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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
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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
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3
Q

offer (invitation to treat- shop displays)

A

can argue that websites are analogous to this

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4
Q

byrne v van tienhoven

A

revocation needs to be communicated to the offeree before acceptance

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5
Q

partridge v crittenden

A

advert was an invitation to treat- sale of birds

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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
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7
Q

Barry v davies

A

an auction without reserve is a definite offer to sell to the highest bidder

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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
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9
Q

felthouse v brindley

A
  • silence doesnt amount to acceptance
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10
Q

Stephenson v mclean

A

a mere request for info will not destroy the original offer

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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
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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
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13
Q

Balfour v Balfour

A
  • not assumed that there is an i2clr in agreements between husband and wife
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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?
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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?
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16
Q

routledge v McKay

A
  • timing
  • writing
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17
Q

ecay v Godfrey

A
  • opp to verify
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18
Q

Bannerman v white

A
  • importance of statement
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19
Q

dick Bentley v harold smith

A
  • specialist knowledge/skill
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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
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21
Q

statements of opinion or belief (actionable/not?)

A
  • not as a general rule actionable
  • can be if special knowledge- dick Bentley
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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
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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
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24
Q

smith v Chadwick

A
  • misrep must be a material cause of the decision to enter into the contract
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25
Q

type of misrep

A
  • wholly innocent misrep
  • negligent misstatement- Hedley byrne special relationship test
  • negligent misrep- representer disproves neg
  • fraudulent misrep- claimant proves neg
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26
Q

Hedley Byrne v Heller

A
  • special relationship test
  • reasonable reliance
  • assumption of responsibility
  • special relationship of trust and confidence
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27
Q

what are damages

A
  • loss within the “reasonable contemplation” of the parties is recoverable
  • measure is “expectation loss”
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28
Q

what is recission (and bars to recission)

A
  • 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)
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29
Q

leaf v international galleries

A

constable painting not constable but waited for 5 years to return the picture- lapse of time meant rescission was impossible

30
Q

when does undue influence apply

A
  • when improper pressure- that doesnt amount to duress- has been used on a party to the contract
  • normally in 3rd party situations
31
Q

RBS v Etridge

A
  • 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
Q

types of undue influence

A
  • 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
Q

bank of credit v aboody

A
  • husband had undue influence over wife
  • stopped her seeking independent advice
34
Q

Lloyds Bank v bundy

A
  • banker hadn’t allowed farmer to seek independent advice
  • relationship of trust and confidence
35
Q

things that stop you being able to claim a remedy for undue influence

A
  • affirmation/lapse of time
  • impossibility of restitution
  • third party rights
36
Q
  • lapse of time
  • offer lapses after a reasonable time
A

ramsgate Victoria hotel v montefiore

37
Q
  • communication of revocation doesnt need to be by the offeror as long as the offeree ought to believe the source who informs him
A

dickinson v dodds

38
Q

a promise to not revoke an offer before a specified date isn’t binding

A

Routledge v grant

39
Q

revocation needs to be communicated to the offeree before acceptance

A

byrne v van tienhoven

40
Q

advert was an invitation to treat- sale of birds

A

partridge v crittenden

41
Q
  • can exhibit i2clr with an advert
  • and with unilateral contracts, acceptance doesnt need to be separately communicated to the offeror
A

carlill v carbolic smoke ball

42
Q

an auction without reserve is a definite offer to sell to the highest bidder

A

Barry v davies

43
Q
  • 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
A

entores v miles

44
Q
  • silence doesnt amount to acceptance
A

felthouse v brindley

45
Q

a mere request for info will not destroy the original offer

A

Stephenson v mclean

46
Q
  • 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
A

may v butcher

47
Q
  • 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
A

esso v commissioners of customs and excise

48
Q
  • not assumed that there is an i2clr in agreements between husband and wife
A

Balfour v Balfour

49
Q
  • 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?
A

problem question misrepresentation VOIDABLE

50
Q
  • 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?
A

term or representation?

51
Q
  • timing
  • writing
A

routledge v McKay

52
Q
  • opp to verify
A

ecay v Godfrey

53
Q

importance of statement

A

Bannerman v white

54
Q
  • specialist knowledge/skill
A

dick Bentley v harold smith

55
Q
  • 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
A

is the misrep operative?

56
Q
  • not as a general rule actionable
  • can be if special knowledge- dick Bentley
A

statements of opinion or belief (actionable/not?)

57
Q
  • 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
A

edgington v fitzmaurice

58
Q
  • 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
A

spice girls v aprilla

59
Q
  • misrep must be a material cause of the decision to enter into the contract
A

smith v Chadwick

60
Q
  • wholly innocent misrep
  • negligent misstatement- Henley byrne special relationship test
  • negligent misrep- representer disproves neg
  • fraudulent misrep- claimant proves neg
A

type of misrep

61
Q
  • special relationship test
  • reasonable reliance
  • assumption of responsibility
  • special relationship of trust and confidence
A

Hedley Byrne v Heller

62
Q
  • loss within the “reasonable contemplation” of the parties is recoverable
  • measure is “expectation loss”
63
Q
  • 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)
A

recission (and bars to recission)

64
Q

constable painting not constable but waited for 5 years to return the picture

A

leaf v international galleries

65
Q
  • when improper pressure- that doesnt amount to duress- has been used on a party to the contract
  • normally in 3rd party situations
A

when does undue influence apply

66
Q
  • 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
A

RBS v Etridge

67
Q
  • 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
A

types of undue influence

68
Q
  • husband had undue influence over wife
  • stopped her seeking independent advice
A

bank of credit v aboody

69
Q
  • banker hadn’t allowed farmer to seek independent advice
  • relationship of trust and confidence
A

Lloyds Bank v bundy

70
Q
  • affirmation/lapse of time
  • impossibility of restitution
  • third party rights
A

things that stop you being able to claim a remedy for undue influence

71
Q
  • 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
A

cheese v Thomas

UNI (23 decks)

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