Contract Revision

Front 1

O'Connor v Hart

Back 1

capacity

Hint 1

PC accepted that a contract could be set aside if the other party knew of the unsoundness of mind.

but contract could be set aside if unfairness could create a separate cause of action in equity - undue influence/ unconscionable bargain

Front 2

Scott v Wise

Back 2

capacity

Hint 2

capacity is related to the transaction - Q is whether the person can understand the gen'l nature of the transaction.
gen'lly the incapacitated party must show that the other party knew opf their incapacity. unless outright gift - then knowledge not required

Front 3

Peeters v Schimanski

Back 3

capacity - drunkenness

Hint 3

Cooke J - extreme intoxication might deprive a person of capacity and render consent invalid.

generally a court wouldn't intervene unless drubken party could show that the other knew of their condition and took advantgage.

Front 4

Chapelton v Barry UDC
Holmes v Burgess

Back 4

exclusion clauses

Hint 4

the particular document relied on as containing notice of an excluding or limiting term must be an integral part of the contract

Front 5

L'Estrange v Graucob

Back 5

exclusion clauses

Hint 5

Scrutton LJ: "when a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not."

Front 6

Crocker v Sundance Northwest Resorts Ltd
Tilden Rent-a-Car v Clendenning

Back 6

excl clauses

Hint 6

Different view to L'Estrange in Canada

contractual waiver not binding unless it was reasonable for the other party to believe the signer assented to the terms.

Front 7

Toll v Alphapharm

Back 7

excl clauses

Hint 7

strong support to L'Estrange in Autralian case

Front 8

Nalder and Biddle v C and F fishing

Back 8

exclusion clauses

Hint 8

NZCA said that in Toll the HC wsa re-stating the well settled principle that the meaning of a contract is to be construed objectively and not according to the parties' subjective views. i.e. signing = incorporation

Front 9

Olley v Marlborough court lt

Back 9

excl clause. time of notice

Hint 9

a belated notice is valueless

Front 10

Thornton v Shoe lane parking ltd

Back 10

excl. time of notice

Hint 10

a belated notice is valueless

Front 11

Grogan v Robin Meredith Plant hire

Back 11

excl. time of notice

Hint 11

notice must be timely irrespective of any Q of signing

Front 12

Parker v SE Rly Co

Back 12

excl. reasonableness of notice

Hint 12

Is doc containing exclusion clause in time, and unsigned the crucial test is whether reasonable notice of the term has been given.

Q of whether defendants had done what was sufficient to give notice of the term is one of fact

Front 13

Harvey v Ascot Dry Cleaning co ltd

Back 13

excl. reasonableness of notice

Hint 13

"Conditions of contract: Please read carefully." - sufficient to give notice

Front 14

Thompson v London, Midland and Scottish Rly Co

Back 14

excl. notice.

Hint 14

an exclusion clause may be incorporated by ref to another document.

(def didn't know plaintiff couldn't read)

Front 15

Geier v Kujawa

Back 15

excl/ notice

Hint 15

if the defendant knows at the time of the contract of the plaintiff's illiteracy or other disability he may have to take extra steps to give adequate notice of the conditions

Front 16

Spurling Ltd v Bradshaw

Back 16

incorporation by notice - reasonableness/degree of notice

Hint 16

if an exclusion clause is unusual or of especially far-reaching effect, a higher degree of notice is required.

Front 17

McCutcheon v David MacBrayne Ltd

Back 17

incorporation by notice - previous course of dealing

Hint 17

'course of dealing' not easily defined but it must be a consistent course

(sometimes signed 'risk note' sometimes had not)

Front 18

British Crane Hire Corpn ltd v Ipswitch Plant Hire Ltd

Back 18

incorporation by notice - previous course of dealing

Hint 18

notice can be inferred where parties have been engaged in a course of dealings in a commercial context where customary or standard terms apply

Front 19

construction contra proferentem

Back 19

construction of the contract

Hint 19

if there is any doubt as to the meaning and scope of the excluding or limiting term, the ambiguity will be resolved againt the party who had inserted it and who is now relying on it.

