Analysis of Contracts Flashcards
What part of private law is contract law apart of?
Obligations
What are rights in rem?
The rights attached to a ‘thing’
Rights that connect a person to ‘the thing’
What are rights in personam?
Deals with the rights between persons
Connects 1 person to another
What is the standard of proof?
Are usually the ones in accordance with the contract
What are the aims of the remedies?
Aimed at putting the claimant in the position that (s)he would’ve been IF the contract had been performed satisfactorily
What is the classical theory ideology?
Developed in the late 18th - 20th century
Freedom of contract
What ideology developed during the mid 20th century/ post war?
The consumer-welfare approach developed
What was the formal contract during early common law called?
Deed
Does English law impose any formal requirements?
No
Does the contract have to be made in writing?
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
What is the freedom of contract?
Parties are free to contract with whoever, for whatever
Influenced by the post industrial revolution liberal economic theories
What is the freedom of contract based on?
Based on the assumption of equal bargaining power
Based on moral obligation inherent in promise/ creating expectations
What do the Courts act as in contract law cases?
Courts act at the referees
What does consensus ad idem mean?
Meaning of the minds
What type of approach do the Courts adopt?
Objective
What did Lord Neuberger say in the case of VTB Capital Plc v Nutritek Int’l Corpn (2013) about the Cts approach to contract?
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
What did the HL do in The Hannah Blumenthal (1983)?
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
What is the Q for he Cts in the objective test?
Cts ask what the reasonable person would have concluded from the facts and events
What are the 3 types of objectivity?
What do these entail?
- Promisee objectivity: reasonable person stands in the shoes of the promisee + views the events from that perspective
- Promisor objectivity: reasonable person stands in the shoes of the promisor + views the events from that perspective
- Detached objectivity: reasonable person stands in a neutral position and just observes the events
Why do the Cts take an objective approach?
- 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
What did Lord Denning say in the case of Storer v Manchester City Council (1974) regarding the intention of the parties?
‘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
Are there situations where the Cts will consider a party’s subjective views?
Yes, there are exceptions
E.g: mistake, misrepresentation
What are the 4 basic requirements for a contract?
- Offer
- Acceptance
- Consideration
- Intention to create legal relations
