contact problem question all cases Flashcards
Carlill v Carbolic Smoke Ball Co
f
formation - there was no contract between mrs carlin and carbolic because an advertisement is not an offer rather an invitation to treat as too vague and made to the whole world
Dysart Timbers v Nielsen facts
leave 2 appeal f
formation - the offer remained, the circumstantial change was not great enough to lapse an offer or else it wasn’t explicitly included i.e Nielsen must’ve made the offer valid contingent that he did not get his Supreme Court appeal granted
Boulder Consolidations v Tangaere
sections
formation - there was no contract as the list of available section was an invitation to treat not an offer. It was unreasonable for T to assume B was holding sections for him until his decision was made
facts in Butler Machine Tool v Ex-Cell-O
price esc clause
formation - last shot - that the contract was formed on the buyers terms without the escalation clause, the buyers counter offer terminated the previous offer so based off the last shot doctrine, contract was on buyers terms
Goodman v Cospak
holistic/global
formation - global holistic approach to BOF - it is preferable to reconcile terms if they can co-exist to give and harmonious effect. here the terms were not inconsistent as btoh included quailtiy of goods and the righ to cure prior to c terminating the contract
what are the facts in Tekdata v Amphenol
LAST SHOT
formation - LAST SHOT -
acceptance of delievery was accpetnace to counter offer
contract was bound on A terms, the judge found that While the relationship between the parties is relevant, it does not override the need for clear offer and acceptance in commercial contracts.
The traditional approach should only be set aside if there is clear communication indicating both parties intended to replace the previous terms with new ones
GHP Piling v Leighton Contractors
prelim cont
formation - no an invitation to tender is not a basis of forming a contract, A preliminary tender contract exists when the inviter provides a clear and formal process to the tenderer, allowing an offer that can be accepted where as here is was just an invitation to treat and undergo negotiations
South Waikato DC v RAL
lowest offer
formation - the council did not breach there terms to not accepting the lowest offer, the council has a right to reject an offer and the other bidder was a more economical waste disposer, avoided a waste disposal levy
Fleming v Beevers AND category
quesntown defacto
SOCIAL
yes there was an intent to create legal relations as the parties took steps beyond just preparing for the contract, showing their intention to create legal relations. The value of the consideration can indicate their intention to establish a legal relationship
Intent to Create Legal Relations Cases
what are the facts in Ashton v Pratt and the category
escort
no there was an intent to create legal relations as services Mrs. Pratt was providing was contrary to legal policy, and overall significant lack of certainty.
Intent to Create Legal Relations Cases
Fletcher Challenge Ltd v ECNZ and category
shares gas feild hoa
NO the head of agreement wanst legally binding because the heads of agreement had not been finalized into a formal contract. The parties did not agree on the contract terms, so the necessary certainty for the heads of agreement to be enforceable was not achieved. It was just an agreement to negotiate further in the future.
Intent to Create Legal Relations Cases
Tower Insurance v Nicon Ltd and category
hoa
yes, the head of agreement was legally binding, The agreement was meant to take effect immediately and did so, meaning the parties relied on the heads of agreement (HOA), eliminating the need for a later contract. The heads of agreement cannot be used to escape legal obligations.
Intent to Create Legal Relations Cases
Deng v Zheng and category
cultural
HYBID
cultural considerations are relevant to the holistic assessmet of intention, chinese principle of partnerhsip was looked at but not decisive
Intent to Create Legal Relations Cases
Biotechnology Aust Pty Ltd v Pace
staff equte cheme
The promise was illusory and unenforceable due to its vagueness and lack of clarity. there was numerous elements to the senior equity scheme that was not negotiated and left the future discretion.
certainty
Tower Insurance v Nicon establish as a contract is binding
use of words ‘shall’ and subsequent conduct acting as if binded and no matters marked as undecided
CERTAINTY
why is Tower Insurance different from Fletcher Challenge
Tower did not have matters yet to be agreed like Fletcher did
certainty
Williams v Roffery Bros
work on time
yes, roffrey was liable to pay the extra amount as Roffey came up with the idea to pay more, there was no pressure, and thus there is valid consideration.
Practical benefit for consideration even if legally their position is the same
consideration
Re Selectmove Ltd
no consideration
Williams v Roffery principle only applies in cases where actual work is done or goods are supplied in exchange for payment.
In this case, Selectmove was not providing any new benefit to the Inland Revenue that would constitute consideration.
Smith v Hughs
obj reaosmbale person
An objective test revealed that a reasonable person would expect the sale of good quality oats in a similar contract, since there was no express discussion of old oats
terms
Rose v Pim
rec
rectification
The objective conduct of the parties suggested only an intention to contract for horsebeans. The court can only use rectification where there is clear proof that the written agreement does not correspond to the contract the parties entered into, the court cannot make a new contract.
