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SQE1 > Contract Law > Flashcards

Contract Law Flashcards

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1
Q

The three requirements for a contract to be formed

A
  • Agreement between parties
  • Intention to be legally bound
  • Consideration
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2
Q

What is consideration?

A

The ‘price’ paid by each party in return for the obligations assumed by the other party

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3
Q

When does an agreement typically arise?

A

When a party accept’s the other’s offer

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4
Q

What are the terms used for the person who makes the offer and the recipient?

A

Offeror and offeree

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5
Q

What does a counteroffer do to an offer?

A

Terminates

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6
Q

Term for an invitation for another party to negotiate by making an offer

A

Invitation to treat

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7
Q

What are some examples of invitations to treat?

A
  • Advertisements
  • Menu
  • Listing goods on internet
  • Shop window displays
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8
Q

Contract in which a party makes an offer which can be accepted by another party performing an act (e.g. advertisement for reward if a piece of jewellery is found)

A

Unilateral contract

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9
Q

Contracts that must be in writing

A
  • Contracts of guarantee
  • Contracts to sell land
  • Consumer credit agreements
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10
Q

Examples of contracts by deed:

A
  • Promises where nothing is received in return (gift)
  • Conveyance of land
  • Power of attorney
  • Non-disclosure agreements
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11
Q

Timeframe a claim must be brought within for breach of:
- Simple contract
- Contract by deed

A
  • 6 years
  • 12 years
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12
Q

The two forms of consideration which can form a contract

A
  • Bargained-for exchange of something of legal value
  • Substitute for consideration (e.g. promissory estoppel, part performance)
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13
Q

What can you presume is present in commercial/business arrangements but not in domestic/social situations?

A

Intention to enter into contract

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14
Q

How can an offer be indirectly revoked?

A

Offeree receives correct information from a reliable source of acts of the offeror which would indicate to a reasonable person that the offeror no longer wishes to make the offer

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15
Q

Until which point can an offeror revoke their offer?

A

Until acceptance

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16
Q

A contract in which the parties to one contract enter into or promise to enter into another contract

A

Collateral contract

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17
Q

When does a unilateral offer become irrevocable?

A

Once performance has begun

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18
Q

How is a bilateral offer accepted?

A

By performance or a promise

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19
Q

How is a unilateral offer accepted?

A

By performance

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20
Q

When is an offeree’s rejection effective?

A

Once received by offeror

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21
Q

What is the usual test for a rejected offer?

A

Would a reasonable person believe the original offer has been rejected

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22
Q

When is an offer terminated under lapse of time?

A

When the offeree fails to accept within the period specified in the contract or, if not specified, a reasonable period

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23
Q

Conditions for offer termination by operation of law

FatDDS

A
  • Failure of any condition contained in the offer
  • Death of offeror or offeree
  • Destruction of the proposed contract’s subject matter
  • Supervening illegality
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24
Q

What is the term for an acceptance of an offer that seeks to vary the terms of an offer?

A

Counteroffer

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25
Q

What quality must an acceptance have to not be a counteroffer?

A

Unqualified

If an acceptance is qualified it will constitute a counteroffer

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26
Q

If no method is stipulated by the offerer, what is the method of acceptance?

A

Any reasonable manner and by any medium reasonable under the circumstances

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27
Q

What is the exception to a method of acceptance stipulated by the offeror?

A

If a method is different but no less advantageous (e.g. stipulated second class post but sent by first)

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28
Q

When must an offeree in a unilateral contract notify the offeror?

A

A reasonable time after performance has been completed

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29
Q

What is the postal rule?

A

Acceptance by post creates a contract at the moment of posting (even if letter does not arrive) UNLESS:
- The letter is not properly addressed/stamped
- Acceptance by post not reasonable
- Offer stipulates acceptance is not effective unless received

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30
Q

Which three groups lack capacity to be bound?

A
  • Minors (under 18)
  • Intoxicated
  • Mental incapacity
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31
Q

Term for contract entered into by disabled person/minor etc. where they can decide a contract won’t be binding on them

A

Voidable

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32
Q

Act that provides a contract entered into by a minor for necessary goods or services at a reasonable price is binding

A

Sale of Goods Act 1979

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33
Q

Act that provides if a party transfers property (e.g. car) to a minor, a court may require its return if just and equitable

A

Minors’ Contracts Act 1987

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34
Q

In which case is a contract entered into by a person lacking mental capacity or intoxicated voidable?

