Agreement and Contractual Intention Flashcards
What is the distinction between on offer and an invitation to treat?
An invitation to treat is ‘thinking’ about selling etc rather than actually making an offer which involves intention to be bound
offer must have willingness to be bound and certainty of terms
are adverts contracts of invitations to treat?
invitations to treat usually BUT if there is a reward it is be an offer as there is intention to be bund as soon as info is given
Carbolic v Carlil- ad was deemed an offer as they had taken steps to put money in bank account as reward so would be unreasonable not to give it even though ad wasn’t to a specific person
most contracts are bilateral- what does this mean?
a promise in return for a promise e.g. i promise to give u money if you promise to give me your car
whats the difference between a bilateral and unilateral contract?
unilateral involves a promise in return for an act so promiser bound to perform contract e.g. if you do this, i promise to do this
is an auctioneer’s request for bids an invitation to treat or an offer and why?
an invitation to treat because the bid is an offer which the auctioneer may accept or reject- but if auction is ‘without reserve’ it is offer of unilateral contract by auctioneer so auctioneer can be sued for damages if don’t sell to highest bidder
what is a tender? is it ITT or offer?
e.g. business asks contractors to submit written tenders for a job
usually the request for the tender is ITT but the tender itself is offer
BUT can be unilateral in certain circumstances e.g. if the offer in the tender if highest we will be bound to accept it
what are the three way to terminate an offer?
revocation (withdrawal) of the offer by the offeror, rejection by the offeree and lapse of time
what are the conditions for revocation of an offer?
any time before acceptance even if offeror said they’d keep it open for specific amount of time- MUST BE COMMUNICATED TO OFFEREE
if offer made to public at large must revoked in the same channel it was made
if unilateral contract likely cannot revoke once the offeree has started to perform the act of acceptance
selling to someone else does NOT amount to revocation as no communication has taken place
how can an offeree reject an offer?
expressly or impliedly- counter offer = rejection but asking for more info doesn’t destroy the offer
how can an offer end by lapse of time?
if the offer included time and this is exceeded offer can no longer be accepted
when may the court refuse to enforce a contract even though there has been agreement?
if there is uncertainty of terms or important matter left undetermined- will consider:
if parties in same trade. trade usage. whether agreement has been acted on for any length of time, whether there is objective mechanism for resolving any uncertainty e.g. arbitration clause
what is the battle of the forms?
two parties in negotiations each try to include their own standard terms and conditions in the contract. This can happen when one party makes an offer with their terms, and the other party accepts with their own terms- usually the last shot rule will apply and these will be the terms accepted
what is the general rule for acceptance?
must be communicated to offeror by offeree or a duly authorised agent
for unilateral the act alone amounts to acceptance
exceptions to the requirement for communication of acceptance- what is the postal rule?
acceptance can take place on postage and contract is formed at this point- subject to certain limitations
what are the limitations to the postal rule?
it only applies to acceptances, it only applied where it was reasonable for the acceptance to be sent my post, the letter must be properly stamped, addressed and posted, and the rule may be excluded by the offeror if stated.
