Contract Law

Contract Law

Privity of Contract
1. Contract Terms
  1. Statements that form agreement between parties
  2. Representations
    1. Sales Pitch
  3. Conditions, Warranties and Innominate Terms
    1. Conditions
      1. fundamental part of contract
        Breach gives right to repudiate
        Carry on but sue for damages
    2. Innominate
      1. Rights on breach depend on consequences
      2. recognised by courts
    3. Warranties
      1. not fundamental to contract’s overall purpose
        No right to repudiate
        Breach gives right to damages
  4. Express and Implied Terms
    1. Express Terms are specified
    2. Implied Terms are not exoressly stated
      1. Custom
      2. Courts
        Parties to decide terms
        Implied: Van driver needs licence
      3. Statute
        Must include statutory terms
        Sale of Goods Act 1979
2. Defective Contracts
  1. Mistake
    1. Unilateral
      1. one party mistaken about terms or subject matter of contract
    2. Mutual
      1. both parties at cross-purposes about the terms or subject
        Court consider if contract can be saved
    3. Common
      1. Both mistaken about same terms
  2. Misrepresentation
    1. Fraudulent
      1. Misrepresentation
        False Statement knowing it to be untrue
    2. Negligent
      1. Statement made by defendant carelessly, whilst having no reasonable basis to believe it to be true
    3. Innocent
      1. Misstatement of fact made by a person who believes it is true
  3. Illegality
  4. Duress and undue influence
    1. Duress occurs when person enters into contract as a result of threats
    2. Undue influence when one person uses influence to persuade another to enter into contract to disadvantage of second
  5. Incapacity
3. Those that party to contract
  1. Not third parties
  2. Exceptions
    1. Formal Benefits
      1. Party may transfer benefits (but not obligations) to another by means of written assignment
    2. Law of Agency
    3. Collateral
      1. Based on promises
        X makes promise to Y, In return Y enters separate contract with Z, and Z is aware of this
    4. Statutory
      1. Express provision of statute overrides common law
        Motor Insurance
Termination of Contract
1. Discharge
  1. Performance
    1. Not Performed
    2. Partial Performance
      1. Doctrine of partial performance
      2. Quantum Meruit
  2. Mutual Agreement
  3. Breach
    1. Repudiatory
    2. Anticipatory
      1. Express
      2. Implied
  4. Frustration
2. Exclusions
3. Remedies
  1. Damages
    1. Unliquidated Losses
      1. Remoteness of loss
      2. Measure of damages
    2. Liquidated
      1. Penalty Clauses
  2. Specific Performance
  3. Injuction
  4. Recission
Formation of Contract
1. Intention
  1. Domestic (family) and Social (friends)
    1. Presumption - no intention to create legal contract
    2. Presumption may be 'rebutted' if evidence exist
  2. Commercial
    1. Strong presumption that parties created a legal contract
2. Offer and Acceptance
  1. Termination of Offer before Acceptance
    1. Rejection of offer
      1. Offeree may reject offer
    2. Counter Offer
      1. Change of Terms
    3. Lapse Offer
      1. Time Limit
    4. Revocation
      1. Offeror Withdrawn Offer
    5. Acceptance of Offer
      1. May be written (includes electronic) or oral
      2. Special rules for acceptance by post
        Must be in both parties’ minds that post will be used
        Properly addressed, stamped and posted
      3.  If offeree notified acceptance but offeror misses it owing to own carelessness - acceptance still good
      4. May be implied by actions
  2. Legal contract is formed
    1. Offeror - the person who makes an offer
    2. Offeree - the person who receives an offer
  3. Offeror sets out terms
  4. When offer does not exist
    1. Intention of offer
      1. Letter of comfort (ie thinking of selling car
    2. Invitation to treat
      1. Advertisements, Shop Window Displays
    3. Providing Information
      1. Price?
3. Consideration
  1. Executed Consideration
    1. Action: doing something or giving something
    2. A forbearance: forbearing to act and not doing something i.e. giving up right or benefit
  2. Executory Consideration
    1. A promise of action or forbearance in future
  3. Must be sufficient (i.e. measurable)
  4. Payment in kind (not monetary)
  5. Past consideration is not valid
4. Freedom of Contract
What is a Contract
1. Legally binding agreement between two parties, in which each party agrees to do something in return for what other party has agreed to do

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