Agreement Flashcards
What is a contract?
“An agreement between two (or more) parties, which creates legally binding and enforceable
rights and duties between them”
What is another word for agreement?
consensus
An agreement is the _____________ of contract law
heart/foundation
What does an agreement/consensus presuppose?
presupposes a meeting of minds,
i.e. that both parties know and
understand what it is they are
agreeing to.
How does court determine if parties have reached consensus? (3)
offer + Acceptance = contract
Define an offer
“Proposal setting out TERMS on
which OFFEROR willing to contract”
Give an example of an offer?
O: I, MDG, hereby offer to sell my flat to you,
CP, for R3 000 000.
Define acceptance
“Acceptance of terms of offer”
Give an example of acceptance
A: Thank you, I accept.
When is a contract concluded?
the moment (valid) offer is (validly) accepted !!!!!
WHY IS THE POINT A CONTRACT IS ACCEPTED SO IMPORTANT? (2)
- As you are then BOUND by it
- FAILURE to observe = breach!
What are the requirements for a “valid” OFFER (3)
i. Complete, clear & unambiguous
ii. Intention to contract
iii. Still in existence
What are the requirements for a “valid” ACCEPTANCE (4)
i. By Offeree
ii. Made knowingly
iii. Unconditional
iv. “Mirror image” of offer
v. Communicated to Offeror
What does CPA stand for?
Consumer protection act
What does the CPA, S23 (6) and (9) state?
disclosure of price of goods or services in consumer contracts.
When does a supplier not require a consumer to pay a price for any goods or services, as stated in CPA S23 (6)? (2)
- higher than the displayed price for those goods or services; or
- if more than one price is concurrently displayed,
higher than the lower or lowest of the prices so
displayed.
According to CPA S23 (80 If a price that was once displayed has been fully ________ and ___________ by a second displayed price, that second price must be regarded as the displayed price.
covered
obscured
According to CPA S23 (9), When is a price as displayed contains an inadvertent and obvious error, the supplier is not bound by it after? (2)
- correcting the error in the displayed price; and
- taking reasonable steps in the circumstances to
inform consumers to whom the erroneous price may have been displayed of the error and the correct price.
What is a ‘counter-offer’ ?
a rejection of an offer to enter into a contract, as well as a new offer that materially changes the terms of the original offer.
What does section 31 of CPA prohibit?
‘negative option marketing’
What is an example of ‘negative option
marketing’?
“If I don’t hear from you, I will consider the
horse mine for …”
What must acceptance correspond with?
The ‘mirror image rule’
What is the mirror image rule?
when you say “yes” to an offer, that becomes the basis for a contract, so you’re accepting that offer exactly as it is – with no changes or modifications.
What are the ramifications of the ‘mirror image rule’? (2)
- Variation in contract = counter-offer
- Incomplete acceptance
Acceptance must be _____________________ to offeror
communicated
What does CPA S22 (2) say about when is an agreement concluded between parties by means of data?
An agreement concluded between parties by means of data messages is concluded at the time and place where the acceptance of the offer was received by the offeror
CPA S____ (b): A ____ message must be regarded as having been received by the addressee when
the complete data message enters the
____________ system designated or used for that
purpose by the addressee and is capable of
being retrieved and processed by the
addressee;
23
data
information
What does a valid acceptance and offer result in?
VALID ACCEPTANCE + VALID OFFER
= BINDING AND ENFORCEABLE CONTRACT.
What is the information theory?
In terms of the information theory, acceptance is only valid and the contract concluded
once it has been communicated to the offeror.
When is a contract therefore concluded?
The contract is therefore concluded at the time and place where the acceptance comes to the attention of the offeror
What is the expedition theory?
When the offeror:
- makes his offer by post or
- authorizes acceptance by post.
i.e contract concluded when acceptance is posted
What is failure to honor the contract mean?
BREACH OF CONTRACT and compensatory damages to be payed
What does ECTA stand for?
Computer communications and Transactions Act
Limited Statutory exceptions to the above
rule in _____ & ___
ECTA
CPA
What are three ways in which a contract can be terminated ? [3]
- Revocation– Means withdrawal of the offer by the offeror
- Lapse of offer – This means that the offer expires.
- Rejection
What rights do consumers have?
Consumers have unilateral right to cancel certain contracts.
How long to cancel A CONTRACT under S44 OF ECTA?
7 DAYS
How long to cancel A CONTRACT under S44 OF ECTA?
S 16 CPA - 5 days re ‘direct marketing’
What does S17 of CPA state and what is it subject to?
That you can cancel: advance reservations/bookings/orders, subject to payment reasonable cancellation fee.