Robb v James
lsot land
rectification
yes, rectification, If rectification would harm a bona fide purchaser who bought in good faith without knowing of the issue, equity steps in to block it. However, Gary wasn’t considered a bona fide purchaser because he knew about the sale and was involved in talks with the buyers. The court imposed a constructive trust since the land was transferred to Gary, who wasn’t part of the original sale agreement.
Westland Savings Bank v Hancock
floating
rectifiaction
Both parties acted as if the interest rate was floating, with the bank raising the rate and the Hancocks paying the higher amount. The court ruled that a formal statement of common intention isn’t necessary—it can be inferred from actions and evidence. However, that shared intention must be clearly visible and supported by concrete evidence.
BP Refinery
confimed by BATHURST
test for an implied term
- reaosnable and equitable
- nescaary for buisness efficacy
- obvious it goes w/o saying
- capable of clear expression
- must not contradicy current terms
impleid
barton v morris
imp get 1.2 if buy for more than 6
The arrangement was viewed as a gamble rather than a fair bargain, as the potential gain outweighed the service provided.
no a term couldnt be implied as there was no obvious term to be implied and it wasnt nescary to give buisness efficacy and if the contarct already governs certain cicumstances to stick to taht
Bathurst on imp
BP guidelines are relevant but not strict; implication relies on strict necessity, meaning if nothing is stated, nothing occurs. The court interprets the contract objectively, considering what a reasonable person would understand it to mean.
realestate,com.au ltd v Hardingham
imp
The court found no express term in the oral agreement regarding further licensing. It ruled that any such license must be implied, and without clear authorization, Hardingham’s copyright claims against RP Data were not upheld.
Hollier v Rambler Motors issue
fire
incorporation cases
no, exclusion clause doesn’t protect from liablity, example of the courts hostile approach to exclusion and limitation clauses, said that any reasonable person would not read this as to cover instances where the fire was directly caused by the company.
Olley v Marlborough facts
incorporation cases
stolen goods
Because the EC was inside the room it would never been seen by customers until after they had formed contract at reception.
Incorporation cannot come after formation!!!
Parker v south eastern railway facts
incorporation cases
cla=oak room
no the exclusion clause cannot be incorporated as Parker did not have sufficient notice thus cannot be bound by the terms he did not know about (unsigned documents rule).
Interphoto
incorporation cases
return for pics
reasonable notice wasn’t given as nothing was done to bring it to the attention of customer and therefore the term is not part of the contract. also large charge like that should be bought to the attention
Hardwick game farms facts
incorporation cases
delings - contarct notes
terms of the contract note can be incorporated into the contract through course of dealing as parties with history think of transaction in light of background information of their previous dealings.
Mchuchin v mcbrain FACTS
incorporation cases
delains - ferryv
The court ruled that there was no incorporation by course of dealings, as the ferry had not consistently provided the terms in question during prior trips. Thus, the limitations of liability were not enforceable.
AG v seven electrical
incorporation cases
dealings
YES reasonable notice was given because of the numerous previous dealings where terms could have been brought to notice, the clear direction to terms on the reverse side and clearly set on the reverse side.
L’Estrange v Graucob
incorporation cases
reading
When a document containing contractual terms is signed, then, in the absence of fraud or misrepresentation, the party signing is bound, and it is wholly immaterial whether he has read the document or not.
Curtis v chemical clenaing company
relate to lestarnge
no not bound as Exception to L’Estrange rule because there was a misrepresentation about the contents of the signed documents.
If there is an actionable misrepresentation as to the terms, the contract will not bind even if it is signed.
Nela V biddle
incorporation cases
EXCPETION - Non-contractual documents.
Situation where someone asks you to sign to confirm delivery
If document happens to have a bunch of terms on the other side then you become bound by these
Toll v alpha farm
flu vacc
incorp
yes can reply on exclusion clause as Sufficient notice of the terms and conditions was provided because there was a clear direction to them right above the signature line.
Nalder & Briddle v C & F Fishing
incorp
jobcards
NBL is not protected by the limitation clause. Although oral contracts can include written terms, strong evidence is required to prove their incorporation. Since the limitation clause was not mentioned after the oral agreement, it cannot be enforced. Even though job cards were signed, they do not meet the L’Estrange rule, as they did not clearly include contractual terms or provide adequate notice of the limitation clause. Thus, NBL cannot rely on the clause to limit its liability.
