6 contract: Carbolic Flashcards
Mischief inherent in an offer:
There might be more acceptances than possible from an offer
Invitation to treat
Persons way they would be happy to entertain offers from others
BootsCash Chemists case: Ruled that price is an invitation to treat
Presumtive Rule for Offers versus invitation to treat
items on the self or invitations to treat in an newspaper are just invitations to treat and not an offer
Competition Act
Federal act passed by parliament, ensure fair and equitable business practices
“bait and switch” practices are often. used. Can use competition act to rebut the assumption that an invitation to treat is really an offer (ie WILD ED TV class exercise). IE show that the mischief is not in play (indeterminate liability)
first hurdle: if offer mischief in play? No, could be invitation to treat or offer
second stage: now persuade judge its an offer
Recognize if there is a promise that is legally enforceable, then need to look at detrimental reliance since it can go either way
Third stage: Bad faith –> soft factor. Bad faith is where you know at the outset that they have no intention whatsoever or living up to the promise made.
Detrimental Reliance
Test for some legal systems that is the basis that we decide if a promise is legally enforceable
In Canada, not a formal element in contract law, its a soft factor. You do not HAVE to show detrimental reliance. but if its a situation that can go either way, you can show detrimental reliance to try to persuade judge.
Bad fath
Bad faith –> soft factor.
Bad faith is where you know at the OUTSET, when making the agreement, that they have no intention whatsoever or living up to the promise made.
Carlil V Carbolic Smoke Ball (1893)
Carbolic, preyed on vulnerability on illnessnes. Advertisement promised 100lbs to anyone who gets sick when using the problem
Loise Carlil- gets sick and sues the company.
Court question: Was there a contract?
Is the Ad an offer that crystalized into a contract?
The mischief is in play (indeterminate liability) is very much alive and in play
Carlil: argumes soft factors of detrimental reliance (relied to her detrmient and did something she wouldnt otherwise have) and bad faith (carbolic never intended to folllow thorugh with the 100 pounds)
Carbolic is considered a unilateral contract
RATIO even if michief is still in play but we will still treat this as an offer based on the soft factors (detriment of reliance, bad faith) and recognized a unilateral
Carbolic argumeents:
Communication of acceptance was not there: court found that they chose to waive that with the nature of the wording of the advertisement
No intent to create legal relations: shouldnlt have put that money was set aside for liabilities
Consideration (Carlil act of using the ball, something she wouldn’t have otherwise have done, Carbolic- provides the products).
BIlateral contract
both parties have outstanding obligations at outset of contract
Unilateral contract
once in existence, only one party is required to perform outstanding obligations
One party makes an offer, and one party accepts by completing the action put forth in the offer, then the contract comes into existence
IE Ill pay you 5000 to walk to Calgary
Problem with these contracts is: Early revocation, someone is in the process of starting the process and you can still revoke and in theory can still revoke offer if not “fully” performed.
Sometimes a solution to the above solution is by a collateral contract that runs alongside the main contract. Court can say by implication there was two offers MAIN and a little contract running alongside (if you start walking to calgary, you accept and i cannot revoke offer)
RATIO:
