Co1 : Offer & Acceptance, Certainty & Intention to Create Legal Relations (rev notes) Flashcards

Question

Acceptance in ignorance of offer

Answer 1

Possible to accept (unilateral) offer which one is unaware of (by conduct) -> entitled to reward / what was on offer once becomes aware = *Gibbons v Proctor* ≠ bilateral contract : problematic for unwitting acceptor to become bound without knowing it (contract based on consent, which is absent here)

Answer 2

acceptance cannot generally be implied from mere silence = *Felthouse v Bindley* => offeror can’t impose his offer on offeree by saying that he will be bound unless he expressly rejects the offer /!\ exception = *The Hannah Blumenthal* : HL held that a contract to abandon a reference to arbitration could be concluded by the silence of both parties (K)

Answer 3

General rule = offeror is not bound unless specific terms / method are complied with BUT must make it clear he will be bound only if specific terms are complied with => if not, he is bound by acceptance made ‘in any form which is no less advantageous to him than the form which he prescribed’ (*Manchester Diocesan Council for Education v Commercial and General Investments Ltd*)

Answer 4

= where unclear on whose terms contract should be Traditional approach = 'mirror analysis' (O&A) / last shot fired wins = *Butler Machines v Ex-Cello Corp* BUT can be displaced in certain circumstances (eg long term relº / conduct of the parties) = *Tekdata v Amphenol* /!\ difficult to do so, need to show clear course of dealing

Answer 5

Imp of a contract being unilateral rather than bilateral: can be accepted by fully performing requested act, without need of advance notification of acceptance => see *Carlill v Carbolic Smokeball*

Answer 6

general rule = generally, full performance required before offeror is bound, BUT as soon as offeree starts performing offeror is bound not to prevent completion = Goff LJ in *Daulia Ltd v Four Millbank Nominees Ltd*

Answer 7

* Price * ID of the thing * Quantity /!\ possible to have contract without a price = mk price implied

Answer 8

to be valid, contract needs to be sufficiently certain for the courts to be able to enforce it – as K puts it, “it is for the parties, not the courts, to make the contract”, court’s job just interpreting it BUT has to be “tempered” in business / commercial contracts bcs “business people wish to avoid rigid agreement which give them no room to manoeuvre in a fluctuating economy” (K quoted) “the courts are generally reluctant to conclude no contract has been concluded where the parties have acted on the assumption that a contract has been entered” see *Percy Trentham Ltd v Archital Luxfer Ltd*

Answer 9

courts will strive to preserve bargain = interpretation tools to try and clarify (eg trade area custom, giving reasonable meaning, severing a meaningless clause...) see eg *Scammell v Dicker* [2005]

Answer 10

= when the parties have failed to reach an agreement on one particular issue (eg *May and Butcher v R* [1934], *Hillas v Arcos* [1932])

Answer 11

* s8(2) of the Sale of Goods Act 1979 = where price of goods for sale not ‘determined’ by the contract, ‘the buyer must pay a reasonable price’ * sometimes, parties have agreed criteria by which an incomplete matter can be resolved (eg *Hillas v Arcos*) * Contract itself “may provide the machinery to resolve the dispute between the parties” – but machinery might fail * Court has power to narrow broad discretionary pwr (not to be used dishonestly / unreasonably etc)

Answer 12

**Presumption against ITCLR in family and social context** *Balfour v Balfour* = presumption against ITCLR in context of marriage (ag for maintenance of wife living away for health reasons) *Jones v Padavatton* = presumption against ITCLR in family context (mother promising house to daughter studying for the bar) *Blue v Ashley* = presumption against ITCLR for statements made in social context using vague lgg, in anger or in jest

Answer 13

Practical reasons - Evidence (diff to provide in family context) - A lot of litigation = floodgates (ag relied on in Balfour, reiterated by Lady Hale in Radmacher v Granatino) Philosophical reasons - Don’t want the state interfering too much in the indiv life and small agreements they make => indiv autonomy and privacy ag - Don’t like legal coercion in the family unit - If promise legally enforceable, X less likely to make the promise => Dori Kimel : Promise = based on trust (rather deep personal feeling, not the domain of the law) + performance more meaningful personally if performed on promise (as opposed to contract) => promises = powerful tools morally in terms of trust and rewarding trust + building relationships

Answer 14

**Presumption in favour of ITCLR in business cases** = *Esso Petroleum v Customs & Excise* /!\ Whether there is ITCLR is to be **inferred objectively** = based on the expectations of reasonable honest businessmen = *RTS Flexible Systems Ltd v Molkerei Alois Muller*

Answer 15

‘subject to contract’ clause does not necessarily mean that no ITCLR / nothing binding : possible to waiver it by conduct indicating intention to be bound (eg substantial performance) as long as essential terms are agreed = *RTS Flexible Systems Ltd v Molkerei Alois Muller*

Answer 16

Statement of fact as to intention or policy in a comfort letter generally not legally binding = *Kleinwort Benson Ltd v Malaysia Mining Corp* => Statement of fact abt what policy is at a given time ≠ promise that such a policy will continue in the future / promise relating to future conduct – no ITCLR in the former so not binding

Answer 17

**Trade Union and Labour Relations (Consolidation) Act 1992, s 179(1)** : collective ag conclusively presumed not to have been intended to be a legally enforceable contract UNLESS it is in writing AND contains a provision which states that the parties intend it to be legally enforceable

Co1 : Offer & Acceptance, Certainty & Intention to Create Legal Relations (rev notes) Flashcards

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