Formation of a Contract/Incurring Obligations Flashcards
(32 cards)
Who is the party raising an action and who is the opposite party?
The Pursuer and the Defender.
Evaluate the strength of these negotiating positions:
1. Your client has the right claimed.
2. Your client clearly has the right claimed.
3. Your client clearly has no right.
- Strong.
- Strongest.
- Weak.
What does ‘Consensus in idem’ mean?
Meeting of the minds.
Normally, what is consensus in idem agreeing on? (3)
- The nature of the contract.
- The subject(s) of the contract.
- The price or consideration.
What is a contract?
A legally binding agreement between 2 or more parties.
What does ‘consensus is viewed objectively’ mean?
An outsider should be able to correctly assume what both parties are agreeing on. There should be no confusion.
What happens if there is no consensus?
There is no contract - contract is void.
What is the exception to there being no consensus in a contract?
If there has been performance.
Who is the offeror and who is the offeree?
Offeror - Party making the offer.
Offeree - Party whom the offer is made to.
When is a statement an offer?
When its terms are sufficiently clear to indicate intention of the offeror to be bound in contract on acceptance by offeree.
Is an advertisement a contract? If no what is it?
An invitation to treat.
When does an offer lapse? (3)
- When it is rejected/met by a counter offer.
- When it is revoked by offeror before acceptance.
- When it is not accepted in time (if time is of the essence).
Are promises unilateral or bilateral?
Unilateral.
Do promises have to be in writing?
Yes, unless made in the course of business.
What are the principles of a promise? (
- Unilateral obligation.
2.Must be made in writing, unless in the course of business. - There must be serious intention to be bound.
- Must be communicated.
- Irrevocable once made but may be rejected.
- Needs no acceptance.
- May be subject to a condition.
Utility of a promise - Some use in commercial setting - Case.
Carlyle v RBS (2015) UKSC 13.
Utility of a promise - Promise to keep an offer open - Case.
Littlejohn v Hadwen (1882) 20 SLR 5 (W&B 4.08).
Utility of a promise - Rewards - case.
petrie v Earl of Airlie (1834) 13 S 68 (W&B 4.09).
What are the 3 utilities of a promise?
- Some use in commercial setting.
- Promise to keep an offer open.
- Rewards.
What does acceptance do to an offer?
Makes it a contract.
What may an acceptance be (2)?
- Express.
- Implied (by an action in conformity with terms of contract).
What may the offeror stipulate? And what may they not stipulate by?
The mode of acceptance. They may not stipulate acceptance by silence.
Stipulate mode of acceptance case.
Holwell Securities Ltd v Hughes (1974) 1 WLR 155 (W&B 2.27).
Stipulate acceptance by silence case.
Felthouse v Bindley (1862) 11 CB NS 869.
