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Contract Flashcards

(67 cards)

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1
Q

Aims of Contract law

A

Fairness, justice, balancing powers, access, good faith, freedom of contract, laissez faire

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2
Q

Define Offer

A

A statement of terms in which a person is willing to be bound by

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3
Q

Define ITT

A

A mere indication of willingness to start a new negotiation

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4
Q

Bi lateral contact v unilateral

A

Requires both parties to provide something while unilaterl the obligation is placed on one party

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5
Q

Adverts

A

Usually an ITT not an offer ( Partridge)

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6
Q

Exception to Advert rule

A

When it includes a unilateral offer/ clear and definitive ( Carlil v carbolic smoke ball)

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7
Q

Goods on a shelf

A

An ITT ( Fisher v Bell knives, Pharmecutical society of GB v Boots prescription drugs) shop has right to refuse

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8
Q

Auctions

A

Usually an ITT as bidder makes offer and auctioneer accepts (British Car Auctions)

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9
Q

Exception to Auction Rule

A

If it is guaranteed to highest bidder e.g Ebay

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10
Q

Requests for further Info

A

ITT (Harvey v Facey)

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11
Q

Who can make an offer

A

Anyone including machines (Thornton v Shoe lane parking )

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12
Q

When does an offer start

A

Once communicated (Taylor v Laird)

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13
Q

What can end an offer

A

Revocation , Acceptance, Rejection, Death of offeree and Lapse of time

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14
Q

Revocation

A

Withdrawl, can be through trusted third party (Dickinson v Dodd ) , can make seperate collateral contract to keep it open to one person etc. Must be communicated and cannit be valid after accepting (Routledge v Grant)

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15
Q

Rejection

A

Not agreeing or counter offer ( Hyde v Wrench)

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16
Q

Lapse of Time

A

Ramsgate case, in agreed or reasonable time

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17
Q

Define Acceptance

A

Final and unqualified expression of assent to whole terms (mirror image rule)

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18
Q

Acceptance general rule

A

Valid once communicated (Entores) therefire silence does not constitute acceptance (Bindly v Felthouse) , need not be in same format unless mandatory instruction says so (Yates v Pullen)

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19
Q

Exceptions to acceptance general rule

A

Conduct, post, electronic communication

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20
Q

Acceptance by conduct rule

A

Performing conduct displayed in terms (Carlil, Anotech, Williams v Carwardine)

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21
Q

Postal Rule

A

Valid upon posting (Adams v Lindsell)

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22
Q

Postal Rule limitations

A

Proof of postage, properly addressed and stamped (Gertreid v Contimar) , usually means of communication (Quenerduain v Cole), offeror can displace if detailed (Hollwell v Hughes, “notice of acceptance”)

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23
Q

Electronic communication

A

Accepted on reciept (Entores) within business hours (Brimmes) or next working day ( Brinhibon)

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24
Q

Business agreement

A

Business to business or consumer to business, e.g employment Edwards v Skyways , presumably have the intention to create legal relations

