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2021 - contract > week one & two > Flashcards

week one & two Flashcards

1
Q

how does peel define a contract

A

A contract is an agreement giving rise to obligations which are enforces or recognised by law

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2
Q

contracts involve ____ promises and exchange

A

mutual

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3
Q

what is the informality feature of contract law

A

whether contracts have to be in a particular form - in nz they din’t and a written and oral contract are just as enforceable in court

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4
Q

what is the ubiquity feature of contract law

A

contracts are ubiquitous - they are everywhere and all around. you cannot get away from them

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5
Q

what is the variety feature of contract law

A

many different types of contracts and varieties that most contracts fall into

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6
Q

what is the importance feature of contracts

A

exchanging/purchasing is fundamental to our lives and contracts are the legal form of those exchanges

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7
Q

how many features of contract are there

A

4

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8
Q

what are the 4 features of contract

A

informality, ubiquity, variety, importance

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9
Q

what was a contract related problem in the english civil war

A

fraudulent oral contracts

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10
Q

what did fraudulent oral contracts in the english civil war lead to

A

the Statute of Frauds

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11
Q

what were the problems with the statute of frauds

A

parties acting in compliance to a contract and then a court refusing to enforce it because it wasn’t in writing

a different type of fraud where people entered into oral agreements and later pulled out saying there was no agreement because it needed to be in writing

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12
Q

what is left of the statute of frauds in nz today

A

property law act s24, 25, 27 - selling land has to be in writing and so does any situation where a person is a guarantee to an owing of money

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13
Q

are there statutes where ad hoc provisions require contracts to be in writing

A

yes - employment relations act 2000, individual agreement must be in writing

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14
Q

a contract usually involves a mutual making of promises/exchange. can there be a one sided contract?

A

yes

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15
Q

what is a simple contract

A

traditional term for an exchange contract

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16
Q

what was required for a contract under seal

A

signed, sealed, delivered - written, signed and sealed by the party giving the thing, delivered to the other party

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17
Q

what was required for a contract by deed

A

written, properly executed (signed and the signature witnessed) and delivered

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18
Q

how many requirements are there for contracts

A

4

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19
Q

what is an offer

A

the expression of the willingness to contract immediately upon acceptance

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20
Q

define an offeror

A

person who makes an offer

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21
Q

define an offeree

A

person to whom an offer is made

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22
Q

who are the parties in Smith v Hughes

A

Mr Smith (farmer) and Mr Hughes (racehorse trainer)

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23
Q

what did the farmer want to sell to the racehorse trainer in smith v hughes

A

some oats, he left a sample

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24
Q

did the racehorse trainer buy oats from the farmer in smith v hughes

A

yes, he sent a letter offering to buy some oats for 34 shillings

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25
Q

what happened when the oats arrived to the trainer in smith v hughes

A

trainer found out they were new oats, he wanted old oats which are easier for horses to digest. he refused the delivery and so the farmer sued him for the price

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26
Q

what was the trainers vs the farmers argument in smith v hughes

A

trainer: he only ever wanted old oats and the price was steep for new oats
farmer: sample was new oats and the letter of offer never mentioned that the offer was for old oats

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27
Q

what was the question for the court in smith v hughes

A

what was the offer made: was the offer for old oats or new oats matching the sample

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28
Q

what did blackburn j’s comment in smith v hughes mean

A

it doesnt matter what the actual intention of the offer is, it matters what a reasonable oferee would think the offer is

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29
Q

what was the result of smith v hughes

A

there was a binding contract for the sale of the oats, and the farmer was entitled to that contract being enforce

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30
Q

what happened in OT African Lines v Vickers (intially)

A

vickers had a contractual dispute and as a result OTAL had claimed $700,000 from Vickers. At a settlement conference, Vickers was willing to pay $150,000 USD but OTAL wanted $210,000 USD. There was no agreement. Vickers solicitor sent an offer of 150,000 pounds, which was around $210,000. OTAL accepted. The solicitor said it was a mistake.

