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Contract Flashcards

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1
Q

Aims of Contract law

A

Fairness, justice, balancing powers, access, good faith, freedom of contract, laissez faire

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2
Q

Define Offer

A

A statement of terms in which a person is willing to be bound by

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3
Q

Define ITT

A

A mere indication of willingness to start a new negotiation

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4
Q

Bi lateral contact v unilateral

A

Requires both parties to provide something while unilaterl the obligation is placed on one party

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5
Q

Adverts

A

Usually an ITT not an offer ( Partridge)

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6
Q

Exception to Advert rule

A

When it includes a unilateral offer/ clear and definitive ( Carlil v carbolic smoke ball)

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7
Q

Goods on a shelf

A

An ITT ( Fisher v Bell knives, Pharmecutical society of GB v Boots prescription drugs) shop has right to refuse

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8
Q

Auctions

A

Usually an ITT as bidder makes offer and auctioneer accepts (British Car Auctions)

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9
Q

Exception to Auction Rule

A

If it is guaranteed to highest bidder e.g Ebay

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10
Q

Requests for further Info

A

ITT (Harvey v Facey)

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11
Q

Who can make an offer

A

Anyone including machines (Thornton v Shoe lane parking )

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12
Q

When does an offer start

A

Once communicated (Taylor v Laird)

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13
Q

What can end an offer

A

Revocation , Acceptance, Rejection, Death of offeree and Lapse of time

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14
Q

Revocation

A

Withdrawl, can be through trusted third party (Dickinson v Dodd ) , can make seperate collateral contract to keep it open to one person etc. Must be communicated and cannit be valid after accepting (Routledge v Grant)

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15
Q

Rejection

A

Not agreeing or counter offer ( Hyde v Wrench)

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16
Q

Lapse of Time

A

Ramsgate case, in agreed or reasonable time

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17
Q

Define Acceptance

A

Final and unqualified expression of assent to whole terms (mirror image rule)

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18
Q

Acceptance general rule

A

Valid once communicated (Entores) therefire silence does not constitute acceptance (Bindly v Felthouse) , need not be in same format unless mandatory instruction says so (Yates v Pullen)

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19
Q

Exceptions to acceptance general rule

A

Conduct, post, electronic communication

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20
Q

Acceptance by conduct rule

A

Performing conduct displayed in terms (Carlil, Anotech, Williams v Carwardine)

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21
Q

Postal Rule

A

Valid upon posting (Adams v Lindsell)

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22
Q

Postal Rule limitations

A

Proof of postage, properly addressed and stamped (Gertreid v Contimar) , usually means of communication (Quenerduain v Cole), offeror can displace if detailed (Hollwell v Hughes, “notice of acceptance”)

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23
Q

Electronic communication

A

Accepted on reciept (Entores) within business hours (Brimmes) or next working day ( Brinhibon)

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24
Q

Business agreement

A

Business to business or consumer to business, e.g employment Edwards v Skyways , presumably have the intention to create legal relations

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25
Q

Domestic or social agreements

A

Friends and family, presumably no intention to cause legal relations (Balfour v Balfour)

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26
Q

Business presumption rebuttals

A

Letter of comfort/ assurance is not intention (Kleinwort)

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27
Q

Social presumption rebuttals

A

Financial dependancy (Parker v Clarke, Meritt v Meritt ) or Stake (Simpkins v Pays )

28
Q

Between a social and business agreement

A

Sadler v Reynolds, BOP is flipped on claimant to prove the intention exsists

29
Q

Define consideration

A

Currie v Misa, the exchange of a benefit or a loss

30
Q

Define executed promise

A

Carried out

31
Q

Define excecutory promise

A

Promise to carry out

32
Q

Sufficiency and adequacy for consideration

A

Need not be adequate (market value Thomas v Thomas £1 rent) but must be sufficient (enough for parties and have a financial value Nestle v Chappell, not complaining White v Bluett)

33
Q

Moving from the promisee for consideration

A

Tweddle v atkinson, son not a party to contract so couldnt benefit, Jackson v Horizon Holidays

34
Q

Past consideration

A

Re Mcardle agreement must come before considerationor not enforceable

35
Q

Past considerstion exceptions

A

Implied promise, e.g. trade ( Re Caseys Patient) or importance (Lampleigh)

36
Q

Pre Exsisting duties

A

Cannot be consideration as they were already obligated to do so (Collins v Godfrey, Stilk v Myrick)

37
Q

Pre exsisting duty exceptions

A

Above and beyond (Glasbrook Bros ) or increased danger (Hartley v Ponsonbury ), conferring a benefit (Roffey Bros)

38
Q

3rd paties in consideration

A

Considerstion may also be owed to a 3rd party (Shadwell v Shadwell, Scotson v
Pegg )

39
Q

Part Payments for consideration general rule

A

Pinnels case rule, Foakes v beer follows as she could still claim rest of payment despite accepting partpayment

40
Q

Part Payment exceptions

A

Accord and satisfaction (money + something extra ) and promissory estoppel (if clean hands, clear promise and reliance, High trees, Re SelectMove, DC builders v Rees had unclean hands)

