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consensus in idem Flashcards

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9
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What is “consensus in idem”?

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“Consensus in idem” means a meeting of minds between parties on the essential terms of the contract.

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10
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What principle was established in Muirhead and Turnbull v Dickson (1905)?

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Commercial contracts are based on outward expressions (words or actions), not internal thoughts.

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11
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What was the issue in Mathieson Gee Ltd. v Quigley (1952)?

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There was a mismatch between the offer (to supply plant) and acceptance (of silt removal service), meaning no true agreement was formed.

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12
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What is always considered an essential term of a contract?

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The identification of the parties to the contract (e.g., Fleming Buildings Ltd v Forrest [2010] CSIH 8).

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13
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What are essential terms in a contract of sale?

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The goods or land to be sold must be identified, and there must be agreement that a price is to be paid.

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14
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Is an agreed price always essential in a contract of sale?

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No, under s.8 of the Sale of Goods Act 1979, the court can fix a reasonable price if none is agreed.

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15
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How does the required identification of subject-matter vary in sales?

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It depends on the nature of the item: fungible goods (e.g., barrels of sugar) can be identified by class, whereas heritable property (land/buildings) requires detailed identification (Bogie v The Forestry Commission 2002 SCLR 278).

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16
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What are essential terms in a lease?

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The property to be leased, the rent to be paid, and the lease duration. Other terms like rent review clauses or purchase options may also be essential.

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17
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Offer and acceptance analysis:

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An offer accepted is a contract, because it is the deed of two, the offeror and the acceptor’ (Stair, Institutions, I.10.6)

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18
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What principle was affirmed in Bogie v The Forestry Commission (2002)?

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Courts will prefer a construction that treats the parties’ communications as forming a binding contract, if such a reading is available (per Lord MacFadyen, para. 38).

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19
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What does Avintair v Ryder Airlines (1994) illustrate?

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It supports the courts’ willingness to find binding agreements even when all terms have not been finalised.

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20
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What principle is illustrated in RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH (2010)?

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A legally binding contract can exist even if not all significant terms are finalised, based on an objective appraisal of the parties’ words and conduct.

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21
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What is an offer in contract law?

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A statement of terms which the offeror proposes to the offeree as the basis of an agreement (15 Stair Memorial Encyclopedia, para 62).

22
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What case supports the requirement that an offer must contain essential terms?

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William Lippe Architects Ltd v Innes [2006] CSOH 182A.

23
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Why must an offer be communicated to the offeree?

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Because an offeree cannot accept an offer they are unaware of (Thomson v James (1855)).

24
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What is the rule when an offer is made to a specific person?

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Only that particular person can accept it (Fleming Buildings Ltd v Forrest [2010] CSIH 8).

