Contract Structure

Question 1

Negotiaions

Answer 1

1. Is the statement an invitation to treat or a unilateral contract
2. Is a statement a reqeust for information or a counter offer
3. Is there a counter offer/ response to a reqeust for information
4. Is there acceptance
   * Electronic communication
   * Post
5. Has offer ended

Question 2

Intention to create legal relations

Answer 2

Assumed in business to business not in social context. Can rebutted. (Balfour v Balfour); (Merrit v Merrit)

Question 3

Considertation

Answer 3

1. Exchange of something of value
2. Can be executed (act in return for a promise) or executory (promise in return for a promie)
   * Consideration need not be adequate but must be sufficient (Chappell v Nestle)
   * Past consideration is not good consideration (Re McArdle)
   * Consideration must move from the promisee to the promisor (Tweddle v Atkinson). This links to PRIVITY
   * A promise to perform an existing duty is not good consideration. See Collins v Godefroy compare with Williams v Roffey Bros.
   * A Promise to accept part payment of an existing debt is not good consideration (Foakes v Beer). This is subject to the PROMISSORY ESTOPPEL (High Trees)
3. Promissory Estoppel requires is an equitable doctrine (so discretionary). Only works when:
   * It is modifying an existing obligation
   * The promisee has relied upon it to their detriment
   * It only suspends rights of promisor
   * Promisee must have behaved equitably.

Question 4

Privity

Answer 4

1. Only thise who are party to the contract can be bound by it an can benefit from it
2. Exceptions to the rule
   * Agency
   * Collateral contracts
   * Contracts(Rights fo third parties)- 3rd party expressly named, Contract expressly says they can enforce it, The contract term is an attemptto give benefit to them

Question 5

Terms

Answer 5

1. Mere representation or term
   * If the statement made before the contract is entered into is important it will be a term also look at delay
2. Types of term
   * Warranty
   * Innonimate
   * Condition
3. Expressed or implied
   * Implied by statute
   * Implied by common law
   * Business efficacy and officious bystander test
   * Custom
   * Prior dealings of parties
4. Exclusion clauses
   * Is it banned
   * Is it incorporated
   * Is it vauge- Contra proferentem rule

Question 6

Consumer Rights

Answer 6

1. Consumer/ Trader
2. Goods/services
   * S.9- Reasonable man would consider satisfactory ,
   * s.10-Fitness for particular purpose
   * s.11- As described
3. Remedies
   * Short term right to reject
   * Right to repair or replacement
   * Right to price reduction
   * Final right to reject
4. s.49- Services to be performed with reasonable time and skill
   * S.52- Service to be performed within a reasonable time
5. Remedies
   * Right to repeat performance
   * Right to price reduction
6. Exclusions
   * Rights for goods cannot be excluded - S.31
   * Rights for services can not be excluded- S.57
   * Cannot exclude liabilty for death or personal injury arising from negligence- s.65

Question 7

Misrepresentation

Answer 7

1. False statement
   * Material fact (Spice Girls V Aprilla)
   * Made by party to contract ( Bissett V Wilkinsons)
   * That induces the other to enter the contract ( Attwood V Small)
2. Type
   * Innocent- Honestly held on reasonable grounds
   * Negligent- Honsetly held on no reasonable grounds ( Howard Marine V Odgen)
   * Fraudulent- Knows or is reckless as to statement being untrue ( Derry V Peak)
3. Remedies
   * Innocent- S.2(2) Misrep Act / Recission or damages if equitbale
   * Negligent - Either tortious damages s.2(1) recission and or damages
   * Fraudulent- Tort of decit. This means all losses from breach can be claimed in damages including profit
   * Limits on recission- Impossibility, Delay, affirmation, 3rd party

Question 8

Economic Duress

Answer 8

1. Contract arises out of a threat to damage a person financially. Must be improperly coercive ( The Universe Sentinel)
   * Lack of practical choice for the victim
   * Illegitimate pressure ( Progress Bulk Carriers V Sentinel)
   * Significant cause inducing the claimant to enter the contract
2. Did C Protest, Did C have alternatives, Was C advised, Did C try to make contract void after entering it
3. Remedies
   * Contract is voidbale
   * Gets restituiton ( Equitable remedy that puts claimant back in pre contractual position)

Question 9

Fustration

Answer 9

1. Independent or third party
   Must either make
   * Contract impossible
   * Illegal
   * Materially ulter the purpose
   Can not apply when
   * It makes contract less profitable
   * It is self induced
   * Foreseeable risk mentioned in the contract
2. Remedies- Law reform ( Fustrated contract) Act 1943
   * 1.2- Money paid is recoverbale, money payable ceases to be payable
   * 1.3- Any valueable benefit can be recovered. Quantum Meruit
   * 1.4/1.2- Any expsenses incurred can be claimed up to amount already received. Discretionary.