Chapter 9-18 Flashcards
Offer defined
offer to be bound on specific terms, must be certain
Invitation to treat
Goods displayed in a store window, goods on shop shelf, public adverts, share prospectus
Undermining an ITT
Wording too precise; addressed to world at large, money of the table signalled intention; unilateral acceptance
Termination of an offer
Express rejection; counter offer; lapse of time (express, implied, death); revocation (communicated before acceptace, mist be recieved by offerer, communication made by realiable 3rd party, promise to keep offer open is ony effective when this promise has been bought by the offeree)
Acceptance defined
unconditional assent to all the terms of the offer
Consideration Defined
element value of an agreement
Three forms of condieration
Executory (promise to perform action); executed (act given in return for promise, promise only becoming enfoceable upon performance of act); past (strict order that consideration must be supplied after agreement made, no valid);
Sufficency of consideration
performance must be legal; performance must be possible; consideration must be sufficient but not be adequate, some element of value
Insufficent Consideration
perfomance of existing contratual obligations; support waiver of legal rights i.e where part payment is given in full settlement of debt
Consideration to support waiver of legal rights
not sufficient to write off unpaid debt. In order to support this waiver, additional condieration could be supplied in the following: pay the debt early, provide payment in kind, pay at a different location, payment is made by third party
Equitable Doctrine of Promissory Estoppel
When creditor makes promise to waive debt, debtor elies on that promise to their detriment, and creditor is aware of reliance, creditor can be estopped from breaking their promise to waive a debt under application of equitable law
Doctrine of Privity common and stat law exceptions
benefitiary sues in some other capacity; where collateral contract exists, where a contract has been validly assigned, where contract has been created expressly for the benefit of third party, where agency relationship exists, motor insurance claims,
Doctrine of Privity
only parties to a contract may rely upon or enforce that contract
Domestic arrangements legal relations rebuttal
Spouses living together - no intention presumed; spouses separating - intention presumed; other friendly agreements - no intention presumed, unless mutuality of intention can be proved
Express terms
agreed between parties either orally or in writing during the formation of a contract
Implied terms
implied by statute (SOGA); implied by custom (customary trade usage); implied by the courts (in order to give business efficacy to an agreement
Condition
fundamental part of a contract, breach gives innocent right to repudiate contract and claim damages
Warranty
lesser term which is deemed collateral. breach can give rise to damages only
innominate terms
those that cannot be classified as condition or warranty until contract is breached. test used to classify is whther the innocent party loses the whole benefit of the contract
SOGA 1979
Title - seller has the right to sell, implied condition of good must correspond with description, satisfactory quality (does not apply if defects are drawn to buyers attention), fitness for purpose, bulk will correspond with sample in quality, acceptance
Exclusion Clauses defined
any clause that attempts to exempt or limit the liability of one party of breach of contract or negligence. needs to be correctly incorporated, property constructed, and deemed reasonable per statute
incorporation of contract
by signature, by notice, by custom
construction of clauses
wording must be clear and precise, ambiguity will be defeated per contra proferentum, any claise designed to defeat fundamental purpose of conract will fail per statutory tests
Reasonableness of clauses
whether or not a clause is fair per UCTA and UTCCR
Unfair Contract Terms Act (UCTA)
any attempt to exclude liability of death or personal injury caused by negligence will fail; any attempt to exclude title provisions of SOGA will fail; exclusio of other provisions ofSOGA will be permitted after consideration of relative bargining strenth of parties, iducement accepted in waiver of rights, knowledge, special order; court overriding conderation is whether or not in a given set of circumstances the clause would be reasonable
Unfair Terms in Consumer Contracts Regulations (UTCCR)
regulates insurance and standard form consumer contracts. Render any contract unfair that is “contrary to the requirements of good faith, causing a significant imbalance between the parties to the detriment of the consumer”
Misrepresentation Defined
false statement of fact made by one party to the other before the contract, and made with a view to inducing the other party to enter into it
Silence in Misrepresentation
Not misrepresentation unless an earlier statement made is no longer true, application is made for insurance, contracts made between parties in a fiduciary relationship e.g. partnerships
Fraudulent Misrepresentation
Knowingly making an untrue or reckless statement (contract may be rescinded or damages claimed under tort of deceit)
Negligent Misrepresentation
Failing to take reasonable care when making a false statement (contract may be rescinded or damages claimed under misrepresentations act)
Innocent Misrepresentation
Genuinely believing a statement to be true (contract may be rescinded or damages claimed. If contract cannot be rescinded damages will not be awarded
Discharge of a contract - performance
normal method. exceptions: where a contract for service has been substantially performed, where one party is prevented from performing, where contract itself is divisable e.g. stage payments; where parties mutually agree contract can be discharged by partial performance, timing unless timing is of the essence
Discharge of a contract - agreement
both parties agree to discharge
novation
contract discharged by a completely new agreement
Discharge of a contract - Frustration
supervening event makes further impossible or illegal. e.g. destruction of subject matter, personal incapacity, supervening illegality, non occurance of an even if its the sole purpose for the contract
Types of contract breach
Straightforward breach - where one party fails to comply; anticipatory breach - where one party gives notice of intention to breach. Innocent party may sue immediately or perform the contractual obligations and sue afterwards for full amount due from party in breach
Remoteness of Damages
First rule: arise naturally from a breach; second rule: be reasonably foreseen in the eyes of both parties at the time when the contract was formed
Measure of damages
compensatory in nature. court will consider - actual financial losses (where none, nominal damages awarded); market rule (if goods not delivered, buyer may seek alternative and sue for difference in cost); non-financial losses; injured party must take reasonable steps to mitigate loss; quantum meruit; action for the price (full payment if contract has been performed)
expectation interest
put parties to the position they would have been had the breach of contract not occurred
liquidated damages
compensation for breach agreed in advance, so long as it is a genuine preestimate of the loss
Equitable remidies for contract breach
must be brought by innocent party and court believes damages alone not sufficient. rescission (order returns parties to orignal position); injunction (court direction ordering a party not to breach contract); specific performance (order to complete contractual obligations)
Control Test for employment
does employer control what the employee does, and how?
Integration Test for employment
is worker fully integrated into the employers business?
Multiple test for employment
degree of control; provision of tools; holiday/sick pay entitlements; use of substitute labour; method of remuneration
Employment Rights Act (ERA) main terms of employement
written document outling main terms of employment must be supplied within 2 months. These include job title and description, length of notice period, names of both parties, commencement date, rate and method of calc pay, frequency of payment, holiday pay entitlements, hours.
Employment Rights Act (ERA) implied terms
Statute (equal pay act etc); common law; custom
Wrongful Dismissal
common law claim. Dismissed without justification and denied proper notice. ordinary breach of contract
Unfair Dismissal
Statutory claim. employees with a minimum of two year’s continuous service.
Employment Tribunal 5 Fair Reasons for Dismissal
Capability or qualification; gross misconduct; redundancy; statutory restrictions; conflict of interest
Wrongful Dismissal Remedies
Emloyment tribunal for claims up to £25k, county court above £25k
Unfair Dismissal Remedies
Reinstatement; re-engagement; compensation (basic, award, additional award for sex/racial)