25
Can an offer be revoked once made?
Yes, it can be revoked at any time before acceptance is communicated to the offeror (McMillan v Caldwell 1991 SLT 325).
26
Are there formalities required for revoking an offer?
No, revocation does not need to comply with any set formalities (McMillan v Caldwell 1991 SLT 325).
27
What happens if an offer includes a time limit for acceptance?
The offer lapses when the time limit expires (Flaws v International Oil Pollution Compensation Fund 2002 SLT 270).
28
What happens to an offer if no time limit is set?
It will lapse after a "reasonable" period of time has passed (Glasgow Steam Shipping Co. v Watson (1873), Wylie and Lochhead v McElroy and Sons (1873)).
29
What happens if an offeror promises to keep an offer open for a certain time?
The offeror must honour that promise (Paterson Ltd. v Highland Railway Co. 1927 SC (HL) 32).
30
Things which are not an offer:
Unilateral promise: No acceptance needed. Reply to enquiry: Just info, not an offer (Harvey v Facey). Negotiation recap: Not a binding offer (Glasgow City Council v Smith).
31
What is an Invitation to Treat (ITT)?
An ITT invites an offer but does not itself constitute an offer.
32
Is a display of goods in a shop window considered an offer?
No, it’s usually an ITT (Fisher v Bell [1961] 1 Q.B. 394).
33
Are goods displayed on a supermarket shelf an offer?
Likely an ITT (Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 Q.B. 401).
34
How are automated machines or vending machines treated in contract law?
Typically seen as a standing offer, not an ITT (Thornton v Shoe Lane Parking [1971] 2 QB 163).
35
Are advertisements usually considered offers?
No, they are generally seen as ITTs, even if they state a price (Fenwick v Macdonald Fraser & Co Ltd (1904) 6 F 850).
36
When can an advertisement be considered an offer?
In exceptional cases, like in Carlill v Carbolic Smoke Ball Co. [1893] 1 Q.B. 256, where it’s seen as an offer to the world.
37
According to Stair, what are the three types of steps a person can take in exercising their will?
1. Desire: A tendency toward an object. 2. Resolution: Deciding to do something. 3. Engagement: Committing to do something, which can form obligations.
38
What must the offeree do to communicate acceptance?
The offeree must do or say something to communicate their acceptance to the reasonable person hypothetically observing the situation (Sabre Leasing Ltd v Copeland 1993 S.C. 345).
39
Can there be exceptions to the rule about silence as acceptance?
Yes, in some cases, surrounding circumstances might show that silence can indicate an intention to be bound, as seen in Shaw v James Scott Builders and Co. [2010] CSOH 68 (Lord Hodge at para 50).
39
Can silence or inaction be deemed as acceptance?
No, silence or inaction will usually not be considered acceptance, and the offeror cannot stipulate that no response means acceptance (Higgins v Wilson & Co (1848) 6 Bell 195).
40
What is the definition of acceptance?
Acceptance is the final, unqualified assent by the offeree to the terms stipulated in the offer (MacQueen and Thomson, para 2.35).
41
What happens once an acceptance is posted under the postal rule?
Once the acceptance is posted, the offeror cannot withdraw their offer (Thomson v James (1855) 18 D 1).
41
What is the postal rule in contract law?
The postal rule states that posting an unqualified acceptance creates the contract, even if the acceptance has not yet been delivered to the offeror (Jacobsen Sons and Co v Underwood and Son Ltd (1894) 21 R 654).
41
Are there exceptions to the postal rule?
Yes, the postal rule does not apply if the offeree is acting in a non-business-like manner (Burnley v Alford (1919) 1 SLT 123).
42
Does the postal rule apply to all forms of communication?
No, the postal rule only applies to postal acceptances, not to offers, counter-offers, or withdrawals of offers (Carmarthen Developments Ltd. v Pennington [2008] CSOH 139).
43
Has the postal rule been applied in other forms of communication?
No, the postal rule has not been applied to fax, telex, phone messages, or emails (Park, Petitioners (No 2) 2009 SLT 871; Entores Ltd. v Miles Far East Corp [1955] 2 QB 327).
44
What happens to the original offer when a counter-offer is made?
The original offer is struck down and is no longer on the table, meaning it cannot be accepted later if the offeree changes their mind.
44
What happens when an offer is met with a qualified acceptance or counter-offer?
A qualified acceptance rejects the original offer, making it no longer capable of being accepted. The qualified acceptance/counter-offer then becomes a new offer that is open for acceptance (Wolf & Wolf v Forfar Potato Co 1984 S.L.T. 100).
45
Can there be cases where two offers exist simultaneously?
Yes, in Findlater v Maan 1990 S.C. 150, Lord Justice-Clerk Ross stated that two offers can exist at the same time without superseding each other.
46
What is the exception to the rule of a qualified acceptance?
A trivial change (due to the de minimis rule) is not likely to constitute a qualified acceptance, and case law on this is not consistent.
47
What did Lord President Inglis say in Erskine v Glendinning (1871) regarding trivial changes?
He stated that a minor addition does not constitute a condition in the acceptance, and the landlord was entitled to require a formal lease without needing the offerer’s consent (Erskine v Glendinning 1871, 9 M. 656).
48
How did Lord President Cooper interpret the construction of an acceptance in Stobo Ltd v Morrison’s (Gowns) Ltd (1949)?
Lord President Cooper explained that an agreement is not necessarily still in negotiation simply because the parties agree to have it formalized in a contract. Whether an acceptance is subject to a suspensive condition depends on the context and correspondence between the parties.

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