Midterm Case Ratios

Question 1

Carlill v Carbolic Smoke Ball

Answer 1

• Offers can be made to non-specific people
• Performance is sufficient acceptance
• Reasonable person test (would a reasonable person think this was an offer?)
• Ads do not require notification of acceptance (fulfilling terms is acceptance)

Question 2

Blair v Western Mutual Benefits

Answer 2

There needs to be explicit communication of the offer to the offeree as an offer in order to crystallize an offer

Question 3

Livingstone v. Evans

Answer 3

Any counter offer/rejection or acceptance that varies the offer kills the original offer and the party that rejects can no longer accept the offer unless it is stated by the party who offered that the offer is renewed

Question 4

Butler Machine Tool v Ex-Cell-O Corp

Answer 4

How do you deal with “battle of the forms”?

1) Last blow wins: last form sent and received without objection
2) First blow wins: if new terms hidden, original form may win (prevents one party from taking advantage of hidden terms, if substantial)
3) Shots fired from both sides: terms and conditions from both parties are to be construed together – or scrapped if conflicting terms, and decide upon reasonable implication

Question 5

ProCD v. Matthew Zeidenberg

Answer 5

Parties can still be bound by terms of a contract that are unknown at the time of purchase as long as they are aware and have opportunity to reject such terms and be refunded

Question 6

Felthouse v. Bindley

Answer 6

Silence (absence of rejection) does not mean acceptance, even if stipulated by the offeror. Acceptance must be communicated to the offeror in order to crystallize the contract.

Question 7

Byrne v Van Tienhoven

Answer 7

There is no postal rule of revocation. Revocation not communicated to the offeree is not revocation.

Question 8

Dickinson v Dodds

Answer 8

No such thing as a truly “firm offer”, an offer open for a certain amount of time does not oblige the offeror not to sell to a third party before offer expires. If there is knowledge of revocation, even if it didn’t come from the offeror, the offeree has no remedy.

Question 9

Dawson v Helicopter Exploration

Answer 9

Bilateral contract can be formed by exchange of promises before performance. Part performance can be construed as acceptance.

Question 10

MJB Ent. v Defence Construction

Answer 10

Implied terms that they wouldn’t pick someone who didn’t comply with the terms. Would reasonable person think someone not meeting the terms could get it? A call for tenders is a contract itself.

Question 11

Household Insurance v Grant

Answer 11

Establishment of the postal rule. Offeror bound by offer even though acceptance is not received, as long as mail was viewed as an acceptable manner of communication.

Question 12

Holwell Securities v Hughes

Answer 12

Postal rule does not apply when:

1) Express terms (“notice to”) specify acceptance must be communicated to the offeror
2) The postal rule’s application would manifest inconvenience and absurdity– look at circumstances

Question 13

Brinkibon Ltd v Stahag Stagl

Answer 13

Postal rule does not extend to dealings of communication that are instantaneous (ex: telex)

Question 14

R v Cae Industries

Answer 14

Courts must be able to put monetary value on the breach of contract. Best efforts isn’t vague.

Question 15

Hillas & Co v Arcos Ltd

Answer 15

Agreement to agree + concrete formula to determine questionable term= contract

Question 16

Foley v Classique Coaches

Answer 16

Definite agreements on price may not be necessary for contract to be enforced if it has been operating successfully without them for a time. Agreement to agree + mechanism (arbitrator)= contract

Question 17

Empress Towers v Bank of NS

Answer 17

Agreements to negotiate price are not binding, but court will try, whenever possible, to give the proper legal effect to any clause that the parties understood and intended to have legal effect

Question 18

Wellington City Council v Body Corporate

Answer 18

The court cannot enforce “good faith”. The law can only enforce obligations of negotiations that have agreed upon mechanism. In this case the obligations of “good faith” were not defined thus, unenforceable.

Question 19

Kernel v Bawitko

Answer 19

Incomplete contract not enforceable. The oral agreement does not count if there are still formalities to be concluded upon.

Question 20

Electronic transactions act

Answer 20

location cannot be inferred