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Contract Fr Flashcards

1
Q

What is a contract

A

A legally enforceable agreement of the parties

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2
Q

What is the objective approach

A

To determine if there is an agreement courts will look at objective appearance of things rather than actual fact of agreement

Smith v Hughes - whether a reasonable man would consider there is a contract

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3
Q

What is freedom of contract

A

People should be allowed to create whatever agreements they wish without courts interference

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4
Q

Evaluate freedom of contract

A

Necessary for maximisation of wealth for benefit of all

Obtained by markets, need binding contracts to operate properly

Are contracts an expression of free will, does a consumer get to negotiate terms?

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5
Q

What is an offer

A

A statement by one party of a willingness to contract on stated terms if they are accepted by the party or parties to whom they are addressed

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6
Q

How can an offer be made

A

Oral

Written

Conduct

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7
Q

What are types of offers

A

Bilateral

Unilateral

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8
Q

What’s a bilateral offer

A

Made to a specific individual

Bowerman v ABTA

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9
Q

What’s a unilateral offer

A

Made to the general world

Carlill v Carbolic Smokeball Co

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10
Q

What’s an invitation to treat

A

An expression of willingness to enter into negotiations

Gibson v Manchester City council

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11
Q

Difference between offer and invitation to treat

A

Offer - intention to legally bound

Invitation - intention to negotiate

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12
Q

Case for objective approach

A

Smith v Hughes

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13
Q

Case for bilateral offer

A

Bowerman v ABTA

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14
Q

Case for unilateral offer

A

Carlill v Carbolic Smokeball and Co

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15
Q

Case for invitation to treat

A

Gibson v Manchester city council

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16
Q

Is a display of goods an offer or invitation to treat

A

Shop window & shelf on self service shop - invitation to treat Fisher v Bell

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17
Q

Is adverts offers

A

Ad in magazine is invitation to treat - Partridge v Crittenden

An offer if includes terms customer has acted on

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18
Q

Is a statement of price an offer

A

Invitation to treat

Harvey v facey

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19
Q

Are auctions offers

A

Inviting bids is in station to treat

Bids Is offer

BCA v Wright

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20
Q

What 4 things do you have to state are offer or not

A

Goods on display

Auction

Advert

Statement of price

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21
Q

How does an offer end

A

If the offeree withdraws it before it is accepted

Revocation

Dickinson v Dodds

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22
Q

What effects the duration of an offer

A

Revocation

Rejection

Counter offer

Lapse of time

Death

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23
Q

Describe revocation

A

Offer withdrawn before acceptance

Can be done via 3rd party

Must be communicated to the offered

Must be revoked by same method as original offer

Not when acceptance ongoing

24
Q

Describe counter offer

A

Extinguishes the original offer

A request for further info is not a counter offer

Stevenson v McLean

25
Describe rejection
Ends the offer
26
Describe how death affects an offer
Death ends an offer unless it can be performed by another person and the offeree is unaware of the offerors death Bradbury v Morgan
27
How does acceptance take place
1) Acceptance must be communicated to the offeree 2) terms of acceptance must exactly match the terms of the offer 3) agreement must be certain
28
Describe communication of accepting an offer
Offeror must receive acceptance before it’s effective Silence will generally not amount Felthouse v Bindley Acceptance can be through conduct Brogden v Metropolitan Railway
29
What are the postal rules of an offer
Where it is agreed parties will use post as means of communication postal rules apply. These state where a letter is properly addressed and stamped, acceptance takes place when the letter is put in the post box Adams v Lindsell
30
Describe how terms of acceptance must Exacrly match terms of offer
If terms differ, this will amount to a counter offer and no contract will exist Hyde v Wrench
31
Describe how the agreement must be certain in accepting an offer
When viewed objectively (reasonable person smith v Hughes) Must be possible to determine exactly what the two parties have agreed to Subdrook trading estate v Eggleton
32
What are tenders
Where someone invites others to make offers to do a job or provide goods or services
33
What is a single offer tender
