Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
71 Cards in this Set
- Front
- Back
|
Definition of contract |
An agreement between two or more parties giving rise to obligations which are enforced by law |
|
|
Trietal on the law of contracts |
An agreement giving rise to obligations which are enforced by law |
|
|
Anson in principles of the law on contract |
A legally binding agreement made between two or more parties by which rights are acquired by one to acts of forbearence to the other |
|
|
Pollock in the principles of law on contract |
A promise or set of promises which the law will enforce |
|
|
Lord denning in butler machine tool co v ex cell-o corp |
Advocated that court should not be straight jacketed or hamstrung by tickbox objective indicators. Should take laissez faire approach - anything that indicated agreement. Criticised by house of lords as would lead to uncertainty |
|
|
Clark v earl of dunraven |
Contract existed even though not easy to analyse situation in terms of offer and acceptance |
|
|
Define offer |
A statement or proposition made by one party to another showing a clear willingness and intention to be bound by stated terms - carlil v carbolic smoke ball |
|
|
Taylor v laird 1856 |
Offeree must have knowledge of offer being made |
|
|
Define invitation to treat |
A simple request to open up discussions which may lead to an offer being made |
|
|
Fisher v bell 1960 |
Invitation to treat - display of goods |
|
|
Partridge v crittenden 1968 |
Invitation to treat - advertisements |
|
|
Clifton v palumbo 1944 |
Statement of price - not an offer |
|
|
Payne v cave 1789 |
Offer can be withdrawn at anytime upto acceptance |
|
|
Byrne v van tienhoven 1880 |
Offeror must communicate withdrawl to offeree |
|
|
Shuey v united states 1815 |
Must take reasonable steps to communicate withdrawl of unilateral offer |
|
|
Errington v errington 1952 |
Right to recind unilateral offer lost if performance of contract has started |
|
|
Ramsgate victoria hotel v montefiore |
Lapse of time, withdrawl of offer |
|
|
Definition of acceptance |
The final unconditional and unqualified expression of assent to the terms of an offer that has been made |
|
|
Brogan v metropolitan railway 1877 |
Action demonstrating acceptance of offer |
|
|
Hyde v wrench 1840 |
Acceptance must correspond exactly with offer - mirror rule - any variance constitues a rejection and counter offer |
|
|
Stevenson v mclean 1880 |
Request for information does not constitute rejection |
|
|
Entores v miles far east co 1955 |
Acceptance must be communicated |
|
|
Felthouse v bindley 1862 |
Silence cannot mean acceptance |
|
|
Adams v lindsell 1818 |
Postal rule, acceptance takes place when put in post |
|
|
Holwell securities ltd v hughes 1974 |
Exception to postal rule - advised required response in writing so had to receive letter |
|
|
Brinkibon case 1983 |
Lord wilberforce on instantaneous communication - intention of the parties |
|
|
Butler machine tool co v ex cell-o corp |
Battle of the forms - first offer, counter offer, acceptance, last form wins |
|
|
Define consideration |
The price paid for the promise or benefit received |
|
|
Currie v misa 1875 |
Some right interest profit or benefit accruing to one party or some forbearence detriment loss or responsibility given suffered or undertaken by another |
|
|
Past consideration |
Past consideration is not good consideration - roscorla v thomas 1843. Expection - doctorine of implied assumpsit - lampleigh v braithwaite. 1. Act must have been requested by promisor. 2. Parties understood at time that act would be renumerated. 3. Must have been legally enforceable |
|
|
Part payment of debt |
Part payment is not good consideration - pinnels case 1602 Exception - if something new is introduced as a benefit to creditor |
|
|
Part payment of debt by third party |
Good consideration - hirachand punamchand v temple |
|
|
Adequecy and sufficientcy - consideration |
Consideration need not be adequate but must have some value - chappel v nestle. Consideration must be sufficient - real, tangible and valuable - white v bluett |
|
|
Performance of existing public duty |
Colins and godefroy 1831 - no consideration Glasbrook brothers v glamorgan county council & harris v sheffield united fc - yes as taking on extra duty Leeds united fc v chief constable west yorkshire - no as protecting public space |
|
|
Performance of existing contractual duty |
Usually not good consideration - stilk v myrick If promisee does or promises to do something in addition to what was originally agreed - good consideration |
