Y1S1 Flashcards
(124 cards)
1
Q
Offer Authoritative definition
A
“An offer is an expression of willingness to contract, made with the intention that it shall become binding upon the person making it as soon as it is accepted by the person whom it it addressed” Air Transworld Ltd v Bombardier Inc. [2012].
2
Q
Carlill v Carbolic Smoke Ball Co [1893]
A
Advert is capable of being a contractual offer where there is sufficient evidence of intention
3
Q
Pharmaceutical Society of Great Britain v Boots Cash Chemists (southern) Ltd [1953]
A
Items displayed for sale are normally invitations to treat.
4
Q
Gibson v Manchester City Council [1979]
A
Uncertain language will prevent a proposal being a contractual offer
5
Q
Storer v Manchester City Council [1974]
A
sufficiently certain language will create a legally binding offer
6
Q
Blackpool and Fylde Aero Club Ltd v Blackpool BC [1990] 1 WLR 1195
A
Invitation to submit a tender would usually not carry intent but due to the fact this did, the defendants are liable as they failed to consider the plaintiffs offer
7
Q
Fisher v Bell [1961] 1 QB 394
A
Display of knife was invitation to treat
8
Q
Lefkowitz v Great Minneapolis Surplus Stores 86 NW 2d 689 (1957)
A
Fur coats
Unilateral contracts cannot have terms added onto them once they have been accepted
9
Q
Partridge v Crittenden [1968] 1 WLR 1204
A
Sale of birds, convicted then repealed, not equivalent to a handshake moment
10
Q
Acceptance Authoritative Definition
A
An acceptance of an offer is an indication, express or implied, by the offer made whilst the offer remains open and win the manner requested in that offer of the offerees willingness to be bound unconditionally to a contract with the offeror on the terms stated in the offer” Halsbury’s Laws, Vol 22 (2012), para 251
11
Q
Felthouse v Bindley 142 ER 1037
A
there must be an indication of willingness to. Be bound (acceptance must be communicated)
12
Q
must be indication of willingness to be bound unless
A
the offeree makes the proposal (Re Selectmove [1995] 1 WLR 474)
In a unilateral contract, the requirement of notification of acceptance has been waived (Carlill v Carbolic smoke ball Co [1893] 1 QB 256)
13
Q
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
A
the indication can be express or implied.
14
Q
Manchester Diocesan council for education v Commercial and General Investments Ltd [1969] 3 All ER 1593
A
acceptance must be in the manner requested (or at least a method that is no less advantageous)
15
Q
Ramsgate Victoria Hotel v Montefiore 1866 CR 1 Exec 109
A
An offer will lapse after a reasonable time
16
Q
(Dickinson v Dodds [1876] 2 CH D 463)
A
An offer can be withdrawn by notice
17
Q
Hyde v Wrench (1840) 3 Beav 334
A
A counter offer extinguishes and earlier offer.
18
Q
Adams v Lindsell (1818) 1 B & Ald 681
A
Postal Rule
19
Q
Entores LD v Miles Far East Corporation [1955] 3 WLR 48
A
Postal rule doesn’t apply to instantaneous forms of communication.
20
Q
Butler v Ex-Cell-O Corp (England) Ltd [1979] 1 WLR 401
A
The last set of terms presented are the ones that apply
21
Q
Byrne v Van Tienhoven (1880) 5 CPD 344
A
withdrawal of offer ineffective due to earlier acceptance
22
Q
Errington v Errington [1952] 1 KB 290
A
Unilateral contracts means offer cannot be revoked after acceptance
23
Q
Dunlop Pneumatic Tyre Co. v Selfridge & Co Ltd. [1915] - Consideration def
A
“…the price of which the promise of the other is bought…”
24
Q
Thomas v Thomas (1842) 2 QB 85 I
A
Consideration need not be adequate.
25
White ve Blues (1853)
But it must be sufficient
26
Roscorla v Thomas (1842)
Past Consideration is no consideration
27
White ve Bluett (1853)
But it must be sufficient
28
Collins v Godefroy (1831)
Performance of an existing duty imposed by law is not good consideration
29
Hartley v Ponsonby (1857)
Performance of an existing contractual duty is not good consideration except if it has a practical benefit .