A

If the other party knew

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35
Q

Type of consideration where a party promises to do something in future

A

Executory consideration

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36
Q

Finding a lost dog in a unilateral contract encompasses which two actions?

A

Acceptance and consideration

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37
Q

Who must consideration move from?

A

The promisee

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38
Q

What type of value do the following relate to?
- Sufficient
- Adequate

A
  • Legal
  • Economic
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39
Q

Performance of an existing duty or a promise based on an act already done is considered

A

Not sufficient consideration

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40
Q

What is the exception in which performance of an existing contractual duty owed to the person making the promise is considered sufficient consideration?

A

If performance of an existing contractual duty confers a practical benefit on the party offering additional consideration

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41
Q

Performance or promise to perform an existing contractual duty owed to a third party other than the promisor is

A

Sufficient consideration

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42
Q

Acts performed or promises made prior to a contract being formed are not sufficient consideration. What is the exception?

A

Implied understanding of payment

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43
Q

Equitable principle relating to situations where it’s unfair for a party to go back on a promise

A

Promissory estoppel

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44
Q

Term for those who are party to a contract

A

In privity

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45
Q

In which cases can a third party not in privity enforce a contract?

A
  • Contract expressly provides they can
  • Contract purports to convey a benefit on them
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46
Q

When a principle authorises someone to enter a contract on their behalf

A

Agency

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47
Q

Term for a contractual right being transferred to a person outside the contract (usually benefit only, not burden)

A

Assignment

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48
Q

Term that gives an insurer the same rights as the policyholder

A

Subrogation

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49
Q

Two forms of terms in a contract

A
  • Condition
  • Warranty
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50
Q

What is being described?
A term that goes to the root of the contract. If breached, the innocent party has the option to terminate the contract and claim damages

A

Condition

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51
Q

What is the phrase used in commercial/business agreements that clarifies there is no intention to be bound?

A

Subject to contract

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52
Q

What is the rule that provides ambiguous language is interpreted against the party relying on it?

A

Contra proferentem rule

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53
Q

When is a postal acceptance and rejection effective?

A

Acceptance effective when posted.
Rejection effective when received.

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54
Q

Who wins in a battle of the forms?

A

The person who fires the last shot
(sends the last set of terms that were not objected)

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55
Q

An act or forebearance of one party or the promise thereof

A

Consideration

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56
Q

An agreement not to sue is an example of

Not doing something

A

Forebearance from acting

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57
Q

Term for an act or forebearance promised in the future

A

Executory consideration

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58
Q

Who must consideration move from?

A

The promisee

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59
Q

The act that gives third parties a limited right to enforce a contract to which they are not a party if they are named in the contract and the term to be enforced is for their benefit

A

Contracts (Rights of Third Parties) Act 1999

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60
Q

Consideration must be sufficient but need not be…

A

Adequate

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61
Q

Consideration that is too vague to measure and too difficult to enforce. May render a contract insufficient

A

Illusory consideration

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62
Q

When would a party not be able to enforce a promise of more money for the job they were doing

A

Performance of an existing contractual duty owed to the person making the promise

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63
Q

When can performance of an existing contractual duty be good consideration?

A
  • If it confers a practical benefit on the promisor
  • The promisor is a third party
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64
Q

Acts performing (or promise of) prior to forming a contract is not sufficient consideration. What is the exception?

A

Implied understanding of payment

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65
Q

Three conditions of the exception of implied understanding of payment under past consideration

Request, Renumerated, Enforceable

A
  • Act done at promisor’s request
  • Parties understood act was to be remunerated
  • Payment/benefit must have been legally enforceable had the promise been made in advance
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66
Q

Six exceptions to the part-payment rule

DUCT 2 Different

A
  • Debt is disputed in good faith
  • Unliquidated (uncertain) claims
  • Composition with creditors
  • Third party makes the payment
  • Payment at different place or earlier time
  • Payment made by different means
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67
Q

Three conditions for promissory estoppel

Existing, Inequitable, Promisee

A
  • Clear promise not to rely on existing rights
  • It must be inequitable for the promisor to go back on their promise
  • Promisee must have altered their position in reliance on the promise
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68
Q

