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OCR A-Level law > contract > Flashcards

contract Flashcards

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1
Q

what is trietel’s definition of an offer

A

an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed

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2
Q

Harvey v Facey

A

in order to be valid offer must be exact and definite terms

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3
Q

Gibson v Manchester City Council

A

word ‘may’ means it was not an offer as it was too vague

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4
Q

fisher v bell

A

Display of goods is an invitation to treat not an offer

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5
Q

partridge v crittenden

A

print adverts almost always invitation to treat

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6
Q

Carlill v Carbolic Smoke Ball Co (offer)

A

reward posters are considered unilateral offers

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7
Q

payne v cave

A

auctions with reserve are an invitation to treat

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8
Q

Heathcote ball v Barry

A

auction without reserve is a unilateral offer

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9
Q

what is acceptance

A

a positive and unconditional agreement to the terms of an offer

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10
Q

what are the methods of accepting an offer

A

specified, verbal, conduct, post, electronic

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11
Q

Eliason v Henshaw

A

if method of accepting an offer is specified, must accept by this method

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12
Q

felt house v bindle

A

acceptance by conduct must be a positive act

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13
Q

Carlill v Carbolic Smoke Ball Co (acceptance)

A

using item can be positive conduct

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14
Q

Household fire insurance v grant

A

Acceptance complete on posting, even if lost and never arrives

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15
Q

Adams v linsell

A

Acceptance is complete on posting

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16
Q

Entores

A

electronic methods do not follow the postal rule

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17
Q

brinkibon

A

acceptance is valid once received in an email inbox the next working day

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18
Q

what did Electronic Commerce Regulations 2002 do?

A

set out email acceptance rule

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19
Q

Ramsgate Victoria Hotel v Montefire

A

offer can end due to lapse of time

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20
Q

stevenson v McClean

A

to end an offer there must be a clear rejection, not a request for more information

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21
Q

Hyde v Warren

A

counter offer rejects the original offer

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22
Q

when does a contract end due to death?

A

if the offeree in certain contracts (e.g. car sales) dies due to them not being able to take up offer

if offeror dies in a personal service contract

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23
Q

Routledge v Grant (revocation)

A

can revoke offer at any point of it being open

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24
Q

Byrne v Van TieHoven

A

revocation does not follow postal rule - must be received by offeree

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25
Q

Dickinson v Dodds

A

a third party can revoke an offer

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26
Q

what are the presumptions of intent to create legal relations based on different types of contract

A

business contracts - there is an intent

social agreement - no intent

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27
Q

Sadler v Reynold

A

burden is on claimant to show it is a business deal if it is not obvious

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28
Q

McGowan v Radio Buxton

A

business contract (radio competition) presumption of legal relations

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29
Q

Edwards v Skyways

A

surrounding employment - business contract - intent for legal relations

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30
Q

Rose and Frank v Crompton

A

wrote in contract that there was no intent to create legal relations - business contracts assumption rebutted

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31
Q

Appleton v Littlewoods

A

contract said it was ‘binding in honour only’ - rebuts presumption

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32
Q

Balfour v Balfour

A

no evidence there was intent to create legal relations - social contract between divorcing couple

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33
Q

Merritt v Merritt

A

there was evidence of an intent to create legal relations as they wrote down agreement (social contract)

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34
Q

Jones v Padvatton

A

purely domestic - presumption of not legal relations

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35
Q

what is consideration

A

an act or forebearance of one party or the promise thereof is the price for which the promise of the other is brought