30
Shadwell v Shadwell
Performance of an existing contractual duty is not good consideration except when extending a duty
31
Chappell & Co v Nestle Co Ltd [1960] AC87
Regardless of value consideration if it has some value It is still good consideration.
32
Currie v Misa (1875) LR 10 Ex 153
Consideration must show a loss for one party and a gain for another (cannot be already existing)
33
Foakes v Beer (1884) 9 App Cas 605
There must be some independent benefit coming from the consideration. - part payment of the debt can never be consideration for the debt
34
Lampleigh v Braothwait (1615) Hob 105
Past consideration is no consideration but if it is done at the promisers request with the promise of payment.
35
Re Caseys Patents (1892) 1 Ch 104
Past consideration can make the promise binding in some cases, if theres understanding of renumeration in the case.
36
Re McArdle [1951] Ch 669
Agreement to pay is not sufficient to constitute consideration, past consideration is no consideration.
37
Ward v Byham [1956] 1 WLR 496
When you have gone above the existing legal duty it is good considertation.
38
Williams v Williams [1957] 1 WLR 148
Performance of an existing duty imposed by law can be good consideration provided it wasn’t .....
39
Authoritative definition of intention
To create a contract there must one a common intention of the parties to enter into legal obligations, mutually communicated expressly or impliedly
per Atkin LJ in Rose & Frank Co v JR Crompton & Bros Ltd [1925] AC 445
40
OT Africa Line Ltd v Vickers Plc [1996]
any reasonable person would see intention (price from $ -> £
41
Balfour v Blafour [1919] 2 KB 571
Domestic presumption
| Presumption of ‘no intention’ in social and domestic agreements
42
Jones v Padavatton [1969] 1 WLR 328
The domestic presumption can apply outside of marriage
| Daughter come home from america
43
Merritt v Merritt
domestic presumption is only a presumption
When separated they bargain keenly
44
Edwards v Skyways Ltd
The presumption of intention in commercial agreements
| ex gratis payment denied, needed to be paid
45
Rose &Frank Co v JR Crompton & Bros
Commercial presumption is only a presumption
46
Sadler v Reynolds [2005] EWHC 309 (QB)
Where an agreement is not obviously social or obviously commercial it is for the claimant to prove that there is legal intention but that is not as hard as it would be in a social agreements
47
Parker v Clark [1960]
Heavy reliance on agreement will show intention to create legal relations
48
Gould v Gould
A lack of certainty suggests no intention for legal relations
49
Bowerman v ABTA Ltd [1996] CLC 451
advert about Travel agency solvency
would an ordinary person would see it as intent to create legal relations - was intention
50
Esso Petroleum Co v Commissioners of Customs and Excise [1976] 1 WLR 1
Esso free gift with 4 gallons of fuel, no contract due to consideration BUT did have consideration
51
Ford motor co v AEF trade union agreement
in collective agreements it is necessary to examine context
52
Implied terms
Contractual obligations that have not been said by the parties
53
Express terms authoritative definition
“…those terms which are actually recorded in a written contract or openly expressed at the time the contract is made.”
