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Case Offer Norwest Holdings Pte Ltd v Newport Mining Ltd (2010) pg 183 Maple Leaf Macro Volatility Master Fund v Rouvroy (2009) pg 184 Carlil v Carbolic Smoke Ball company (1983) pg. Patridge v Crittenden (1968) pg Chwee Kin Keong v Digilandmall Pte Ltd (2004) pg. 187 Pharmaceutical Society of Great...

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Case Offer Norwest Holdings Pte Ltd v Newport Mining Ltd (2010) pg 183 Maple Leaf Macro Volatility Master Fund v Rouvroy (2009) pg 184 Carlil v Carbolic Smoke Ball company (1983) pg. 184-185 Patridge v Crittenden (1968) pg.187 Chwee Kin Keong v Digilandmall.com Pte Ltd (2004) pg. 187 Pharmaceutical Society of Great Britain v Boots Cash Chemists(1953) pg.189 Warlow v Harrison (1859) pg.190 Harvela Investments Ltd v Royal Trust CO of Canada(1986) pg.190 Termination of offer Bryne v Van Tienhoven (1880) pg 191 Dickson v Dodds (1876) pg.191-192 Overseas Union Insurance Ltd v Turegum Insurance Co (2001) pg 192 The Brimnes (1975) pg.192 Routledge v Grant (1828) pg 193 Mountford v Scott (1975) pg.193 Pickfords Ltd v Celestica Ltd (2003) pg 193 Daulia Ltd v Four Millbank Nominees Ltd (1978) pg.194 Hyde v Wrench (1840) pg 194 Stevenson v McLean (1880) pg. 195 Panwell Pte Ltd v Indian Bank (No 2) (2002) pg 195

Legal Principle held Only the objective intentions of the parties matter in forming a contract; from the perspective of a reasonable man Offer is valid if there is intention to be bound; induces a reasonable person to believes that he intends to be bound, even though offeror had no such intentions (objectively) A unilateral offer that has intention to be bound. An EXCEPTION to advertisement being an invitation to treat. Offers can be made to the world at large. An advertisement is not an offer but an invitation to treat Advertisement on internet is an invitation to treat; no intention to be bound in this case; unilateral mistake For display goods for sale, offer is only made at the cash desk and sale is completed when cashier accepts the offer. Display of goods is an invitation to treat. Generally: call for bids by the auctioneer is an invitation to treat. EXCEPTION: Auction sales is an offer WHEN it is “without reserve” Generally: Invitation to tender is an invitation to treat. EXCEPTION: Tenders can be an offer when it states “accepting the highest offer”; there was intention to be bound. Referential bid is invalid. Revocation must be communicated to the offeree; must take place before offeree accepts Revocation can be conveyed by 3rd parties, implied revocation is possible Withdrawal of Offer need not be explicit; offeree just needs to be given sufficient information that offeror has changed his mind For revocation send through telex, it is valid as long as it is send during office hour and is received by receiving party telex. No legal obligation to keep offer open for a specified period, even if he had promised to do so earlier Offer can be kept open for offeree by providing consideration in the form of “options” Offer may be revoked when replaced by subsequent offer. Second offer must stipulate that it supersedes the earlier offer. Once offeree has embarked on the performance, too late for the offeror to revoke the whole thing. (Unilateral contract) Implied promise not to revoke once performance begun. Entitled to full performance, short of which offeror is not bound Counter-offer rejects original offer, stands as a new offer that is capable of being accepted by the offeror Request for information (Mere inquiry) is not a counter-offer Offer is still valid and capable of acceptance after deadline if there’s conduct and other evidence that shows that the terms of the supposedly lapsed offer continues to govern the relationship after specified period

Ramsgate Victoria Hotel v Montefore (1866) pg 195 Financings Ltd v Stimson (1962) pg .196 Dysart Timbers Ltd v Roderick William Nelsen (2009) pg 196 Bradbury v Morgan (1862) pg 197 Acceptance Midlink Decelopment Ltd v The Stansfield Group Pte Ltd (2004) pg 197 Allianz Insurance Co (Egypt) v Aigaion Insurance Co SA (2008) pg 198 Brogden v Metropolitan Railway (1877) pg 199 Entores Ltd v Miles Far East Corporation (1955) pg. 199 Adams v Lindsell (1818) pg.201

Felthouse v Bindley (1862) pg 203 R v Clarke (1927) pg 205 Tinn v Hoffmann & Co (1873) pg 205 Butler Machine Co v ExCell-O Corporation (1979) pg 206 Wenkhiem v Arndt (1873) Consideration Currie v Misa (1875) pg 217 Combe v Combe (1951) pg 220 Carlil v Carbolic Smoke Ball company (1983) pg 221 Pao On v Lau Siu Long (1980) pg.221-222

