Lecture 5-ICLR

Question 1

ICLR

Answer 1

A promise will only be enforceable as a contract if the parties intended it to be legally binding.

In this context, intention is assessed objectively (what would the reasonable bystander believe to have arisen between the parties).

Question 2

No intention?

Answer 2

If absent there will be no enforceable contract – even though offer and acceptance and consideration may be present.

Question 3

Rebuttable presumptions

Answer 3

An evidential tool used within the courts/ assumption that is taken to be true unless it is contested and proven otherwise:

1.Social-no
2.Commercial-yes

Question 4

Presumption based on

Answer 4

The presumption is based on the character of the transaction, not the parties. If a transaction is a commercial one, then the fact that the parties to the transaction are close friends is irrelevant.

Question 5

Social

Answer 5

If a contract is social, or familial, then the courts presume there is no intention to create a legal relationship
BALFOUR V BALFOUR [1919]

Question 6

Exception

Answer 6

MERRITT V MERRITT [1970]
1.Exception of when the parties are separated- no ties of love and affection

Agreement in writing (aided the case)

2.Going beyond the bounds of a normal social relationship
Parker v Clark

Question 7

Lifts and car sharing

Answer 7

Buckpitt v Oates [1968]
Presents do not constitute a contract/ companionship agreements are not enforceable

Question 8

Developed

Answer 8

Albert v Motor Insurers’ Bureau [1972]
Intention can be implicit/ even if there is no intention of taking the party to court in the event of a breach.

Question 9

Summary

Answer 9

The cases in which the courts found the relationship to have been contractual tended to involve a combination of: (a) benefits that were obviously material; (b) arrangements that were particular; and (c) participation that was not confined to close friends.

Question 10

Commercial agreements

Answer 10

Here the presumption is reversed – presumed that parties did intend to create legal relations.

The burden to rebut the presumption that a commercial agreement is not to be binding is a high one
EDMONDS V LAWSON [2000]

Question 11

Exceptions

Answer 11

1.Binding in honour only
Rose & Frank Co v JR Crompton & Brothers
2.Letters of comfort
Kleinwort v Malaysia Mining
3.Gentlemen’s agreement

Question 12

Formation and Certainty

Answer 12

It is important to check all aspects to ensure valid offer and acceptance, sufficient consideration and intention to create LR.

Agreement must be capable of being enforced by the courts.

Question 13

Vague agreements

Answer 13

Remember the case of Scammell v Ouston [1941] The reference to HP terms was too vague and therefore uncertain.

Durham Tees Valley Airport v bmibaby [2010] Terms may be given effect where they are sufficient albeit vague.

Question 14

Incomplete Agreements

Answer 14

May & Butcher v The King [1934]
Contract is only enforceable if it is completed.

The courts will not enforce and agreement which lacks essential elements.

Question 15

Agreement to agree

Answer 15

Courtney and Fairbairn v Tolaini Brothers (Hotels) Ltd [1975]
Agreement to agree is unenforceable