|
|
Williams v roffey brothers 1991 |
If make payment above contract price in order to secure benefit or avoid a disbenefit - good consideration
- Avoiding abandoning contract - Completion on time avoiding penalty - Avoiding expense of hiring someone new
Only applicable to contracts for services |
|
|
Define promissory estoppel |
A promise that can be enforced by law when a promisor makes a promise to a promisee who relies on it to his or her detriment Equitable exception to part payment of debt |
|
|
Criteria for promissory estoppel |
1. A promise is made which modifies an existing legal relationship 2. The promise is intended to be acted on by promisee 3. Promise is acted upon and results in a change of position for the promisee who then acts to their detriment 4. Promissory estoppel can only be used as shield, not a sword 5. Promissory estoppel will suspend continuing obligations until notice served or conditions change 6. Rules of equity |
|
|
Central london property trust v high trees house |
Promissory estoppel - recoverable when flats became occupied meaning conditions had changed |
|
|
Tool metal manufacturing co v tungston electric |
Promissory estoppel - must give notice to reinstate original agreement |
|
|
What is a presumption |
A presumption is an assumption made by the court. Something which is taken to be true unless someone comes forward to contest it and proves otherwise |
|
|
What is a rebuttable presumption |
A rebuttable presumption can be overturned only if the evidence contradicting it is true and if a reasonable person of average intelligence could logically conclude from the evidence that the presumption is no longer valid |
|
|
Creating legal relations social and domestic - husband and wife |
Balfour v balfour - tempory domestic arrangement - no legal relations Rebutted - merrit v merrit - had split up |
|
|
Creating legal relations social and domestic - children and friends |
Jones v padavatton - mother and daughter - family no intention Rebutted - simpkins v pays - friends but clear intention |
|
|
Creating legal relations commercial |
Bowerman v abta - must be express evidence to exclude operation of presumption Rebutted - binding in honor only - appleson v littlewoods pools |
|
|
Mere puff |
Regarded as sales talk - no legal remedy |
|
|
Representation |
Statements that induce the contract but are not actually part of it. Only a if theres a misrep will remedies ensue |
|
|
Term |
Important & fundamental and are actually part of the very heart of the contract. Breach of term will entitle innocent party to remedy |
|
|
Express term |
Those terms which are known and have been agreed by the parties at the time the contract was made |
|
|
Implied term |
Terms that have not been expressly agreed to but are implied into the contract by Custom & Trade Usage, the courts and statute. The parties have no say or input to their inclusion |
|
|
Precontractual statement to be classified as term or representation |
1. Importance of the statement - couchman v hill 2. Reduced in writing - birch v paramount estates 3. Timing of statement - routledge v mckay 4. Special skill or knowledge - schawel v reade |
|
|
How are express terms worked into contract |
1. Through actual notice - olley v marborough court hotel 2. Signed document - l'strange v graucob 3. Through reasonable visual notice - parker v south eastern railway co 4. Through constructive notice - j spurling ltd v bradshaw |
|
|
Business efficacy test |
Term implied by court - liverpool cc v irwin - lord cross It must be said that the insertion of the term is neccesary to give business efficacy to the contract and if its absense had been pointed out at the time, both parties would have agreed to its insertion |
|
|
Denning on business efficacy test |
That a term can be implied if it was fair and reasonable to say the contract would be a better one for its inclusion Criticised by house of lords - a term will only be implied if it was neccessary |
|
|
Officious bystander test |
Shirlaw v southern boundries - mckenna lj If while the parties were making the bargain, an officious bystander were to suggest some express provision for it an agreement, then they would have said of course it should be included |
|
|
Problems with business efficacy and officious bystander |
1. Both tests based on common intention 2. One of the parties may not be aware of the matter to be implied at time of the contract 3. Both parties may not have agreed to the term |
|
|