job cards are not contracts with terms
cancel
synge v synge
vendor selling land to someone else is clear repudiation as you don’t have an intention to fulfil contactual obligations
cancel
schmidt v holland
MARRIED DEAL
couple enter into contract to buy house then bought a different house
- was not repudiation as they only asked if they could buy another house, not effective communication
cf to synge
cancel
macindoe v mainzeal
time of ess
reasonable notice to pay and specified that time was of the essence and that a fail to comply would cancel contract
- distinguish from mana v James as there was reasonable time given for payment
starlight v lapco
cancel
BAG SALES
the price change didn’t constitute repudiation as there was still clear intent to perform
- a mistaken view if the contract does not allow for repudiation
cancle
mana v James
SMALLER LAND
land was smaller than that required in a clause of the contract so James cancelled the contract but didnt give m time to remedy, time WAS NOT of the essence and so cancellation was premature and invalid.
m also argued that objective test was not present however ‘must not be less than’ meant size was crucial
peas cancle
aerial advertising v bachelor peas
sustantilatit
advertising of peas over a 2 min silence
- here the benefit under the contract was substantially reduced
sharplin v henderson
CIRTUS TREE
cancel
- misrep meant that sale resulted in a 25% reduction in the value of the land and this was substantial so justified cancellation
cancel
Kumar v station
UNIFORM FURNITURE
terms breached were essential to the investors and it showed that the investors relied on the uniform furniture and management plan for the further on sell and management of rental
cnecle/affirm
white + council v McGregor
criticised so fatscor ruek to disctingusib
wasteful performance if continue while knowing of the repudiation
affrim
wilson v hines
the innocent party wanted arbitration to sort out the matter however this did not amount to insistence of performance and therefor was not affirmation
affirm
gray v thompson
land
misrep on size of land but continued to pay instalments towards, this constituted affirmation however if a breach happened after affirmation the right to cancel renews
cancle
schmidt v holland
repud
buyers repudiated the contract and vendors didn’t provide notice of cancellation so contact remained valid
- sellers then sold sale to 3rd party consisted repudiation and cancelling parties must be ready and able to fulfill obliagtions
rule section
worsdalev v polgase facts
hosue desppt
w singed contract to purchase p house for 60,00 and paid a 6,000 deposit but then canceled and house was sold to third party and used some of the deposit 1,500
w sued for 4500
due to 42(1)(b) the money stays where it is after cancellation and the deposit was a security on performance not just compensating the buyer for failure to perform
frus
Jane v paradine facts
WAR
- p leased farm 2 Jane, civil war began after contract an janes land was seized
- p sued for unpaid rent
court held that Jane was liable for the unpaid rent as the contract was not frustrated
frus
Taylor v caldwell
msuic hall
caldwell rented music hall to Taylor and then a fire destroyed the hall before performance and T sued 4 BOC
C released on obligations as fire frustrated the contract as the hall was the subject matter of the contract and it was unavailable
frus
krell v Henry facts
hotel
K rent flat to H for high price to watch the royal proceedings which were cancelled and h refused to pay
K argued flat still avail and H agreed that rental purpose was unattianable
-main purpose of contract couldn’t be fulfilled so was frustrated and the high price was due to the royal procession
frus
rayneon v fraser facts
neom
F contract w r for neon sign 4 advert then nz govt banned the neon signs so F stopped paying
r sued for unpaid rent
court found that the contract had frustrated due to supervening illegality and the performnace was impossible so F not needed to pay rent
frus
davis contractors v Farnham urban district council facts
d to build lots of houses in 8 months but there was shortage of labour so was delayed 14 month and costed extra 1,500
court found that contract wasn’t frustrated it was just more expensive
frus
tsakiroglou v noblee facts
peanut
t contracted to ship peanuts for set price through the suex canal which them got closed but the contact didn’t specify a alternative route and alternative route 4x cost
t argued frustration as Suez closed
not frustration as increased cost not frustration unless it is not possible
self infuced f
maritime v ocean traveler facts
lsinsnece 4 boats
m getting lisnces for 3 out of 5 boats and chose for charted boat to not get one so it couldn’t operate as a fishing boat and then m sued for BOC as he wasn’t Able to used finishing boat
not frustration as m chose to exclude the fishing boat and events of frustration must be out of control of the parties
poil rig
Lauritzen v Wijsmuller facts
L agreed to transport oil rig via one of two units they owned
L claimed contract was frustrated as one of the units was being used so argued for discharge from contract due to impossibility
not frustrated as the contract for for one of the two unit and 1 of them was available and the choice was avoidable and it was foreseeable
frust
Brisbane city council v group projects
rule
frustration though each judgement not set rules, supervening event must be significant on the contract foundation
what is the nz approach to frustration
use the multifactorial approach to remedy injustice and assess frustration ensuring fairness between parties
