week three Flashcards
what happened in tinn v hoffman?
there was a negotiation between the parties that resulted in both parties sending an offer on exactly the same terms at the same time.
what was the result of tinn v hoffman
cross-offers do not make a contract - there are two offers and no acceptances
acceptance is completed upon?
communication to the offeror
what happened in kennedy v thomassen
an offer was made to a person through her solicitors. the person accepted and completed the documents on the 12th of January. Her solicitors passed that information on to the offeror on the 24th of January.
Unfortunately, she had died on the 17th of January
what was the result of kennedy v thomassen
the court decided that the acceptance would have been complete when it was communicated to the offeror on january 24. her death meant the offer could no longer be accepted.
what was the basis of commerce commission v telecom mobile
they were looking at a method by which telecom was selling phones
what method was telecom using to sell phones in commerce commission v telecom mobile
Mainly Mobile (another company) would call a prospective customer. If they expressed an interest they would pass the details of that person onto telecom
Telecom mobile did a credit check on these people, and if their credit check was suitable, telecom would post them a phone.
the phones were in a sealed box and accompanied by a letter which said breaking the seal on the box would constitute acceptance of the phone
when did telecome argue the contract was formed in commerce commission v telecom mobile
during the phone calls between the customers and mainly mobile
what did the court hold in commerce commission v telecom mobile
the offer was sending out the phone and acceptance was breaking the seal of the box - this was an example of an offeror waiving its right to communication of acceptance
what is a prescribed mode of communication
where the offeror prescribes a means by which the offer can be accepted
what happened in allbrite industries v P&C Gill Contractors 2002
the two parties were negotiating about working together with respect to a job being tendered.
an offer was sent by Allbrite to P&C Gill by fax. there was a place on the fax for P&C Gill to sign and then fax it back
P&C sent back its own letter (not following the instructions of Allbrite which purported to accept the offer
what was the question for the court in allbrite industries v P&C Gill Contractors 2002
was the contract formed in this case? there was an offer, instructions as to how to accept the offer, and the offeree attempted to accept the offer in some other way.
was this a mere indication without prescription, or actually prescribed (made clear that the offeree had to accept by that mode alone)
what did the court decide in allbrite industries v P&C Gill Contractors 2002
the instructions were not prescriptive - the attempt to accept via a different mode was held to be effective
what happened in adams v lindsell 1818
lindsell wrote to adams offering to sell 800 tonnes of woollen fleeces at a particular price. the acceptance of that offer was sent by post on september 5th.
lindsell were expecting to receive an answer by september 7. when lindsell didn’t receive a response, they sold the wool to another party on september 8th.
the letter of acceptance arrived on september 9th as it was delayed in the post
what was the question for the court in adams v lindsell
whether a contract was formed
what was decided in adams v lindsell
the acceptance was complete upon posting - the posting rule
what was the situation in holwell securities v hughes
Concerned an option to purchase. The option shall be exercisable by notice in writing to the intending vendor at any time within six months from the date hereof.
The acceptance letter went astray and never reached Hughes. The posting rule suggests this acceptance would be effective. But that wasn’t the outcome in this case.
Lawton LJ said: the posting rule does not apply if the parties intended that is shouldn’t apply.
why did the posting rule not apply in holwell securities v hughes
because the option was exerciseable by notice, the court took this to mean that notice requires receipt of the communication
what is the contract and commercial law act 2017
sets out when an acceptance by electronic communication will be effective
what does s214 contract and commercial law act 2017 have rules for
a) in the case of an addressee who has designated an information system for the purpose of receiving electronic communications, at the time the electronic communication enters that information system; or
b) in any other case, at the time the electronic communication comes to the attention of the addressee
when does a contract by email become formed
when it enters the offerors email providers server, regardless of when it enters the offerors inbox or when they read it
what was the situation in petterson and gothard
petterson as the liquidator of a company requested information from the receiver Gothard about the company
the question was whether this request for information by email had designation
the judge suggests the threshold for designation of email is not particularly high because of how common it is
what is a process contract
where a contract is formed in the process of reaching a main contract
how can an auction involve process contracts
where an auction is advertised as being without reserve this is an offer and bidding in reliance on that statement is acceptance
what is tendering
a contracting process whereby a party sets out specifications of work they want done. other parties tender for that work (offers). the first party can accept one of those offers
what was the situation in pratt contracts ltd v palmerston north dc
The council put out for tender work on an overpass. Tendering for the work required pre-registration with a non-refundable payment of $100. The council said they would be awarding the contract on the basis of the lowest price conforming tender. There were 6 attributes they needed to meet their requirements. The council was suggesting they would award the contract to the party who submits the tender that meets those 6 attributes with the lowest price.
