Analysis of Contracts

Question 1

What part of private law is contract law apart of?

Answer 1

Obligations

Question 2

What are rights in rem?

Answer 2

The rights attached to a ‘thing’

Rights that connect a person to ‘the thing’

Question 3

What are rights in personam?

Answer 3

Deals with the rights between persons

Connects 1 person to another

Question 4

What is the standard of proof?

Answer 4

Are usually the ones in accordance with the contract

Question 5

What are the aims of the remedies?

Answer 5

Aimed at putting the claimant in the position that (s)he would’ve been IF the contract had been performed satisfactorily

Question 6

What is the classical theory ideology?

Answer 6

Developed in the late 18th - 20th century

Freedom of contract

Question 7

What ideology developed during the mid 20th century/ post war?

Answer 7

The consumer-welfare approach developed

Question 8

What was the formal contract during early common law called?

Answer 8

Deed

Question 9

Does English law impose any formal requirements?

Answer 9

No

Question 10

Does the contract have to be made in writing?

Answer 10

No
BUT there are exceptional circumstances where the law will stipulate that the contract is not valid unless made in writing
= also situations where the law requires the contract to be evidenced in writing

Question 11

What is the freedom of contract?

Answer 11

Parties are free to contract with whoever, for whatever

Influenced by the post industrial revolution liberal economic theories

Question 12

What is the freedom of contract based on?

Answer 12

Based on the assumption of equal bargaining power

Based on moral obligation inherent in promise/ creating expectations

Question 13

What do the Courts act as in contract law cases?

Answer 13

Courts act at the referees

Question 14

What does consensus ad idem mean?

Answer 14

Meaning of the minds

Question 15

What type of approach do the Courts adopt?

Answer 15

Objective

Question 16

What did Lord Neuberger say in the case of VTB Capital Plc v Nutritek Int’l Corpn (2013) about the Cts approach to contract?

Answer 16

Objectivity is one of the most fundamental principles on which contractual liabilities and rights are based
Emphasis is placed on the outward impression + not the subjective meaning

Question 17

What did the HL do in The Hannah Blumenthal (1983)?

Answer 17

HL refused to condone a purely objective approach
Held: that it was necessary for the buyers + sellers to so conduct themselves as to enable an assumption that the contract was to be abandoned

Question 18

What is the Q for he Cts in the objective test?

Answer 18

Cts ask what the reasonable person would have concluded from the facts and events

Question 19

What are the 3 types of objectivity?

What do these entail?

Answer 19

1. Promisee objectivity: reasonable person stands in the shoes of the promisee + views the events from that perspective
2. Promisor objectivity: reasonable person stands in the shoes of the promisor + views the events from that perspective
3. Detached objectivity: reasonable person stands in a neutral position and just observes the events

Question 20

Why do the Cts take an objective approach?

Answer 20

• Parties can ‘forget’ their true intentions
• Parties can present the events which is more favourable to them
• Intentions are difficult to decipher accurately
• = easier to adopt an objective approach + make judgments based on what is said + done

Question 21

What did Lord Denning say in the case of Storer v Manchester City Council (1974) regarding the intention of the parties?

Answer 21

‘In contracts, you do not look at the actual intention in a man’s mind. You look as what he said + did. a contract is formed when there is, to all outward appearances, a contract. A man cannot get out of a contract by saying: ‘I dod not intend to contract’, if by his words he has done so’

–> it is about the appearance of an agreement

Question 22

Are there situations where the Cts will consider a party’s subjective views?

Answer 22

Yes, there are exceptions

E.g: mistake, misrepresentation

Question 23

What are the 4 basic requirements for a contract?

Answer 23

1. Offer
2. Acceptance
3. Consideration
4. Intention to create legal relations