general - c2 Flashcards
can a party recover goods from a third party where the contract turns out to be invalid but is:
void
voidable
void - yes - there is no contract and the goods should be returned
voidable - no - the contract can be set aside by the injured party
lack of capacity - void or voidable
voidable
absence of free will - void or voidable
voidable
illegality - void or voidable
void - contracts cannot be illegal or against public policy, therefore there is no contract and goods should be returned
misrepresentation - void or voidable
voidable - incorrect statement of fact made pre contract which is intended to and does cause the party to enter into the contract
in which cases must an agreement be in writing to be enforceable
transfer of land
consumer credit agreements
in which cases must an agreement be evidenced in writing to be enforceable
guarantees
evidenced = written record of the agreement - ie meeting board min
note - guarantor must sign
can oral contracts exist?
yes they are enforceable - except the exceptions!
written agreement - land transfers, credit consumer agreements
written evidence of agreement - guarantees (guarantor must sign)
examples of invitations to treat
ITT = not an offer - statement of a willingness to enter into negotiations - cannot accept an ITT - invites other parties to make an offer
newspaper advertisement, items on shop shelf, circulation of a price list, auction, market stall (exhibiting goods for sale - ITT not offer)
how can an offer be terminated?
rejection - offeree rejects the offer made by the offeror
counter-offer - the offeree proposes new or amended terms which results in termination of the original offer
lapse of time - can be expressed in the offer or after a reasonable amount of time
revocation by the offeror (withdrawal of offer) - can be made by any RELIABLE person + must be RECEIVED by the offeree
failure of a pre-condition - an offer will automatically lapses if a pre-condition is not satisifed
ie. I will sell my textbooks if I pass my exam first time
revocation - does the postal rule apply? must the revocation be made expressly in precisely the same manner as the original offer in order to be effective? does it need to be express? what are the two Rs?
no - postal rule applies only to acceptance, not revocation
no - a revocation need not to be made expressly but may be implied
Revocation = Reliable + Received by the person
can acceptance ever be implied through silence?
no! some act is required (express words or conduct). silence is not enough!
-acceptance can be inferred by conduct
-acceptance may be made by the offeree or his authorised agent
postal rule - rule, conditions, exceptions
rule - acceptance by post is valid from the moment the letter of acceptance is posed regardless of whether it is actually received
- must be reasonable form of contemplation between parties
- letter must be correctly addresses + correct postage paid
- applies to acceptance, not revocation
- “acceptance by writing” overrides the postal rule as notice must be received by the offeror
- does not apply to instant communication such as emailing
acceptance - communication or conduct?
both! some act is required ie communication or conduct
think: carlill vs carbolic smoke co
what means of communication is allowed for acceptance?
any UNLESS there is a prescribed acceptance in the offer made by the offeror (or in a way which is not less expeditious)
presumption re social domestic family arrangements
rebuttable - arrangements are not intended to be legally binding
ie rebut = husband and wife who are separated
presumption re commercial agreements
intended to be legally binding (hard to rebut) BUT it is rebuttable
consideration: adequate + sufficient
not necessarily adequate ie MV
has to be sufficient = must have some identifiable value
Scenarios for a waiver of rights:
Agrees to except something else of identifiable value/alternative consideration
Agrees to pay early/early payment
Third party payment - 3rd party settles the liability and pays less than the original debt
Bargain between creditors - all creditors agree the reduced value
contracts - type of terms
express = stated
implied
implied terms - define + scenarios
additional terms in a contract my be implied by law - they are deemed to form part of the contract even though they are not expressly mentioned
- by reference to custom (within an industry) UNLESS custom is inconsistent with the express terms of the contract
- by statue (law) which can overrise express terms of a contract
- by the courts (to make the contract understandable)
define - privity of contract
only a person who is a party to a contract has enforceable rights under the contract and can be bound by a contract
exceptions to the privity rule
- road traffic act
- agency arrangements
- executors in a will = executor stands in the shoes of the deceased person thereby becoming party to the contract
- the contracts act = a third party may enforce a term of the contract provided the contract expressly provides that he/she can (by clearly identifying them) + the term confers a benefit over them
what contracts are required to be made by deed?
conveyancing = transfer of property
lease > 3 years
regular payment of a donation to charity
difference between deed vs contract
deed = must be written
contract = written or oral
deed = consideration is not required (exception to the rule)
contract = consideration is required
which forms of consideration are valid - executed, executory, past
executed = valid - an act performed or executed in return for a promise - payment occurs at the time the contract is made
executory = valid - a promise given for a promise - future
past = an act which has already been done when the promise/contract is made - not valid consideration
