Week 2&3: Formation Of Contract Flashcards
(32 cards)
What is a contract?
An agreement between two parties having the capacity to make it. Performance can’t be impossible or illegal.
What is the objective interpretation?
Commercial contracts are made according to what people say
As per Muirhead & Turnbull v Dickson
What is Mathieson Gee v Quigley?
Mathiesons statement was not an offer and therefore Q could not accept. About silt
What are the five essential terms of contract?
- Subject matter
- Price
- Nature
- Quality
- Identity
Why must a contract have the five essentials?
Otherwise unenforceable for lack of certainty.
Contradicted in Avintair v Ryder
Does there need to be intention to create legal relations?
Yes, as per
W S Karoulias v Drambuie
What’s the difference between offers and pre-contractual statements?
Invitations to treat are requests for offers and therefore cannot be accepted.
As per Fisher v Bell, held not guilty
What are adverts usually viewed as?
Invitations to treat even though they have price confirmed
As per Partridge v Crittenden
What about tenders?
Language used very important, case by case situation
What is special about Carlill v Carbolic Smokeball company?
Given offer, no need for communicated acceptance. Reward went beyond price and subject matter.
When can an offer be withdrawn
Up to the point where the offeree makes an unqualified acceptance.
See postal rule
When does an offer create legal obligations.
Once it has been accepted, by conduct or unqualified acceptance from an offeree back to the offeror.
What is an unqualified acceptance?
Acceptance that adds no extra terms
What is a qualified acceptance?
An acceptance where stipulations are stated. Not really an acceptance at all but a counter offer
As per wolf v wolf, only one offer can stand at a time, so counter offer makes first offer fall
What other ways can an offer be terminated?
After effluxion of time
Death of either party
What are cross-offers?
Where parties are at cross purposes and therefore no acceptance is made.
As per Tinn v Hoffmann
Can silence count for acceptance?
Can’t say if u don’t respond in a day I’ll take it as acceptance. Can have need for express acceptance waived as in Carlill.
Acceptance effective
What is needed for a contract and how is it tested?
Consensus in idem.
Tested objectively, what facts and actions suggest
What is the postal rule?
The mere act of posting concludes the contract, without communication to the offeror.
Doesn’t apply to faxes, notice of intention and it’s soon to be repealed
Thomas v James?
J offers
T posts acceptance
J post revocation
First division held concluded contract
Are unilateral promises common?
No many system don’t view gratuitous things as contract. Scotland do but very hard to prove
What are the three types of obligation?
Completely non-obligatory
Potentially Obligatory
Obligatory without more
Can a promise be revoked?
No, but offer can
What else about promise
Promise binds promise even if promisee ignorant
Presumption in favour of contract
