Formation Cases Flashcards
Carlill v Carbolic Smoke Ball Co
Defendants put out a paper advertisement of smokeball influenza medication. After seeing the advertisement Mrs. Carlill purchased a smoke ball. When the medication didn’t work Carlill sued for breach of contract.
Whether or not there is a contract between Ms. Carlill and the Smoke Ball company
there was no contract between mrs carlin and carbolic because an advertisement is not an offer rather an invitation to treat as too vague and made to the whole world
Dysart Timbers v Nielsen facts
leave 2 appeal
The two parties were undertaking litigation and Nielsen made an offer of settlement. In the time between the offer being made and then accepted by the plaintiff the court issued leave to appeal to Supreme Court.
Whether or not the offer lapsed due to change in circumstances?
that the offer remained, the circumstantial change was not great enough to lapse an offer or else it wasn’t explicitly included i.e Nielsen must’ve made the offer valid contingent that he did not get his Supreme Court appeal granted
facts in Boulder Consolidations v Tangaere
deposit, fell thru, sent other options, 6 months to respind
Did the list of available sections constitute to an offer and did the respondents reply constitute an acceptance to conclude a contract?
there was no contract as the list of available section was an invitation to treat not an offer. It was unreasonable for T to assume B was holding sections for him until his decision was made
facts in Butler Machine Tool v Ex-Cell-O
pricee esc clause
An offer to sell a machine included a price escalation clause. The buyers responded with a counter-offer that did not include the price escalation clause. This counter-offer had a detachable receipt, which the sellers signed and returned, stating they accepted the offer on their own terms. The machine was delivered, and the buyers were invoiced according to the original price escalation clause.
whether the price escalation clause was part of the contract? (E.g. on whose terms was the contract made?)
that the contract was formed on the buyers terms without the escalation clause, the buyers counter offer terminated the previous offer so based off the last shot doctrine, contract was on buyers terms
what are the facts of Goodman v Cospak
HOLISTIC
Cospak sold glass bottles (distributor not manufacture). Goodman trialed Cospak’s product and subsequently terminated contract. Both parties claim for wrongful termination of the agreement.
Can the holistic approach be employed and the parties terms reconciled with each other?
yes, the holistic approach can be applied when the parties terms have no direct inconsistencies and here both G and C terms recognised that the contact included terms as to merchantable quality and fitness for purpose.
what are the facts in Tekdata v Amphenol
20 years, tradintional
Tekdata, which makes cable assemblies, buys harness connectors from Amphenol, and they’ve been doing business together for over 20 years. Tekdata claims that Amphenol breached their contract by delivering late and with poor quality. Amphenol, however, argues that their standard contract terms, which exclude liability for such issues, apply. These terms were included in their order acknowledgment.
On whose terms is the contract bound?
contract was bound on A terms, the judge found that While the relationship between the parties is relevant, it does not override the need for clear offer and acceptance in commercial contracts. The traditional approach should only be set aside if there is clear communication indicating both parties intended to replace the previous terms with new ones.
what is the facts in GHP Piling v Leighton Contractors
The plaintiff (GHP) submitted a tender for a major piling contract and claims that in doing so a preliminary contract was created. Leighton entered into a contract for the job with a competitor. GHP issues proceedings that Leighton breached preliminary contract and claims damages for loss of profit.
Whether invitation to tender is capable of forming basis of a contract?
no an invitation to tender is not a basis of forming a contract, A preliminary tender contract exists when the inviter provides a clear and formal process to the tenderer, allowing an offer that can be accepted where as here is was just an invitation to treat and undergo negotiations
what are the facts in South Waikato DC v RAL
South Waikato District Council invited tenders
Three parties submitted bids, with one being eliminated in the first stage.
The remaining two bids were to be evaluated based on the “lowest price conforming” method.
Although RAL offered the lowest price, the contract was awarded to the other bidder.
RAL then sued, claiming a breach of the tender terms.
Whether council breached their own terms of tender in not accepting the lowest offer?
the council did not breach there terms to not accepting the lowest offer, the council has a right to reject an offer and the other bidder was a more economical waste disposer, avoided a waste disposal levy
