Contract law autumn session problem question template PDF

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Contract law autumn session exam notes

PROBLEM QUESTION TEMPLATE

Overarching: 1.

Has there been an oer?

2.

Is there acceptance?

3.

Is there consideration?

4.

Is there certainty and completeness?

5.

Is there intention?

6.

Is there a need to claim outside contract?

Oer Has there been an indication of a willingness to be bound without further negotiation? Objective test OR is it... ●

Merely a pu? → carlill v Carbolic

●

An invitation to treat? → Pharmaceutical Society v Boots

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A request for information?

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An exchange as the price of a promise? → Australian Woollen Mills - there must be a quid pro quo relationship between the oer and consideration

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To amount to an oer, there needs to be an indefinite intention to commit → Mobil Oil Australia Ltd v Wellcome International Pty Ltd

Acceptance Was there a valid communication of acceptance? Does the acceptance correspond with the oer?

Is the acceptance in response to the oer? ●

Nexus: acceptance must be of the oer and in response to the oer (in accordance with the terms of oer)

Has the acceptance been communicated to the oeror? ●

Unilateral acceptance → Carlill v Carbolic

●

Silence: the oeror must expressly or by implication waive the need for the oeree to communicate acceptance → Felthouse v Bindley & Empirnall Holdings

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Electronic Transactions Act 2000 (NSW) → inclds rules on acceptance sent by facsimile, email and interactive websites

Is there a prescribed mode of acceptance? And has it been complied with? → Manchester Diocesan Council

Is this a situation where the postal acceptance rule applies?

●

Acceptance is effective at the time and place that the letter of acceptance is posted (not received). Rule does not apply to withdrawals → Henthorn v Fraser (1892)

Has the oer been eectively revoked or rejected? ●

Revocation/withdrawal - an oer may be revoked at any time prior to acceptance. ➔

Unless an ‘option’ has been created for consideration

➔

Eective only when it is communicated to the oeree (may be by a 3rd party)

➔

No exception for a revocation by post.

●

Rejection - an oer will cease to be eective if it is rejected

●

Counter-oer - the making of a counter oer by the oeree operates as a rejection of the original oer

●

Lapse - if an oer is stated to be open for a specified period, it will lapse on expiry of the time period -

If no time is specified, the oer will lapse after ‘a reasonable time’

-

If an oer is stated to be subject to a condition, it will lapse if the condition is not fulfilled

➔

A promise to hold an oer open for a specified time is not binding unless consideration has been provided in exchange for the promise to keep the oer open. Where consideration has been provided to hold the oer open, that promise is binding. → Goldsbrough Mort & Co Ltd v Quinn

➔

A unilateral oer is revocable before the acceptance has been fully completed. There is no universal rule, unilateral oers should be judged on a case-by-case basis. → Mobil Oil Australia Ltd v Wellcome International Pty Ltd

➔

Revocation does not require any formal language and can be communicated by another party or through inferred conduct. If no consideration is given for the undertaking or promise, not bound to the time period for sale. → Dickinson v Dodds

➔

If the original contractual oer has been replaced by a counter-oer prior to its acceptance there is no binding contract. The counter-oer extinguishes the previous oer. → Hyde v Wrench

➔

A mere request for information is not a counter-oer and rejection of the original oer. → Stevenson Jaques v McLean

Consideration Was there any consideration provided for the promise/s? ●

Was there the necessary connection between the consideration and the promise?

●

Was it sucient in the eyes of the law?

●

Was it an existing duty?

●

Was it forbearance or compromise of a disputed claim?

Certainty and completeness If there was an agreement, was it suciently certain?

●

Is it a conditional contract?

●

Is it incomplete?

●

Is it illusory?

●

Is it uncertain?

Intention Was there an intention to create legal relations? ●

Is it a family (domestic) relationship?

●

Is it a commercial relationship

Claiming outside contract law Estoppel Is this a situation where estoppel might arise? ●

As a defence against assertion of strict legal rights (shield)?

●

As a cause of action to positively enforce rights (sword)?

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What is required? -

Assumption

-

Inducement

-

Detrimental reliance

-

Unconscionability

Formalities (statutory provisions) - simple contracts Are there any formalities required? ●

S54 Conveyancing Act 1919 (NSW) - contracts for sale of land or other disposition of an interest in land -

Agreement in writing, signed by the party or authorised person, or

-

Written note or memorandum of the agreement signed by the party or authorised person

-

All essential terms must be included: parties, subject matter, consideration → Hall v Busst

-

Does not need to have been made after the contract was formed

-

No particular form required - diary entries were sucient → Popiw v Popiw

-

Does not need to be a single document; documents may be read together → Elias v Sahely

-

Solicitors’ notes are NOT a sucient note or memorandum → Pirie v Saunders

-

A(1) ‘no action may be brought upon any contract…’ (party cannot sue to enforce)

-

A(2) expressly preserves claims based on the doctrine of part performance (relief available outside of contract)

●

S45 Builders Licensing Act - building contract

Alternative sources of relief Part performance? -

An equitable remedy for the risk of fraud created by the Statute of Frauds itself

-

A person who has partly performed a contract should be able to obtain equitable relief even though the contract itself does not meet formal requirements

-

Only equitable relief available specific performance, damages in lieu where specific performance is available

-

Plainti ‘sued on the equities’ created by their part performance, which made it unconscionable for the defendant to rely on the statute to avoid the contract

-

Must prove a nexus between the acts of part performance and the alleged contract

-

Sucient acts?? → Pipikos v Trayans [2018] ➔

HCA applies narrow view → Maddison v Alderson (1883)

➔

Lord Selborne: ‘The acts relied upon … must be unequivocally, and in their own nature, referable to some such agreement as is alleged’ (‘unequivocal referability’)

➔

Not concerned with the enforcement of the contract - existence of the contract does not need to be proved

Restitution? ●

Unjust enrichment - quantum meruit? -

Benefit (enrichment)

-

Enrichment at P’s expense

-

Unjust

Privity Is there a 3rd party beneficiary? Options? ●

Joint promisees?

●

Convince promisor to take action - issues with damages, perhaps seek specific performance

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Alternative sources of relief...