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62 Cards in this Set
- Front
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Define Offer |
According to Treitel an offer is "a willingness to contract on specified terms" |
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What is an invitation to treat? |
An invitation to treat is preliminary discussion which may lead to an offer being made |
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What are the facts of Gibson v Manchester City Council |
Here the local council adopted a right to buy policy in 1970. G sought to take advantage of this and sent a letter expressing his wish to buy his home. A letter was sent back from the treasurer stating that the council may be willing to sell him his home for £2000. Before the transaction could be completed the council changed hands and Labour reversed this policy. G wished to enforce the agreement and he sued for breach of contract. It was held however that there was in fact no contract and that the language was too ambiguous to constitute an offer and the 'offer' came from someone who didn't have a right to do so. |
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What is the general rule in relation to advertisements? Give authority. |
Generally advertisements are regarded as mere ITTs. Authority comes in the case of Partridge - sale of exotic birds. |
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Are there any exceptions to the rule in relation to advertisements? If so give authority. |
There are exceptions where an advert is limited to a limited number of goods - this will have the requisite finality. Authority comes in the form of the case of Lefkowitz (1957) an American case where 3 fur coats were promised to retail for $1 at a store at 9 am sharp. |
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What are the rules in relation to the display of goods? Give authority |
Display of goods are generally ITT. The authority comes in the form of the case of Boots. |
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What are the rules in relation to tender offers? |
Tender offers are merely ITT's unless it there is a stipulation that the tender will be given to a particular person 'the highest bidder' |
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What are the facts of the Harvela Instruments case? |
Here referential bids were held to be ineffectual in terms of satisfying the 'highest bidder' term in a tender offer. |
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What are the facts of the Blackpool case ? |
A collateral contract was made where it was promised that all offers will be looked at. |
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Define an acceptance |
An acceptance, according to Treitel is "a final and unqualified assent to the terms of a contract" |
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What is the general rule in relation to cross-offers |
Cross offers are not regarded as agreements to the previous term. Justice Blackburn in the Tinn v Hoffman case stated "cross-offers are not acceptances of each other" |
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What is the general rule in relation to counter-offers |
Counter-offers kill of the original offer, the offeree cannot purport to accept the original offer once they have counter-offered. The authority here is the case of Hyde v Wrench |
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Explain the Battle of the Forms in reference to the Ex-Cell-O-Corp case |
The terms that the contract would be formed upon will be the party that had the last shot under the "last shot" principle |
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What is the general rule in relation to communication of acceptance - include Brinkibon dictum. |
The general rule is that acceptance is valid once it has been communicated to the offeror. In Brinkibon, Lord Wilberforce stated here that "the general rule is that a contract is formed when an acceptance of an offer is communicated ... to the offeror" |
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The rule relating to face to face acceptance |
In terms of face to face agreement it has to be based on words and conduct - words that have been heard and conduct that has been seen |
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The rule relating to silence as acceptance |
Silence does not constitute an acceptance. This is so evidenced in the case of Felthouse here the parties negotiated on the sale of the horse here the claimant stated "if I hear no more about her I will consider the horse to be mine" |
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What is the general rule in relation to postal acceptance ? the "postal rule". Give authority. |
The general rule in terms of the postal rule is that acceptance takes place as soon as the acceptance is posted. In Adam v Lindsell [1818] D were wool dealers who communicated their offer by post but it was misdirected and reached the claimant's late ... |
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What if the acceptance gets lost in the post? |
Acceptance still stands, even where it is lost in the post - this was held in the Household Fire Insurance case |
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Give 3 limits on the postal rule |
1. It will only be effective where it is reasonable 2. It will only be effective so long as the acceptance is posted correctly or through the appropriate channels - Re London 3. The postal rule will apply so long as it is not ousted by the promisor - in the case of Holwell Securities [1974] it was held that the stipulation in the contract that the letter had to be delivered by a specified time and date constituted an ousting of the postal rule. |
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What is the general rule in terms of instantaneous communication? Include the relevant dictum. |
The general rule is that it comes into effect once heard by the promisor (a message is usually given when the message does not reach the promisor) this is backed up by the dictum in Entorres [1951] "the contract is only complete when the acceptance is received by the offeror" |
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What is the rule relating to answer machines |
acceptance will take place when it is reasonable for the offeror to listen to the message. Lord Wilberforce in Brinkibon states that decisions here should be made with reference to the "intentions of parties", "sound business practices" and "reasonable in all the facts" |
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What are the three ways in which an offer can be terminated? |
1. Rejection 2. Cross offer 3. Revocation |
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What is the general rule in relation to the revocation of an offer? |
The general rule is that revocation must be communicated - this communication does not have to be from the offeror and can be from a reliable third party (Dickinson v Dodds) |
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What about the rule in terms of postal revocation? Include authority |