Offer will lapse after a reasonable period of time, even if time limit was not specified (Depends on circumstances) If conditions (whether express or implied by courts) are not satisfied, offer will not be capable of being accepted. Offer can lapse if there’s a fundamental change in the basis of the offer

Offer will terminate if offeree knows offeror has died; it will not if offeree has no notice of it Acceptance is ascertained objectively; court will look at whole continuum of facts to decide whether a contract exists (if there’s a history of negotiations and discussions) Acceptance must be final

Acceptance can take place through conduct General receipt rule applies for instantaneous communication; contract is complete only when acceptance is received by offeror Postal Acceptance Rule: Acceptance at the time where mail is posted, noninstantaneous communication. Complete regardless whether letter reaches offeror, subject to:  Where it is reasonable to use post  Letter of acceptance must be properly addressed and stamped Silence cannot be a mode of acceptance, EXCEPTION: offeree seeking acceptance from the offeror through silence (Re Selectmove Ltd (1995)) Person cannot accept offer that he has no knowledge of. EXCEPTION: Gibbons v Proctor (1891) No contract in the case of cross-offers Contract is formed on the terms of the party who fired the last shot

Acceptance cannot be revoked Benefit-detriment analysis can be used to explain consideration A benefit or detriment must have been requested by the promisor in order to constitute a valid consideration Executed consideration is also the acceptance in a unilateral contract; act of acceptance is also consideration (undertaken in return for promisor’s offer) Generally: Past consideration is no consideration EXCEPTION: Past consideration can be a consideration provided: 1. Act was done at promisor’s request 2. Clearly understood or implied between parties that the act done would be compensated with payments or other benefits

Tweedle v Atkinson (1861) pg 223 Chappell v Nestle (1960) pg.224 White v Bluett (1853) pg. 225 Wade v Simeon (1846) pg 225 Glasbrook Bros v Glamorgan County Council (1925) pg 226 Scotson v Pegg (1861) pg 226 Stilk v Myrick (1809) pg 227 Hartley v Ponsonby (1837) pg 227 Williams v Roffey Bros & Nicholls (1911) pg. 227228

Pinnel case (1602) pg 233 Development Bank of Singapore Ltd v Yeap Teik Leong (1988) pg 234 Doctrine of Promissory Estoppel Central London Property Trust v High Trees House Ltd (1947) pg. 235

W J Alan & Co Ltd v El Nasr Export and Import Co (1972) pg 236

Lam Chi Kin David v Deutsche Bank AG (2011) pg 240-242 Intention to create legal relations

3. such compensation would be enforceable if it had been promised in advance consideration must move from the promise for it to be enforceable Consideration must be sufficient but need not be adequate; Sufficiency meaning ‘legal validity’, having value in the eyes of law Promise of an act under moral obligation is not sufficient consideration in support of a promisor’s promise Where a person promises not to enforce an invalid claim and it is shown that he knew such claim to be invalid at the time of his promise, such forbearance is no consideration Generally: Existing public duty is not good consideration EXCEPTION: Going beyond legal and public duty is good consideration Performance of an existing contractual duty owed to third party is sufficient consideration for a promise given in exchange Consideration is not valid for existing contractual duties, no benefits or detriments suffered on both parties Required performance is over and above existing contractual duties is sufficient consideration for a promise in exchange EXCEPTION: Promise to perform an existing contractual duty owed to promisor may constitute sufficient consideration if promisor derives practical and factual benefits; avoiding ‘negative commercial consequences’ also constitute practical and factual benefits (Sharon Global Solutions Pte Ltd v LG international (Singapore) (2001)) Payment of a lesser sum is not sufficient to forego the complete debt EXCEPTION: Contracts by deed does not require consideration. Gratuitous promise made by deed may be enforced. Prevent person from going back on his word when it would be inequitable to do so; enforceable even if not supported by consideration ‘if a promise to accept a smaller sum is acted upon (Reliance on promise), it is binding even though there is no consideration’, 4 elements must be present to invoke the doctrine:  Clear and unequivocal promise by the promisor not to insist upon his original contractual rights  Reliance by the promisee  It is inequitable for the promisor to go back on his promise  Invoked as a shield, not sword Detrimental reliance is not required (Abdul Jalil b Ahmad b Talib v A Formation Construction Pte Ltd (2006); however detriment suffered by the promisee is relevant towards justifying the inequity of allowing the promisor to resile from his promise. (Lam Chi Kin David v Deutsche Bank AG (2011)) Inequitable to resile from promise if in absence of detriment reliance, the promisor had benefitted considerably as a result of promisee’s reliance of the promise

