Exam Flashcards
(25 cards)
Grounds for Termination
- Failure of contingent condition
- Breach of condition
- Major breach of intermediate term
- Repudiation
- Frustration
Condition
Apply essentiality test - Bancks, Tramways
Would a party be clearly disadvantaged without it - Ankar
Breach = terminate and sue for damages
Intermediate term
If the term could be breached in many ways - Hong Kong Fir
Breach must deprive party of substantial part of benefit
Major breach = terminate and sue for damages
Minor breach = damages
Koompahtoo - failure of reporting obligations
Repudiation
When party manifests unwillingness/inability to perform
- express statement of unwillingness/inability
- conveys repudiation to reasonable person
- may be by single breach (exception maple flock because unlikely to reoccur, one out of many)
- may be multiple breaches (Carr v Ja, Tabali)
- may be cured before other party accepts
Frustration
When event renders obligation radically different
When terms of contract did not cover event
Authority - Codelfa
- look at terms
- look at context
- look at nature of supervening event
- look at parties reasonable calculations as to future performance in new circumstances
- look at fairness
When is it not frustration?
- contract covered event - Joseph Constantine
- parties reasonable foreseen at time of entry - Davis
- occurred due to fault of party seeking frustration - FC Shepherd
- financial hardship - IceTv
- merely impossible
Frustration Cases
Codelfa - state injunction, can’t meet deadline, time was of essence
Taylor - concert hall fire
Krell - room hired for coronation
Brisbane CC - state intervention for school. Could not rezone
How are terms incorporated?
Signature
Notice - actual and reasonable
- prominence
- access
- legibility
- nature of term
Course of dealing
Precontractual term
Exclusion Clause
Incorporated into contract?
Covers impugned conduct?
Broad interpretation vs narrow
Is it UCT?
Patrol Evidence Rule
Limits evidence outside of written contract
Exceptions are
- if showing implied term
- if showing contingency satisfied
- if showing misrep etc
Pre contractual term
Induces entry but not guarantee
Consider
- timing
- content
- knowledge and expertise of parties
Prevented by
- entire agreement clause
- parol evidence rule
Term implied in fact
- reasonable/equitable?
- necessary for business efficacy?
- obvious it goes without saying?
- capable of clear expression?
- contradict any express terms?
Terms implied by law
Applicable to definable class of contractual relationships - e.g landlord and tenant - Liverpool
Implied by trade custom/usage
Does custom exist?
Everyone presumed to have imported term?
Contradict express term?
Dealers can easily ascertain nature of custom?
Con-Stan
Contractual interpretation
Codelfa
- ordinary meaning of clause - darlington
- how does it sit with other clauses?
- does it make more commercial sense? - Royal botanic, woodside
- surrounding circumstances? - ecosse
- absurdity
Elect to affirm
Know what gave rise to termination - uniting church
Provide unequivocal communication - tropical traders
Must perform
Cannot affirm if white and carter - no legitimate interest
Can claim damages
Takes on risk of self breach
Elect to terminate
Know facts give rise to termination - uniting church
Unequivocal communication - tropical traders
Be ready willing and able - foran
Can terminate not rescind
Can be waived of right to terminate
MDC
Person
In t/c - concrete constructions, argh, smonology
Engage in conduct - silence, representation, opinion, suggestion, give advice, passing of (if adopted information) - Gardam
Likely to mislead or deceive - real not remote, causal, need not be sole inducement
- nature of parties/transaction
- knowledge
- experience
Butcher
Remedy - recession and damages
Misrepresentation
False statement of past/present fact
Addressed to other party
At or before contract made
Intended to/induced entry
Not misrep if
- statement of future intent
- opinion
- law
- puff
- silence (unless half truth, duty of disclosure - apply reasonable expectations test)
Types of misrepresentation
Innocent
Fraudulent - Derry v peek
- made knowingly
- without belief in its truth
- recklessly/carelessly
Negligent
- breached duty to take reasonable care that statement is true or reliable
- led to suffering or damage
Types of mistake
Common
Mutual
Unilateral
Non est factum
Common mistake
Both parties
About subject matter - McRae
About quality of subject matter - Bell v Lever Bros
About term of contract
Mutual Mistake
Both parties, about different things
Determine which party was right.
Raffles
No relief or damages
Unilateral mistake
One party - Taylor v Johnson