Lord hoffman - attourney general of belize and others v belize telecom |
Various tests not cumulative, only one issue to be decided, what the instrument read as a whole against the relevent background would mean to a reasonable man |
|
|
Condition |
A type of term, one thats crucial, fundamental and important. Goes to root of contract. If broken, can either elect to bring contract to end or claim damages - poussard v spiers and pond |
|
|
Warranties |
Type of term, less important than a condition. If broken the contract must continue but can claim damages - bettini v gye |
|
|
Damages |
Common law rule is where party sustains a loss through breach of contract, he is as far as money can do, placed in same position with respect of damages as if the contract had been performed - robinson v harmin |
|
|
Nominal damages |
If loss is small or trivial, nominal damages will be awarded - omale matitime v mamola challenger shipping co |
|
|
How are damages assessed by court |
Loss of bargain or expectation loss - award difference between market price and sales price Cost of cure or reinstatement value - ruxley electronics and construction v forsyth ( loss of amenity) Reliance loss - anglia television v reed - put bk in position before contract made |
|
|
Non financial losses |
Common law rule - no damages for mental distress - Addis v Gramophone co ltd Excepions: Contracts sole purpose to provide pleasure, relaxation & peace of mind - jarvis v swan tours Contract is to provide freedom from distress - Hamilton Jones v David Snape Breach in contract results in physical inconvenience or distress leading to mental suffering - farley v skinner |
|
|
What must be shown to pursue for contractual damages |
Must be a breach of contract that caused loss complained of - C&p haulage v middleton Remoteness of damages - hadley v baxondale Innocent party kept losses to a minimum - Brace v Calder |
|
|
Principle of remoteness of damages |
Damages can be claimed if claimant can establish either - The loss is such that it is likely to arise in the natural course of things - The loss complained off was in the contemplation of both parties at the time of the contract Victoria laundry windsor v newman industries - not in contemplation Simpson v london and north western railway |
|
|
Define restraint of trade |
A restraint if trade is a contract or term which restricts the person to exercise his trade or carry on his business. The court look to weigh up two conflicting interests: the right to work and trade freely has to be balanced with right to protect business interests |
|
|
Lord mcnaghton - nordenfelt principles |
1 - covenants in restraint of trade are prime facie void and unenforceablecas being contrary to public policy unless the restraint can be shown to be reasonable 2- will be held to be valid if restraint in question protects a legitimate interest and is both reasonable between the parties concerned and in public interest |
|
|
Reasonablness in public interest - restraint of trade |
There must be a legitimate proprietry interest worthy of protection. Anti competition agreements are not reasonable: Vancouver malt and sake brewing v vancouver breweries Covenants that damage a trade or business by diminishing, without proper juristriction, those who may engage in it is contrary to public interest: wyatt v kreglinger + fernau |
|
|
Reasonableness between parties - restraint of trade |
Reasonableness between parties must be designed to protect a legitimate interest: 1. Buyer of business can prevent seller acting in competition with business he purchasing, the goodwill - British reinforced concrete engineering v schelff 2. An employer is entitled to protect trade secrets and prevent former employee from soliciting clients - fitch v dewes 3. An employer is not entitled to prevent an employee acting in competition with him or restrict the use of personal skills obtained in that employment |
|
|
3 issues to consider when protecting legitimate interest - restraint of trade |
The duration of the clause: fitch v dewes The geographical area the clause relates: mason v provident clothing, contrasted against forster & sons v sugget The scope and activity for which the clause seeks to restrict: attwood v lamont
|
|
|
Define discharge of contract |
Discharge of contract is when the duty to perform the obligations of the contract ceases. Can be done through performance, agreement, breach and frustration. To be distinguished from vitation, discharge is when a valid contract ends, vitation is a contract rendered void, eg misrep |