Norwest Holdings Pte Ltd v Newport Mining Ltd (2010) pg 244 Balfour v Balfour (1919) pg 245 Rose & Frank Co v J R Crompton & Bros Ltd (1923) pg 246 Terms of Contract Zurich insurance (Singapore) Pte Ltd v Bgold Interior Design & Construction Pte Ltd (2008) pg 297

China Insurance Co (Singapore) Pte Ltd v Liberty Insurance Pte Ltd (2005) pg 299 Joscelyne v Nissen (1970) pg 296 Lee Chee Wei v Tan Hor Peow Victor and others and another appeal (2007) pg 303

Ecay v Godfrey (1947) pg 307 Bannerman v White (1861) pg 307 Routledge v McKay (1954) pg 308 Oscar Chess Ltd v Williams (1957) pg 309 Condition-warranty approach

Consideration must be backed by intention to create legal relations Objective view to judge whether such intentions exist, even if one of the parties should assert the contrary Social or domestic agreements are not LEGALLY binding EXCEPTION: Clear evidence that states parties’ intent to create legal relations (Merritt v Merritt (1970) pg 245) EXCEPTION: No intention to create legal relations (Contrary to normal business and commercial agreements); done through insertion of honour clause When parties have reduced their contract to writing, either party may not attempt to show by extrinsic evidence that the terms in the written contract must be changed, added to, or contradicted. In Singapore, parol evidence rule ‘lives on in s 94 of the evidence act’. s93 makes documentary evidence exclusive while s94 makes it conclusive. EXCEPTIONS TO s94:  S94(a) Vitiating factors e.g. misrepresentation, mistake etc  S94(b) Separate oral agreement, if not inconsistent  S94(c) conditions precedent to satisfy before contract comes into existence etc  S94(f) facts…language of document related to existing facts Ambiguity is not a prerequisite for the admissibility of extrinsic evidence under proviso (f) to s 94 Extrinsic evidence is admissible under proviso (f) to s 94 to aid in the interpretation of the written words (contextual approach) Obiter, Possible to invoke English common law as long as they are consistent with Evidence act and not excluded by s2(2) EA

A party may show by extrinsic evidence a mistake in the written contract and prove what the contract should have read instead of its disputed term If an ‘entire agreement clause’ is inserted into a written contract, this is an express indication that the parties intend the written document to embody their whole contract. EXCEPTION: court may still look at extrinsic evidence in order to ascertain the meaning of particular terms in the contract; as the ‘entire agreement clause’ may be an unreasonable exclusion clause under the UCTA When one party tells the other party something and then qualifies that statement by asking the other party to seek verification, the statement is likely to be a representation If a statement is so important, it is likely to be a term If one party makes a statement about the subject matter of the contract to the other party shortly before they enter into the contract, it is likely to be a term If both parties have same knowledge, any statement made is likely to be a representation. Discern the intention of the contracting parties on an objective basis. If absence of a term would have persuaded the innocent party not to enter

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (1962) pg 316 RDC concrete Pte Ltd v Sato Kogyo (S) Pte Ltd (2007) pg 319

Shirlaw v Southern Foundries (1926) pg 328 The Moorcock (1889) pg 328

Forefront Medical Technology v ModernPak (2006) pg 328 Exemption Clause L’Estrange v F Graucob Ltd (1934) pg 338

Evans & Son Ltd v Andrea Merzario Ltd (1976) pg 340 Parker v South Eastern Railway (1877) pg 341

Chapelton v Barry Urban District Council (1940) pg 341

into a contract, it will be treated as a condition. Right of termination arises upon breach of a condition. Hong Kong Fir approach: focus on nature and consequences of the breach of the term rather than intention of parties; innominate terms: not explicitly categorised as conditions or warranties Apply condition-warranty approach to determine whether term breached is a condition or warranty. If it is a condition, follow condition-warranty approach. If warranty: use Hong Kong Fir approach to examine consequences of breach. Right of termination arises if the breach results in consequences that deprive the innocent party of substantially the whole benefit contracted for and not otherwise. ‘Officious bystander test’ Courts imply term to inject ‘business efficacy’ (Terms implied in fact) Conditions for term to be implied (BP Refinery v Shire of Hastings (1977)):  Term to be implied must be reasonable and equitable  Term implied must be necessary to give business efficacy to the contract, no term will be implied if the contract is effective without it  Term implied must be so obvious that ‘it goes without saying’  Must be capable of clear expression  Must not contradict any express term of the contract Integration of officious bystander test and business efficacy test; not stand alone but complement each other instead

