Eval Flashcards
Point 1 for Offer and Acceptance
The rule from Dickenson v Dodds that a reliable third party can revoke an offer is not very clear. Who is a reliable third party? -> Uncertainty.
Creates flexibility and makes sense for large companies where different employees may revoke different offers.
Point 2 for Offer and Acceptance
Postal rule is very clear and creates certainty. There is a definite moment when acceptance, by post, is effective, preventing problems with postal services from being an issue.
Not very clear as there are numerous exceptions. Holwell v Hughes. Uncertainty.
Point 3 for Offer and Acceptance
Brinkibon creates a lot of uncertainty. Looks at the parties’ intentions and further complicates the law.
Creates flexibility which could avoid injustice.
Point 4 for Offer and Acceptance
The rule about invitations to treat is very clear. Very useful in practice, stopping shop owners from being forced to sell displayed products. Creates certainty.
Sometimes adverts are still offers (Carlill) which can complicate the law. It can be hard to tell when an advert is clear in its terms or not.
Point 1 for Consideration
Rule of sufficiency creates certainty, as it can be known when when parties have agreements, and respects freedom of contract.
Rule may be too flimsy and doesn’t respect unequal bargaining powers.
Point 2 for Consideration
Finding consideration could cause more harm than good. Collins v Godefroy. Rigid ruling and goes against freedom of contract.
The exceptions to these rulings creates flexibility, as in Glasbrook Bros. v Glamorgan CC, resulting in justice.
Point 3 for Consideration
Having numerous exceptions can lead to uncertainty. For example, having 3 exceptions to the contractual duties rule.
Exceptions create flexibility and avoid injustice.
Point 4 for Consideration
Much needed reform is necessary with judges already ignoring the rules. In Scotson v Pegg, the court found consideration where the party did the same thing for 2 people, despite doing the same thing for a single person not being good consideration. This defeats the point of finding consideration
However, these rulings can respect freedom of contract and the intent of parties, with the rigid rules of consideration not doing so, avoiding injustice.
Point 1 for Privity
The general rule of privity creates certainty. It is easy to know who is a party to a contract and, thus, enforce it.
Sticking to this rigid rule can create injustice as someone may not have given consideration but deserves to enforce the contract, as in Jackson v Horizon Holidays.
Point 2 for Privity
The numerous exceptions creates flexibility and avoids injustice as they cover a broad range of circumstances.
This creates uncertainty as it is now much less clear who can enforce the contract. This can lead to complex and length cases that will further complicate the law.
Point 3 for Privity
The Contracts (Rights of third parties) Act 1999 allows people outside the contract to enforce it if they are expressly named, under S1(1)(a). This can create justice.
S1(1)(b) applies even when a party isn’t stated in the contract. This can create uncertainty and go against freedom of contract.
Point 4 for Privity
Allowing parties to expressly exclude someone under S1(2) can stop the injustices that are, possibly, created by S1(1)(b).
This could lead to very unfair situations in which parties should be able to enforce a contract but can’t, possibly leading to injustice.
Point 1 for Intention
The presumptions for each type of agreement create certainty in the law. This allows people to know whether their promises will be binding or not.
There can be great uncertainty under what type of agreement a situation is. Sadler v Reynolds.
Point 2 for Intention
Being able to rebut the presumption in numerous ways results in a flexible approach and avoids injustice.
This could create uncertainty as parties will never know for certain if their agreement is binding.
Point 3 for Intention
The rules regarding commercial agreements seems to respect freedom of contract. Rose and Frank v Compton Bros shows when parties don’t want an agreement to be binding, it does not have to be.
However, this could be bad in situations of unequal bargaining power. For example, in Jones the business was able to get out of paying the consumer, despite the consumer thinking the agreement was binding. This could lead to injustice.
