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Law > Contract Fr > Flashcards

Contract Fr Flashcards

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1
Q

What is a contract

A

A legally enforceable agreement of the parties

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2
Q

What is the objective approach

A

To determine if there is an agreement courts will look at objective appearance of things rather than actual fact of agreement

Smith v Hughes - whether a reasonable man would consider there is a contract

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3
Q

What is freedom of contract

A

People should be allowed to create whatever agreements they wish without courts interference

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4
Q

Evaluate freedom of contract

A

Necessary for maximisation of wealth for benefit of all

Obtained by markets, need binding contracts to operate properly

Are contracts an expression of free will, does a consumer get to negotiate terms?

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5
Q

What is an offer

A

A statement by one party of a willingness to contract on stated terms if they are accepted by the party or parties to whom they are addressed

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6
Q

How can an offer be made

A

Oral

Written

Conduct

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7
Q

What are types of offers

A

Bilateral

Unilateral

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8
Q

What’s a bilateral offer

A

Made to a specific individual

Bowerman v ABTA

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9
Q

What’s a unilateral offer

A

Made to the general world

Carlill v Carbolic Smokeball Co

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10
Q

What’s an invitation to treat

A

An expression of willingness to enter into negotiations

Gibson v Manchester City council

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11
Q

Difference between offer and invitation to treat

A

Offer - intention to legally bound

Invitation - intention to negotiate

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12
Q

Case for objective approach

A

Smith v Hughes

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13
Q

Case for bilateral offer

A

Bowerman v ABTA

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14
Q

Case for unilateral offer

A

Carlill v Carbolic Smokeball and Co

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15
Q

Case for invitation to treat

A

Gibson v Manchester city council

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16
Q

Is a display of goods an offer or invitation to treat

A

Shop window & shelf on self service shop - invitation to treat Fisher v Bell

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17
Q

Is adverts offers

A

Ad in magazine is invitation to treat - Partridge v Crittenden

An offer if includes terms customer has acted on

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18
Q

Is a statement of price an offer

A

Invitation to treat

Harvey v facey

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19
Q

Are auctions offers

A

Inviting bids is in station to treat

Bids Is offer

BCA v Wright

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20
Q

What 4 things do you have to state are offer or not

A

Goods on display

Auction

Advert

Statement of price

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21
Q

How does an offer end

A

If the offeree withdraws it before it is accepted

Revocation

Dickinson v Dodds

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22
Q

What effects the duration of an offer

A

Revocation

Rejection

Counter offer

Lapse of time

Death

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23
Q

Describe revocation

A

Offer withdrawn before acceptance

Can be done via 3rd party

Must be communicated to the offered

Must be revoked by same method as original offer

Not when acceptance ongoing

24
Q

Describe counter offer

A

Extinguishes the original offer

A request for further info is not a counter offer

Stevenson v McLean

25
Q

Describe rejection

A

Ends the offer

26
Q

Describe how death affects an offer

A

Death ends an offer unless it can be performed by another person and the offeree is unaware of the offerors death

Bradbury v Morgan

27
Q

How does acceptance take place

A

1) Acceptance must be communicated to the offeree

2) terms of acceptance must exactly match the terms of the offer

3) agreement must be certain

28
Q

Describe communication of accepting an offer

A

Offeror must receive acceptance before it’s effective

Silence will generally not amount Felthouse v Bindley

Acceptance can be through conduct

Brogden v Metropolitan Railway

29
Q

What are the postal rules of an offer

A

Where it is agreed parties will use post as means of communication postal rules apply.
These state where a letter is properly addressed and stamped, acceptance takes place when the letter is put in the post box

Adams v Lindsell

30
Q

Describe how terms of acceptance must Exacrly match terms of offer

A

If terms differ, this will amount to a counter offer and no contract will exist

Hyde v Wrench

31
Q

Describe how the agreement must be certain in accepting an offer

A

When viewed objectively (reasonable person smith v Hughes)

Must be possible to determine exactly what the two parties have agreed to

Subdrook trading estate v Eggleton

32
Q

What are tenders

A

Where someone invites others to make offers to do a job or provide goods or services

33
Q

What is a single offer tender

A

1) statement made that work needed
2) tender invited
3) tenders submitted - offers
4) offers accepted or rejected

34
Q

What are standing offer tenders

A

Where goods or work are needed on ongoing basis

Tenders invited

Tenders submitted - offers

Acceptance takes place when order is placed

Each time order takes place, separate contract formed

35
Q

What is consideration

A

The bargain of a contract which is based on an exchange of promises.