Requirements for a third party to enforce a contract they were not party to

A
  • Contract expressly provides they may enforce the term
  • A term purports to confer a benefit on them AND it is foreseen in the contract
  • Third party must be expressly named or be a member of an expressly named benefitting class
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69
Q

Three situations excluded from Contracts (Rights of Third Parties) Act 1999

ACE

A
  • Articles of association (contract between company and shareholders)
  • Contract term expressly states it will not apply
  • Employment contracts
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70
Q

Exceptions to the requirement of privity

A - Anal
A - Alligator
S - Seeking
C - Curvaceous
T - Turtle

A
  • Agency
  • Assignment
  • Subrogation
  • Collateral contracts
  • Trusts
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71
Q

Requirement for a trust to avoid problems of privity

A

There must be an irrevocable intention to benefit the third party

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72
Q

What is taken into consideration to determine whether a statement is a term or representation?

SIS

A
  • At what stage in the contract was it made
  • Importance of the statement
  • Whether the party making the statement had any specialist knowledge
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73
Q

Category for a term that is unclear between being a condition or warranty

A

Innominate term

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74
Q

Terms incidental or collateral to the main terms. Breach does not repudiate the contract but damages may be claimed

A

Warranties

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75
Q

How is an innominate term determined as a condition or warranty?

A

Significance to the contract
If breach results in innocent party losing whole benefit of contract = condition
If breach is incidental to overall contract = warranty

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76
Q

Rule that helps to decide whether evidence of terms outside the written contract can be taken into account to alter the written terms

A

Parol Evidence Rule

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77
Q

Common term in written contracts that provides the written agreement constitutes the entire agreement between parties

A

Entire Agreement Clause

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78
Q

When will a court not uphold the Entire Agreement Clause

A

If it is used by a party to avoid liability for misrepresentation

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79
Q

Three acts that imply terms regarding goods and/or services

A
  • Sale of Goods Act 1979
  • Supply of Goods and Services Act 1982 (Business-Business)
  • Consumer Rights Act 2015 (Trader-Consumer)
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80
Q

In which 3 cases will the court imply a contract term?

A
  • When it is necessary to give the contract business efficacy
  • Based on custom and usage in the industry
  • Based on a regular and consistent course of dealings between the parties
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81
Q

Court will enforce a contract with incomplete agreements and vague terms if it has

A

Sufficient certainty

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82
Q

Term of a contract that attempts to exclude (or limit) the liability of one of the contracting parties

A

Exclusion clause

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83
Q

Three issues considered for an exclusion clause to be enforceable

Procedural & Legal

A
  • Clause must be incorporated
  • Clause must be properly drafted so it is construed (interpreted) as excluding liability effectively
  • Clause must not be prohibited by statute
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84
Q

Three ways a clause is incorporated into a contract

A
  • By signature
  • By notice
  • Through industry custom or previous dealing
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85
Q

The defence that means a party didn’t understand the contract they signed and there was a fundemental difference between what they signed and what they thought they signed

A

Non est factum

86
Q

When must an exclusion clause be brought to the other party’s attention?

A

Before or at the time the contract is concluded

87
Q

The rule that means if there is any ambiguity when interpreting an exclusion clause, the courts will interpret against the party seeking to rely on the clause

A

Contra proferentem rule

88
Q

Act that regulates exclusion clauses in business-to-business contracts

A

Unfair Contracts Terms Act 1977 (UCTA)

89
Q

Under UCTA, what happens to clauses that attempt to exclude liability for personal injury or death caused by negligence?

A

Automatically void

90
Q

Under UCTA, what happens to clauses that attempt to exclude liability for loss (such as property damage) caused by negligence?

A

Void unless reasonable

91
Q

Under UCTA, what is the usual way exclusion clauses are regulated?
(Not including personal injury and death)

A

Must be reasonable to be enforced

92
Q

Which test considers the following:
- Strength of the parties’ bargaining positions
- Whether there was any inducement received by customer to agree to the term
- Whether customer knew or ought to have known about the term
- Whether it was reasonable to conclude compliance with such a condition was practicable
- Whether goods were processed to customer’s special order

A

UCTA test of reasonableness

93
Q

Who has the burden to prove a clause is reasonable?