Incorporation by signature binds the person signing the contract regardless of whether he has read it or not EXCEPTION:  Where non est factum (it was not my deed) is relied upon (Saunders v Anglia Building society (1971))  Misrepresentation as to the nature of the document signed (Curtis v Chemical Cleaning and dyeing Co (1951))  Where an express warranty that has become part of the contract overrides an exemption clause (Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd (2012))  Where a statement overriding an exemption clause is not part of the main contract but which is enforced by way of a collateral contract (Not applicable to Singapore context) Verbal assurances does not amount to collateral contract if it is inconsistent with the written terms of the contract and exemption clause can apply Incorporation can be done through notice; person seeking to rely on exemption clause must show that the other party knew, or ought to have known that the document was one which could be expected to contain such terms. He must also show that he has done everything reasonable to give sufficient notice of the exemption clause to the other party Exemption clause will not be part of a contract if it is contained in an unsigned document where a reasonable person would not be expected to find contractual terms, e.g. tickets, receipts and vouchers

Thorton v Shoe Lane Parking Ltd (1971) pg 342

Thomson v London, Midland and Scottish railway Co (1930) pg 343 Spurling v Bradshaw (1956) pg 346

Contra Proferentum Rule Houghton v Trafalgar Insurance Co (1954) pg 348 White v John Warrick & Co Ltd (1953) pg 349

Photo productions Ltd v Securior Transport Ltd (1980) pg 352 Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd and Securior(1983) pg 348 Canada Steamship Line Ltd v R (1952) pg 350

Misrepresentation Avon Insurance v Swire Fraser (2000) pg 402 Edgington v Fitzmaurice (1885) pg 403 Cassa di Risparmio SpA v Barclays Bank Ltd (2011) pg 404 Walters v Morgan (1861) pg 404 Spice girls v Aprilia World Service (2002) pg 405

Exemption clause have to be given before or at the time of the contract for it to be effective. Exemption clause that are more unusual ought to have greater degree of notice to be effective. (highlighted in Interfoto Picure library v Stiletto Visual programmes Ltd (1989)) Person relying on the exemption clause must show that he did take reasonable steps to bring the notice to the attention of the other party, notice must be conspicuous and legible. No need to show that the injured party had actual notice of it. Where the parties have previously made a series of contracts, and those contracts contain an exemption clause, that clause may have been incorporated in a subsequent contract even though neither party have made a reference to it at the time Interpret (Construe) the exemption clause in the least favourable manner to the party who inserted the exemption clause (against the maker) If there is doubt or ambiguity, apply contra proferentum rule

In cases of negligence, party relying on the exemption clause to escape liability must show that clear words in the clause fully cover the facts that have occurred; where clause does not clearly cover negligence, exemption clause is inapplicable (not that relevant since there’s UCTA) If the parties are of equal bargaining power, clause will be examined in the context of the contract as a whole. If the exemption clause is clear and comprehensive (no ambiguity), courts will uphold exemption clause even in cases of fundamental breach (apply rule of construction) Courts apply contra proferentum rule less rigorously to clauses that merely limit liability rather than exclude it completely

Rules of construction in cases of exemption of negligence liability;: 1. Expressly exempt contracting party from liability arising from negligence 2. Words in terms that cover negligence, contra proferentem rule will be used for ambiguous terms. 3. Consider whether exemption clause cover other liabilities beside negligence. If there is such a liability, clause will extend to such liability, will not extend to negligence Statement will be treated as true if it substantially correct and the difference would not have induced a reasonable person to otherwise enter into the contract A statement of opinion can be a fact in that the representor impliedly stated that he held the opinion. If he did not hold - misrepresentation Express statement may also contained an implied representation

Gesture or conduct can amount to a representation Where silence makes what has been said a half-truth or untruth; while a contracting party has no duty to make statements, once he begins, he must make frank and full disclosure

Redgrave v Hurd (1881) pg 407 JTC v Wishing Star (No 2) (2005) Derry v Peek (1889) pg 410 Standard Chartered Bank v Pakistan National Shipping (No 2) pg 411 Hedley Bryne & Co Ltd v Heller & Partners Ltd (1964) pg 411 Leaf v International Galleries (1950) pg 416 Government of Zanzibar v British Aerospace (2000) pg 417

Overbrooke Estate v Glencombe Properties (1974) pg 418 Lowe v Lombank (1960) pg 419

Incapacity Peters v Flemings (1840) Pg 257 Nash v Inman (1908) pg 258 Fawcett v Smethurst (1914) pg 258 Clements v London & North Western Railway Co (1894) pg 260 Illegality Holman v Johnson (1775) pg 452 Cope v Rowlands (1836) pg 454

St John Shipping Corporation v Joseph Rank Ltd (1957) pg 455456

Representee is still entitled to claim for misrepresentation even if he had ...