In terms of postal revocation it will only come into force when the promisee receives the revocation. So in the case of Van Tienhoven (1880) a letter of revocation was sent out to the promisee at the same time a letter of acceptance was also being sent out by the promisee. Here it was held that the acceptance was valid and there was a contract as the revocation had not yet reached the promisor. |
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Explain lapse of time and death in regards to termination of a contract |
1. Lapse of time will amount to the termination of an offer when it is "reasonable" when there is no time stipulation. 2. In terms of death, there will be no termination if the offeror dies unbeknownst to the offeree. Bradbury v Morgan: Here a brother was paying the debts of his brother, then the brother died and the other brother continued to run up the good credit. The estate of the deceased brother tried to establish against Bradbury that they could not be liable for the costs incurred. It was held that the contract still stood. |
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Define a unilateral contract. Give an example of a case. |
A unilateral contract is a one sided contract where the promisor binds himself to a performance that will be performed once the promisee performs the stipulated performance. The promisee is under no commitment to this performance. Carlill v Carbollic Smoke Ball |
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What about the revocation of a unilateral offer? What about where the promisee is unknown |
In terms of a revocation of a unilateral offer, there can be no revocation when performance on the part of the promisee according to the dictum of Lord Goth in the Daulia case where he states that there should be an obligation on the promisor to not hinder the completion of the stipulated performance. Where the promisee is unknown and the promisor wishes to revoke the promise, it has to be done through the same channel. This could be seen in the case (non authoritative American) of Shuey (1875) |
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What are the facts of Luxor v Cooper and Errington v Errington |
1. Luxor - Cinema, £10,000 - lord chancellor, risk 2. Father, mortgage, death and estate |
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What is a multilateral contract and explain the facts of The Satanita case. |
A MULITLATERAL CONTRACT CAN BE FORMED FROM A SINGLE CONTRACT. |
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Facts in Scammel, Hillas and Walford. |
In the case of Scammel it was held that hire purchase does not have the requisite certainty that would allow this contract to be enforced. In Hillas it was held here that the sale of timber on the basis of 'of fair inspection' though seeming to lack in certainty this was held to be sufficient certainty for it to be enforced Walford - here the company Walford sought to but a photograph company from the defendans, the Milers, |
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Facts of RTS Flexible systems and it's relevance to the unorthodox approach to O & A |
Here performance prior to the signing of a contract and merely a draft contract was held to be sufficient in terms of holding that the two parties |
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What is the general rule in relation to the form that the contract comes in? |
It generally doesn't matter what form the contract comes in except for a few exceptions e.g deed, in writing and evidence buy writing |
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What is the orthodox conception of consideration? |
Something of value for something in value - the benefit detriment analysis. |
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The definition of consideration outlined by Lush LJ in Currie v Misa. |
Here Lush sets out that in order for there to be consideration a benefit, right or interest has to be given and some sort of forbearance, detriment or loss has to be undertaken by another. |
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Name 3 orthodox principles of consideration - give authority and explain |
Consideration has to be sufficient Two party exchanges Third party exchanges |
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Cases pertaining to the sufficiency of consideration |
Consideration needn't be adequate but sufficient - there need not be an equivalence of benefit to detriment suffered e.g. Carbollic Smoke Ball or Nestlé |
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Define forbearance |
Forbearance is forbears to act in a way that they are legally entitled to. |
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Where is forbearance enforced? |
1. Where D forebears on an action that he/she is entitled to do and this was expressly or impliedly requested by the promisor - Wade v Simeon 2. Even where it transpires that there is no legal right, the forbearance will amount too good consideration where it is held that there was a belief - Callisher |
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Does past consideration amount to good consideration and why is the answer so? Give authority |
Past consideration does not amount to good consideration, generally. This is as the promisor is now the one offering in relation to the past activity and therefore the promisee in this situation has not provided consideration to this particular bargain. This was evidenced in the case of Re McArdle [1951] - refurbishment case £400. |
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What are the exceptions to this rule? give authority (past consideration) |
The exception to the this rule is where there is a request for the action to take place and also where it is implied that there would be payment for the activity. Lampleigh (1613) - Pardon, King James Re Casey's Patents - the manager was requested |
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Is fulfilling a legal obligation good consideration ? Give authority. |
The general rule is that fulfilling a legal obligation does not amount to good consideration. Collins v Godefroy - subpoena |
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Are there exceptions to the general rule in relation to consideration in the form of a legal obligation? Give authority |
The exception here is where the defendant goes beyond the call of duty, going beyond the call of duty will constitute consideration. Glasbrook Bros - mines, police Ward v Bynham - illegitimate child, "looked after and happy" |
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What is the rule in relation to a legal obligation by virtue of a contract w/ a third party? Give authority |
Legal obligation by virtue of a contract with a third party can amount to good consideration so long as it is expressly or impliedly stated by the other party. Authority: The case of Scotson v Pegg here the claimant entered into a contract with a third party to deliver coal to the third party. The claimant here also solicited the defendants to unload the coal upon its arrival "in consideration" of the claimant's contract with the third party. The defendants failed unload the coal contrary to their contract and the claimants sued for breach of contract. Here it was held that C's contract with a third party amounted to good consideration in this contract. |