Front 20

DHL International (NZ) Ltd v Richmond Ltd

Back 20

construction of the contract - construction contra proferentem

Hint 20

the onus is on the person seeking the protection of the clause to show that the words clearly and aptly describe the contingency that has in fact arisen

Front 21

HC Senior and Co Ltd v Body Corporate 52655

Back 21

construction contra proferentem

Hint 21

there is no call to rely on the contra proferentem rule if the words in their ordinary meaning do not cover the events which have happened

Front 22

Producer Meats Ltd v Thomas Borthwick and Sons Ltd

Back 22

exclusion of liability for negligence

Hint 22

North P stated that the person claiming an exemption from common law liability for negligence must do it "in clear and unambiguous language" and "must use ordinary English and not inventive words of doubtful meaning."

Also - the courts may construe a clause which purports to exclude liability but does not expressly refer to negligence as confined to liability arising w/o negligence

Front 23

Chase v De Groot

Back 23

exclusion of liability for negligence

Hint 23

followed producer meats ltd v Thomas Borthwick and sons ltd

Front 24

Hollier v Rambler Motors (AMC) Ltd

Back 24

overly strict approach to whether excl clause covers liability for negligence

Hint 24

The plaintiff agreed with the manager of the defendants' garage that his car should be towed to the garage for repair.

car damaged by fire as a result of defendants' negligence.

Defendants' contended that contract subject to a course of dealings, which incorp their usual terms - incl a condition that "the company is not responsible for damage caused by fire to customers' cars on the premises.

Engl CA held - even if clause part of contract would not protect defendants. not suff unambiguous to exclude defendants' liability.

Front 25

Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd

Back 25

warning against excesses of hostile construction

Hint 25

Lord Wilberforce: "one must not strive to create ambiguities by strained construction...The relevant words must be given, if possible, their natural plain meaning."

Front 26

Kaniere Gold Dredging Ltd v The Dunedin Engineering and Steel Co Ltd

Back 26

strict construction - position in NZ

Hint 26

While exclusion clauses must be clearly and unambiguosly expressed, they should not be construed so as to avoid giving effect to their clearly intended meaning.

no liability of any kind whatsoever - it could not be inferred that these words meant no liability of any kind whatsoever other than a claim based on negligence.

Front 27

Karsales v Wallis

Back 27

excl. clauses. non performance and fundamental breach

Hint 27

breach of fundamental term of contract took plaintiff outside the terms of the contract therefore unable to rely on exclusion clause

not the auth in NZ?

Front 28

Suisse Atlantique etc

Back 28

Excl - fundamental breach

Hint 28

HL said no blanket rule that an excl clause cannot apply in the case of fundamental breach.

Front 29

DHL Intl v Richmond

Back 29

exclu. fundamental breach

Hint 29

whether a clause applies is a matter of construction.

leading NZ case

Front 30

Pearson and Son v Dublin Corpn

Back 30

exclusion clauses + fraud/misrep

Hint 30

HL made it clear that as a matter of public policy it is not possible to contract out of liability for fraud

Front 31

HIH Casualty v Chase Manhattan Bank

Back 31

exclusion cl + fraud.misrep

Hint 31

reaffirmed HL decision in Pearson and Son v Dublin Corpn

Front 32

Curtis v Chemical CLeaning and Dyeing co

Back 32

exclu + misrep

Hint 32

Even in the absence of fraud, and whether or not a doc has been signed, an exlcusion clause will not operate if its effect has been misrepresented

Front 33

Mendelssohn v Normand Ltd

Back 33

exclu + collateral contract

Hint 33

An exclusion clause in a document by reference to which the parties contracted may be overriden by an express inconsistent undertaking given before the contract

(oral promise by carpark attendent not covered by excl clause in parking ticket)

Front 34

s 4 Contractual Remedies Act 1979

Back 34

exclu + pre contract negotiations

Hint 34

limits the effectiveness of a clause which attempts to exclude liability for misrepresenation

Front 35

Brownlie v Shotover Mining Ltd

Back 35

s 4 CR Act + exclusion

Hint 35

emphasises the importance of the commercial context in refusing to go behind a "no reliance" clause.

Front 36

Snodgrass v Hammington

Back 36

s 4 CR Act + exlcusion

Hint 36

eg
cases setting aside clauses subject to s 4 CR Act tend to be those where there has been a deliberate or neglignet misrepresentation or one party is peculiarly in possession of relevant facts or there is a disparity of bargaining power

Front 37

Butcher v Lachland Elder Real Estate

Back 37

exlc Fair Trade

Hint 37

it is possible for a tradesperson to formulate a disclaimer clause which ahs the effectof negativing the otehrwise misleading effect of other statements made by him

eg "all information contained herin is gathered from sources we believe to be reliable. However we cannot guarantee it's [sic] accuracyt and interested persons should rely on their own inquiries."