H Beale, Chitty on Contract (31st, Sweet & Maxwell,2104), Ch13, Para 001
54
Implied terms authoritative definition
“In addition to the terms which the parties have expressly adopted, there may be other terms imported into the contract, these latter generally being known as “implied terms””- Halisburys laws
55
Chapleton v Barry UDC [1940] 1 KB 532
Other written terms can be incorporated if…they are on a contractual document
56
Olley v Marlborough Court Ltd [1949] 1 KB 532
Other written terms can be incorporated if…they are “in time”
57
Thornton v Shoe Lane Parking [1971] 2 QB 163
Other written terms can be incorporated if reasonable notice has been provided
Some terms are so serious and extreme you would need to almost show it with a big red hand pointing
58
Representation Authoritative definition
A representation is a term when the parties objectively intend it to be
Helibut, Symons and Co v Buckleton [1913] AC 30
59
Bannerman v White (1861 CB NS 844
More likely to be a term if it is of clear importance to the representative
60
Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1 WLR 623
Dealer clocked car mileage
More likely to be a term if the representer has special knowledge
61
Schawel v Reade [1913] 2 IR 81
seller discourages from inspection then its part of contract for horse to be sound
More likely to be a term if the representor accepts responsibility for the truth of the statement
62
Oscar Chess Ltd v Williams [1957] 1 WLR 370
car was '38 not 48' for part ex but didn't know
Less likely to be a term as the represent has greater or equal knowledge
63
Ecay v Godfrey (1947) 80 Li L Rep 286
encouraged to check boat
Less likely to be a term if the represent was encouraged to verify it
64
Intrepreuener Pub Co v East Crown Ltd [2000] 2 Lloyds Rep 611
Less likely to be a term if there is a delay between statement and contract
65
Routledge v Mckay [1954] 1 WLR 615
Less likely to be a term if it is not contained within the written contract
66
The Moorcock (1889) 14 PD 64
Business efficacy test
Is the term necessary to make the contract work?
67
Shirlaw v Southern Foundries [1939] 2KB 206
The officious bystander test
would a third party say don't you need X term?
68
Liverpool City Council v Irwin [1977] AC 239
Lease of block of flats
This is a contract of a sufficiently common type and in contracts like this the landlord is normally responsible for maintaining common areas
69
British Crane hire Corporation Ltd v Ipswich Plant Hire Ltd [1975] QB 303
Hire of diggers and damaged it
The custom and practice of the industry and the custom and practice between the two parties was that it was the hirers responsibility so the term was implied.
70
What is the principle of Caveat emptor?
in purchase contracts, it is up to the buyer to ensure that they are buying what they think they are buying
71
Sale of Goods Act 1979 s13
where there is a description of goods there is an implied condition that the goods will match the description
Does not apply to business to consumer transactions
72
Supply of goods and Services act 1982
Implied terms in contract for the supply of services
| B2B
73
Consumer Rights Acts 2015
Business to consumer contracts only (s.1(1))
Not to mortgages or other securities (s.3(3)(c))
74
Scammell & Nephew Ltd v Outson [1941] AC 251
Where the terms of the contract are too uncertain, there is no contract
75
Attorney-General of Belize v Belize Telecom Ltd [2009] UKPC 10
The court cannot imply terms simply to make the contract easier
76
Hutton v Warren (1836) 1 M&W 466
common practice of tenancies in farming to contain this clause
77
M&S v BNP [2015] UKSC 72
terms should not be implied simply because it would be fair or if the parties would have agreed to it had it been suggested
78
Shell UK Ltd v Lostock Garages Ltd [1976] 1 WLR 1187
contract wasn't unreasonable at time of inception, therefore is fine
79
Breach
Without lawful excuse, a party fails rot comply fully or at all with an express or implied term
80
What remedies are available?
Legal Remedies
and/or
Equitable Remedies
81
legal remedies
- Agreed sum/price
- Unliquidated damages
- Termination
82
Equitable Remedies
- Specific Performance
- Injunction
- Dasmages
83
Agreed sum/price
Liquidated damages clause in a contract that is an agreed price
Liquidated damages
84
Unliquidated damages
Where there is no clause; Unliquidated damages decided by judge
85
Legal Rem - Agreed sum/price
Liquidated damages clause in a contract that is an agreed price
Liquidated damages
86
Legal rem - Unliquidated damages
Where there is no clause; Unliquidated damages decided by judge
87
Legal Rem - Termination
Repudiatory breach entitles termination
88
Equit. Rem - Specific Performance
Order of court compelling them to carry out a specific part of the contract
89
Equit. Rem - Injunction
May be granted to restrain a breach - stopped from breach
90
Equit. Rem - Account on profits
Rare
Get an order to recover profits made by the breach of duty
91
Equit Rem. - Damages
Compensatory not punitive
Put claimant back into position they would've been if contract had been performed.
No damages just because you agreed to a shit contract
92
How can damages be reduced?