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36
Q

what is executed consideration

A

one party has performed its part of the agreement

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37
Q

what is executory consideration

A

promise to do something in the future

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38
Q

Chappell v Nestle

A

consideration must have some economic value

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39
Q

White v Bluett

A

intangible matters are not consideration - promise not to complain

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40
Q

Ward v Bytham

A

Promise to keep child happy is consideration but keep child alive is not

keeping child alive is a pre-existing duty - not consideration

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41
Q

Re McArdle

A

Past consideration is not valid consideration

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42
Q

Lampleigh v Braithewaite

A

Past consideration is not valid consideration

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43
Q

Collins v Godefroy

A

policeman doing job is a pre-existing duty - not consideration

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44
Q

Glasbrook v Glamorgan

A

police exceeded a pre-existing duty - valid consideration

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45
Q

Williams v Roffey

A

consideration was avoiding penalty

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46
Q

Tweedle v Atkinson

A

consideration must come from parties involved in contract

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47
Q

what did contract (rights of 3rd parties) Act 1999 say about consideration

A

consideration can come from a 3rd party if they’re named in the contract

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48
Q

Shadwell v Shadwell

A

consideration can exist where contractual duties are owed to a 3rd party

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49
Q

Pinnel’s case

A

part payment is not consideration

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50
Q

High Trees

A

established promissory estoppel - lord denning

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51
Q

Re Selectmove

A

can ask for the rest of the money as aren’t under a duty to accept instalments

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52
Q

D and C builders v Rees

A

promissory estoppel not available to those who put pressure on the other party

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53
Q

Couchman v Hill

A

The more important the statement was, the more likely it will be binding - implied terms

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54
Q

Dick Bentley

A

term of contract as had specialist knowledge

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55
Q

Routledge v Mckay

A

a time lag between statement and contract is likely to mean it is not a term of contract
it is assumed that everything parties wanted to include is written in the contract

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56
Q

how are terms implied by common law?

A

business efficacy, officious bystander, custom, prior dealings

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57
Q

The Moorcock

A

term implied to make business sense - business efficacy

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58
Q

Shirlaw v Southern foundries

A

Officious bystander test - if an officious bystander were to suggest some express provision for it in their agreement they would

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59
Q

Shell v Lockstock

A

terms will not be implied if parties would never have agreed to them had they thought about them

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60
Q

Marks and Spencer plc v BNP

A

reasonableness of implied terms is judged objectively

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61
Q

Hutton v Warren

A

Terms implied by custom

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62
Q

Hillas v Arcos

A

terms implied by prior dealings

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63
Q

Re Moore

A

breach s.13 SGA 1979 - not enough tins

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64
Q

what did s13 SGA 1979 say

A

implied condition as to description

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65
Q

what did s14 SGA 1979 say

A

implied condition that the goods are of satisfactory quality

66
Q

Baldry v Marshall

A

breach s14 - car sold was not fit for purpose

67
Q

what is s13 Supply Of Goods and Services act?

A

implied term that service will be carried out with reasonable care and skill

68
Q

Thake v Maurice

A

surgeon completes surgery to the best of their ability - doesn’t breach SGSA

69
Q

Carlill v Carbolic Smoke Ball Co (implied terms)

A

trade puffs aren’t a term

70
Q

business to business terms implied by statute

A

sale of goods act 1979

Sale of goods and services act 1982

71
Q

business to consumer implied terms by statute

A

consumer rights act 2015

72
Q

what did s9 CRA 2015 say

A

the term that goods are of satisfactory quality is implied

73
Q

how does the officious bystander test show that courts implying terms can be negative?

A

shirlaw v southern foundries + Marks and Spencer v BNP says that reasonableness is judged objectively and isn’t concerned with parties opinions - contract is supposed to give the parties freedom to contract on terms they want so if their answer to the test is not taken into account then it limits the freedom

74
Q

what was said in Marks and Spencer v BNP which shows that courts implying terms may be unfair

A

‘if the term satisfies the other requirements it is hard to think that it would not be reasonable’ - judging objectively means the parties are not contracting on terms they choose

75
Q

how does the rule from hillas v acros limit freedom of contract as well as help it

A

rule = terms can be implied by prior dealings
limit - stops freedom to contract on new terms
help- it is likely that terms will be similar so it is more effective - allows for courts to accurately judge aim

76
Q

How does the rule from Shell v Lockstock garage help and hinder freedom of contract

A

help - terms will not be implied unless the party would’ve agreed it had they thought about them - helps the party with less bargaining power that may have been forced into a contract
hinder - if it is written in the contract and they decided they don’t want to it may hinder the other party as they may have relied on it

77
Q

how does schwel v reade show that implied terms by courts are actually a good thing

A

court can decide that a verbal statement is a term in business efficacy - helpful when the statement influenced a party to enter into the contract

78
Q

how does the consumer rights act show implied terms have a positive impact

A

equalises bargaining power

79
Q

what is the general rule regarding exclusion/limitation clauses + which case

A

L’estrange - if you signed the contract you are subject to the clause

80
Q

curtis v chemical cleaning

A

if c signed due to an oral agreement and aren’t told about exclusion/limitation clauses it is invalid

81
Q

Olley v Marlborough court

A

must be given reasonable notice of the exclusion/ limitation clause

82
Q

why is the rule in L’estrange sometimes considered unfair?

