Chapter 9-18

Question 1

Offer defined

Answer 1

offer to be bound on specific terms, must be certain

Question 2

Invitation to treat

Answer 2

Goods displayed in a store window, goods on shop shelf, public adverts, share prospectus

Question 3

Undermining an ITT

Answer 3

Wording too precise; addressed to world at large, money of the table signalled intention; unilateral acceptance

Question 4

Termination of an offer

Answer 4

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)

Question 5

Acceptance defined

Answer 5

unconditional assent to all the terms of the offer

Question 6

Consideration Defined

Answer 6

element value of an agreement

Question 7

Three forms of condieration

Answer 7

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);

Question 8

Sufficency of consideration

Answer 8

performance must be legal; performance must be possible; consideration must be sufficient but not be adequate, some element of value

Question 9

Insufficent Consideration

Answer 9

perfomance of existing contratual obligations; support waiver of legal rights i.e where part payment is given in full settlement of debt

Question 10

Consideration to support waiver of legal rights

Answer 10

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

Question 11

Equitable Doctrine of Promissory Estoppel

Answer 11

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

Question 12

Doctrine of Privity common and stat law exceptions

Answer 12

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,

Question 13

Doctrine of Privity

Answer 13

only parties to a contract may rely upon or enforce that contract

Question 14

Domestic arrangements legal relations rebuttal

Answer 14

Spouses living together - no intention presumed; spouses separating - intention presumed; other friendly agreements - no intention presumed, unless mutuality of intention can be proved

Question 15

Express terms

Answer 15

agreed between parties either orally or in writing during the formation of a contract

Question 16

Implied terms

Answer 16

implied by statute (SOGA); implied by custom (customary trade usage); implied by the courts (in order to give business efficacy to an agreement

Question 17

Condition

Answer 17

fundamental part of a contract, breach gives innocent right to repudiate contract and claim damages

Question 18

Warranty

Answer 18

lesser term which is deemed collateral. breach can give rise to damages only

Question 19

innominate terms

Answer 19

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

Question 20

SOGA 1979

Answer 20

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

Question 21

Exclusion Clauses defined

Answer 21

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

Question 22

incorporation of contract

Answer 22

by signature, by notice, by custom

Question 23

construction of clauses

Answer 23

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

Question 24

Reasonableness of clauses

Answer 24

whether or not a clause is fair per UCTA and UTCCR

Question 25

Unfair Contract Terms Act (UCTA)

Answer 25

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

Question 26

Unfair Terms in Consumer Contracts Regulations (UTCCR)

Answer 26

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”

Question 27

Misrepresentation Defined

Answer 27

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

Question 28

Silence in Misrepresentation

Answer 28

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

Question 29

Fraudulent Misrepresentation

Answer 29

Knowingly making an untrue or reckless statement (contract may be rescinded or damages claimed under tort of deceit)

Question 30

Negligent Misrepresentation

Answer 30

Failing to take reasonable care when making a false statement (contract may be rescinded or damages claimed under misrepresentations act)

Question 31

Innocent Misrepresentation

Answer 31

Genuinely believing a statement to be true (contract may be rescinded or damages claimed. If contract cannot be rescinded damages will not be awarded

Question 32

Discharge of a contract - performance

Answer 32

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

Question 33

Discharge of a contract - agreement

Answer 33

both parties agree to discharge

Question 34

novation

Answer 34

contract discharged by a completely new agreement

Question 35

Discharge of a contract - Frustration

Answer 35

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

Question 36

Types of contract breach

Answer 36

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

Question 37

Remoteness of Damages

Answer 37

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

Question 38

Measure of damages

Answer 38

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)

Question 39

expectation interest

Answer 39

put parties to the position they would have been had the breach of contract not occurred

Question 40

liquidated damages

Answer 40

compensation for breach agreed in advance, so long as it is a genuine preestimate of the loss

Question 41

Equitable remidies for contract breach

Answer 41

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)

Question 42

Control Test for employment

Answer 42

does employer control what the employee does, and how?

Question 43

Integration Test for employment

Answer 43

is worker fully integrated into the employers business?

Question 44

Multiple test for employment

Answer 44

degree of control; provision of tools; holiday/sick pay entitlements; use of substitute labour; method of remuneration

Question 45

Employment Rights Act (ERA) main terms of employement

Answer 45

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.

Question 46

Employment Rights Act (ERA) implied terms

Answer 46

Statute (equal pay act etc); common law; custom

Question 47

Wrongful Dismissal

Answer 47

common law claim. Dismissed without justification and denied proper notice. ordinary breach of contract

Question 48

Unfair Dismissal

Answer 48

Statutory claim. employees with a minimum of two year’s continuous service.

Question 49

Employment Tribunal 5 Fair Reasons for Dismissal

Answer 49

Capability or qualification; gross misconduct; redundancy; statutory restrictions; conflict of interest

Question 50

Wrongful Dismissal Remedies

Answer 50

Emloyment tribunal for claims up to £25k, county court above £25k

Question 51

Unfair Dismissal Remedies

Answer 51

Reinstatement; re-engagement; compensation (basic, award, additional award for sex/racial)