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25
Domestic or social agreements
Friends and family, presumably no intention to cause legal relations (Balfour v Balfour)
26
Business presumption rebuttals
Letter of comfort/ assurance is not intention (Kleinwort)
27
Social presumption rebuttals
Financial dependancy (Parker v Clarke, Meritt v Meritt ) or Stake (Simpkins v Pays )
28
Between a social and business agreement
Sadler v Reynolds, BOP is flipped on claimant to prove the intention exsists
29
Define consideration
Currie v Misa, the exchange of a benefit or a loss
30
Define executed promise
Carried out
31
Define excecutory promise
Promise to carry out
32
Sufficiency and adequacy for consideration
Need not be adequate (market value Thomas v Thomas £1 rent) but must be sufficient (enough for parties and have a financial value Nestle v Chappell, not complaining White v Bluett)
33
Moving from the promisee for consideration
Tweddle v atkinson, son not a party to contract so couldnt benefit, Jackson v Horizon Holidays
34
Past consideration
Re Mcardle agreement must come before considerationor not enforceable
35
Past considerstion exceptions
Implied promise, e.g. trade ( Re Caseys Patient) or importance (Lampleigh)
36
Pre Exsisting duties
Cannot be consideration as they were already obligated to do so (Collins v Godfrey, Stilk v Myrick)
37
Pre exsisting duty exceptions
Above and beyond (Glasbrook Bros ) or increased danger (Hartley v Ponsonbury ), conferring a benefit (Roffey Bros)
38
3rd paties in consideration
Considerstion may also be owed to a 3rd party (Shadwell v Shadwell, Scotson v Pegg )
39
Part Payments for consideration general rule
Pinnels case rule, Foakes v beer follows as she could still claim rest of payment despite accepting partpayment
40
Part Payment exceptions
Accord and satisfaction (money + something extra ) and promissory estoppel (if clean hands, clear promise and reliance, High trees, Re SelectMove, DC builders v Rees had unclean hands)
41
Define privity
Only those party to a contract can benefit and enforce (Beswick v Beswick, Dunlop v Selfridge)
42
Common law solutions to Privity
Increased damages (Jackson v Horizon Holidays ), collateral contract (Shanklin Pier) and restrictive covenants (Tulk v Moxhay)
43
Statutory solutions to privity
Contract Rights of Third Partied Act 1999, if contract either (s1a) expressly provides they can enforce or (s1b) benefits them - must also be identified by (s1a3) name, class, or description
44
Limitation to statutory solution to privity
S1b2 benefitting from terms cannot enforce rights if the contract expressly excludes them from enforcing
45
Types of Express Terms
Condition-root/central term, if broken can repudiate, Warranty-minor term, if broken and condition can still be performed just awarded damages, Innominate-in between warranty and condition so consequences of breach determine outcome, serious = treat like condition, less serious = treat like warranty
46
Example of things that are not terms
Trade Puffs (exaggerations for sales e.g redbull gives you wings), Representations (persuasive techniques)
47
How do you decide whether something is a term or not
Importance (Couchman v Hill) Expertise (Dick Bentley expert expected to know info versus private seller Oscar Chess) Lapse of time (Routledge v Mackay more time passed less likely to be term), or written into contract
48
When do we know a term is incorporated into a contract
Expressly agreed or implied through common law or statute
49
When will a term be incorporated via common law
Custom (tradition), prior dealings or business efficacy and officious bystander test
50
Implied through custom
Hutton v Warren, traditions for when farmers sell land
51
Implied through prior dealings
Must be consistent, Hillas v Arcos
52
Businnes efficiacy AND Officius bystander tests
``` Business efficacy (necassy for contract to be effective?, if they had thiugh about it would they have agreed ?, Schawel v Reade) Offcious Bystander Test (PRIMA FACIE if someone would have asked them if they had considered this term they would have said they obviouosy had, Shirlaw v Southern Foundaries, failed in Shell v Lostock Garage as Shell wouldve never agreed to just sell to them) ```
53
Marks and Spencers v BNP
To pair BE + OBT together
54
Terms Implied by Statute
T2T- Sales of Goods Act 1979 (goods) -Supply of Goods and Services Act 1982 (services) C2T- Consumer Rights Act 2015 (goods and services)
55
Sales of Goods Act 1979
s13 - As described (Re Moore) s14(2) - Satisfactory Quality (safety, durability, appearance, freedom from minor defects-decided using reasonable man) s14(3) - Fitness for purpose (Grant v Australian Knitting Mills, Marshall v Baldry )
56
Supply of Goods and Services Act 1982
s13 - Reasonable Care and Skill (Thakes v Maurice acted with competency , Wilson v Best Travel abided by local laws) s14 - Reasonable Time (implied if not express) s15 - Reasonable Price ( if not set beforehand and implied if not express)
57
Consumer Rights Act 2015
SADFART rights for goods (SQ-s9, FFP-s10, AD-s11) | 3R’s for services
58
Remedies for goods under CRA
S20-right to reject (within 30 days, refund within 14) S23-right to repair/replacememt (after once can reject) S24-right to reduction and final right to reject
59
Remedies for services under CRA
S49-right to repeat performance | S52-right to price reduction (up to full refund)
60
Incorportation of Exclusion/Limitation Clauses
Signed? (L’Estrange) - cant be misleading, onerous or hidden (Curtis v Chemical Cleaning) Was it brough to there attention? yes-encorceable no-not (Olley v Marbourough) Tickets ? expected to have T&C - enforecable not expected - (Chapeleton v Barry UDC) Prior Dealings must be consistant (McCutheon) Contra Proferenterm ambigious ? not enforecable (TransOcean Drilling)
61
What is the Act for trader-2-trader Exculsion Clauses
Unfair Contract Terms Act 1977
62
What is the Act for consumer-2-trader Exclusion Clauses
Consumer Rights Act 2015
63
Auto-ban clauses under UCTA 1977
S2(1) death/PI by neg S2(2) other loses by neg S6(1) ownership/title under SOGA/SGSA
64
Auto-ban clauses under CRA 2015
s31-sales of goods s57-services s65-death/PI by neg
65
Reasonability tests for UCTA 1977
s11: (1) knowledge (Smith v Eric and Bush) (2) bargaining of power (watford electronics) (4) limitation clauses, e.g. insurance (George Mitchell LTD) (5) BOP on defendant (Warren v TruePrint)
66
Fairness under CRA 2015
s62-Did it put claimaint at a disadvantage ?
67
What is the final step in decided whether an exclusion/limitation clause is enforecable
Contra Preferenterm Rule

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