Front 38

Nesbit v Porter

Back 38

excl CG Act

Hint 38

majority or dominant purpose for use of goods/services acquired is not determinative

it is nec to ask whether there was a personal use as a matter of regular practivce or in the ordinary course of things.

It is a Q of facgt and degree whether goods were ordinarily acquired

Front 39

Tweddle v Atkinson

Back 39

privity

Hint 39

1861: "it is now established that no stranger to the consideration can take advantage of a contract, although made for his benefit.": Wightman J

Front 40

Dunlop v Selfridge

Back 40

privity

Hint 40

"In the law of England certain principles are fundamental. One is that only a person who is a party to a contract ca sue on it.": Lord Haldane

Front 41

Beswick v Beswick

Back 41

privity

Hint 41

original promisee can obtain an order for specific performance

Front 42

Rattrays Wholesale v Meredyth-Young

Back 42

privity

Hint 42

applied Beswick in NZ

original promisee can obtain an order for specific performance

Front 43

Snelling v John G Snelling

Back 43

privity

Hint 43

declaration?

original promisee can obtain

Front 44

Damages for third party's loss

Back 44

privity

Hint 44

gen'l rule -> contracting party can't obtain damages for loss suffered by third party: Beswick v Beswick

However...Jackson v Horizon Holidays

Then...Woodar Investment v Wimpey Construction -> gen'l rule affirmed

Front 45

Exceptions to gen'l rule that promisee can only recover for his own loss

Back 45

privity

Hint 45

HUH?
The Albazero
Linden Gardens/St Martins case - building contract
Panatown

HUH?

Front 46

Damages for the promisees own loss - nominal or substantial?

Back 46

privity

Hint 46

Coulls v Bogots Executor
promisee should be able to recover damages representing the cost of securing performance

Front 47

Lambly v Sille Pemberton

Back 47

novation

Hint 47

novation = a transaction by which, with the consent of all the parties concerned, a new contract is substituted for one that has already been made

Front 48

K road Intl village v Holloway

Back 48

novation

Hint 48

no substitution of K for J therefore no novation enabling K to sue

Front 49

Pragma Holdings v Great South 507 Ltd

Back 49

s 4 Contracts (Privity) Act

Hint 49

liberal interpretation - misrep can be included

Front 50

Cross v Aurora Group Ltd

Back 50

designation - s4 Contracts (Privity) Act

Hint 50

Wylie J: "Designation is a strong word, a positive word, and means something more than a mere contemplation or possibility."

Front 51

Coldicutt v Webb and Keeys

Back 51

designation - s4 contracts (privity) act

Hint 51

nominee could sue because (a) designated by description (b) the only purpose of the words 'or nominee' was to give the nominee the right to complete the contract

Front 52

Field v Fitton

Back 52

designation - s4 contracts (privity) act

Hint 52

whether a nominee who is not a party might have the benefit of the Act will depend on whether the nominee is defined with sufficient particularity .

if not named - 'nominee' should be qualified by the addition of a descriptive phrase or the addition of the particular class w/in which the nominee falls

criticised as unduly narrow

Front 53

Rattrays Wholesale v Meredyth Young

Back 53

designation - s4 contracts (privity) act

Hint 53

Tipping J expressed unhappiness with the approach taken in Field v Fitton

In Tippings view a bare nominee can acquire enforceable rights under the Act.

Front 54

Ballance Agri Nutrients v The Gama foundation

Back 54

designation - s4 contracts (privity) Act

Hint 54

support for Tipping's view

"successors and permitted assigns"

Front 55

Pharmacy Care Systems v A-G

Back 55

duress

Hint 55

summarised by Hammond J as illegitimate pressure, coercion

contract voidable unless affirmed

Front 56

Universe Tankships v ITWF

Back 56

duress

Hint 56

consider 2 matters
1) the nature of the pressure
2) the nature of the demand

origin of doctrine of duress strongly suggests that the law regards threat of unlawful action as illegitimate

but also - duress can exist even if threat is of lawful action