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Questions Flashcards

1
Q

onus

A

burden

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2
Q

Unilateral contract

A
  • offer made to whole world
  • acceptance via action/refraining to make some action otherwise taken (exchange of promise for an act)
  • only one party bound by the contract
    -Offeree’s act fulfills consideration
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3
Q

Bilateral contract

A
  • offer made to a specific person or people
  • Exchange of promises as consideration
    -Both parties bound at the outset
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4
Q

offer

A
  • clear and unambiguous statement of conditions on which the offeror is willing to contract with offeree if they accept
    -willingness to enter into contract on certain terms
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5
Q

Objective approach to contracts

A
  • reasonable bystander
  • actions and words over intentions
  • courts do not read minds
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6
Q

What is the difference between offer and invitation to treat?

A
  • Offer: A clear, definite, and binding proposal made with the intention to be bound once accepted.
  • Invitation to treat: An invitation for others to make an offer. It is not binding.
  • Difference: intention to create bindong relationship
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7
Q

Why is the difference between offer and invitation to treat?

A
  • limited stock of product
  • creativity of advertisement (Leonard v PepsiCo)
  • insisting on buying what shopper picker up
  • Ensures contracts are formed only when both parties clearly agree to the terms.
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8
Q

invitation to treat

A
  • statement without intention to create a contract - invites negotiations and offers
  • advertisement, display in shop windows
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9
Q

contract

A
  • legally enforceable agreement between two parties- guarantees rights and obligations
  • exchange of promises
  • offer- acceptance- consideration
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10
Q

What is exception to ads being invitation to treat?

A

Lefkowitz
- clear, unambiguous and explicit - leaves nothing to negotiation

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11
Q

Termination of an offer

A
  • once accepted can not be terminated, any time before it can
    1. Rejection/ Counter- offer
    2. Death of the offeror
    3. Revocation
  • any time prior acceptance - no need to explain but needs to be communicated (explicit or implicit)
    4. Lapse of time
    5. Failure of precondition
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12
Q

Postal rule

A
  • acceptance valid since and where it was posted
  • revocation valid since received
  • rationale: one accepting should have certainty
  • does not apply in certain circumstances:
    • when expressly excluded acceptance by post
    • offeror stipulated another mode of delivery to be used/ or another mode of acceptance
      • not properly addressed or posted
      • contrary to prescribed method of acceptance
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13
Q

Acceptance

A
  • final and clear expression of agreement with the terms of the contract
  • once acceptance is communicated, it concludes the formation of contract (no revocation after)
    • if prescribed to be accepted in particular manner, it needs to follow this
    • counter offer diminishes the original offer - request for info is fine
  • only accepted by a person to who it is made
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14
Q

Methods of acceptance

A
  • must be unconditional: precisely same terms as the offer - if the terms of the offer and terms of apparent acceptance differ- it is considered counter-offer
  • can not occur just in mind- needs to be communicated (by words or conduct)
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15
Q

Battle of forms

A
  • negotiations- last shot doctrine
  • offer made last before agreement is reached is the official one
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16
Q

Silence as acceptance

A
  • silence can not denote acceptance
  • 3 Exceptions to that:
    • if parties agree that silence will be interpreted as consent
    • past dealings of the parties suggest silence will constitute acceptance
    • implied contract for service- service that can not be taken back
      • no inertia selling
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17
Q

Can you accept without knowing about the offer?

A

Offer can not be accepted in ignorance of the offer but motive is irrelevant

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18
Q

Acceptance must be communicated exceptions

A
  • Acceptance must be communicated
    • exceptions:
      • unilateral offer - performance constitutes acceptance- when act completely performed
      • offeror´s own fault- did not read the acceptance letter
      • where offer permits acceptance without communication - offeror states themselves that acceptance does not need to be communicated
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19
Q

Two key intention presumptions

A
  • family, social or domestic relationship= no intention to create legal relationship
  • commercial nature= there is intention to create legal relationship
20
Q

honorable pledge clause

A

no intention to create legal relations- excludes contract to be legally binding

21
Q

letters of comfort

A

designed to reassure its recipient regarding certain matters without subjecting themselves to a contractual liability - even if words letter of comfort used it can be deemed binding in certain circumstances

22
Q

Subject to contract

A

the agreement including that clause generally will not attract legal relations - statement that the parties wish to further negotiate before including it in a legally binding contract

23
Q

is intention additional criteria?

