Clauses?
Clauses are defined as each party’s duties, rights, and privileges under the terms of the contract
Exemption Clauses?
A term in a contract that seeks to restrict the rights to parties under a contract
Offer
Carlill v Carbolic Smokeball Company (1893)
An offer is a proposal by one party to enter into a legally binding contract with another. Can be made orally, writing or by conduct.
Agreement
An exchange of promises between two or more people whereby one person promises to do something and in return the other person promises to do something else.
Intention
Whether the parties to a contract intended it to be legally binding contract or merely a social arrangement
court will examine the behaviour of the parties
Consideration
The value that passes from one party to another
The person taking an action must ensure they have given consideration to enforce the contract
Repudiation (minors):
Upon becoming an adult, the minor states that they are not prepared to perform their obligations under the contract
Ratification (minors):
Upon becoming an adult, the minor confirms that they are prepared to perform their obligations under the contract, making the contract legally binding
Warranty
A warranty is a term that, if breached, does not give a party member the right to terminate the contract; it gives rise only to a right to claim damages.
Less important
Damages can be claimed – contract not void
Condition
A condition is a term that, if breached, gives a party the right either to terminate the contract or affirm it. In addition, the aggrieved party can also claim damages.
More important
person would not have entered into without it being present
If broken voidable
Breach
where one party fails to comply with a term of the contract
Breach
Where one party fails to comply with a term of the contract
Performance
Contract comes to a natural end because the contract has been fulfilled
Defences for Breach of Contract - 6
Misrepresentation Mistake Undue Influence Unconscionable Conduct Duress Frustration
Undue Influence
Undue Influence is the pressure that one party held against another party to enter intro a contract.
Party A could not form an independent judgement about whether to enter the contract
(B must prove they did not influence A)
Void
The contract never existed in the first place
Voidable
The injured party can decided if the contract is to continue
Contract
A promise between two parties that is enforceable by law
Unconscionable Conduct
Commercial Bank of Australia v Amardio (1983)
Unconscionable Conduct is where a party takes advantage of another party using their superiority in experience and ability - this is evident in transactions in a way thta offends the conscience.
Being taken advantage of in a transaction in a way that offences the conscience
Taking unfair advantage
Doesn’t matter if it is not particularly advantageous
Those at risk = uneducated, ill, language issues.
Court may set aside the contract
To be considered unconscionable
it must be more than simply unfair—it must be against conscience as judged against the norms of society.
Injunction
Injunctions are court orders that compel a party to take a specific action or refrain from doing something.
They are considered to be equitable remedies because they address issues that cannot be remedied with monetary damages
Capacity
Ability for people to enter into a contract and properly understand their obligations (Cannot if intoxicated, medical problem/illness – Mathews V Baxter
Impaired Mental Capacity
Frustration
When events occur after a contract is made which fundamentally change the nature of what the parties had contracted for
E.g. a painter dies before they can paint a portrait
Duress
Duress in defined as Threatened or actual application of violence towards a party in order to influence them to induce them to enter into a contract.
Mistake
Mistake in contract law is an incorrect understanding by one or more parties to a contract and may be used as grounds to invalidate the agreement
Postal Rule
Is defined as the time and place at which the acceptance is posted is the time and place at which the contract will be taken to have been formed.
misrepresentation
A misrepresentation is a false statement of fact or law which induces the representee to enter a contract
