formalities, capacity privity of contract - w4

Question 1

formalities

legislative reforms

formality requirements

Answer 1

history of formalities - statute of frauds 1677 UK 6.25
moderm-form formalities legislation in australia 6.20
- reduce fraud
- protect weaker party, consumers
- evidential purposes
- seriousness of transaction

e.g.
- contract of guanrantee
- insurances contracts
- consumer contracts e.g. s79 acl unsolicited consumer agreement in the australian consumer law
- contracts for sale of land, or interst in law e.g. lease, mortage

Question 2

formalities

interest in law

formality requirements

Answer 2

writing, memorandum or note in writing
signiture
- conveyancing act 1919 nsw, s 54a(1)
- property law act 1975 qld, s59
- property law act 1958 vic, s53(1)a

Question 3

formalities

electronice communication

formality requirements

Answer 3

two issues
1. whether electronic coomunication for e.g. email satifies requirement of writing?
- legislation and cases - general acceptance that it satisfies
- acts imterpretation act 1901 - s2b: “writing” includes “any mode of representing or reproducting words, figures, drawings or symbols in a visual form”

2. whether electronic signiture e.g. type written names in email satisfies requirement of signing?
   - legislation and cases - general acceptance that it satisfies

6.110 - 6.130

Question 4

formalities

part performance of the contract

relief - equitable doctrine of part performance

Answer 4

specific perfomance (as a type of remedy) of oral agreement can be argues (in such a disaster), if there is part performance of the contract
- an equitable remedy arised from equit based on conduct/act subsequent to the contract

mcbride v sandland 1918 6.180 - the act relied upon must be unequivocally and in its own nature referable to the agreement as alleged
- examples of acts satisfying part performance - improvements made to property, taking possession of land, taking possession of title deeds
- mere payment of purchase moeny insufficient

pipikos v trayans 2018

Question 5

formalities

minors - common law positions

capacity

Answer 5

under the common law, contract with minors are not binding, with one exception: contracts for ‘necessaries’ are binding
1. to be necessaries (nash v imman 7.50)
- goods should fall into the class of necessaries; and
- goods should be suitable to actual circumstances of the minor

2. beneficial contract of service to the minor, are also binding
   - roberts v gray - contracts of employment and apprentichship
   - de franceso v barnum 7.100 - not if terms are harsh or oppressive

Question 6

formalities

other reasons

capacity

Answer 6

mental incapacity
- degree of impairment - “no fixed standard of sanity” -> gibbons v wright 1954
- other party’s knowledge on the disability -> actually know or should know

intoxication
corporations
bankrupts
alien

Question 7

formalities

meaning and application of doctrine of privity

privity

Answer 7

some contracts confer benefits, or impose burdens no third parties
- however, only parties to the contract can sue, and be sued

common law exceptions:
- agency 8.110
- trust 8.120
- equitable estoppel 8.130
- unjust enrichment 8.140
- tort 8.150
- declaration relief 8.180