Misrepresentation/Mistake Flashcards
What is a contract
A contract is an agreement either oral or written by which two or more parties having legal capacity agree to perform certain obligations that are not contrary to public policy.
Offer
An offer is an expression of willingness to contract, on specified terms, made with the intention that it shall become binding on the person making it as soon as it is accepted by the person to whom it is addressed.
Acceptance
An acceptance is a final and unqualified expression of assent to the terms of the offer. The language must convey a clear and definite decision by the offeree to be bound by the terms of the offer leaving no further negotiations
Consideration
The traditional definition of consideration concentrates on the requirement that something of value must be given and accordingly states that consideration is either some detriment to the promisee or some benefit to the promisor
Intention to create legal relations
This is where one party wishes to enter into a legally binding agreement. The establishment of itc will be determined on the basis of facts and may be established by evidence
Mistake
If one or both of the parties to a contract enter into it under some misunderstanding or misapprehension, in certain circumstances the courts are prepared to permit the parties to rely on the defectiveness of the contract on the basis that if the parties had known of the correct fact, they would not have entered any contractual arrangement.
Common mistake
This occurs when there is a common mistaken assumption of fact which renders the service that will be provided, if the contract is performed in accordance with its terms, something different from the performance that the parties contemplated
Unilateral Mistake
A party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract.
Misrepresentation
The classical position is that if a party enters into a contract on the basis of certain material and unambiguous statements of fact which turn out to be untrue, the court may be prepared to hold that the presence of such untrue statements of fact can form the basis of relief for an aggrieved party where such party has in reliance of such untrue statements of facts been induced to enter into a contract to his/her detriment In
limited circumstances, where a party ought to have been able to ascertain the true facts, the Courts may not permit the contract to be
avoided.
Contract case
Viisual Arts Production Limited v Marcus jean Baptiste. They offered to sell orally. They agreed that he could either use or return the items and he used them which amounted to acceptance by conduct therefore an offer was made and accepted and a contract was formed.
Offer Case
Harvey v Facey. The appellant offered to purchase BHP but the respondent never indicated that they accepted the offer to sell BHP, they only indicated the lowest price for BHP therefore no contract existed
Acceptance Case
Bougainville Investment Corp v Semple. Semple claims no legal agreement to pay for the cattle project because he offered to pay but no acceptance was indicated by bougainville. An offer without acceptance is not a contract.
Consideration Case
National insurance board v ann-marie duncan mason and paul mason. Both offer and acceptance were noted with regards to the sale of the property held pursuant to the mortgage deed and proceedings would be paid towards the mortgage. There was no consideration therefore not legally enforceable
Intentions Case
Estate of Raphael Williams, deceased, Cliff Williams & aggie williams v the mooring limited. The defendant agreed to pay the stipulated sum in fees outstanding to the deceased. All parties agreed to the terms and conditions. There was offer, acceptance, and consideration present. The court decided there was itc.
Common Case
Eastern Canada Coal Gas Venture Ltd v Cape Breton Development Corp. The parties entered into an agreement where p would provide d to use coalbed methane to produce electricity. They were both under the false assumption that phalen gas alone could support the project. In this case there would be no damages payable by the d as the mutual mistake was entirely due to the p’s work.