A

The party relying on it

94
Q

Act that provides a trader cannot exclude or limit the statutory implied terms so as to title, compliance with description, quality, reasonable care and skill and reasonable time

A

Consumer Rights Act 2015

95
Q

Act that provides contract terms must be transparent (plain language and legible) and does not cause a significant imbalance in the parties’ rights and obligations to the detriment of the consumer

A

Consumer Rights Act 2015

96
Q

What are the below examples of in the CRA 2015?

  • Excluding or limiting trader’s liability in the event of personal injury or death resulting from an act of omission
  • Requiring the consumer pay a disproportionately high sum for deciding not to conclude or perform contract
  • Enabling the trader to terminate a contract of indeterminate duration without reasonable notice
A

Potentially unfair terms

97
Q

Which terms are not assessed for fairness under the CRA?

A

Terms that specify the main subject matter or relate to price

Provided the term is transparent & prominent, and not in the list of potentially unfair terms

98
Q

Factors that make a contract void

A
  • Mistake
  • Illegality (including contracts contrary to morality & illegal restraint of trade)
99
Q

The three factors that make a contract voidable

A
  • Duress
  • Undue influence
  • Misrepresentation
100
Q

A contract without any legal effect from the beginning

A

Void contract

101
Q

A contract that operates as a valid contract until a party elects to void/rescind it

A

Voidable contract

102
Q

What is the effect of recisssion on a contract?

A

Puts the parties back in the position they would have been in had the contract not been entered into

103
Q

When is a contract void for mistake

A

It makes what has been agreed fundamentally different to what was intended (parties not in agreement)

104
Q

Term for parties being in agreement but both have made the same mistake

A

Common mistake
(void)

105
Q

Term for parties being mistaken about different things and at cross purposes

A

Mutual mistake
(ambiguous contract = no agreement = void)

106
Q

Term for one party making a mistake the other party is aware of

A

Unilateral mistake
(void)

107
Q

What happens to a contract entered into with a mistake as to identity

A
  • If the mistaken party would have contracted irrespective of the other’s identity, innocent party may have a remedy for misrepresentation
  • If other party’s identity was fundemental for contract to be entered into - void for mistake
108
Q

Defence that protects a signing party in the mistaken belief that it represents something different from what it actually represents

A

Non est factum

109
Q

Requirements for non est factum to apply

A
  • Radical difference between what was signed and what was believed to have been signed
  • Mistaken signatory must not have been careless in signing
110
Q

What is the court’s solution to parties orally agreeing on contract terms but incorrectly recording it

A

Rectification

Allows written contract to reflect the oral agreement

111
Q

A voidable contract whereby some form of pressure has been exerted over a party so that one party has not entered into the contract freely

ii

A
  • Duress
  • Undue influence
112
Q

Fill the gaps:
______ is governed by common law
______ is an equitable doctrine

Similar vitiating factors that render a contract voidable

A
  • Duress
  • Undue influence
113
Q

Three forms of duress

A
  • Duress of the person
  • Duress of goods
  • Economic duress
114
Q

Status of the contract if undue influence has been exercised

A

Voidable

115
Q

Two forms of undue influence

A
  • Actual (overt acts)
  • Presumed (as a result of relationship)
116
Q

What is the difference between duress and undue influence?

A
  • Undue influence is conduct that does not go far enough to be considered duress
  • Unlike duress, undue influence need not be in bad faith or unlawful
117
Q

Term for actual or presumed (more common) undue influence carried out by someone not party to contract

A

Third-party undue influence

118
Q

Five types of illegality that void a contract

A
  • Contracts illegal by statute
  • Contracts illegal at common law (agreement to commit a civil wrong)
  • Contracts contrary to morality or the institution of marriage
  • Contracts damaging to the government
  • Contracts that interfere with justice
119
Q

Doctrine that makes contracts void if they unreasonably restrict a party with clauses of obligation (e.g. restrictive covenants, non-compete clause)

A

Restraint of trade doctrine

120
Q

What must a party wishing to rely on a restraint of trade clause demonstrate?

A

It is reasonably necessary for the protection of its legitimate interests

121
Q

A false statement of fact or law made by one party to induce another into entering a contract

A

Misrepresentation

Induce - if other party didn’t believe/care = not actionable

122
Q

Silence will usually not amount to an actionable misrepresentation except in which type of contract?

