1. Agreement

Question 1

DEF: Offer

Answer 1

‘an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed’

Question 2

DEF: Offer (Expression)

Answer 2

An ‘expression’ may take many different forms eg a letter, newspaper advertisement, email, text message and even conduct, as long as it communicates the basis on which the offeror is
prepared to contract.

Question 3

DEF: Offer (Intention)

Answer 3

Need not mean actual intention
- Courts objective opinion, looking at what was said and done and what a reasonable person would decide

Question 4

DEF: Offer (the person to whom it is addressed)

Answer 4

You can only accept an offer that was addressed to you

Question 5

DEF: Invitations to Treat

Answer 5

Statements inviting negotiation (ie. I am thinking of selling my car with potential asking price of X)

Question 6

Where is an offer concluded at the supermarket?

Answer 6

Checkout

Question 7

Are goods on display in a shop an offer or invitation to treat?

Answer 7

goods on display are simply an invitation to treat ie an invitation to select the goods and put them in your trolley. If you later change your mind and decide you do not want the goods then you
can put them back without obligation.

Question 8

Are advertisements an offer or invitation to treat?

Answer 8

Generally: invitation to treat. if such
advertisements were offers, it would mean that anyone asking for the advertised goods would be accepting and that would be a problem if the advertiser had run out of stock.

Question 9

Adverts of Rewards: Offers or Invitations to treat

Answer 9

An offer: promises to pay the reward if the specific condition is satisfied. This is a unilateral contract.

Question 10

When is an offer accepted at an Auction?

Answer 10

When the auctioneer’s gavel does down, this accepts the last bid which is an offer. Auctioneer inviting bids is an invitation to treat

Question 11

Auctions sold with vs without reserve

Answer 11

(1) with reserve, there is a price the good must go for (minimum) that bidders do not know, if bids do not reach this it will be withdrawn
(2) without reserve, the auctioneer makes a unilateral contract with person making the higher bid

Question 12

If a item is withdrawn from sale in an auction without reserve, who should the highest bidder sue?

Answer 12

The auctioneer - not the owner of the property, they have not made a contract because the bid was not accepted

Question 13

DEF: Tenders

Answer 13

Invitation to companies to submit ‘tenders’ for work, this is an invitation to treat (tender = offer)

Question 14

Tenders: company has promised to accept lowest, or impliedly promised to consider all conforming tenders - has a contract been formed?

Answer 14

Yes, offer of unilateral contract (by tender giver) which the company has to comply with

Question 15

DEF: Agreement

Answer 15

Unqualified expression of assent to the terms of the offer

Question 16

How can acceptance of an offer be communicated, by who

Answer 16

(1) By words or conduct (for unilateral, always conduct)
(2) Offeree or authorised agent

Question 17

Can silence amount to acceptance?

Answer 17

If silence is coupled with conduct that clearly signifies acceptance when viewed objectively then YES (Re Selectmove)
- But generally, silence is not binding

Question 18

What does it mean for acceptance to be ‘unqualified’?

Answer 18

A conditional response does not suffice, conditional responses are counter-offers

Question 19

DEF: Counter offer

Answer 19

Destroys original offer and represents a new offer which other party can accept or reject (eg. passing terms and conditions back and forth)

Question 20

DEF: The Postal Rule + conditions

Answer 20

(1) A letter of acceptance will be effective even if letter is lost in the post
(2) reasonable to use the post
- letter was properly addressed, stamped, ad posted
- postal rule had not been excluded by offeror

Question 21

When is the postal rule not applicable?

Answer 21

When offerer has stipulated and implied that they need to be notified in writing or told of acceptance (letter sent would only be ‘effective’ if received)

Question 22

General Rule: Termination

Answer 22

An offer cannot be accepted once it has been terminated

Question 23

Methods of Termination of an Offer

Answer 23

(1) rejection by offeree
(2) revocation (ie withdrawal) of offer by offeror
(3) Lapse of Time

Question 24

Termination: Rejection

Answer 24

May be expressly or impliedly, impliedly if offeree makes counter offer

Question 25

When can revocation of an offer occur? Any exceptions?

Answer 25

Any time before acceptance even if offeror promised to keep offer open for a certain period of time
(2) Exception: if offeree gave something in return for the promise to keep the offer open, this has to be followed

Question 26

Revocation of a unilateral contract - when can this occur?

Answer 26

Generally, partial performance of a unilateral contract is sufficient to prevent revocation (implied promise not to revoke if act started within reasonable time)

Question 27

How must revocation be communicated?

Answer 27

General Rule: electronic revocation occurs when it ‘should’ have been read (The Brimnes)

Question 28

How can an offeree revoke an offer sent to the public at large?

Answer 28

Publish a notice of revocation in the (1) same place as original offer and with (2) same prominence

Question 29

Who can give notice of revocation of an offer?

Answer 29

Either offeror or reliable third party (objective standard)

Question 30

Does the postal rule apply for revoking an offer?

Answer 30

No

Question 31

When will an offer lapse due to ‘lapse of time’?

Answer 31

(1) after specified time (in offer) or
(2) reasonable time taking into account services (ie. perishable vs non-perishable goods)

Question 32

What factors will be taken into account when judging whether parties have reached ‘complete agreement’ to the deal

Answer 32

Objectively, in the context of the circumstances:
(1) whether parties are in the same trade
(2) trade usage
(3) whether the arrangement has been acted on for any length of time
(4) whether there is an objective mechanism for resolving uncertainty (ie. arbitration clause)

Question 33

Aim of contractual damages

Answer 33

To compensate the innocent party for the loss of the bargain (difference between price they would have paid vs market value)