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31
Q

what was the question in OTAL v Vickers

A

was the offer for 150,000 pounds as it appeared, or $150,000 as intended

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32
Q

what was the result of OTAL v Vickers

A

Vickers had to pay the 150,000 pounds because there was an agreement to settle at that amount. if Vickers could show OTAL knew or ought to know that there had been a mistake then Vickers would not be bound

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33
Q

what were the facts towards it being a mistake in OTAL v Vickers

A

previously dealing in USD, offer was higher

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34
Q

what were the facts towards it not being a mistake in OTAL v Vickers

A

the offer was about $210,000 which is what OTAL wanted and OTAL may have thought they changed their mind and agreed with the offer

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35
Q

what was the result of OTAL v Vickers

A

OTAL weren’t to reasonably have known that it was a mistake and Vickers were bound by the contract

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36
Q

where it is CLEAR there has been a mistake ____

A

the offer is not binding

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37
Q

what does subjective mean

A

actual intention

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38
Q

what does objective mean

A

the appearance of a persons conduct, as it would appear to a reasonable person

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39
Q

what was the telegraph conversation in Harvey v Facey

A

“Will you sell us Bumper Hall Pen? Telegraph lowest cash price”

“Lowest price for Bumper Hall Pen 900 pounds”

“We agree to buy Bumper Hall Pen for the sum of 900 pounds asked by you”

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40
Q

did the PC decide “lowest price for Bumper Hall Pen 900 pounds” was an offer

A

they decided it wasn’t

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41
Q

a statement like ‘lowest price for Bumper Hall Pen 900 pounds” is also known as?

A

an invitation to treat (negotiate)

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42
Q

what does to treat me

A

to negotiate

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43
Q

what was the business model in Grainger v Gough

A

grainger showed customers a wine price list at his store in london and customers placed orders with him which he sent to a french wine merchant. the french merchant decided whether to accept the order and then dealt directly with the english client

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44
Q

what was the question in grainger v gough

A

was the french merchant carrying out business in england and therefore liable to pay tax

45
Q

what did the House of Lords decide in grainger v gough

A

the showing of the price list was not the offer, the offer was made when the order was passed onto the merchant

46
Q

generally, advertisements are not offers. what are they?

A

intentions to treat

47
Q

what was the pharmaceutical companies issue with boots in pharmaceutical society of great britain v boots cash chemists 1952

A

boots had a self-serviced system and they weren’t convinced that certain drugs were being sold by a registered pharmacists as they were required to be

48
Q

what was the question for the court in pharmaceutical society of great britain v boots cash chemists 1952

A

when does the sale actually take place in a self service shop

49
Q

when did the pharmaceutical company claim the sale took place in a self service shop in pharmaceutical society of great britain v boots cash chemists 1952

A

when the person put the item in their basket (this was acceptance of the offer which was the item on the shelf with the price)

50
Q

what did the court hold in pharmaceutical society of great britain v boots cash chemists 1952

A

because items can be put back and sales can be refused, items on the shelf are an invitation to treat

51
Q

in payne v cave, mr cave bid 40 pounds for mr paynes thing. what did he do when the auctioneer paused to encourage further bids

A

he got annoyed and said he would no longer pay 40 pounds, withdrawing his offer

52
Q

my payne sued mr cave in payne v cave. what was his argument

A

that making a bid at an auction is an acceptance of an offer, this acceptance is conditional on there being no higher bids but a contract is formed

53
Q

what did the court hold in payne v cave

A

a bid is an offer, accepted at the fall of the hammer

54
Q

what is the general rule made in payne v cave

A

you can revoke an offer any time prior to acceptance

55
Q

in sommerville v rice, sommerville had sent an offer to rice. what did he do next

A

he changed his mind and sent a letter of revocation

56
Q

what did rice do with the offer sommerville sent him in sommerville v rice

A

he attempted to accept it, only to receive the letter of revocation sent by sommerville later

57
Q

what was the issue in sommerville v rice

A

whether the letter was an effective revocation since the letter had been sent but had not arrived

58
Q

what did the court hold in sommerville v rice

A

revocation must be communicated to the other party to be effective, therefore the revocation was not effective and a contract was formed

59
Q

how and when can a contract be terminated for a lapse of time

A

if the offer specifies when it will be terminated that will be effective. otherwise the offer will expire after a reasonable time

60
Q

mr dunfoy owned land that mr keane wanted to purchase in kean v dunfoy. the land was 160 pounds and kean paid a 10 pound deposit. a written agreement signed by mr dunfoy was sent to mr kean requesting a further 50 pounds deposit. what was the issue with this?