1) statement made that work needed 2) tender invited 3) tenders submitted - offers 4) offers accepted or rejected
34
What are standing offer tenders
Where goods or work are needed on ongoing basis Tenders invited Tenders submitted - offers Acceptance takes place when order is placed Each time order takes place, separate contract formed
35
What is consideration
The bargain of a contract which is based on an exchange of promises. Each party must be promiser and promisee. They must both receive a benefit and suffer a detriment - consideration Consideration must be somethinf of value in the eyes of the law - Thomas v Thomas. A one sided promise with no consideration = gift Ward v Byham
36
What are the 6 rules of consideration
Must not be past Must be sufficient but need not be adequate Must move from the promisee An existing public duty will not amount to valid consideration An existing contractual duty will not amount to valid consideration Part payment of a debt is not valid consideration for a promise to forego the balance
37
What is meant by consideration must not be past
McArdle - past consideration is not valid However may be valid where it was proceeded by a request
38
What is meant by consideration must be sufficient but need not be adequate
No requirements that consideration must be market value. Providing something is given in exchange e.g £1 for a house Would be valid Courts not concerned if party made a good or bad bargain Chappell v Nestle
39
What is meant by consideration must move from the promisee
If person other than promisee is to provide consideration, promisee can not enforce the agreement Tweddle v Atkinson
40
What is meant by an existing public duty will not amount to valid consideration
Where a party had a public duty to act, this can not be used as consideration for a new promise Collins v Godefrey
41
What is meant by an existing contractual duty will not amount to valid consideration
If a party has an existing contractual duty to do an act. This act can not be used as consideration for a new promise Myrrick Unless the party goes beyond their existing duty
42
What is meant by part payment of a debt - consideration
Part payment not valid to release debt in full
43
What is promissory estoppel
Where A promises something to B and B relies on that promise to his detriment, then A should be stopped from going back on his promise Exception to the rule of part payment
44
What is intention to create legal relations
Requirements of intention to create legal relations aims to sift out cases which are not really appropriate for court action. Not every agreement leads to a binding contract e.g agreeing to meet a friend at the pub - no legal requirement to do so This is because the parties do not intend to create legal relations This draws the line between social and domestic agreements to agreements made in a commercial context
45
Describe intention to create legal relations in social and domestic agreements
The law raises a presumption that parties do not intend to create legal relations Balfour v Balfour This may change if there is evidence of a written agreement, where the parties have separated, or where there is a 3rd party
46
Describe intention to create legal relations in commercial agreements
When an agreement is made in a commercial context, law raises a presumption that the parties do intend to create legal relations by the agreement Esso petroleum v Commissioners of customs & Excise This can be rebutted bu evidence to the contrary of Binding in honour only clauses The distinction between social and domestic agreements and commercial can be fine
47
What is privity of contract
The idea that only a person who is party to a contract can sue on it or be sued under it A person who is not party to a contract cannot enforce rights under it even if he/she intended to benefit from it As would be unfair to let them gain under a bargain when they have provided nothing in return
48
What is a term
A party can sue on a term for breach of contract
49
What is representation
A statement made to encourage the other party to enter into a contract It is not part of the contract, but the other party may sue if it is found to be false Known as misrepresentation Party can sue for misrepresentation, but remedies are limited
50
What is a statement of opinion
Does not form part of a contract and is not a representation Also true of mere puffs also known as trade puffs. These are boasts and not intended to be taken seriously
51
Trade puff
Is not a term or a representation Dimmock v Hallett
52
To decide whether a statement is a term or representation court looks at?
Parole evidence of rule Relative expertise of the parties Importance of the statement Time
53
What are the parole evidence rules
Where the contract has been put into writing only the terms included in the written document are terms Statements are representation
54
What are relative expertise
If representer has greater knowledge it is more likely to be a contractual term If representee has greater knowledge, more likely to be representation Oscar chess v Williams
55
What is the importance of the statement and reliance
Where the representee indicates to the representor the importance of the statement Bannerman v White
56
What is timing
The longer the time lapse between making the statement and entering the contract the more likely it will be representation Routledge v McKay

Law (10 decks)

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