A

could be subject to a clause you didn’t know about

83
Q

why is the rule established in curtis v chemical cleaning good?

A

allows for people to not be bound by clauses they were unaware of even when asking

84
Q

why is the L’estrange rule sometimes considered good?

A

protects defendants where c didn’t read contract - not their fault

85
Q

Parker v South Eastern Railway

A

exclusion clause on back of ticket was considered insufficient notice so was invalid

86
Q

why does the outcome of Parker v south eastern railway seem unfair

A

c should’ve read clause - notice was reasonable but not ‘sufficent’

87
Q

McCutcheon v David MacBrayne

A

in order for exclusion/limitation clauses to be implied by prior dealings there must be consistent signing

88
Q

what is the evaluation point raised in McCutcheon v David Macbyrne

A

had c been present with the contract on the day he would’ve signed it however it happened to not be presented that day - should imply from prior dealings even though he didn’t consistantly sign it as court decision goes against the intention of the contract

89
Q

what is the contra proferentem rule

A

where there is doubt about the meaning of a term in a contract the words will be construed against the person who put them in the contract

90
Q

which case shows the use of the contra proferentem rule

A

Transocean drilliing UK

91
Q

why is the contra proferentem rule good?

A

created to remove doubt, not create it - so if the exclusion clause is clear it will not apply - protects party with lesser bargaining power

92
Q

what are the s11 UCTA test for reasonableness

A

s11(1) reasonable in light of both parties knowledge
s11(2) bargaining power, inducements, special order goods, likelihood of compliance or term listed
s11(4) limitation clause only - resources d could expect to be available for meeting liability - should it arise - how fair is it for d to cover himself?

93
Q

what is not allowed to be excluded according to UCTA 1977

A

s2(1) - personal injury/death
s2(2) - unreasonable negligence
s6(1) - implied condition as to title

94
Q

how does the CRA 2015 provide adequate protection to contracting parties?

A

protects party with lesser bargaining power

95
Q

cutter v Powell

A

discharge by performance - partial performance is not complete and exact (died on voyage)

96
Q

Re Moore

A

not entire performance (24 tins not 30) so discharged

97
Q

what are the exceptions to the need for complete and exact performance

A

divisible contracts, substantial performance, prevention of full performance , voluntary acceptance of part performance, late performance

98
Q

Ritchie v Atkinson

A

paid per tonne so could claim damages for undone part but not discharge the entire contract (divisible contract)

99
Q

Hoenig v Isaacs

A

can only claim damages for defect left as there was substantial performance

100
Q

Bolton v Mahadeva

A

small jobs require full performance - doesn’t fall under substantial performance exception

101
Q

planche v colburn

A

if one party prevents the other party from completion the innocent party can claim (got half payment as cancelled book writing half way through)

102
Q

which exceptions can you get quantum merit payment from

A

prevention of full performance, voluntary acceptance of part performance

103
Q

simpter v hedges

A

can’t claim if voluntarily accepted party performance

104
Q

what is the remedy for late performance

A

always damages less it was a condition (can rescind)

105
Q

Union Eagle

A

time expressly stated as essential in contract so could repudiate for later performance

106
Q

Charles richards

A

even if time isn’t important - can repudiate if it is a condition and there is late performance

107
Q

what are the two types of breach

A

actual, anticipatory

108
Q

pilbrow v pearless co

A

actual breach = fails to perform or unsatisfactory performance

109
Q

Hochester v De La Tour

A

indicated to him before contract took place it wouldn’t go ahead - anticipatory breach

110
Q

Bulk Uruguay

A

can infer an anticipatory breach from conduct

111
Q

when can you start claiming for damages in an anticipatory breach?

A

as soon as find out performance won’t occur

112
Q

what is frustration

A

if after a contract is made, something happens through no fault of the parties to make it impossible to carry out the contract

113
Q

Taylor v Cadwell

A

Set out doctrine of frustration

frustration through impossibility

114
Q

what is a force majeure clause

A

means ‘superior forces’ - overrides doctrine of frustration

event will be determined according to the clause

115
Q

when can a contract become frustrated

A

impossibility, illegality, radical change

116
Q

Robinson v Davidson

A

getting ill can be a frustrating event (by impossibility)

117
Q

shipton

A

frustrated by illegality - requisitioned by gov

118
Q

Fibrosa

A

frustrated by illegality - port occupied by enemy WW2

119
Q

what is frustration by radical change?