A

mr kean gave the 50 pounds and the signed agreement to his solicitor who lost it, and only found it 12 months later

61
Q

did mr kean still try to form the sale in kean v dunfoy after the 12 months

A

yes

62
Q

what was the issue in kean v dunfoy

A

whether the offer was still valid after 12 months when the agreement was made

63
Q

what did the court decide in kean v dunfoy

A

where the offer does not stipulate the time for acceptance, the offer will lapse after a ‘reasonable time.’ In this case, the offer had already lapsed

64
Q

what was the question in dysart v nielson

A

has the offer terminated because of whats happened after the offer - the granting of leave to appeal to the SC

65
Q

what did tipping j say about change of circumstances regarding offers in dysart v nielson

A

if the change in circumstances has fundamentally undermined the basis of the offer, then even if that is not in the contract explicitly the court can apply it

66
Q

what was the result of dysart v nielson

A

the majority held there hadn’t been a fundamental change because both parties knew of the application for leave to appeal and knew it could be declined or approved at any moment

67
Q

what is the general view about how the offer changes given death of the offeror

A

upon the death of an offeror, the offer will terminate when the offeree becomes aware of the offerors death. The estate of the offeror may be bound by the contract is the offeree accepts the offer before they know of the death

68
Q

what is the general view about how the offer changes given death of the offeree

A

the offer will probably terminate immediately upon the death

69
Q

what did Mr Hemechandra do that was sketchy in Robinson v Hemechandra

A

he signed the agreement for the sale of his land but the agreement was post-dated a few weeks ahead in 3 places

70
Q

what was the question for the court in Robinson v Hemechandra

A

was Mr Hemechandra’s signing a valid acceptance of the offer

71
Q

what did the court hold in Robinson v Hemechandra

A

that Mr Hemechandra’s signing was an acceptance. a reasonable person in the shoes of the offeror Robinson would consider that that was an acceptance of the offer.

72
Q

how can there be an acceptance of an offer

A

the offer has to have content/terms/statements of what the offeror is willing to agree to and there has to be communication between the parties of what is being offered.

In agreement, they only have to indicate agreement because there are already terms so it is common to find acceptance by conduct e.g. handshakes

73
Q

if an offeror makes an offer and the offeree starts performing the contract, can this be acceptance?

A

yes

74
Q

what happened in Borgden v Metropolitan railway

A

Brogden supplied coal to Metropolitan railway. Their prices went up and so they filled out a form setting out the new terms which would need to be written up into a contractual document in those times and signed by both parties, which did not happen.

MR kept ordering coal and paid the new price. Later there were issues and one of the parties claimed there was no contract

75
Q

what was the result of brogden v metropolitan railway

A

a contract had been formed and acceptance by metropolitan railway was to be found in their ordering and paying for of coal under the new agreement

76
Q

what happened initially to cause argument in airways corp v geyserland

A

airways provided air traffic control and increased the price for its services. geyserland protested the new terms and prices and refused to pay the new price because it was excessive, but they continued to use airways services.

airways sued geyserland for the amount it has invoiced that geyserland had refused to pay.

77
Q

what was the question for the court in airways corp v geyersland

A

did geyserland continuing to use airways services amount to acceptance of the higher price offer

78
Q

what approaches did the judge in airways corp v geyserland consider, and what was the result

A

objective approach and whether the offeror knew or ought to have known

the court held there had been no acceptance because airways knew geyserland was not intending to accept because they have very strenously objected to the new prices. therefore airways knew, that geyserland, by using their services, was not accepting their terms

79
Q

what strengthened the courts decision in airways corp v geyserland

A

airways was a monopoly, geyserland had to use their services. if there were more companies and they could have gone elsewhere but stayed with airways, airways would’ve just thought they changed their mind. here it was clear they were still disputing

80
Q

what happened in lee v sayers

A

sayers sent a letter to lee, offering to grant a timber cutting license on particular terms.

lee entered into a partnership with another person and sent a letter to accept the offer with both names on it

