contract pt 2 Flashcards
1
Q
offer (lapse of time)
A
- where it is expressly stated that the offer will remain open for a fixed period, the offer cannot be accepted after the expiration of that period
2
Q
offer (revocation)
A
- communication of revocation doesnt need to be by the offeror as long as the offeree ought to believe the source who informs him
-a promise to not revoke an offer before a specified date isn’t binding - needs to be communicated to the offeree before acceptance
3
Q
offer (invitation to treat- shop displays)
A
can argue that websites are analogous to this
4
Q
byrne v van tienhoven
A
revocation needs to be communicated to the offeree before acceptance
5
Q
partridge v crittenden
A
advert was an invitation to treat- sale of birds
6
Q
carlill v carbolic smoke ball
A
- can exhibit i2clr with an advert
- and with unilateral contracts, acceptance doesnt need to be separately communicated to the offeror
7
Q
Barry v davies
A
an auction without reserve is a definite offer to sell to the highest bidder
8
Q
entores v miles
A
- offeror may be prevented from denying that he received an acceptance if it is his own fault that he didnt get it
- contract is made when and where acceptance was received
9
Q
felthouse v brindley
A
- silence doesnt amount to acceptance
10
Q
Stephenson v mclean
A
a mere request for info will not destroy the original offer
11
Q
may v butcher
A
- lack of certainty of essential terms indicating there was no concluded contract
- not may v butcher but court also has to balance that with the need to give effect to reasonable expectations of business people
12
Q
esso v commissioners of customs and excise
A
- promotional coins given to people who purchased certain amount of petrol
- did they have to pay tax?
- no because the coins weren’t for sale
13
Q
Balfour v Balfour
A
- not assumed that there is an i2clr in agreements between husband and wife
14
Q
problem question misrepresentation VOIDABLE
A
- is the statement a term of representation?
- is the misrep operative?
- what type of misrep is it?
- has any attempt been made to exclude liability for misrep?
- what remedies are available?
15
Q
term or representation?
A
- primarily a question of intention- viewed objectively
- guidelines
- timing of statement
- opp to verify statement given
- importance of statement is made clear to maker
- specialist knowledge and skill of one party
- writing?
16
Q
routledge v McKay
A
- timing
- writing
17
Q
ecay v Godfrey
A
- opp to verify
18
Q
Bannerman v white
A
- importance of statement
19
Q
dick Bentley v harold smith
A
- specialist knowledge/skill
20
Q
is the misrep operative?
A
- false statement
- (statements of opinion or belief, statements of future conduct/intention, silence or non-disclosure)
- inducement- doesnt have to be sole reason for the contract
21
Q
statements of opinion or belief (actionable/not?)
A
- not as a general rule actionable
- can be if special knowledge- dick Bentley
22
Q
edgington v fitzmaurice
A
- statement of intention can be treated as a representation and therefore a statement of fact
- doesnt have to be the sole reason for entering into the contract
23
Q
spice girls v aprilla
A
- representation by conduct
- SG appeared in an advert for aprilla but they knew a member was going to leave, as she did after signing the contract
- participating in the advert was a misrep by conduct
24
Q
smith v Chadwick
A
- misrep must be a material cause of the decision to enter into the contract
25
type of misrep
- wholly innocent misrep
- negligent misstatement- Hedley byrne special relationship test
- negligent misrep- representer disproves neg
- fraudulent misrep- claimant proves neg
26
Hedley Byrne v Heller
- special relationship test
- reasonable reliance
- assumption of responsibility
- special relationship of trust and confidence
27
what are damages
- loss within the "reasonable contemplation" of the parties is recoverable
- measure is "expectation loss"
28
what is recission (and bars to recission)
- setting aside the contract and restoring the parties to their original position
- rights of 3rd party (if a third party acquires the car before the misled seller tries to rescind the contract, it cannot be rescinded)
- impossibility of restoring the parties to their original position
- affirmation
- lapse of time (constable painting not constable but waited for 5 years to return the picture- leaf v international galleries)
29
leaf v international galleries
constable painting not constable but waited for 5 years to return the picture- lapse of time meant rescission was impossible
30
when does undue influence apply
- when improper pressure- that doesnt amount to duress- has been used on a party to the contract
- normally in 3rd party situations
31
RBS v Etridge
- influencer/husband (debtor) makes a contract/mortgage with the creditor/bank
- uses undue influence on complainant/wife to guarantee this mortgage with the bank
- following this- creditor needs to take steps to either get them to meet privately with a bank representative or require them to seek independent legal advice
32
types of undue influence
- actual
- dominating influence/coercive behaviour
- no need to show a transaction that requires explanation
- bank of credit v aboody
- presumed
- (special type of relationship) - trust and confidence presumed- dr and patient, parent and child
- (specific relationship)- complainant places their trust and confidence in the other party- husband and wife, banker and customer
- Lloyds Bank v bundy
33
bank of credit v aboody
- husband had undue influence over wife
- stopped her seeking independent advice
34
Lloyds Bank v bundy
- banker hadn't allowed farmer to seek independent advice
- relationship of trust and confidence
35
things that stop you being able to claim a remedy for undue influence
- affirmation/lapse of time
- impossibility of restitution
- third party rights
36
- lapse of time
- offer lapses after a reasonable time
ramsgate Victoria hotel v montefiore
37
- communication of revocation doesnt need to be by the offeror as long as the offeree ought to believe the source who informs him
dickinson v dodds
38
a promise to not revoke an offer before a specified date isn't binding
Routledge v grant
39
revocation needs to be communicated to the offeree before acceptance
byrne v van tienhoven
40
advert was an invitation to treat- sale of birds
partridge v crittenden
41
- can exhibit i2clr with an advert
- and with unilateral contracts, acceptance doesnt need to be separately communicated to the offeror
carlill v carbolic smoke ball
42
an auction without reserve is a definite offer to sell to the highest bidder
Barry v davies
43
- offeror may be prevented from denying that he received an acceptance if it is his own fault that he didnt get it
- contract is made when and where acceptance was received
entores v miles
44
- silence doesnt amount to acceptance
felthouse v brindley
45
a mere request for info will not destroy the original offer
Stephenson v mclean
46
- lack of certainty of essential terms indicating there was no concluded contract
- not may v butcher but court also has to balance that with the need to give effect to reasonable expectations of business people
may v butcher
47
- promotional coins given to people who purchased certain amount of petrol
- did they have to pay tax?