A

Uberrimae Fidei (Utmost Good Faith) contracts
(e.g. insurance contracts)

123
Q

Term for a misleading statement that is technically true

A

Partial nondisclosure

124
Q

Term for a false statement made by someone who genuinely believes it to be true and the statement then induces someone to enter into a contract

A

Innocent misrepresentation

125
Q

Types of misrepresentation

A
  • Fraudulent
  • Negligent
  • Innocent
126
Q

Two remedies for misrepresentation

A
  • Rescission (notification required)
  • Damages
127
Q

What happens if the innocent party delays in rescinding a contract involving misrepresentation?

A

Contract affirmed
May lose the right to rescind

128
Q

Under the Misreprentation Act 1967 the court has discretion to award damages instead of ordering rescission in which types of misrepresentation?

A

Negligent or innocent misrepresentation (not fraudulent misrepresentation)

129
Q

Damages are generally awarded under which types of misrepresentation?

A

Negligent and fraudulent

Damages generally not available for innocent misrepresentation unless court grants damages in lieu of recission

130
Q

Rescission can be a remedy to which types of misrepresentation?

A

All.
Fraudulent, Negligent and Innocent.

131
Q

Terms for bringing a contract to an end

A

Discharge
Rescission

132
Q

What is the difference between discharge and rescission?

A

Rights and obligations which have accrued before termination remain in place for discharge but not for rescission

133
Q

What are the five possible reasons for discharging a contract?

Funky Elephants Eat Peanut Butter

A
  • Frustration - Contract can no longer be performed
  • End/vary - Parties agree to end or vary the contract
  • Expiry - Contract expires or break clause triggered
  • Performance - Parties’ obligations have been performed
  • Breach - A party breached the contract
134
Q

What is the difference between discharge and rescission of a contract?

A

Rights and obligations are maintained after discharge.
Rescission destroys all rights and treats the contract as never having existed.

135
Q

What is the consideration in a contract discharged by agreement while all parties still have unperformed obligations?

A

Each party benefits from being excused of their obligations under the original contract

136
Q

What does agreement to end a contract and variation of a contract result in?

A

A new contract

137
Q

How to end a contract by agreement or variation when one party has performed their obligations in full?

A

By deed. If there is no deed, some new consideration must be given

138
Q

Equitable doctrine that allows party to promise not to enforce another’s obligations under the contract thus providing a way around the requirement of consideration

A

Waiver

139
Q

What is the limitation of the waiver doctrine?

A

Party waiving their rights can reinstate the original terms by giving reasonable notice

140
Q

The rule that provides only full (exact and precise) performance will discharge a contract

A

Entire obligations rule

141
Q

Which type of contract does the ‘substantial performance rule’ apply to?

A

Lump sum contract

142
Q

In a case of partial performance accepted by the other party, what can be considered consideration?

A

Agreement on a revised price

143
Q

Two types of breach

A
  • Actual breach (non or defective performance)
  • Anticipatory breach (indication that obligations won’t be fulfilled)
144
Q

What right does a non-breaching party have when an anticipatory breach that goes to a condition of the contract arises, which they lose if they wait?

A

Right to sue for damages

145
Q

What can the innocent party do in a case of breach of a warranty?

A

Claim for damages only

146
Q

What can the innocent party do if the party in breach repudiates a contract or breaches a condition?

A
  • Terminate the contract (must communicate this to breaching party) or carry on with the contract
  • Claim damages
147
Q

What has happened?
Contract rights and obligations remain in place, innocent party may claim damages

A

Contract is terminated for breach

148
Q

If buyer terminates a contract because goods delivered do not conform to contract what must he do to make a claim and what claim can be made?

A
  • Must return the goods
  • Can claim damages for failure to supply goods in conformity with the contract
149
Q

How is a rescinded contract treated?

A

As though it were never effective

150
Q

Retaining defective goods delivered under a sale of goods contract after discovering a defect is considered…

A

Affirming the contract

151
Q

What does affirmation prevent the innocent party from doing?

A

Terminating the contract

152
Q

What are the innocent’s party’s options if a contract is breached?

A

Accept the breach, terminate and claim damages

153
Q

What happens automatically to a frustrated contract?

A

It is discharged

154
Q

Three factors that can frustrate a contract

A
  • Impossible
  • Illegal
  • Radically different
155
Q

Three factors that do not frustrate a contract

A
  • More difficult or expensive to perform
  • Self-induced frustration
  • Events that could be foreseen
156
Q

Act that provides if a contract is frustrated and parties discharged from performance, all sums paid before discharge are recoverable, all sums payable before discharge cease to be payable

A

Law Reform (Frustrated Contracts) Act 1943

157
Q

Clause that allows for contract termination if event outside of parties’ control prevents performance (war, act of God)

A

Force majeure clause

158
Q

How are expectation damages/damages for loss of bargain determined?