- But for causation
- Remoteness
- Failure to mitigate (under obligation so)
93
Farley v Skinner [2001] UKHL 49
Expectation interest
94
Anglia Television v Reed [1972] 1 Q.B. 60
Reliance interest recoverable if expectation interest is incalculable but not just to avoid a bad bargain
95
Ruxley Electronics & Construction Ltd v Forsyth [1995] UKHL 8
In calculating the expectation interest the courts must decide wether to award the distance in value or the cost
96
Jarvis v Swan Tours Ltd [1973] EWCA Civ 8
specific purposes of enjoyment or entertainment damages can be awarded for distress, disappointment or frustration causing breach of contract
97
South Australia Asset Management Corporation v York Montague Ltd [1996] UKHL 10
The claimant can only recover losses which have been directly caused by the breach i.e. which would not have occurred "but for" the breach"
98
Hadley v Baxendale [1854] EWHC Exch J 70
Loss was unforeseeable but can only be claimed if:
(1) arises from the breach itself
(2) was objectively in the contemplation of the parties at the time of contracting as probable results of the breach
99
Victoria Laundry v Newman [1949] 2 K.B. 528
same as Hadley baxendale but loss was foreseeable so could claim
100
Brace v Calder and Others [1895] 2 Q.B. 253
- failure to mitigate
| - After a breach the claimant has a duty to take all reasonable steps to minimise its losses
101
Arcos Ltd v EA Roans' & Son [1933] AC 470
A failure to comply with terms of a contract will amount to a breach.
102
Bolton v Mahadeva [1972] 1 WLR 1009
Where a contract can be easily divided into component parts a defendant may be taken to be in breach in respect to one part only.
103
Maple Flock Company, Limited v Universal Furniture Products (Wembley), Limited [1934] 1 KB 148
Wquantative ratio which the breach bares to the contract as a whole
104
Hochster v De La Tour (1853) 2 E & B 678
- Anticipatory breach
- Where a party indicates in advance that he/she will not perform his/her obligations, the other party need not wait for the breach.
105
ss. 5, 8 and 32 Limitation Act 1980
Breach of contract claim - - 6 years from date of breach (s.5)
- Breach of contract where contract is made by deed - 12 years from date of breach (s.8)
S.32 where there is a fraud the limitation doesn’t begin until the claimant discovers the fraud
106
Cavendish Square Holding BV v Makdessi [2015] 3 WLR 1373
If liquidated damages are disproportionate they will be deemed to be a penalty clause and therefore unenforceable.
107
Innominate Term
A term that cannot be identified as a condition or a warranty
108
Warranty
A guarantee or promise that certain acts will be performed
109
L'Estrange v E Graucob Ltd [1934] 2 KB 394
If it is in a signed written contract it is certainly an express term
110
Smith v Hughes (1871) LR 6 QB 597
Example of caveat emptor
111
Mere representation
A statement, which relates to a matter of fact or present intention.
112
Williams v Roffey Brothers [1991] 1 QB 1
Agreement is unenforceable as there was no consideration for extra payment
113
Stilk v Myrick (1809) 2 Camp 317.
Performance of an existing duty is not good consideration.
114
Wallis , Son & Wells v Pratt - Condition
Term the goes to the heart of a contract
115
if a breach of condition
Termination and Damages
116
If breach of a warranty
Damages
117
Hong Kong Fir v Kawasaki
Innominate term definition - term that doesn't go to the heart of a contract
118
Poussard v Spiers & Pond
unavailable to play starting shows,
Creates serious detriment its a breach
119
Charles Rickards v Oppenhaim
Time can be made of the essence by notice
120
United Scientific Holdings v Burnley BC
| [1977] 2WLR 806
Time is not usually of the essence unless there are conditions
121
The Mihalis Angelos
the parties own labels matter
122
Bilateral Contract
Offer and offeror are bound from moment of agreement
123
Unilateral contract
Offeror is bound from the offer's performance
124
Henthorn v Fraser [1892] 2 Ch 27
postal rule does not apply to revocation of an offer