what was the issue with pratt contractors ltd v palmerston north dc
Pratt contractors did submit the lowest price conforming tender, but they were not awarded the contract. They were arguing a process contract had been formed, under which the council was obliged to award the contract to the lowest price conforming tender.
what did the court hold in pratt contractors ltd v palmerston north city council 1995
a process contract had been formed because of the parties tendering having to pay $100 to do so and go through a significant process with complex documents
what is a unilateral contract
where an offer is accepted by the offeree completing their performance of the contract
who is carbolic smoke ball co and what were they offering
they offered a 100 pound reward to anyone who used the ball 3 times daily for two weeks and still got influenza
what did the carbolic smoke ball co claim in carlill v carbolic smoke ball co.
that there was no contract because there wasn’t valid offer and acceptance
what failed arguments did carbolic smoke ball co make in carlill v carbolic smoke ball co.
they argued you can’t make a contract to the world and that there was no communication of acceptance (which can obviously be waived)
who won in carlill v carbolic smoke ball co.
mrs carlill - acceptance is by performance
what question/situation was considered in mobil oil australia v lyndel nominees 1998
the situation where a unilateral offer is revoked when the task is partially completed
what did the court decide in mobil oil australia v lyndel nominees 1998
its not always the case that they can revoke the unilateral offer, but its also not the case they can’t
there is no universal rule
when may a court prevent an offeror from revoking unilateral contracts
implied ancillary or estoppal
rewards are usually what kind of offer?
unilateral
what were the facts in R v Clarke 1927
a reward was offered for information that would lead to the arrest and conviction or the person(s) who committed the murders of two police officers
Mr Clarke had previously been charged with this crime and told the authorities who actually did it in order to clear his name
what was the question in R v Clarke 1927
whether a contract had been formed because Mr Clarke was giving the information to clear his own name rather than for the reward - which he had forgotten about at the time
what was the decision in R v Clarke
that acceptance has to be in reliance on the offer, so Mr Clarke did not get the reward because he was doing it to clear his name, not in reliance of receiving the offer(of reward)
what is an interim agreement
where two parties reach agreement while negotiating
what is the problem/question with interim agreements
whether the agreement is the final agreement the parties are intending to reach i.e. a contract
what does Carruthers v Whitaker concern
a farm sale where Carruthers is the seller and Whitaker the purchaser
what happened in Carruthers v Whitaker
they reach an agreement on the terms of sale.
a draft agreement is written up, approved by the vendor and signed by the purchaser.
a deposit is sent.
what was the question for the court in Carruthers v Whitaker
was this draft agreement binding
how does a court decide if an interim agreement is binding
they look to the intention of the parties - were they intending to be bound by the interim agreement, or by a later formal one
what was decided in Carruthers v Whitaker
the parties had intended a formal agreement, so there was no contract
no contract is formed where two offers on identical terms cross, because neither party is acting?
in response to the other ones offer
a contract can only result from the acceptance of an offer by ?
a person or persons to whom the offer was made
is a tender an offer?
Yes
what is a standing offer
where a trader puts in a tender to deliver and when demanded a quantity they may require - until revocation she or he stand willing and waiting to deliver
acceptance must be __ and ___
complete, unconditional - the offer has to be accepted according to its terms
an ‘acceptance’ but with mistakes in it could be seen as a ____, such as in Reporoa Shores Ltd v Treloar
counter-offer
when is a counter-offer made?
when the offeree does not accept the terms proposed by the offeror but instead puts forward different terms
sometimes silent can amount to acceptance if it is acceptance by?
conduct
offeror may waive the need for communication - here acceptance is shown by them?
performing the act
if no particular method is prescribed, the method of communication will depend upon the ?
the nature of the offer and the circumstances in which it is made
acceptance is incomplete until received by?
the offeror
what is the posting rule
acceptance is effective when posted, even if a letter of revocation has been posted by the offeror but not received by the offeree
a waiver of communication will be assumed much more readily in ___ ___
unilateral contracts
is an agreement in principle binding? why?
no, because it indicates there are matters still to be resolved before the parties regard themselves as bound
