Exam Flashcards
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