41
Q

Define privity

A

Only those party to a contract can benefit and enforce (Beswick v Beswick, Dunlop v Selfridge)

42
Q

Common law solutions to Privity

A

Increased damages (Jackson v Horizon Holidays ), collateral contract (Shanklin Pier) and restrictive covenants (Tulk v Moxhay)

43
Q

Statutory solutions to privity

A

Contract Rights of Third Partied Act 1999, if contract either (s1a) expressly provides they can enforce or (s1b) benefits them - must also be identified by (s1a3) name, class, or description

44
Q

Limitation to statutory solution to privity

A

S1b2 benefitting from terms cannot enforce rights if the contract expressly excludes them from enforcing

45
Q

Types of Express Terms

A

Condition-root/central term, if broken can repudiate, Warranty-minor term, if broken and condition can still be performed just awarded damages, Innominate-in between warranty and condition so consequences of breach determine outcome, serious = treat like condition, less serious = treat like warranty

46
Q

Example of things that are not terms

A

Trade Puffs (exaggerations for sales e.g redbull gives you wings), Representations (persuasive techniques)

47
Q

How do you decide whether something is a term or not

A

Importance (Couchman v Hill) Expertise (Dick Bentley expert expected to know info versus private seller Oscar Chess) Lapse of time (Routledge v Mackay more time passed less likely to be term), or written into contract

48
Q

When do we know a term is incorporated into a contract

A

Expressly agreed or implied through common law or statute

49
Q

When will a term be incorporated via common law

A

Custom (tradition), prior dealings or business efficacy and officious bystander test

50
Q

Implied through custom

A

Hutton v Warren, traditions for when farmers sell land

51
Q

Implied through prior dealings

A

Must be consistent, Hillas v Arcos

52
Q

Businnes efficiacy AND Officius bystander tests

A 
Business efficacy (necassy for contract to be effective?, if they had thiugh about it would they have agreed ?, Schawel v Reade) 
Offcious Bystander Test (PRIMA FACIE if someone would have asked them if they had considered this term they would have said they obviouosy had, Shirlaw v Southern Foundaries, failed in Shell v Lostock Garage as Shell wouldve never agreed to just sell to them)
53
Q

Marks and Spencers v BNP

A

To pair BE + OBT together

54
Q

Terms Implied by Statute

A

T2T- Sales of Goods Act 1979 (goods)
-Supply of Goods and Services Act 1982 (services)
C2T- Consumer Rights Act 2015 (goods and services)

55
Q

Sales of Goods Act 1979

A

s13 - As described (Re Moore)
s14(2) - Satisfactory Quality (safety, durability, appearance, freedom from minor defects-decided using reasonable man)
s14(3) - Fitness for purpose (Grant v Australian Knitting Mills, Marshall v Baldry )

56
Q

Supply of Goods and Services Act 1982

A

s13 - Reasonable Care and Skill (Thakes v Maurice acted with competency , Wilson v Best Travel abided by local laws)
s14 - Reasonable Time (implied if not express)
s15 - Reasonable Price ( if not set beforehand and implied if not express)

57
Q

Consumer Rights Act 2015

A

SADFART rights for goods (SQ-s9, FFP-s10, AD-s11)

3R’s for services

58
Q

Remedies for goods under CRA

A

S20-right to reject (within 30 days, refund within 14)
S23-right to repair/replacememt (after once can reject)
S24-right to reduction and final right to reject

59
Q

Remedies for services under CRA

A

S49-right to repeat performance

S52-right to price reduction (up to full refund)

60
Q

Incorportation of Exclusion/Limitation Clauses

A

Signed? (L’Estrange) - cant be misleading, onerous or hidden (Curtis v Chemical Cleaning)

Was it brough to there attention?
yes-encorceable
no-not (Olley v Marbourough)

Tickets ?
expected to have T&C - enforecable
not expected - (Chapeleton v Barry UDC)

Prior Dealings
must be consistant (McCutheon)

Contra Proferenterm
ambigious ? not enforecable (TransOcean Drilling)

61
Q

What is the Act for trader-2-trader Exculsion Clauses

A

Unfair Contract Terms Act 1977

62
Q

What is the Act for consumer-2-trader Exclusion Clauses

A

Consumer Rights Act 2015

63
Q

Auto-ban clauses under UCTA 1977

A

S2(1) death/PI by neg
S2(2) other loses by neg
S6(1) ownership/title under SOGA/SGSA

64
Q

Auto-ban clauses under CRA 2015

A

s31-sales of goods
s57-services
s65-death/PI by neg

65
Q

Reasonability tests for UCTA 1977

A

s11:

(1) knowledge (Smith v Eric and Bush)
(2) bargaining of power (watford electronics)
(4) limitation clauses, e.g. insurance (George Mitchell LTD)
(5) BOP on defendant (Warren v TruePrint)

66
Q

Fairness under CRA 2015

A

s62-Did it put claimaint at a disadvantage ?

67
Q

What is the final step in decided whether an exclusion/limitation clause is enforecable

A

Contra Preferenterm Rule

Law (3 decks)

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