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Facts of Stilk v Myrick and it's effect - obligations owed to the promisor |
The case of Stilk v Myrick (obsolete) established that where a contract is modified - here pay more- and the promisee performs that which he is already bound to perform it would not amount to good consideration. Here the defendant crewed a ship around the baltic and planned to come back to the UK. 2 crew members of the ship abandoned the ship at the first port of call and the captain was unable to replace them, he promised to split the wages of the two crew member with the rest of the crew. However, he didn't and he was taken to court and maintained that the agreement for the crew members was to do all that was necessary "in an emergency" and this is was one. The court ruled in favour of the captain stating that they did merely what was necessary. |
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When are obligations owed to the promisor held as good consideration? Give authority. (old law) |
Obligations owed to the promisor will amount to good consideration in an agreement where the promisee goes above and beyond the call of duty. Hartley v Ponsonbury - abandoned by half of crew, made extremely dangerous, more dire. |
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Give three reasons as to why Stilk is no longer relevant in English law? |
1. Williams v Roffey 2. Economic Duress 3. Promissory estoppel |
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What are the effects and significance of Williams v Roffey? |
Williams changed the approach to consideration in terms of pre-existing obligations owed to the promisor. Builders fear of penalty for late work and therefore offered their subcontractors more money and attempted to go back but couldn't because a practical benefit was conferred. |
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What is economic duress and it's effects? |
Economic duress is a vitiating factor (outlines in Williams) that allows a promisor/promisee to go back on his promise (the dictum of Glidwell). Also known as illegal commercial pressure. |
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What is the remedy for economic duress? |
The contract will be voidable which means the property can pass but the courts will give them rescission returning the promisor to the state prior to economic duress. |
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What are the three ingredients of ED |
1. There needs to be illegitimate commercial pressure 2. This pressure needs to have cause the promisor in such a way. 3. This needs to be a pressure that would have caused a reasonable person to act in the same way. |
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Where will there not be/ be illegitimate commercial pressure? |
It is argued that there would be ICP where the promisor/ee has acted in bad faith. CTN [1994] - wasn't - cigarettes, warehouses Atlas Express [1989] - was - carrier of goods |
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What is the general rule in relation to to consideration and debt obligations? Give authority. |
Pinnel's case (1602) states that "payment of a lesser sum on the day of satisfaction cannot be be any satisfaction of the full debt" This is as there is no consideration given the the agreement on the part of the promisor Foakes v Beer - instalments vs + interest claims Re select move - in land revenue - also it is said here that williams v roffey and foakes cannot operate in the same sphere. |
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Lord Cairns in Hughes v Metropolitan Railway Co |
Lord Cairns states here that where a promisor has promised to sustain from exercising some form of legal right and the promisee relies on the assertion the promsior will be estopped frm going back on the promise. |
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What were the early limits on Estoppel? |
Jorden v Money - statements have to be one of fact and not future intention. "I will" v "i'm going to" (obsolete when there's intention to create legal relations according to Denning in High Trees) |
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What is the leading case in regards to the modern law of estoppel? |
High Trees - in particular the dictum of Denning where he established that a promisor will be estopped from going back on a promise where a statement was made with the intention to create legal relations and knowing that the other party would rely on the statement. The case overturned the decision in Jorden (future intention statements can be sidestepped where the is an intention to create legal relations) Foakes: ?? |
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What are the four limits on the scope of judgment in terms of PE |
1. Pre-existing legal relations - a contract that has been altered and modified - Coombe v Coombe. 2. Nature of the promise - has to be unambiguos 3. Where it won't be inequitable the promisor can go back on his word. 4. Reliance. |
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Define misrepresentation |
a false statement of fact that induces the other party to enter into a contract. |
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Explain the principle of caveat emptor |
Caveat emptor means buyer beware. So by one of the parties keeping quiet about something that would be material to the contract or whether the parties contract. At common law it is on the other party to find out the relevant information - this does come with a few exceptions. |
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What are the four categories of statement/ promises and what are the remedies? |
1. A statement in the contract that becomes a term - the remedy is suing under breach of contract .. contractual damages 2. A statements that fall into a collateral contract these are regarded as terms also - remedy in damages. 3. Are not terms in the contract but lead to the inducement of the contracts, these could be elevated to terms but generally these amount to a remedy in misrepresentation. 4. Mere puffs e.g. marketing. |
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What are the four ways to distinguish terms and representations? |
1. Time the statement was made - Routeledge 2. Importance to representee - Bannerman 3. The relative knowledge of the parites - Couchman 4. Where the seller has control over the situation. |
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What four things do not amount to misrep. unless they are done dishonestly? |
1. Incorrect statements of future conduct 2. Incorrect statements of opinion 3. Silence does not usually amount to rep. except (Half-truths: curtis, Change of circumstances: With) |
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False statements have to induce: have to be the material cause, has to induce the decision (Attwood 1838), has to be directed at the party misled (Peek v Gurney) |
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