- no because the coins weren't for sale
esso v commissioners of customs and excise
48
- not assumed that there is an i2clr in agreements between husband and wife
Balfour v Balfour
49
- is the statement a term of representation?
- is the misrep operative?
- what type of misrep is it?
- has any attempt been made to exclude liability for misrep?
- what remedies are available?
problem question misrepresentation VOIDABLE
50
- primarily a question of intention- viewed objectively
- guidelines
- timing of statement
- opp to verify statement given
- importance of statement is made clear to maker
- specialist knowledge and skill of one party
- writing?
term or representation?
51
- timing
- writing
routledge v McKay
52
- opp to verify
ecay v Godfrey
53
importance of statement
Bannerman v white
54
- specialist knowledge/skill
dick Bentley v harold smith
55
- false statement
- (statements of opinion or belief, statements of future conduct/intention, silence or non-disclosure)
- inducement- doesnt have to be sole reason for the contract
is the misrep operative?
56
- not as a general rule actionable
- can be if special knowledge- dick Bentley
statements of opinion or belief (actionable/not?)
57
- statement of intention can be treated as a representation and therefore a statement of fact
- doesnt have to be the sole reason for entering into the contract
edgington v fitzmaurice
58
- representation by conduct
- SG appeared in an advert for aprilla but they knew a member was going to leave, as she did after signing the contract
- participating in the advert was a misrep by conduct
spice girls v aprilla
59
- misrep must be a material cause of the decision to enter into the contract
smith v Chadwick
60
- wholly innocent misrep
- negligent misstatement- Henley byrne special relationship test
- negligent misrep- representer disproves neg
- fraudulent misrep- claimant proves neg
type of misrep
61
- special relationship test
- reasonable reliance
- assumption of responsibility
- special relationship of trust and confidence
Hedley Byrne v Heller
62
- loss within the "reasonable contemplation" of the parties is recoverable
- measure is "expectation loss"
damages
63
- setting aside the contract and restoring the parties to their original position
- rights of 3rd party (if a third party acquires the car before the misled seller tries to rescind the contract, it cannot be rescinded)
- impossibility of restoring the parties to their original position
- affirmation
- lapse of time (constable painting not constable but waited for 5 years to return the picture- leaf v international galleries)
recission (and bars to recission)
64
constable painting not constable but waited for 5 years to return the picture
leaf v international galleries
65
- when improper pressure- that doesnt amount to duress- has been used on a party to the contract
- normally in 3rd party situations
when does undue influence apply
66
- influencer/husband (debtor) makes a contract/mortgage with the creditor/bank
- uses undue influence on complainant/wife to guarantee this mortgage with the bank
- following this- creditor needs to take steps to either get them to meet privately with a bank representative or require them to seek independent legal advice
RBS v Etridge
67
- actual
- dominating influence/coercive behaviour
- no need to show a transaction that requires explanation
- bank of credit v aboody
- presumed
- (special type of relationship) - trust and confidence presumed- dr and patient, parent and child
- (specific relationship)- complainant places their trust and confidence in the other party- husband and wife, banker and customer
- Lloyds Bank v bundy
types of undue influence
68
- husband had undue influence over wife
- stopped her seeking independent advice
bank of credit v aboody
69
- banker hadn't allowed farmer to seek independent advice
- relationship of trust and confidence
Lloyds Bank v bundy
70
- affirmation/lapse of time
- impossibility of restitution
- third party rights
things that stop you being able to claim a remedy for undue influence
71
- if undue influence is successfully pleaded, it renders the contract voidable
- however the remedy may be ineffective if the value of the property has changed
cheese v Thomas
