Contract Law Flashcards
Name the five elements of a contract
OACIC
Offer, acceptance, consideration,
intention, certainty of terms
What is an offer and what does it encompass to be valid?
(CSCI)
An offer promises a party to enter into a contract subject to specific terms.
To be valid it must be complete, capable of acceptance, specific and written with the intention of being legally binding
What is an invitation to treat?
A request for someone to make an offer to enter into negotiations
4 ways an offer can be terminated
(DLRR)
- Death of an offerer,
- Lapse of time
- Revocation
- Rejection
Acceptance of offer vs counter offer
Acceptance makes an offer legally binding. A counter offer is a variation of the terms amounting to a rejection.
3 ways an offer can be accepted
- Orally
- By conduct
- In writing
What is meant by consideration in a contract
Something of value that is to be exchanged
Two different types of arrangements and their presumed intentions
- Intention to create legal relations in a social and domestic agreement- presumption of no intention to be legally binding
- Intention to create legal relations in a commercial agreement- presumption of intention to be legally binding
When is an agreement uncertain?
May be lacking an essential term
May be vague or ambiguous
6 vitiating factors that make a contract voidable
(DUMICS)
- Duress
- Undue influence/unconscionable bargain
- Misrepresentation
- Incapacity
- Contract with minors
- Statute voidable/restraint of trade
8 circumstances that terminate a contract
(EPAIMFOR)
- Expiry
- Performance
- Agreement
- Illegality- prevents the enforcement of a contract if it is illegal
- Mistake
- Frustration- contract to be set aside when an unforeseen event makes it impossible or illegal to perform
- Operation of law- due to legal requirements
- Recession- undo the contract
6 remedies for breach of contract
(DRRSIR)
- Damages
- Repudiation- termination on the most serious breach
- Rescission- unwinding of the transaction
- Specific performance- court obligates party to perform obligations
- Injunction- court obligates specific tasks
- Restitutionary award- restores claimant to pre-loss state
Explain the burden of proof and the ‘but for’ test
The responsibility falls on the claimant to prove that a contract was breached and the loss was due to that breach.
4 hypothetical consequences to consider when quantifying loss
- What would the claimant have done?
- What would the defendant have done?
- What would the third parties have done?
- What natural events would have occurred?
8 common defenses in a breach of contract
(LMLISCER)
- Limitation
- Mitigation
- Loss not recoverable
- Illegality by the claimant
- Set-off/counterclaim
- Contributory negligence
- Exclusion/penalty i.e contract terms
- Remoteness
What is the difference between ‘void’ and ‘voidable’
An important terminological distinction is between contracts that are capable of being ratified at a later stage, which are referred to as ‘voidable’, and purported contracts which never came into existence as they were unenforceable by law, which are referred to as ‘void’.
Limitation in contract law
6 years
Harvey v Facey (1893)
Invitation to treat example
Roberts v Anderson (2003)
Legally binding oral example
Entores v Miles Far East Corp. (1955)
The reception rule
Adams v Lindsell (1818)
The postal rule
Balfour v Balfour (1919)
Intention where marriage is considered
Errington v Errington Woods (1952)
Written agreement
Simpkins v Pays (1955)
Third-party agreement
Merritt v Merritt (1970)
Agreement where parties have seperated
Foley v Classique Coaches Ltd (1934)
Certainty of terms
Hadley v Baxendale (1854)
Test for remoteness
The Law Reform (Contributory Negligence) Act 1945
The Law Reform (Contributory Negligence) Act 1945 (LRCNA 1945) provides for apportionment of loss where a claimant has suffered loss “as the result partly of his own fault and partly of the fault of any other person”.
Henderson v Merrett Syndicates Ltd (1994)
Duty of care owed in contract
Part 36
Settlement of costs, 21 days to respond
Benefits of contract law case
Can strengthen the case with special damages, less assessment
Why plead in tort and contract?
Chance of more compensation in tort, more success in contract. More assessment needed in tort. Special damages would strengthen a case in tort. Can recover general damages for child not named in tenancy in contract law, which would otherwise be in special damages
Voidable, void and termination difference
Voidable- parties can continue to operate under it but make it terminable under those issues (more of a restraint)
Termination- immediate end (total ending)
Void- never came into existence because was never plausible (never needed to be voidable or terminable)
ATE policy
Solicitor takes it out before goes to court- the earlier the better or more expensive. If lose the client doesn’t pay it back, if win comes out of compensation.
Solicitors fees standard CFA
Disbursements (extras covered by our insurer Sandfield)
Basic costs
Success fees- ours is damage % for better buisness
Implied vs express terms of a contract
Read against the factual matrix vs not expressly stated