A

main purpose of contract is based on a particular event and event will not take place

120
Q

krell

A

frustrated by radical change - hired hotel to go to coronation and it was cancelled due to king’s illness

121
Q

Herne Bay

A

not accepted frustration by radical change as although king ill for coronation, celebration went ahead

122
Q

when is frustration not accepted?

A

self - induced, less profitable, foreseeable

123
Q

Maritime national fish

A

self induced so frustration not accepted - chose not to get licence

124
Q

Super Servant II

A

self inflicted as chose to certain ships in order to avoid agreement - frustration not accepted

125
Q

Davis contractors

A

less profitable/more difficult to complete is not a reason for contracts to be frustrated

126
Q

Amalgamated investment

A

should’ve been aware of risk, foreseeable - not frustration

127
Q

four seasons

A

should be paid during suspension as foreseeable staff may be suspended - no frustration

128
Q

what does s1(2) Law reform (frustrated contracts) act 1943 say about the remedies of frustration

A

money already paid is recoverable and money due under contract is not payable

129
Q

what does s1(3) law reform (frustrated contracts) act 1943 say about the remedies for frustration

A

court can use discretion to order compensation

130
Q

what is the common law legal right regarding breaching of a contract

A

can repudiate if a condition

131
Q

what are the two types of remedy

A

legal, equitable

132
Q

what are the statutory legal rights in remedies?

A

CRA 2015 - if breached have a short term right to reject, to get a repair or a right to reduction in price
SGA 1979 - unpaid sellers have a legal interest over property until it is paid for

133
Q

what is a prohibitory injunction

A

a court order instructing someone not to do something

134
Q

AB v CD

A

interim injunction - temporary injunction

135
Q

mandatory injunction

A

court order requiring someone to do something

136
Q

Page one records

A

could only claim damages not order injunction as can’t force people to work together

137
Q

specific performance

A

court order compelling someone to do something typically hand over property

138
Q

Airport industrial GP

A

specific performance not ordered as would inevitably force a company into liquidation

139
Q

what is the aim of damages

A

put claimant back into position they would be in if the contract had been properly performed

140
Q

what duty does a claimant have if a contract is breached

A

mitigate their loss

141
Q

white v McGregor

A

c shouldn’t have kept doing job after anticipatory breach - didn’t mitigate loss

142
Q

British Westinghouse

A

got better turbines after breach. gain should be balanced against loss - no damages due as mitigation removed loss

143
Q

what are nominal damages

A

awarded if there’s a breach but no actual loss

144
Q

Stanforth v Lyall

A

boat rehired so no loss but could claim for breach

145
Q

wrotham park damages

A

cost of permission to breach

146
Q

2 stage test for consequential loss

A

causation (loss must be directly caused by breach) and remoteness (must be reasonably foreseeable)

147
Q

Stansbie v Troman

A

decorator didn’t lock up - direct cause

148
Q

Hadley v Baxendale

A

foreseeability test - cannot be held liable for consequences you could not have anticipated

149
Q

what is direct/normal loss? is it recoverable?

A

type that would usually arise from a breach - recoverable

150
Q

what is indirect/abnormal loss? is it recoverable?

A

loss that is out of the ordinary - only recoverable if when contract was made d knew it could happen

151
Q

Hotel services Ltd v Hilton

A

loss of profit from defect minibars is a direct loss

152
Q

Victoria Laundry

A

unknown gov. contract not recoverable - indirect loss

153
Q

The Heron II

A

indirect loss but recoverable because had specialist knowledge so should have known

154
Q

what is loss of bargain

A

difference it costs to get elsewhere

155
Q

Charter v Sullivan

A

if demand from other consumers no loss of bargain

156
Q

Bence Graphics v Fasson

A

got difference in value as lasted 3 years less than it should’ve

157
Q

Angila TV

A

can claim for restitution and costs incurred (e.g. get damages for travel)

158
Q

what did Victoria laundry show about claiming for loss of profit?

A

only businesses can claim

159
Q

swan tours

A

damages for emotional distress available in enjoyment contracts

160
Q

addis v gramophone

A

cannot claim for damages for mental distress in business contracts

161
Q

Ruxley construction v Forsyth

A

can claim for loss of amenity (pool too shallow)

162
Q

what does quantum meruit payment mean?

A

the amount someone deserves - In most cases it denotes a claim for a reasonable sum in respect of services or goods supplied to the defendant

OCR A-Level law (4 decks)

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