81
Q

what did the court decide in lee v sayers

A

it was not a valid acceptance because the offer was to mr lee not both of them

82
Q

what can we take out of lee v sayers

A

an offer must be accepted by the person to whom it was addressed

83
Q

what do we mean by unqualified assent

A

the essence of acceptance is unqualified assent to the terms of the offer

84
Q

what happened in hyde v wrench

A

wrench offered to sell his farm to hyde for 1000 pounds and hyde offered to purchase the farm for 950 pounds.

wrench refused to sell for 950 so hyde attempted to accept the offer to sell for 1000 pounds.

wrench refused to go ahead with the agreement

85
Q

was a counter offer made in hyde v wrench by hyde offering to purchase the farm for 950 pounds instead of 1000

A

yes and it was rejected

86
Q

what was the question for the court in hyde v wrench

A

whether the original offer is still capable of being accepted after a counter offer

87
Q

what did the court decide about counter offers in hyde v wrench

A

a counter offer is a final rejection of the offer

88
Q

what does reporoa stores v treloar concern

A

there was a lease from treloar to reporoa from 21 sep 1951 - 21 sep 1954. there was a clause stating an option to purchase.

89
Q

what were the terms of the option to purchase in reporoa stores v treloar

A

the lessee had to give 3 months notice in writing of its desire to purchase before sep 21 1953 and after these 3 months they shall pay the 1855 pounds and all rent accruing and they will get the property

90
Q

what did reporoa do wrong in trying to exercise the option to purchase in reporoa stores v treloar

A

the settlement was listed to be on the wrong date - sep 21 1954 (not 3 months after the notice) and that they asked for further correspondence but the exercise is acceptance and forms a contract.

91
Q

what was the result of reporoa stores v treloar

A

it was found to be a counter offer, because of the new settlement date

92
Q

what are enquiries

A

one possible response to an offer is to make an enquiry or request further information regarding the terms of the offer

93
Q

what was the result of stevenson v mclean

A

the middle communication (asking for a longer delivery time) was a mere enquiry to remake the offer on new terms, not a counter offer

94
Q

what happened in powierza v daley

A

the purchaser made a written offer to the vendor, who changed some terms including increasing the deposit required.

the purchaser looked at the changes and asked whether they would accept the original deposit, but said they would probably pay 10k more.

95
Q

what was the question for the court in powierza v daley

A

what was the effect of the purchaser asking if they’d take $20,000 - a counter-offer or an enquiry

96
Q

what was the result of powierza v daley

A

on both cases (inc on appeal) it was found to be a enquiry rather than a rejection and new offer (counter-offer)

97
Q

in Dysart Timbers Ltd v Nielson, Blanchard J says “it is open to someone who makes an offer to stipulate the circumstances __ __ __ ___ ____. If the offeror does not do so expressly, it may none the less be ___ ___ __ __ ___ ___ ____ ____ ___ ___ ___ ___ ___ ___ ___ ___”

A

in which it will lapse, apparent to an objective observer that the offer was made on the basis of the existence of certain circumstances

98
Q

Blanchard J, in Dysart Timbers Ltd v Nielson, said “an offeree cannot reasonable expect to accept an offer if the __ __ __ __ __ __ has fundamentally changed”

A

basis on which it was made

99
Q

what are 5 major factors for the existence of a contract

A

making an offer, acceptance, communication of acceptance, requirement of certainty, is it conditional on some event?

100
Q

the more formal and structured the process for submitting and evaluating a tender, the more likely it is that?

A

a process contract will be found

101
Q

when can an offer be revoked

A

any time before acceptance

102
Q

revocation is ineffective if it isn’t?

A

communicated

103
Q

a letter received on a normal working day should be treated as

A

communication, even if unopened

104
Q

if an offer states it is open till a certain day, a later acceptance will be?

A

ineffective

105
Q

can an offeree accept after notice of an offeror death?

A

no

106
Q

death, until notified, does not prevent acceptance because the offer can be satisfied how?

A

out of the offeror’s estate

107
Q

an offeree must ____ assent to the exact terms proposed by the offeror

A

unreservedly

108
Q

if, while purporting to accept the offer as a whole, he introduces a new term which the offeror has not had the chance of examining, he is in fact doing what?

A

making a counter-offer

2021 - contract (20 decks)

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