A
  • How much to cure defects
  • Difference in value between what was and what should have been provided
159
Q

What do contract breach remedies attempt to do?

A

Put the innocent party in the position they would have been in had the contract been performed or not entered into

160
Q

If expectation interest damages are too speculative to be measured, how can the innocent party recover damages?

A

Based on a reliance measure

161
Q

How do reliance measures compensate the innocent party?

A

Compensate for any expenses incurred in reliance on the contract up to the time of breach

162
Q

When are breach of contract damages assessed from?

A

As at the date the contract is breached

163
Q

When would losses flowing from a breach of contract not be recoverable?

A

When they are too remote
(Remoteness is considered as at the time the contract was entered into)

164
Q

What is the difference in remoteness between contract and tort law?

A

In contract, the test is whether the loss was a serious possibility and must flow naturally from the breach (higher bar)
In tort, the damage needs to be reasonably foreseeable (lower bar)

165
Q

In which circumstance can contributory negligence be used a possible partial defence in Contract?

A

As a last resort

166
Q

What are the three measures of damages in a breach of contract?

A
  • Diminuation of value
  • Cost of remedy
  • Value of loss of amenity (rare)
167
Q

What must the innocent party demonstrate they have done when seeking damages from a contract breach?

A

Taken reasonable steps to mitigate loss

168
Q

What is the difference between liquidated and unliquidated damages?

A

Liquidated damages are quantified/set amount.
Unliquidated damages must be quantified by the court

169
Q

What might a disproportinate liquidated damages clause be challenged as?

A

Penalty clause

170
Q

What defines a penalty clause to the court?

A

It imposes a detriment out of proportion to the obligation breached

171
Q

What distinguishes indemnity from guarantee?

A

In a guarantee, the guarantor’s promise is a ‘secondary obligation’.
In an indemnity, the guarantee is the ‘primary obligation’.
Indemnity need not be in writing.

172
Q

What are the three characteristics of a debt claim?

A
  • No need to consider remoteness or causation
  • No duty to mitigate
  • Amount is liquidated (set amount)
173
Q

What is the common remedy in a breach of contract case involving land or something unique?

A

Specific performance

174
Q

What does an injunction remedy order the breaching party to do?

A

Not to breach the contract

175
Q

For rescission to be the remedy applied in a breach of contract, when must the grounds for rescission have taken place?

A

Before or at the time the contract was entered into

176
Q

Defences to claims for equitable remedy

A
  • Unconscionable behaviour by the claimant
  • Waiver
  • Unreasonable delay in enforcing claim (delay defeats equity)
177
Q

Under the Consumer Rights Act 2015, how long does a consumer have to reject defective goods in return for a full refund?

A

30 days after they were supplied

178
Q

Under the Consumer Rights Act 2015, what can the consumer do if they have not rejected defective goods after 30 days?

A

Require the trader to repair or replace goods at trader’s expense

179
Q

What are restitutionary remedies concerned with?

A

Repayment of wrongful gains, preventing unjust enrichment

180
Q

What do the following mean
Quantum meruit
Quantum valebat

A

Reasonable renumeration for work undertaken
Reasonable payment for the value of the goods

181
Q

What are the two main elements of the Consumer Rights Act 2015 that make a term unfair?

A
  • Contrary to the requirement of good faith
  • Causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer
182
Q

Term for a false statement of fact, made pre-contractually, which is intended to induce the representee to enter into a contract, and which has that effect

A

Actionable misrepresentation

183
Q

Term for a misrepresentation made carelessly or without reasonable grounds for believing it to be true

A

Negligent misrepresentation

184
Q

Five requirements for a contract to be valid

A
  • Offer
  • Acceptance
  • Consideration
  • Intention to be legally bound
  • Parties have capacity
185
Q

Three requirements for a deed to be valid

A
  • In writing
  • Intended to be as a deed
  • Executed as a deed (signed, witnessed, delivered)
186
Q

What is required of a communication for it to be an offer?

