of the law.
What is Implied Authority?
That which is required for, or incidental to, the carrying out of acts within actual authority
What is Estoppel, Apparent or Ostensible Authority?
When the third party believes the agent has the authority as a result of his/her actions
What happens in Apparent Authority?
Depends on the facts. What authority would a person in that position normally have? What representations were made to the third party regarding the agent's authority?
Can the principal be liable for actions of apparent authority agent?
yes!
What is Ratification?
Principals become liable if they ratify unauthorised acts by a party who lacks authority.
What are the three tests of ratification?
1. Agent clearly indicated an agency existed
2. Principal had knowledge/legal capacity
3. Ratification made within a reasonable time
What is Agency by Operation of Law?
Agency of necessity or emergency.

Must be an emergency, impossible to contact principal, and agent acted in good faith and principal's best interests
In a company, a director is...
An agent, bound by any contract made within their actual or apparent authority, and owe a fiduciary duty to the company
In a partnership?
Each partner is an agent and principal for the other parties and owe fiduciary duty to other partners
What are the 8 duties of an agent?
FUAANNKA
1. Follow instructions
2. Use reasonable diligence, care and skill
3. Act in person
4. Act in principal's best interests
5. No secret comissions
6. Not to divulge confidential information
7. Keep principal's money/property separate
8. Account for property and money received
What are the rights of an agent?
RILR
1. Right for remuneration of services
2. A right to indemnity and reimbursement of expenses
3. A right to a lien (retain goods/services until paid)
4. Redirect goods to possess and retain them until paid
Principal's liability to third parties?
Principal can be held liable for any tort that an agent commits while acting within scope of their actual or apparent authority
When is an agent liable for a breach of contract with a third party?
PPEBB
1. Principal's existence not disclosed
2. Principal's existence not made clear
3. Existence disclosed but special factors
4. Agent breaches consumer protection legislation
5. Agent breaches warranty of authority
What are the 4 factors that all must be present for Agent breaching warranty of authority?
FCTL
1. Agent falsely claimed to act with authority
2. Claim caused third party to enter contract with principal
3. Third party unaware agent lacked authority
4. Third party suffered a loss
What types of termination of agency are there by act of parties?
MRWAP
1. Mutual agreement
2. Revocation of agent's authority by principal
3. Withdrawal by agent
4. Agent accepted a secret commission
5. Performance of agency
What types of termination of agency by operation of law?
1. Death of either party
2. Bankruptcy
3. Insanity of either party
What are the different types of damages available?
1. Liquidated or agreed
2. Unliquidated
3. Nominal
4. Exemplary (punitive) and aggrevated
5. Damages for disappointment and distress
What are equitable remedies?
1. Specific performance (carry out)
2. Injunction
3. Mareva injunction (freezing)
4. Anton Pillar order
5. Rectification (rectified)
6. Rescission
7. Restitution - quantum meruit