WEEK 1 LECTURES 1 + 2 - FOUNDATIONS + LAW AS A TOOLKIT

Question 1

what is a contract? (according to Chitty)

Answer 1

• set of promises + relationship of obligation
• recognised + enforceable by the law

Question 2

what is a contract? (according to Thornton)

Answer 2

a performative utterance

Question 3

what is a promise?

Answer 3

• social act/enunciation directed by 1 person to another
• whereby B apprehends that A ought to act OR omit to act in some way at some future point in time

Question 4

what relationships do promises produce?

Answer 4

• relationships of obligation
• the same way humans see 3 dots + naturally form a line/triangle

Question 5

what happens to a promise when the promisor OR promises are unconscious/asleep?

Answer 5

promise subsists (remains)

Question 6

what follows from the public apprehension of promissory speech acts?

Answer 6

the reality of a relationship of obligation

Question 7

what are the aspects of a relationship of obligation?

Answer 7

• promisee has a right against promisor to expect performance of promise
• promisor has obligation to promisee to perform promise
• doesn’t matter if promisor didn’t intend to promise OR promisee misheard
• the state of affairs subsists due to public apprehension of a speech act as promissory

Question 8

what does Reinach say about attempts to clarify there was no promise?

Answer 8

any attempt to clarify there was no promise is consequent on there being an apprehension of a promise in the first place

Question 9

what are the features (definition) of a performative utterance?

Answer 9

• creates new state of affairs that previously didn’t exist
• inherently public
• acquire reality from convention/derived from convention (e.g. what words/phrases means in a certain context –> “I do” at a wedding vs. someone asks if you want chocolate)
• must be sincere? –> Sun Life Assurance v Thales Tracs [2001] –> because public, doesn’t really matter
• must be said to people + apprehended as performative

Question 10

what is objectivity?

Answer 10

the relevant measure is what the reasonable man would have understood from it

Question 11

what does Reinach think about promises?

Answer 11

• promises are real
• they come to be + cease to be on fulfilment
• in between they subsist –> you’re still bound when asleep/unconcious

Question 12

what did Reinach disagree on with Austin about promises?

Answer 12

that convention gave promises their creative force

Question 13

what was Reinach’s synthetic a priori theory about promises?

Answer 13

• we understand what it is to constrain one’s actions for someone else, just as readily as they understand that 3 connected lines = a triangle
• as soon as we apprehend a promise, we intuit a relationship of obligation that we can’t unsee

Question 14

what is temporal reality in terms of speech?

Answer 14

just because the speech has ceased, doesn’t mean the state of affairs has ceased

Question 15

what is Kelsen’s criticism of Reinach?

Answer 15

says there’s no legal meaning unless/until a duly constituted legal authority has intervened and said so

Question 16

what is Butler’s criticism on Kelsen, based on performativity?

Answer 16

• conventionalism leads to relativism
• many statements of fact actually do enact social norms
  e.g. a baby is born + they say “it’s a girl”

Question 17

what are the elements of a contract

Answer 17

1. offer
2. acceptance
3. consideration
4. intention to create legal relations
   1 + 2 = contract formation

Question 18

which 2 elements are required for a contract to be formed?

Answer 18

1. offer
2. acceptance

Question 19

what is an agreement?

Answer 19

• a promise where A is obligated to B, and B is obligated to A
• not every agreement = a contract
• every contract = an agreement

Question 20

what must there be for a contract to be formed?

Answer 20

consensus between parties as to which set of promises will obligate them

Question 21

how are agreements legally assessed?

Answer 21

• objectively
• promising = social act/public performance
• if reasonable person looking at the words of A + B would think they had come to a consensus as to the mutual promises between them = there IS an agreement

Question 22

how is an offer made between 2 parties?

Answer 22

• A makes an offer, normally combined with a condition that B makes a reciprocal promise
  e.g. “I promise to give you £1,000 only if you promise to give me a car”

Question 23

what does contract law require in terms of promises?

Answer 23

• the statement of promises must be sufficiently specific
• offer enunciated a willingness to be bound by these specific promises

Question 24

what is an invitation to treat?

Answer 24

asking someone to make an offer (even if very specific)
- objectively interpreting social act + deciding the desire to be obligated hasn’t been manifested

Question 25

what is acceptance?

Answer 25

- social act - must accept to be obligated by promise it's making - may be objectively determined from words/conduct - offeree objectively accepts to be bound by same terms offered by the offeror

Question 26

what is a counteroffer?

Answer 26

- offeree purports to accept different terms - offer NOT accepted - new, different offer made

Question 27

what is consideration?

Answer 27

- each party promises to do something legally valuable, in return for the other party's promise to also do something legal valuable (definition debatable) - a performative utterance --> publically demonstrates + constitutes an agreement e.g. Bi-lateral contract --> exchange (money for goods/services)

Question 28

why does the need for consideration impose significant restrictions on the sets of promises Courts can recognise as a Contract?

Answer 28

- if A makes 1 or more promises to B with NO corresponding promise = NO contract

Question 29

what is intention to create legal relations?

Answer 29

- objective comprehension of socially meaningful acts - the context in which promises are uttered - intent = presence of 'contractually consistent context' i.e. the words "I agree" have different social meanings in a seminar vs. a stock market

Question 30

are promises made in a familial context binding?

Answer 30

no (objectivity not as neutral as it seems)

Question 31

what is the view on promises made in a commercial setting?

Answer 31

- parties are presumed to have created legal relations - see Esso Petroleum v Customs & Excise [1976]

Question 32

importantly, how can parties in commercial settings deny intention?

Answer 32

- by writing "subject to contract" - by stipulating just when parties will be bound --> e.g. when all parties sign the document

Question 33

when is a contract voidable?

Answer 33

when requirements for legally binding contract are present, BUT process of reaching an agreement was flawed + vitiated the agreement reached by parties (vitiating factor) - innocent party may choose to set aside contract OR keep it going

Question 34

what is misrepresentation?

Answer 34

- vitiating factor - A makes false representation of present fact or law - B relied on this to enter into a contract with A - innocent party may opt to rescind contract + claim damages for losses Misrepresentation Act 1967

Question 35

what is duress?

Answer 35

- vitiating factor - e.g. --> A puts gun to B' head/threatens to burn down her house unless she sign/vary a contract - promise regarded as the act of a mere puppet controlled by A

Question 36

what is undue influence/equitable?

Answer 36

- vitiating factor - certain kinds of relationship of influence exist between parties + there's a transaction which calls for explanation - usually doesn't;t benefit one party - A must show B subjectively contracted freely + independently

Question 37

what is a mistake?

Answer 37

- vitiating factor - parties unwittingly promise to do what's impossible from the outset

Question 38

in what 2 ways can a contract be discharged (its promises cease)?

Answer 38

1. discharge by performance --> promises = fulfilled + contract ends 2. discharge by frustration --> promise + impossible to fulfil at the time a contract was concluded

Question 39

what is meant by incorporation of terms traditionally + today?

Answer 39

tradtionally = the contract's literal words UNLESS wholly absurd were the objective manifestation of the promises today = what terms would mean to Reasonable Person with Relevant Background Knowledge available to BOTH parties at time of contract formation

Question 40

what does "nemo dat quod non habet" mean?

Answer 40

"no one can give what they don't have"

Question 41

what important function do English contracts perform?

Answer 41

- parrallel function - prove that title to goods has been transferred (Consideration is a KEY Proof)