WEEK 1 LECTURES 1 + 2 - FOUNDATIONS + LAW AS A TOOLKIT Flashcards
what is a contract? (according to Chitty)
- set of promises + relationship of obligation
- recognised + enforceable by the law
what is a contract? (according to Thornton)
a performative utterance
what is a promise?
- social act/enunciation directed by 1 person to another
- whereby B apprehends that A ought to act OR omit to act in some way at some future point in time
what relationships do promises produce?
- relationships of obligation
- the same way humans see 3 dots + naturally form a line/triangle
what happens to a promise when the promisor OR promises are unconscious/asleep?
promise subsists (remains)
what follows from the public apprehension of promissory speech acts?
the reality of a relationship of obligation
what are the aspects of a relationship of obligation?
- promisee has a right against promisor to expect performance of promise
- promisor has obligation to promisee to perform promise
- doesn’t matter if promisor didn’t intend to promise OR promisee misheard
- the state of affairs subsists due to public apprehension of a speech act as promissory
what does Reinach say about attempts to clarify there was no promise?
any attempt to clarify there was no promise is consequent on there being an apprehension of a promise in the first place
what are the features (definition) of a performative utterance?
- creates new state of affairs that previously didn’t exist
- inherently public
- acquire reality from convention/derived from convention (e.g. what words/phrases means in a certain context –> “I do” at a wedding vs. someone asks if you want chocolate)
- must be sincere? –> Sun Life Assurance v Thales Tracs [2001] –> because public, doesn’t really matter
- must be said to people + apprehended as performative
what is objectivity?
the relevant measure is what the reasonable man would have understood from it
what does Reinach think about promises?
- promises are real
- they come to be + cease to be on fulfilment
- in between they subsist –> you’re still bound when asleep/unconcious
what did Reinach disagree on with Austin about promises?
that convention gave promises their creative force
what was Reinach’s synthetic a priori theory about promises?
- we understand what it is to constrain one’s actions for someone else, just as readily as they understand that 3 connected lines = a triangle
- as soon as we apprehend a promise, we intuit a relationship of obligation that we can’t unsee
what is temporal reality in terms of speech?
just because the speech has ceased, doesn’t mean the state of affairs has ceased
what is Kelsen’s criticism of Reinach?
says there’s no legal meaning unless/until a duly constituted legal authority has intervened and said so
what is Butler’s criticism on Kelsen, based on performativity?
- conventionalism leads to relativism
- many statements of fact actually do enact social norms
e.g. a baby is born + they say “it’s a girl”
what are the elements of a contract
- offer
- acceptance
- consideration
- intention to create legal relations
1 + 2 = contract formation
which 2 elements are required for a contract to be formed?
- offer
- acceptance
what is an agreement?
- a promise where A is obligated to B, and B is obligated to A
- not every agreement = a contract
- every contract = an agreement
what must there be for a contract to be formed?
consensus between parties as to which set of promises will obligate them
how are agreements legally assessed?
- objectively
- promising = social act/public performance
- if reasonable person looking at the words of A + B would think they had come to a consensus as to the mutual promises between them = there IS an agreement
how is an offer made between 2 parties?
- A makes an offer, normally combined with a condition that B makes a reciprocal promise
e.g. “I promise to give you £1,000 only if you promise to give me a car”
what does contract law require in terms of promises?
- the statement of promises must be sufficiently specific
- offer enunciated a willingness to be bound by these specific promises
what is an invitation to treat?
asking someone to make an offer (even if very specific)
- objectively interpreting social act + deciding the desire to be obligated hasn’t been manifested
what is acceptance?
- social act
- must accept to be obligated by promise it’s making
- may be objectively determined from words/conduct
- offeree objectively accepts to be bound by same terms offered by the offeror
what is a counteroffer?
- offeree purports to accept different terms
- offer NOT accepted
- new, different offer made
what is consideration?
- each party promises to do something legally valuable, in return for the other party’s promise to also do something legal valuable (definition debatable)
- a performative utterance –> publically demonstrates + constitutes an agreement
e.g. Bi-lateral contract –> exchange (money for goods/services)
why does the need for consideration impose significant restrictions on the sets of promises Courts can recognise as a Contract?
- if A makes 1 or more promises to B with NO corresponding promise = NO contract
what is intention to create legal relations?
- objective comprehension of socially meaningful acts
- the context in which promises are uttered
- intent = presence of ‘contractually consistent context’
i.e. the words “I agree” have different social meanings in a seminar vs. a stock market
are promises made in a familial context binding?
no
(objectivity not as neutral as it seems)
what is the view on promises made in a commercial setting?
- parties are presumed to have created legal relations
- see Esso Petroleum v Customs & Excise [1976]
importantly, how can parties in commercial settings deny intention?
- by writing “subject to contract”
- by stipulating just when parties will be bound –> e.g. when all parties sign the document
when is a contract voidable?
when requirements for legally binding contract are present, BUT process of reaching an agreement was flawed + vitiated the agreement reached by parties
(vitiating factor)
- innocent party may choose to set aside contract OR keep it going
what is misrepresentation?
- vitiating factor
- A makes false representation of present fact or law
- B relied on this to enter into a contract with A
- innocent party may opt to rescind contract + claim damages for losses
Misrepresentation Act 1967
what is duress?
- vitiating factor
- e.g. –> A puts gun to B’ head/threatens to burn down her house unless she sign/vary a contract
- promise regarded as the act of a mere puppet controlled by A
what is undue influence/equitable?
- vitiating factor
- certain kinds of relationship of influence exist between parties + there’s a transaction which calls for explanation
- usually doesn’t;t benefit one party
- A must show B subjectively contracted freely + independently
what is a mistake?
- vitiating factor
- parties unwittingly promise to do what’s impossible from the outset
in what 2 ways can a contract be discharged (its promises cease)?
- discharge by performance –> promises = fulfilled + contract ends
- discharge by frustration –> promise + impossible to fulfil at the time a contract was concluded
what is meant by incorporation of terms traditionally + today?
tradtionally = the contract’s literal words UNLESS wholly absurd were the objective manifestation of the promises
today = what terms would mean to Reasonable Person with Relevant Background Knowledge available to BOTH parties at time of contract formation
what does “nemo dat quod non habet” mean?
“no one can give what they don’t have”
what important function do English contracts perform?
- parrallel function
- prove that title to goods has been transferred
(Consideration is a KEY Proof)