A

connected to certainty
not additional
just creates higher burden to prove otherwise in familial/business setting

24
Q

Consideration

A
  • (price for the promise) something of value given or foregone in exchange for the promise
    • money, service, promise etc. - some sort of detriment or loss
  • promisee giving something in exchange - notion of contract including exchange (something in return for the promise)
  • exception deeds under seal - no consideration yet legally binding LS- not usual
25
Q

Pinnel´s rule

A
  • Part payment of a debt
    • not good enough consideration to forego the remainder of the debt unless something new is given in consideration of that agreement
  • 3 exceptions: introduction of new element, acceptance by a creditor of a third party in full satisfaction of debt, composition with creditors
26
Q

Consideration rules

A
  • Consideration must not be past
  • Consideration must not be doing something someone is already required to do by law
  • Consideration must move from the promisee
    • can not be provided by a third party
  • Consideration need to not move to the promisor
  • Consideration must have tangible value
    • objective or tangible value: sufficient without being adequate, free market- courts will not assess what is fair
      • no sham payment
27
Q

pros and cons of Pinnel´s rule

A

Pros
- bargaining power
-consistency with law
- certainty
- avoids creditors being coerced to worse deals

Cons
- ignores practicality
-harsh on debtors
- incompatible with commercial flexibility

28
Q

Past consideration

A

-not sufficient
-in certain cases past consideration must be sufficient if an action is made on the request of promisor and compensation was anticipated for the service given

29
Q

three types of contracts with infants with examples

A
  • Void ab initio - never has been legally binding
    • Infant Relief Act 1874 - contract to repay money lent & contract for goods supplied to minor
  • Voidable - valid until voided - once voided, perceived as void from start
    • contract of employment or apprenticeship or service - voidable unless on balance of probabilities more beneficial to minor
    • invalid: Keays v Great Southern Railway
    • valid: Chaplin v Frewin - memoirs
    • contracts involving recurring obligations
  • Valid
    • Contracts for necessaries - onus on producer to prove it is a necessity - only required to pay a reasonable price
      • Skrine v Gordon: horse not a necessity
      • Nash v Inman: luxury waistcoats - oxford student -already had enough waistcoats
30
Q

Contracts with infants deemed void and under which Act

A

Infants Relief Act 1874
- contract for repayment of monies lent to minor
- contracts for goods supplied to minor
- all accounts stated with minor

31
Q

Voidable contracts with minors

A
  • contracts involving recurring obligations: relating to interest in land, marriage settlement, purchase for subscription of shares, partnership, insurance contracts
32
Q

Void/Voidable

A

Void: ab initio from start
Voidable: initially valid until disadvantaged party choses to void it

33
Q

Valid contracts with minors

A
  • for necessities
  • for beneficial services (education/employment) : Contracts for necessaries - onus on producer to prove it is a necessity - only required to pay a reasonable price - high burden on the shopper to know what the particular infant needs (already has)
34
Q

Who has contractual capacity?

A
  • adult of sound mind
  • special rules: minors (under 18 yrs), prisoners, intoxicated ppl, mentally unsound and corporations
35
Q

Do contracts need to be in writing?

A
  • no formula needed for most contracts
  • benefits of formality:
    • makes people more think about what they are doing
    • avoids evidential problems with oral contracts - easier to know what is in contract if written
    • avoids reliance on memory
36
Q

Statute which outlined which contracts need to be in writing?

A

Statute of Frauds 1695, Section 2

37
Q

What contracts need to be in writing? (4)

A

1 contracts to pay debt of another
2 contracts in consideration of marriage
3 contract not to be performed within one year - over time memories fade
4 contracts for sale of land or interest in it (lease)
5 sale of goods over 10 GBP - repealed

38
Q

What constitutes a memo/note?

A
  • certifies oral agreement, no contract, prior to enforcing the contract
  • Tradax: letter of defendant rejecting the agreement
  • does not need to be formal - note of oral agreement - parties, property, price and signature
    • parties not need to be explicit but recognizable
    • if joinder of documents, need to reference each other and last signature
39
Q

What constitutes a signature?

A
  • not restrictively interpreted - stamps, typed words, headed paper etc. electronic
40
Q

5 ways to imply terms

A
  • by fact
  • by law
  • by courts
  • by custom
  • by Constitution
41
Q

2 tests for implication of terms

A
  • parties intention to have included that term but omitted due to being too obvious, error or oversight
  • Officious bystander - intended by both parties to be obviously in the contract, goes without saying
    • must have been obvious to both parties, not in conflict with express term
    • Shirlaw
    • Carna
    • Kavanagh
  • Business efficacy - make contract effective from a commercial POV - needs to have been obvious
    • The Moorock: usage of the dock/harbor, implied the dock is safe
42
Q

Terms implied by law

A

rare to imply without intention - special relationships (employer and employee, landlords and tenants - power asymmetry)

43
Q

When the tests for implication won´t be satisfied? (4)

A
  • one of parties would not have agreed with the term
  • if one of the parties is unaware of the term sought to be implied
    if implying the term would destroy the contract
  • if implying the term would have far reaching unwanted consequences
44
Q

What are the advantages and disadvantages of requiring that a contract must be in writing?

A

Advantages:
* Clarity: Reduces misunderstandings by clearly outlining terms.
* Evidence: Provides a tangible record for enforcement and dispute resolution.
* Certainty: Ensures mutual agreement on key terms.
* Compliance: Satisfies legal requirements for specific contracts (e.g., land sales).
Disadvantages:
* Inflexibility: Makes it harder to adapt terms informally.
* Barriers: May exclude parties unfamiliar with formal processes.
* Cost and Effort: Requires additional time and resources.

45
Q

Quantum meruit claim

A

‘as much as he has earned’ and a quantum meruit claim means that a party is claiming a reasonable sum—ie the amount that it deserves, taking into account the works or services that it has performed

Contracts (9 decks)

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