WK 2 - (Un)enforceable Agreements Flashcards
• Understand the importance of an intention to create legal relations • Indicate the obligations which require writing for their constitution • Explain the legal rules relating thereto, including those relating to personal bar
Are agreements to agree enforceable?
No
May & Butcher Ltd v
The King [1934] 2 KB 17 at 21
“For there to be a good contract there must be a concluded bargain, and a
concluded contract is one which settles everything which is necessary to be settled between the parties. Of course, it may leave something which still has to be determined, but then that determination must be something which does not
depend on agreement between the parties.”
Certum est quod certum redid potest
Terms left to be determined. That determination must be something which is not dependent upon agreement between parties.
Are social agreements, generally, enforceable?
No.
Note: Focus on party’s intent. Not always case.
Are commercial agreements, generally, enforceable?
Yes.
Note: Focus on party’s intent. Not always case.
Pure obligations are due…
at once
Future obligations are due…
on occurrence of a certain event
Contingent obligations can be… (2)
A.) Suspensive
B.) Resolutive
Suspensive agreements
Due on occurrence of uncertain event
(e.g., job offer: start 1/6 but subject to medical exam passed by 31/5)
Resolutive agreements
Due until occurrence of uncertain event
(e.g., pass driving test after job offer)
General rule: Requirements of Writing (Scotland) Act 1995
S. 1(1) subject to subsection (2) writing shall not be required for the constitution of a contract,
unilateral obligation or trust.
Exceptions: Requirements of Writing (Scotland) Act 1995
S.1 (2) Subject to subsections (2A) and (3) below, a written
document complying with section 2 of this Act shall be required
for-
(a) the constitution of-
(i) a contract or unilateral obligation for the creation,
transfer, variation or extinction of a real right in land;
(ii) a gratuitous unilateral obligation except an obligation
undertaken in the course of business; and
(iii)……………………”
Exceptions for selling land. [Requirements of Writing (Scotland) Act 1995]
S.1(3) -(4) outline a number of steps, and if these are followed then the
parties will be bound:
- Must be an unwritten contract for an interest in land
- One of the parties (A) has acted or refrained from acting in reliance
on the contract
- With the knowledge and the silent consent of the other party (B) to
the unwritten contract
- As a result of (B’s) actions, (A) has been affected to a material
extent
(B) would not be entitled to withdraw – personal bar