Each party must be promiser and promisee. They must both receive a benefit and suffer a detriment - consideration

Consideration must be somethinf of value in the eyes of the law - Thomas v Thomas.

A one sided promise with no consideration = gift Ward v Byham

36
Q

What are the 6 rules of consideration

A

Must not be past

Must be sufficient but need not be adequate

Must move from the promisee

An existing public duty will not amount to valid consideration

An existing contractual duty will not amount to valid consideration

Part payment of a debt is not valid consideration for a promise to forego the balance

37
Q

What is meant by consideration must not be past

A

McArdle - past consideration is not valid

However may be valid where it was proceeded by a request

38
Q

What is meant by consideration must be sufficient but need not be adequate

A

No requirements that consideration must be market value. Providing something is given in exchange
e.g £1 for a house
Would be valid

Courts not concerned if party made a good or bad bargain

Chappell v Nestle

39
Q

What is meant by consideration must move from the promisee

A

If person other than promisee is to provide consideration, promisee can not enforce the agreement

Tweddle v Atkinson

40
Q

What is meant by an existing public duty will not amount to valid consideration

A

Where a party had a public duty to act, this can not be used as consideration for a new promise

Collins v Godefrey

41
Q

What is meant by an existing contractual duty will not amount to valid consideration

A

If a party has an existing contractual duty to do an act. This act can not be used as consideration for a new promise

Myrrick

Unless the party goes beyond their existing duty

42
Q

What is meant by part payment of a debt - consideration

A

Part payment not valid to release debt in full

43
Q

What is promissory estoppel

A

Where A promises something to B and B relies on that promise to his detriment, then A should be stopped from going back on his promise

Exception to the rule of part payment

44
Q

What is intention to create legal relations

A

Requirements of intention to create legal relations aims to sift out cases which are not really appropriate for court action.

Not every agreement leads to a binding contract e.g agreeing to meet a friend at the pub - no legal requirement to do so

This is because the parties do not intend to create legal relations

This draws the line between social and domestic agreements to agreements made in a commercial context

45
Q

Describe intention to create legal relations in social and domestic agreements

A

The law raises a presumption that parties do not intend to create legal relations

Balfour v Balfour

This may change if there is evidence of a written agreement, where the parties have separated, or where there is a 3rd party

46
Q

Describe intention to create legal relations in commercial agreements

A

When an agreement is made in a commercial context, law raises a presumption that the parties do intend to create legal relations by the agreement

Esso petroleum v Commissioners of customs & Excise

This can be rebutted bu evidence to the contrary of

Binding in honour only clauses

The distinction between social and domestic agreements and commercial can be fine

47
Q

What is privity of contract

A

The idea that only a person who is party to a contract can sue on it or be sued under it

A person who is not party to a contract cannot enforce rights under it even if he/she intended to benefit from it

As would be unfair to let them gain under a bargain when they have provided nothing in return

48
Q

What is a term

A

A party can sue on a term for breach of contract

49
Q

What is representation

A

A statement made to encourage the other party to enter into a contract

It is not part of the contract, but the other party may sue if it is found to be false

Known as misrepresentation

Party can sue for misrepresentation, but remedies are limited

50
Q

What is a statement of opinion

A

Does not form part of a contract and is not a representation

Also true of mere puffs also known as trade puffs.

These are boasts and not intended to be taken seriously

51
Q

Trade puff

A

Is not a term or a representation

Dimmock v Hallett

52
Q

To decide whether a statement is a term or representation court looks at?

A

Parole evidence of rule

Relative expertise of the parties

Importance of the statement

Time

53
Q

What are the parole evidence rules

A

Where the contract has been put into writing only the terms included in the written document are terms

Statements are representation

54
Q

What are relative expertise

A

If representer has greater knowledge it is more likely to be a contractual term

If representee has greater knowledge, more likely to be representation

Oscar chess v Williams

55
Q

What is the importance of the statement and reliance

A

Where the representee indicates to the representor the importance of the statement

Bannerman v White

56
Q

What is timing

A

The longer the time lapse between making the statement and entering the contract the more likely it will be representation

Routledge v McKay

Law (10 decks)

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