week seven Flashcards
what was decided in Scammel v Ousten
the terms were too uncertain to be enforced
what was the problem in Nicolene v Simmonds
one of the terms in their contract for the sale of steel bars was ‘we are in agreement that the usual conditions of acceptance apply’
there were no usual conditions so this didn’t have any meaning
what did the court decide in Nicolene v Simmonds
this term was meaningless and could be ignored
what provision in the heads of agreement between fletcher challenge energy v ECNZ brought up a question of whether it was sufficiently certain
FCE will deliver gas only if economic
what did the court decide regarding the ‘FCE will deliver gas only if economic’ term in the HOA between fletcher challenge energy v ecnz and whether it was sufficiently certain
the provision could be objectively determined and applied to any particular situation if necessary
what is contractual machinery
e.g. where the contract terms don’t specify the price but they do specify the way of working out what the price is e.g. by referencing another source or a certain process
what were each of the clauses in Attorney-General v Barker Bros 1976 regarding the lease of land for an airstrip in the Chatham Islands
Clause 2: option for renewal of the lease and the rent shall not be less than the amount payable hereunder
Clause 18: arbitration clause
what was the issue in Attorney-General v Barker Bros
the Crown wanted to renew the lease but the cost was going to be over double so they objected and wanted to engage the arbitration clause. Barker Bros disagreed and said clause 2 was not a binding right of renewal because it is uncertain about price. the crown said it is uncertain but there is a process to fix it - the arbitration clause
what was Richmond P’s decision in Attorney-General v Barker Bros
the arbitration clause fixes the uncertainty issue. clause 2 gives minimum renewal rent price and if it wasn’t a binding right of renewal they would just be free to not accept and wouldn’t need this
what was the problem in Money v Ven-Lu-Ree
money’s shares were to be purchased by other shareholders. both sides valued the shares but didn’t decide on a process which would apply if the valuations were differed.
the valuations did differ so it was argued there was no contract for lack of certainty.
what did the CA hold in Money v Ven-Lu-Ree and which of the two aspects was not upheld by the Privy Council
- it was a sale by valuation and this is an objective standard which the court can determine (a fair valuation)
- the CA were willing to imply an arbitration clause into the contract, even though there wasn’t one in the oral agreement
the 2nd one wasn’t included
what is an agreement to agree
not an agreement itself, just a non bininding agreement to agree
why are agreements to agree not binding
because they are not sufficiently certain as to who would be at fault if they didn’t agree
what term was in the Fletcher Challenge Energy v ECNZ 2002 heads of agreement which concerned agreements to agree
FCE/ECNZ to use all reasonable endeavours to agree a full sale and purchase agreement within three months of the date of this agreement
what did the court find regarding the agreement to agree term in Fletcher Challenge Energy v ECNZ
it was unenforceable because it wasn’t sufficiently certain what this would require the parties to do
what was the agreement to agree term in Wellington City Council v Body Corporate 51702
Council officers will negotiate, in good faith, sales of Council’s leasehold interests to exisiting lessees at not less than the current market value of those interests
could the statement in Wellington City Council v Body Corporate 51702 be enforced?
it was an agreement to agree so there was no contract on its basis because the statement could not be contractually enforced because it was too uncertain as to what it would entail - Tipping J
what is consideration historically
in order to enforce a promise there had to be consideration for the promise
what is the benefit detriment approach to consideration
the consideration must consist in a benefit to the promisor or a detriment to the promisee
what is the bargain approach to consideration
the price for which a promise is bought - one sided where one party is the promisor and the other is giving something in exchange
what is barber’s mutuality symmetrical approach to consideration
that everyone has to give something and assume some obligation
what was the situation in Thomas v Thomas
Mr Thomas died and said his wife should have his house for life.
His executor made an agreement with Mrs Thomas that she would have use of the house for life if she paid 1 pound rent per year and kept the house in good repair.
The executor later refused to go ahead with the agreement.
what was the result of Thomas v Thomas
The arrangement appeared to be a gift but Patterson J said consideration means something which is of some value in the eye of the law
what is the key takeaway from Thomas v Thomas
there needs to be some consideration, but it doesn’t matter how much - the court is not concerned with the adequacy of consideration
