concepts

Question 1

doctrine of consideration

Answer 1

this doctrine says promises can only be binding once there has been given something in exchange for them.

Question 2

conditions for contract

Answer 2

1. agreement
2. consideration
3. intention to create legal relations and
4. estoppel

Question 3

objective principle

Answer 3

his is the principle that generally the existence of a contractual agreement is assessed Objectively rather than subjectively
○ A simple intro is that on an object approach to agreement words and conduct are interpreted based on how they would appear to a reasonable person

Question 4

Bi lateral contracts

Answer 4

a promise exchanged for a promise

Question 5

Unilateral contract

Answer 5

one party makes a promise in return for an action

Question 6

offer -

Answer 6

An expression of willingness to be bound, on certain terms, without further negotiation.

Question 7

invitation to treat

Answer 7

which refers to an attempt to induce negotiations or an offer (not an acc offer)

Question 8

Acceptance

Answer 8

a declaration of assent to the transaction proposed by the offer

Question 9

general rules of acceptance -

Answer 9

generally speaking

• be made by an appropriate method - written , oral
• must be communicated to the offeror - silence does not = offer
• must be a response to the offer

Question 10

postal acceptance rule

Answer 10

acceptance occurs at point of posting if addressed and stamped
- this postal rule does not apply to revocations of offers - these are only effective only upon receipt by the offeree

Question 11

the mirror image rule

Answer 11

the acceptance must fully correspond to the offer ( accept all the terms of the offer) . if it’s not the same it’s a counteroffer and it’s rejected

Question 12

doctrine of consideration - Atiyah

Answer 12

○ Says There is no single coherent doctrine of consideration in the law
○ According to him when a court says there consideration in a contract case all its saying is that there is any reason to enforce
○ There is no single coherent account of law that encompasses all the consideration that is involved. That’s why he says we should stop using the term cuz there’s no such things

Question 13

orthadox view - trietal - doctrine of consideration -

Answer 13

• n this view the doctrine of consideration requires the parties to enter in the element of exchange ( each provide something for another also known as bargain and quid pro quo)
• Only applies agreements which amount to exchange. this excludes a gratuitous promise ( a gift promise one doesn’t give anything back there’s no exchange so there’s no consideration in this orthodox view)

Question 14

consideration requirements -

Answer 14

1. Allowing purely nominal or peppercorn consideration will suffice (so it can be something of no real value)
   - doesnt need to be economically proportionate to the promise
   - • But it must be sufficient : something of value in the eyes of the law e.g love and affection doesnt count
2. consideration must be requested -
3. consideration may consist in a benefit to the promisor or a detriment to the promisee. So if i make a promise is made as consideration ive got to give something that benefits you or suffer detriment myself

Question 15

Fuller - rationale for doctrine of consideration

Answer 15

allows formalities -
has a evidentiary function - written and enforceable . good evidence that theyve been promised something.
- has a cautionary function - would make you cautious about what you’re agreeing to? Alerts you to things
Consideration is justified through these formalities

Question 16

other rationale for consideration

Answer 16

economic reasons - exchanges is more beneficial than gratituitious promises

2. Reciprocity - deep seated moral ideal of giving something in exchange for something is a deep instinct and morally important norm
3. channelling function : makes the analysis of a legal situation more simple for judges and parties

Question 17

doctrine that supplements the doctrine of estoppel

Answer 17

intention to create legal relations
- this doctrine works through presumptions i.e in commercial it is presumed they intend to create legal relations in domestic they dont (ofc if evidence contrary to this presumption comes up then thats different)

Question 18

estoppel

Answer 18

• an equitable doctrine that protects a promisee reliance on a promise
• court will estop i.e stop the promisor resiling to extent it would be unfair for the promisor not to follow the promise the court will prevent them doing that.

Question 19

contract variation

Answer 19

• changing an existing contract by for e.g changing their terms
• In order to do this variation the parties must satisfy all of the ordinary requirements of contract formation. So they’ll need to reach a new agreement about changing terms of deal, must attempt to create legal relation, provide fresh consideration or variation of consideration

Question 20

express v implied terms

Answer 20

• stated directly in the language oral, written or gesture sometimes
  
  • Implied term - not stated directly in the language

Question 21

Notice rule

Answer 21

• Notice must be given at or before the time of contract formation
• • If notice is given after contract formation is completed it’s too late for term to be incorporated
  • Even if it isn’t too late i.e after contract formation the timing of the notice
    may be relevant in deciding whether its reasonable or not
• 2) The notice must be contained in a document that has contractual effect (barry v chapelton - deck chair case)

Question 22

incorporating a term thro - ugh regular course of dealing

Answer 22

Mccutcheon V David Macbrayne ltd - MC would regularly get car shipped from Islay to mainland . Sometimes him sometimes bro- they would always give money to ferry company and ferry company would give a risk note which had various conditions - this risk note had various conditions and had a term saying that the ferry comapny is not liable for damage to property. They signed several times - one day they didnt give a risk note and that day they had sinked his car - so mC sued - this inclusion clause of no liability was not incorporated by notice or signature (no risk note that day) but company says it is incorporated by course of dealing because they regularly used to sign it - didnt work?

Question 23

• officious bystander test - MacKinnon LJ in Shirlaw V southern Foundries (1939)

Answer 23

• so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common “Oh, of course!”

Question 24

BP Refinery and Shire of Hastings: Lord Simon of Glaisdale attempts to summarise the various requirements for impliying a term in fact

Answer 24

• for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.’
- Lord Hoffman - in Belize case - response to Lord Simon [Lord Simon’s] list is best regarded, not as a series of independent tests which must each be surmounted, but rather as a collection of different ways in which judges have tried to express the central idea that the proposed implied term must spell out what the contract actually mean

Question 25

implied terms in law

Answer 25

• Implied terms in law are based on more general considerations based on broader considerations and arguably have nothing to do with intention of parties
  1. statutes 2. custom - ○ Custom of particular market or trade may be read into a contract (ContractNinjasBeatRandomCucumbers)
  3. 3) Class or type : all contracts in the class will automatically include certain implied terms unless the parties demonstrate a contrary intention. E.g. Emplyment contract common law or landlord tenant contracts