A

It must express intent to be bound in contract if the other party accepts

187
Q

To be enforceable by court, the terms of an offer must be sufficiently…

A

Definite and certain

188
Q

Why is returning a lost dog without finder’s knowledge of a reward offer not an acceptance of the offer?

A

The offeree must have knowledge of the offer

189
Q

Why is there never an entitlement to an injunction?

A

It is a discretionary remedy

190
Q

What type of contract clause restricts activities after a contract has come to an end?

A

Restraint of trade clause

These clauses include obligations called Restrictive Covenants

191
Q

When is the defence of laches available as an equitable remedy?

A

If the innocent party has delayed unreasonably in bringing the action and the delay is prejudicial to the other party

192
Q

What term does the Sale of Goods Act 1979 imply as regards condition of goods?

A

The goods supplied under the contract must be reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied

193
Q

What are the 4 bars to rescission whereby the innocent party may lose their right to rescission for misrepresentation?

A
  • Affirmation (carry on anyway)
  • Lapse of time (‘delay defeats equity’)
  • Impossibility of restitution (subject matter changed)
  • Third party right (if bona fide purchaser acquires good title)
194
Q

What 2 remedies are available for breach of a condition?

A

Terminate contract and sue for damages

195
Q

What remedy is available for breach of a warranty?

A

Sue for damages

No option to terminate contract

196
Q

When is the time for performance under a contract a condition rather than a warranty?

A

When time is of the essence

197
Q

When is there a general presumption that time is of the essence in a contract?

A

Commercial contracts for delivery if a time for delivery has been agreed

198
Q

In which type of contracts is time presumed to be of the essence?

A

Commercial contracts

In other contracts, time is of the essence if the contract so provides

199
Q

How binding is an implied term on parties in a contract compared to expressly agreed terms?

A

Equally as binding as expressly agreed terms

200
Q

What are the 3 main points for the Supply of Goods and Services Act 1982?

A
  • Implies innominate term to service contracts that the supplier will carry out the service in a reasonable time and with reasonable care and skill
  • Similar supply of goods terms are implied as under Sale of Goods Act 1979
  • A contract may exclude these terms only if reasonable
201
Q

The court will usually not enforce a contract if the terms are…

A

So incomplete or vague the parties’ intentions are unclear

202
Q

What is this an example of?
X making a statement that the contract does not include any exclusions when X knows it does

A

(Oral) misrepresentation

203
Q

What is required for an exclusion clause incorporated into the contract by notice to be valid?

A

Reasonable steps taken to bring exclusion clause to the other’s attention before or whilst contract is being made

204
Q

Under UCTA, what 3 clauses are void unless reasonable?

A
  • Clause that attempts to exclude liability for any loss other than death by negligence
  • Term that excludes or restricts liability for breach of contract, reserves right to substantially change performance from expectation, or negates party’s duty to perform
  • Clause that attempts to exclude liability for breach of obligations as to compliance with description, quality, or fitness for purpose under SGA 79 or SGSA 82
205
Q

What type of duress
- qualifies voidable contract
- does not qualify voidable contract

A
  • Illegitimate pressure (such as physical threat or exploiting a stronger economic position in an illegitimate manner)
  • Duress to goods (threat to unlawfully retain goods)
206
Q

What arises when an outside party blackmails the innocent party into making the contract or uses a position of trust and confidence to put excess pressure on the party?

A

Undue influence

207
Q

When is a statement of intention an actionable misrepresentation?

e.g. I intend to do x in futute

A

If it can be proved the speaker did not genuinely have the intention when they said they did

Changing their mind later doesn’t create an actionable misrepresentation

208
Q

In which 3 situations can silence be an actionable misstatement?

A
  • In contracts uberrimae fidei
  • When partial disclosure would be misleading
  • An earlier representation has become untrue
209
Q

Why is it harder to prove fraudulent than negligent misrepresentation under the Misrepsentation Act 1967?

A

Challenger must prove fraud but speaker must disprove negligence

210
Q

When does court put parties in position they would have been in if contract was
- performed
- never entered into

A
  • When granting specific performance or damages as remedies for breach of contract
  • When granting rescission or reliance damages as remedies for breach of contract
211
Q

What is required to support the discharge of a contract by the agreement of the parties?

A

Consideration

212
Q

What does the contract breach remedy of damages attempt to do?

A

Put the innocent party in the position they would have been in had the contract been performed

SQE1 (15 decks)

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