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contract part 3 > FORMATION > Flashcards

FORMATION Flashcards

1
Q

PUFFERY

A

a statement that no reasonable person would take seriously

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2
Q

nudum pactum

A

a agreement or promise made without consideration

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3
Q

consideration

A

each party is giving something up, exchange, right to enforce the contract and make the other party give up what they agreed to give up

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4
Q

vinculum juris

A

bond of the law, promise/agreement that must be fulfilled

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5
Q

what are the 4 requirement to a contract

A
  1. Agreement / Offer and acceptance
  2. Consideration
  3. Intent to create legal relations
  4. Certainty
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6
Q

Carlill v Carbolic Smoke Ball Company

A
  • Held that the advertisement constituted a unilateral contract.
  • Mrs. Carlill accepted the offer by performing the conditions stated in the advertisement.
  • The promise of £100 formed a binding contract once the specified conditions were met.
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7
Q

what what the principle established in carlil

A

Established the principle that unilateral contracts can be formed by performance.

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8
Q

what is an agent

A

an agent negotiates a contract on behalf of one of the principal parties

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9
Q

Unilaterally dictated terms (UDTs)

A
  • One party, usually the provider of the service, tell you what the terms of the contract is
  • move to accept these terms, or decline
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10
Q

Industry standard terms (ISDA, NYPE)

A
  • Contracts between heavily resourced parties
  • Terms of the contract are standardised
  • Terms are predetermined by the coordinators of the system or regime
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11
Q

a contract should be

A

in writing however for the need of evidence against fraud
- some can be formed w/o writing

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12
Q

what is the first essential part of the contract

A
  1. offer AND acceptance
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13
Q

why need offer and acceptance

A

vital for there to be a contract , prerequisite for a legally binding agreement

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14
Q

what is an offer

A

an offer may look like a statement of interest by a party to another to do something and or refrain from doing something to be bound if the party to whom it is expressed accepts that expression of interest

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15
Q

what are aspects of an offer

A

-Willing to be bound
- clear statement/indication of what both parties must do or refrain from doing

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16
Q

what is an invitation to treat

A

when you invite someone to make an offer

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17
Q

rule that advertisements of goods or services do not

A

amount to an offer to sell to any interested person

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18
Q

Pharmaceutical society of great Britain v boots cash chemist

A

court ruled that an invitation to customers to purchase goods, even though coupled with the statement that customers were free to select from goods displayed any amount desired, cannot reasonably be considered an offer

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19
Q

Esso petroleum ltd v commissioners of customs and excise

A

court held that a price statement at which a filling station would sell fuel is only an invitation to treat, with the intending buyer being the person to make an offer which may be accepted/rejected by the filling station

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20
Q

what is a Request for Tenders

A

An RFT is typically an invitation to treat, meaning it’s an invitation for others to make offers, not a formal offer itself.

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21
Q

when is a binding contract made in RFT

A

A binding contract is not formed until the organization issuing the RFT accepts a tender

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22
Q

First layer of tendering

A

acceptance of the tenderer, I will accept if you meet the conditions that I have specified

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23
Q

second layer of tendering

A

substantive level which looks at the actual action

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24
Q

In a sale by auction, the advertisement of a proposed auction sale typically constitutes

A

an invitation to treat rather than an offer.

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25
Q

Bids made by intending buyers during the auction serve as

A

the offers.

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26
Q

what signifies acceptance at an auction

A

refuse to sell to anyone before the fall of the hammer

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27
Q

if the auctioneer advertises that the auction shall be without reserve

A

it constitutes an offer by the auctioneer.

28
Q

what does auction w/o reserve mean

A

it means it will go to anyone who is the highest bidder

29
Q

what are two views of offer and acceptance in transport situations

A
  • View A: Provider Offers, Passenger Accepts:
  • View B: Passenger Offers, Provider Accepts:
30
Q

View A: Provider Offers, Passenger Accepts:

A

○ Provider of transport services makes an offer by advertising or expressing availability.

31
Q

View B: Passenger Offers, Provider Accepts:

A

Passenger makes the offer by booking or attempting to purchase a ticket.

32
Q

what is acceptance

A

unqualified agreement to the terms of an offer by an offeree, as initially expressed by the offeror.

33
Q

Magnum Photo Supplies v Viko New Zealand Ltd

A

Mere acknowledgement of an offer does not constitute acceptance

34
Q

Matching or Correspondence

A

○ Acceptance should align with the terms of the offer without contradiction.
- The acceptance must mirror the offer to form a binding agreement

35
Q

Effective/Valid Communication of Acceptance

A

○ Acceptance must be communicated effectively to the offeror.
- It must be brought to the notice of the offeror through an appropriate means.

36
Q

Mode of Communicating Acceptance

A

○ The mode of acceptance should adhere to any specified requirements in the offer.
- If no specific mode is prescribed, acceptance can generally be communicated in any reasonable and effective manner.

