week three

Question 1

what happened in tinn v hoffman?

Answer 1

there was a negotiation between the parties that resulted in both parties sending an offer on exactly the same terms at the same time.

Question 2

what was the result of tinn v hoffman

Answer 2

cross-offers do not make a contract - there are two offers and no acceptances

Question 3

acceptance is completed upon?

Answer 3

communication to the offeror

Question 4

what happened in kennedy v thomassen

Answer 4

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

Question 5

what was the result of kennedy v thomassen

Answer 5

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.

Question 6

what was the basis of commerce commission v telecom mobile

Answer 6

they were looking at a method by which telecom was selling phones

Question 7

what method was telecom using to sell phones in commerce commission v telecom mobile

Answer 7

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

Question 8

when did telecome argue the contract was formed in commerce commission v telecom mobile

Answer 8

during the phone calls between the customers and mainly mobile

Question 9

what did the court hold in commerce commission v telecom mobile

Answer 9

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

Question 10

what is a prescribed mode of communication

Answer 10

where the offeror prescribes a means by which the offer can be accepted

Question 11

what happened in allbrite industries v P&C Gill Contractors 2002

Answer 11

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

Question 12

what was the question for the court in allbrite industries v P&C Gill Contractors 2002

Answer 12

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)

Question 13

what did the court decide in allbrite industries v P&C Gill Contractors 2002

Answer 13

the instructions were not prescriptive - the attempt to accept via a different mode was held to be effective

Question 14

what happened in adams v lindsell 1818

Answer 14

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

Question 15

what was the question for the court in adams v lindsell

Answer 15

whether a contract was formed

Question 16

what was decided in adams v lindsell

Answer 16

the acceptance was complete upon posting - the posting rule

Question 17

what was the situation in holwell securities v hughes

Answer 17

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.

Question 18

why did the posting rule not apply in holwell securities v hughes

Answer 18

because the option was exerciseable by notice, the court took this to mean that notice requires receipt of the communication

Question 19

what is the contract and commercial law act 2017

Answer 19

sets out when an acceptance by electronic communication will be effective

Question 20

what does s214 contract and commercial law act 2017 have rules for

Answer 20

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

Question 21

when does a contract by email become formed

Answer 21

when it enters the offerors email providers server, regardless of when it enters the offerors inbox or when they read it

Question 22

what was the situation in petterson and gothard

Answer 22

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

Question 23

what is a process contract

Answer 23

where a contract is formed in the process of reaching a main contract

Question 24

how can an auction involve process contracts

Answer 24

where an auction is advertised as being without reserve this is an offer and bidding in reliance on that statement is acceptance

Question 25

what is tendering

Answer 25

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

Question 26

what was the situation in pratt contracts ltd v palmerston north dc

Answer 26

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.

Question 27

what was the issue with pratt contractors ltd v palmerston north dc

Answer 27

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.

Question 28

what did the court hold in pratt contractors ltd v palmerston north city council 1995

Answer 28

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

Question 29

what is a unilateral contract

Answer 29

where an offer is accepted by the offeree completing their performance of the contract

Question 30

who is carbolic smoke ball co and what were they offering

Answer 30

they offered a 100 pound reward to anyone who used the ball 3 times daily for two weeks and still got influenza

Question 31

what did the carbolic smoke ball co claim in carlill v carbolic smoke ball co.

Answer 31

that there was no contract because there wasn’t valid offer and acceptance

Question 32

what failed arguments did carbolic smoke ball co make in carlill v carbolic smoke ball co.

Answer 32

they argued you can’t make a contract to the world and that there was no communication of acceptance (which can obviously be waived)

Question 33

who won in carlill v carbolic smoke ball co.

Answer 33

mrs carlill - acceptance is by performance

Question 34

what question/situation was considered in mobil oil australia v lyndel nominees 1998

Answer 34

the situation where a unilateral offer is revoked when the task is partially completed

Question 35

what did the court decide in mobil oil australia v lyndel nominees 1998

Answer 35

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

Question 36

when may a court prevent an offeror from revoking unilateral contracts

Answer 36

implied ancillary or estoppal

Question 37

rewards are usually what kind of offer?

Answer 37

unilateral

Question 38

what were the facts in R v Clarke 1927

Answer 38

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

Question 39

what was the question in R v Clarke 1927

Answer 39

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

Question 40

what was the decision in R v Clarke

Answer 40

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)

Question 41

what is an interim agreement

Answer 41

where two parties reach agreement while negotiating

Question 42

what is the problem/question with interim agreements

Answer 42

whether the agreement is the final agreement the parties are intending to reach i.e. a contract

Question 43

what does Carruthers v Whitaker concern

Answer 43

a farm sale where Carruthers is the seller and Whitaker the purchaser

Question 44

what happened in Carruthers v Whitaker

Answer 44

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.

Question 45

what was the question for the court in Carruthers v Whitaker

Answer 45

was this draft agreement binding

Question 46

how does a court decide if an interim agreement is binding

Answer 46

they look to the intention of the parties - were they intending to be bound by the interim agreement, or by a later formal one

Question 47

what was decided in Carruthers v Whitaker

Answer 47

the parties had intended a formal agreement, so there was no contract

Question 48

no contract is formed where two offers on identical terms cross, because neither party is acting?

Answer 48

in response to the other ones offer

Question 49

a contract can only result from the acceptance of an offer by ?

Answer 49

a person or persons to whom the offer was made

Question 50

is a tender an offer?

Answer 50

Yes

Question 51

what is a standing offer

Answer 51

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

Question 52

acceptance must be __ and ___

Answer 52

complete, unconditional - the offer has to be accepted according to its terms

Question 53

an ‘acceptance’ but with mistakes in it could be seen as a ____, such as in Reporoa Shores Ltd v Treloar

Answer 53

counter-offer

Question 54

when is a counter-offer made?

Answer 54

when the offeree does not accept the terms proposed by the offeror but instead puts forward different terms

Question 55

sometimes silent can amount to acceptance if it is acceptance by?

Answer 55

conduct

Question 56

offeror may waive the need for communication - here acceptance is shown by them?

Answer 56

performing the act

Question 57

if no particular method is prescribed, the method of communication will depend upon the ?

Answer 57

the nature of the offer and the circumstances in which it is made

Question 58

acceptance is incomplete until received by?

Answer 58

the offeror

Question 59

what is the posting rule

Answer 59

acceptance is effective when posted, even if a letter of revocation has been posted by the offeror but not received by the offeree

Question 60

a waiver of communication will be assumed much more readily in ___ ___

Answer 60

unilateral contracts

Question 61

is an agreement in principle binding? why?

Answer 61

no, because it indicates there are matters still to be resolved before the parties regard themselves as bound