Exam Flashcards

1
Q

Grounds for Termination

A
  1. Failure of contingent condition
  2. Breach of condition
  3. Major breach of intermediate term
  4. Repudiation
  5. Frustration
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2
Q

Condition

A

Apply essentiality test - Bancks, Tramways

Would a party be clearly disadvantaged without it - Ankar

Breach = terminate and sue for damages

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3
Q

Intermediate term

A

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

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4
Q

Repudiation

A

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
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5
Q

Frustration

A

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
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6
Q

When is it not frustration?

A
  • 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
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7
Q

Frustration Cases

A

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

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8
Q

How are terms incorporated?

A

Signature

Notice - actual and reasonable

  • prominence
  • access
  • legibility
  • nature of term

Course of dealing

Precontractual term

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9
Q

Exclusion Clause

A

Incorporated into contract?

Covers impugned conduct?

Broad interpretation vs narrow

Is it UCT?

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10
Q

Patrol Evidence Rule

A

Limits evidence outside of written contract

Exceptions are

  • if showing implied term
  • if showing contingency satisfied
  • if showing misrep etc
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11
Q

Pre contractual term

A

Induces entry but not guarantee

Consider

  • timing
  • content
  • knowledge and expertise of parties

Prevented by

  • entire agreement clause
  • parol evidence rule
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12
Q

Term implied in fact

A
  • reasonable/equitable?
  • necessary for business efficacy?
  • obvious it goes without saying?
  • capable of clear expression?
  • contradict any express terms?
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13
Q

Terms implied by law

A
Applicable to definable class of contractual relationships
- e.g landlord and tenant - Liverpool
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14
Q

Implied by trade custom/usage

A

Does custom exist?
Everyone presumed to have imported term?
Contradict express term?
Dealers can easily ascertain nature of custom?

Con-Stan

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15
Q

Contractual interpretation

A

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
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16
Q

Elect to affirm

A

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

17
Q

Elect to terminate

A

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

18
Q

MDC

A

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

19
Q

Misrepresentation

A

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)
20
Q

Types of misrepresentation

A

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
21
Q

Types of mistake

A

Common
Mutual
Unilateral
Non est factum

22
Q

Common mistake

A

Both parties

About subject matter - McRae

About quality of subject matter - Bell v Lever Bros

About term of contract

23
Q

Mutual Mistake

A

Both parties, about different things

Determine which party was right.
Raffles

No relief or damages

24
Q

Unilateral mistake

A

One party - Taylor v Johnson

25
Q

Non est factum

A
  • about nature of document

- must belong to class of persons - Petelin