37
Q

Who May Accept the Offer

A

○ Offers can typically be accepted by individuals to whom they are addressed or those reasonably within the contemplation of the offeror.
- Unilateral offers may be accepted by anyone who meets the conditions set by the offeror.

38
Q

Revocation of an Offer

A

○ An offer can be revoked or withdrawn before it is accepted, but not after.
○ Revocation must be effectively communicated to the offeree and reach the offeror before acceptance.
○ Once accepted, the offer becomes binding, and revocation is no longer possible.

39
Q

Cross Offers:

A

○ Cross offers, where both parties simultaneously make offers to each other, do not amount to the matching of offer and acceptance.
○ For a contract to be formed, one party must accept the offer made by the other party.

40
Q

counter offer

A

When the offeree intends to accept the offer but proposes different terms or conditions

41
Q

A counter-offer extinguishes

A

the original offer

42
Q

Once a counter-offer is made

A

the offeree cannot revert to the original offer and purport to accept it

43
Q

Requesting further information or making an enquiry about the offer does not

A

constitute a counteroffer.

44
Q

Dysart Timbers Ltd v Nielsen

A
  • Court ruled offer still valid upon acceptance as no fundamental change in circumstances
  • Change in circumstances must be explicitly included to result in offer lapse
  • Absence of clear contingency renders offer valid upon acceptance
45
Q

what does not constitute acceptance

A

Silence is not sufficient as acceptance, a third party would be unable to conclude that the offer was accepted

46
Q

Unilateral contracts

A

-Only one party enters an offer
- The performance of the act required (finding a missing dog) is acceptance enough

47
Q

Where offeror does not state any special, particular or peculiar mode for communicating acceptance

A

the offeree may communicate acceptance using any expedient mode.

48
Q

If offeror has specified a certain way of communication

A

the accepter must go through this method in order for the acceptance to be valid

49
Q

An offer made to the ‘whole world’ or unilateral offer can be accepted by

A
  • any person in the audience (broadly defined or a narrow class of persons) willing to accept the offer
  • People can be excluded from offers
50
Q

Revocation of an offer is impossible when and possible when

A

Revocation of an offer is impossible once there is accpetance, however possible BEFORE acceptance

51
Q

Other factors in revocation

A

a) death of the offeror,
b) death of the offeree
c) conditions on which the offer was made have changed before acceptance was effective
d) lapse of time

52
Q

secondary terms

A
  • secondary term of the contract that was not communicated will not stand
  • essential and secondary terms must be well communicated to the person who is signing the contract, otherwise may not be able to be applied
53
Q

Tri-partied contract

A

Contract with three parties e.g. banker, borrower and a grantor

54
Q

Multi-partied contract

A

A contract with several partied, entering a contract with a company and the share holders

55
Q

The two main factors generally make applying the offer and acceptance model difficult are:

A
  1. Competition to dictate contract terms and
  2. Uncertainty around the meaning of an offer or acceptance..
56
Q

Battle of the forms

A

the party who makes the last assertion of their contract terms to their counter[arty and secures that party’s consent (signature or conduct) is generally deemed to have fired the last short and won the battle of the forms

57
Q

even if you were the last party to send your contract and have it accepted, if the terms are not well communicated

A

then you may loose

58
Q

the battle of the forms will be avoided where

A

party includes an anti-last shot provision in their offer, or in their acceptance

59
Q

In any event the battle of forms can lead to any of the following5 outcomes:

A
  1. contract on A conditions
    1. contract on B conditions
    2. A contract on the terms that would be implied by law, but incorporating neither a nor b conditions
    3. A contract incorporating some blend of both parties conditions
    4. No contract at all
60
Q

The least cost avoider principle

A
  • When accidents can be avoided by either two of the parties, liability is placed on the least cost provider, party who could have prevented the accident at the lowest cost
61
Q

process contracts

A
  • agreements to agree
  • either preliminary to or collateral to a substantive/primary contract
62
Q

collateral process contracts

A

they may shape subsequent matters such as the negotiations concerning price adjustment of the variation of terms

63
Q

preliminary process contracts

A

where they shape a selection or recruitment process( tender selection )

64
Q

Offer to all of the word…

A

cannot be a contract

65
Q

Boulder Consolidations v Tangaere

A

-The list of available sections was an offer to treat (which is a form of communication that is not an offer).

  • It was not reasonable for Mr. Tangaere to expect that Boulder was holding all sections for him until he choice one. His interest was to sell sections as soon as possible.
66
Q

Butler Machine Tool v Ex-Cell-O facts

A
  • An offer was made for the sale of a machine containing a price escalation clause.
    The buyers made a counter-offer (due to new terms) without a price escalation clause; it contained a detachable receipt which the sellers (original offeror) sent back signed. The slip stated we accept offer on our terms. Machine was delivered and buyers were invoiced in accordance with the price escalation clause.
67
Q
A

contract part 3 (24 decks)

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