planet kids
5 factors
t
m
kec
n
f
outlined 5 factors for furstration
a) terms of the contract;
b) matrix or context
c) knowledge, expectations and
contemplations, in particular as to risk, as at the time of contract…
d) nature of the supervening event
e) future performance possibility
damages
Ruxley v forsyth facts
r built swimming pool which was 45cm too shallow and f sued 45,000 to build a new pool
judge allowed for 2500 for loss of enjoyment but the pool was still usable
dam
Barry v Davies
auction w/o reserve, B bought for 200 and retail for 28,000 so d refused to sell and claimed 27600 even tho he didn’t say tho 400 in the first place
innocent party shouldn’t be able to claim damages w/o limit to restore them to position b4 the contract
fdam
malbrough district council v altomarloch joint venture facts
A contacted to purchased vinyard w essential water rights and only received half of these rights diminution of value and cost of cure amounted to around 1,000,000
the sc found that the cost of cure was appropriate to put the purchaser in the position as if the water rights were true, the vineyard couldn’t run w/o reinstatement of water rights
re dam
McRae v commonwealth disposals facts
M contract to salvage a sunken oil tanker and the found it didn’t exist
C claimed that the subject matter never existed so no valid contact was formed
contract was formed and awarded m damages
- since the tankers value was speculative, court granted reliance damages for the expenses incurred while relying on the contract
rel dam
anglia television v reed facts
a wanted to produce film and r to act, then r repudiated contact and refused to act, a sought damages for BOC as they couldn’t find another actor and had to abandon film
- a claimed wasted expenditure as it would be impossible to calculate how much profit would have been made
- a compensated for the money it had spent in preparation if the film in reliance of contract w reed
Ti leaf v Baikie held
said bad thinsg
b rented farm from t w clause prohibiting negative comments about t
- b made negative comments about t leading to withdrawal of major sponsor for a production
- t claimed 1m for wasted expenditure
T unlikely to produce the film regardless of breach, so was denied reliance damages for wasted expenditure however was granted 500 nominal fro breach
AG v Blake facts
rest dam
B wrote book after prison escape, earned 60,000 with 90,000 pending
British court wanted to stop him from getting the money due to the confidentiality agt with mi6
b breached the agt but the disclosed info was no longer a secret and caused no harm and Blake was no longer payed for his confidentiality
British govt had a legitimate interest in to prevent blake from profiting as secret services should not have financial motives, account of profits available
ONLY CASE OF AUTHOIRTY OF RESTITUTIONARY DAMSGES
bloxham v Robinson facts
LIMITS #1 ON DAM
b purchased dental prac inlcuded 108,000 for goodwill which only 38,000 of that was provided
awarded difference for the BOC but he was not awarded for loss of profit and emotional damages as this would have put him in a better position than if the breach hadn’t occurred
LIMIT #2 ON DAMAGES case
Jarvis v swan tours
J purchased a holiday for 63 which was expensive and he only got one holiday a year, it was more than disappointing
isinitailly Jarvis was rewarded half the money he payed because half of the services were provided
mental stress is justified when purchase is for purpose of r and r and so Jarvis was awarded $125 to compensate
LIMIT #3 ON DAMAGES
whiten v pilot insurance
CANADIAN APPROACH
- W house burn down, insurance refused to pay and w was awarded 345,000 compensation and damages due to bad faith
- much higher than any financial gain P made by the breach
LIMIT #3 ON DAMAGES
paper reclaim v aoteroa international ltd
NZ APPROACH
- no punitive for BOC in nz as there is lack of binding authority and trend in oversea cases opposing punitive damages
4 rules est here
Hadley v baxendale
delivery delay caused Hadleys mill to close for 5 days
- H sued but couldn’t recover damages for 5 days as it was too remote and B would not be able to forsee the shut down because of no crankshaft
natural loss
contemplated loss
fair liabilty
efficient risk allocation
reform had
Victoria laundry v newman industries facts
v purchased boiler, n knew was needed immediately but delivery was delayed by 5 months
loss of profit would amount to 262 per week
injured party can only claim damages for foreseeable issues as of when the contract was made - reform the Hadley test into a forseebility test
hadley rule
the Hadley test 2 parts
natural loss
damages are recovered for losses that are naturally from the breach
contemplated loss
damages can be recovered for losses that were reasonably in the contemplation of both parties at the time the contact was made, even if loss isn’t natural
Walop no 3 v para franchising facts
contract included exclusivity clause for franchisees, contact was subsequently lawful terminated but W claimed P failed to mitigate damages
W did not prove well enough the failure to mitigate and therefor courts ruled in favour of P
honey bees
proprortiaonate and legit
derterrnace from the breach counts as a **legitimate interest **but not to the exetnet it was punitive,
here the use of the second lift was important for future buiness so it was importnat that is was installed and therefor **proportaiate **
parking eye v beavis
the clause prima facie was penal however it was to ensure deterrance failure to comply so had a legit interest
