CH2 Contract Formation Flashcards
- Recognise when a legally binding contract exists between two parties and how a contract may be enforced
What are the requirements for a contract?
Offer + Acceptance (= Agreement) > Consideration > Intention > Capacity and Form
What is a void contract?
Not a contract at all.
Goods should be returned (even from a third party).
Not legally binding
What is a voidable contract?
Valid contract
Can be set aside by “injured” party
E.g. lied to, coerced
What types of agreement must be either in writing (i.e. signed) or evidenced in writing (i.e. there is a written record)?
In writing: transfer of land; consumer credit agreements
Evidenced in writing: guarantees
What is the definition of an offer?
A definite promise made by an offeror to be bound by specific terms
What is an invitation to treat and what is it NOT?
Statement of willingness to enter negotiations
NOT an offer
CANNOT be accepted
Give some examples of invitations to treat
Advertisements
Goods displayed in window/on shelves
Circulation of price list
Auction
Is silence enough to constitute acceptance?
No
What is a unilateral contract?
A contract where the offeror has implied or expressly waived the need for communication. E.g. reward for finding someone’s lost dog.
When is acceptance deemed valid according to the postal rule?
When the letter of acceptance is posted, regardless of whether it is received.
What are the conditions for the postal rule to apply?
- Must be dealing in post
- Correct address/postage applied
- Applies to acceptance, NOT revocation
- Acceptance ‘by notice in writing’ overrides it as notice must actually be received by the offeror (i.e. it is written into the contract that acceptance has to be received).
- Does not apply to instantaneous communication e.g. email
What are the rules around Revocation?
Received and delivered by a
Reliable person
Is it presumed that there is intention to create legal obligations in social circumstances (family and friends)?
No
Is it presumed that there is intention to create legal obligations in commercial circumstances?
Yes
If a commercial agreement has been made using the term ‘ex gratia’, is that sufficient to rebut the presumption that a legally binding contract has been created?
No
When does executed consideration, executory and past consideration happen? Is each valid?
Executed consideration: at time of agreement: valid
Executory consideration: in the future: valid
Past consideration: in the past: not valid
What is the difference between past consideration and implied promise to pay?
In implied promise to pay, the promise is made before the consideration is provided and both parties expect that there will be payment
What is the exception to the rules relating to consideration?
When a contract is made by deed
Which contracts are required to be made by deed?
- Conveyancing: transfer of property
- Leases >3 years
- Promises unsupported by consideration (e.g. promise to donate to charity over several years)
Does consideration need to be adequate (i.e. equal in value to the consideration received in return?
No
Does consideration need to be sufficient (i.e. have some identifiable value)?
Yes
If you are performing an existing statutory duty, can this be classed as consideration?
No, it is insufficient
Is the performance of an existing contractual duty owed to the promisor counted as consideration?
Unless what….?
No (insufficient), UNLESS promisee goes over and above the scope of the contract
or the other party gains some extra practical benefit
Is the performance of a contractual duty owed to a third party classed as consideration?
Yes
