dec exam Flashcards
classical theory of contract
- Consistent with laissez faire liberalism
- Law concerned with the objective manifestations of agreement (even if the agreement looks sketchy, the court will not inquire into the circumstances)
- Freedom exists for people to contract as they choose
Contemporary model
- Rise of the welfare state (belief that individuals are sometimes unable to protect their own interests and need support not to be exploited)
- Judges more concerned about bargaining vulnerabilities and inequalities, bending the rules a little
Formalism (positivism)
Judge identifies relevant rule or principle, will always be the same. Fairness through consistency. No matter who the judge is, you will get the same outcome
- If they don’t reach the right outcome, its because they made a mistake.
Realists (legal realism)
Took position that judges are people too, identify matters, social situation matters, experience matters
- Don’t pretend that outcome of decision is neutral.
Posner: Law and Economics
judges should make decision for economic efficiency, that will facilitate commerce and discourage reckless contracting and minimize K cost
Feminism and contract law (Keren) - 2 issues
- Harm caused by contract law’s abandonment, neglect of the intimate sphere (obscure the value of homemaking and reinforce notion that a woman’s labor within the home is either less valuable)
- Issues with consent: consent is used too heavily, consequences are too severe
Racial inequalities in contracting (Zalesne)
Those who are the big players when classic law of contracts became formulated, created a baseline of “reasonableness”.
- K law’s supposedly neutral objective test may perpetuate inequality by ignoring important cultural factors
- Maybe we need to think about identity and social situation
what is the benefit of making race relevant to CL? (Zalesne)
Agreements and how courts approach agreements might more accurately represent expectations of vulnerable parties when they make agreements
what is the con of making race relevant to CL? (Zalesne)
o Could get bad marketplace consequences if the broader marketplace sees contracts with vulnerable individuals as operating under different rules
Acedo v satte department of public welfare
- 18yo signed contract to give baby up for adoption, she believed this meant she had 6 months to change her mind
- court reasoned she was a high school graduate of normal intelligence, who voluntarily signed the contract after having full opportunity to read it (used idea of what was reasonable based on someone who enters contracts daily)
Friedmann Equity Developments Inc v Final Note Ltd.
appellant asked Supreme Court to abolish an old and technical “sealed contract rule” on several grounds
- courts take a restrained approach and prefer incremental change in the common law (promote efficiency/fairness, dissuade uncertainty)
Elements required for contract
- Offer
- Acceptance
- Consideration
- Intention
- Certainty
Ideally, agreement unfold through formal categories of offer:
communication of offer, an acceptance on the terms of the offer, and communication of the acceptance
3 key elements of offer
- Person who makes offer needs to show - intention or willingness to be legally bound
- Need material terms in the offer
- Offer needs to be intentionally communicated
what does the objective theory of contracts say about how to determine if offer?
Will determine if something is a offer based on objective test.
Would the reasonable person deem this to be an offer?
diff between offer and ITT
- Offer: a complete statement of terms on which a party is willing to deal
- Invitation to treat: statement by a party of a willingness to enter into negotiations that may lead to the formation of a contract (offer-like communication to the general public)
waht kind of things are NOT offers
Price quotations, statements of inquiry, and invitations to treat
what does an ITT indicate
An invitation to treat indicates willingness to receive an offer
key distinction between offer and ITT
- Key distinction is intention
o Was it intended as an offer that can be accepted with no further negotiation, or was it intended to be part of the negotiation process?
Offer-like communication to general public (like an ad) is most likely an _____ unless ____
most likely an ITT unless it sets out conditions one must fulfill to get ‘reward’ – then it may be unilateral offer
Offer-like communication to more than one person, but to a limited or specific group also most likely an ___
an ITT, but can also be a form of offer (depends on circumstances)
Canadian dyers association ltd v Burton facts and issue
CDA wanted to purchase property via a letter with a stated price. Letter stated “this is the lowest price we are willing to accept”. Sent the money (lowest price), Burton sent draft deed
- was there an offer?
Canadian dyers association ltd v Burton outcome
Court objectively looks at actions – sent a draft deed and indicated a closing date (court finds this shows the defendant understood his letter as an offer and the plaintiff’s response, an acceptance of that offer – thus binding contract). Conduct shows intention.
Pharmaceutical society of Great Britian v boots cash chemists ltd facts and issue
New approach to self-service in buying medicine contrary to existing Poison Act that requires drugs to be bought directly from a pharmacist.
- When was the contract formed?