01: Contract formation. Flashcards
T/F: a partnership agreement must be in writing or evidenced in writing.
FALSE
T/F: a contract for the sale of goods must be in writing or evidenced in writing.
FALSE
T/F: an agreement for the transfer of land must be in writing or evidenced in writing.
TRUE
T/F: an employment contract must be in writing or evidenced in writing.
FALSE
An agreement for the transfer of land …
must be in writing or evidenced in writing.
If a party enters into a contract as a result of undue influence …
then they may elect to avoid the contract.
A contract where one party may set it aside, but property transferred before avoidance is usually irreecoverable from a third party.
voidable
One party may set a voidable contract aside, however …
property transferred before avoidance is usually irreecoverable from a third party.
T/F: In order to be enforceable a credit guarantee can be oral provided it is evidenced in writing.
TRUE
T/F: In order to be enforceable a credit guarantee can be oral only.
FALSE
it can be oral provided that it is evidenced in writing.
T/F: In order to be enforceable a credit guarantee must be by deed.
FALSE
it can be oral provided that it is evidenced in writing.
T/F: In order to be enforceable a credit guarantee must be in writing.
FALSE
it can be oral provided that it is evidenced in writing.
A person returning a lost dog, uknowing of a reward being offered …
is not entitled to the reward.
One cannot accept an offer of which one is not aware.
T/F: An offer must be made to an identifiable class of persons.
FALSE
A ‘reward offer’ can be made to the world at large.
A flyer advertising wines is …
an invitation to treat.
T/F: A flyer advertising wines is an offer capable of acceptance.
FALSE
It is an invitation to treat.
A newspaper advertisement is usually …
an invitation to treat.
T/F: An offer is terminated by rejection.
TRUE
T/F: An offer is terminated by counter offer.
TRUE
see Hyde v Wrench
T/F: An offer is terminated by the satisfaction of a precondition.
FALSE
an offer may be terminated by the FAILURE of a precondition.
T/F: An offer is terminated by a lapse of time.
TRUE
a reasonable time. See Ramsgate v Montefiori
A response to an offer involving the words “will only buy if …” is likely to be deemed a …
counter offer
A response to an offer ASKING about payment terms is likely to be deemed …
a request for information.
A response to an offer TELLING the offerror of acceptable terms is likely to be deemed a …
counter offer
A response to an offer ASKING the offerror about acceptable terms is likely to be deemed a …
request for information
T/F: An offer remains open even if the offeror buys a similar item from an alternative supplier.
TRUE
T/F: An offer explicitly stating that it is open for say, three months, cannot be revoked within that period.
FALSE
an offer may be revoked at any time prior to acceptance
T/F: The postal rule applies to acceptance.
TRUE
T/F: The postal rule applies to revocation.
FALSE
it applies only to acceptance.
The postal rule applies only to …
acceptance.
T/F: Acceptance can not be assumed on the part of the offeror.
TRUE
see Felthouse v Bindley
T/F: Acceptance may be express or inferred from conduct.
TRUE
see Brogden v Metropolitan
T/F: Acceptance must always be communicated to the offeror in order for it to be effective.
FALSE
see Carlill v Carbolic or the ‘lost dog’ cases.
In a reward contract the offeror waives their right to …
communication of acceptance.
T/F: The postal rule applies to revocation of offer.
FALSE
it applies only to acceptance.
T/F: The acceptance of an offer by email is effective as soon as the ‘send’ key is pressed.
FALSE
the law is unclear upon when acceptance by email is effective.
T/F: The acceptance of an offer by email is effective as soon as it arrives on the recipient’s server.
FALSE
the law is unclear upon when acceptance by email is effective.
T/F: The acceptance of an offer by email is effective as soon as it has been marked as ‘read’ on the reciever’s mail server.
FALSE
the law is unclear upon when acceptance by email is effective.
T/F: The law is unclear upon when acceptance by email is effective.
TRUE
T/F: The postal rule is always available for the acceptance of an offer.
FALSE
e.g. an auctioneer accepts an offer by the fall of the gavel.
Whether postal acceptance is within the contemplation of both parties is a question of … and may be deduced from all the circumstances.
fact
Whether postal acceptance is within the contemplation of both parties is a question of fact and may be …
deduced from all the circumstances.
T/F: If an offeror prescribes a mode of communication of acceptance, only acceptance by this mode is valid.
FALSE
provided that the mode used is at least as expeditious as the one specified.
T/F: Where no mode of acceptance is specified, the offeror should use the same mode of communication as the original offer.
FALSE
any reasonable method may be used.
T/F: The use of the words ‘by notice in writing’ means that an oferee must communicate their acceptance by post, the postal rule therefore applying.
FALSE
it means that written notice of acceptance must be RECEIVED by the offeror
The use of the words ‘by notice in writing’ means that …
the offeror must RECEIVE written communication of acceptance of offer.
T/F: An oferee can not rely on the postal rule if the offeror has required communication of acceptance ‘by notice in writing.’
TRUE
The performance of a duty which someone is obliged to perform anyway …
can never be sufficient consideration to support a new contract.
A good or service represents valid consideration for a debt waiver because …
the creditor was not already entitled to it.
Early payment represents valid consideration for a debt waiver because …
the creditor was not already entitled to early payment.
Payment by a third party represents valid consideration for a debt waiver because …
the creditor was not already entitled to recieve payment from that person.
T/F: the courts will imply a term into a contract if required to do so by statute.
TRUE
for example Consumer Rights legislation.
T/F: terms may be implied on the basis of a custom or practice of a particular trade.
TRUE
see Hutton v Warren
T/F: terms may be implied on the basis of business efficacy.
TRUE
see ‘The Moorcock’
T/F: a party may only enforce a contract if they are entitled to receive a benefit under it.
FALSE
only where they have rights of privity.
A contract may only be enforced by those with …
privity of contract.
Terms may only be implied into contracts under the rules of trade custom when …
they do not conflict with the express terms of the contract.
In social or domestic situations …
there is a rebuttable presumption that agreements are NOT entered into with the intention to create legal relations.
Such agreements are NOTvtherefore legally binding contracts.
In commercial situations, including employment …
there is a rebuttable presumption that agreements ARE entered into with the intention to create legal relations.
Such agreements ARE therefore legally binding contracts.
An advert in a newspaper …
is an invitation to treat and not an offer capable of acceptance.
The postal rule only applies to …
acceptance of offer, when such acceptance is in the reasonable contemplation of both parties.
Revocation of offer occurs when …
it has been Reliably Received.
T/F: If a contractual offer is terminated by explicit rejection then it can not be subsequently accepted.
TRUE
T/F: to be valid a contract must contain written evidence of its terms.
FALSE
e.g. buying goods in a shop, riding a bus
T/F: to be effective, a revocation of an offer must be in writing.
FALSE
T/F: effective revocation of an offer can be made by an authorised agent of the offeror.
TRUE
Consideration that is valid, but done is …
executed
Consideration that is valid, but not yet done, i.e. a promise is …
exectutory
‘Individuals and businesses only have rights and obligations under a contract if they are a party to it.’
Privity of Contract
If a written contract exists then terms outside it will normally not be allowed is known as the …
parol evidence rule
A … contract is not a contract at all.
void
Not a contract at all.
void contract
A … contact is binding unless and until one party chooses to avoid it.
voidable
A voidable contract is binding …
unless and until one party chooses to avoid it.
An … contract is valid but the parties cannot be held to its terms.
unenforceable
An unenforceable contract is valid but …
the parties cannot be held to its terms.
T/F: the postal rule applies even if the communication of acceptance is lost in the post.
TRUE
