FIRST GROUND: THE NON-VARIATION CLAUSE PRECLUDES RELIANCE BY THE PLAINTIFF ON AN ORAL VARIATION TO THE CONTRACT 1. The non-variation clause should be upheld in the circumstances. 1.1. The contract contains a valid non-variation clause that states that, “No amendment or variation to this contract shall be binding unless reduced to writing and signed by the parties.” 1.2. When the written contract was concluded between Flush Plumbing and Bridgetown on 28 January 2016, Flush Plumbing agreed to be bound by the terms of the contract. Therefore, Flush Plumbing was aware of the non-variation clause. If Flush Plumbing wanted to make a variation to the contract, it should have been done in writing and signed by both parties. 1.3. A non-variation clause The contract at hand is a standard commercial contract, between two parties on an equal footing. Both parties to the case are private companies with equal bargaining power. There was no abuse of power, or advantage taken of a vulnerable party. The agreement made between them, with animus contrahendi, should thus be honoured. 5. Enforcement of the non-variation clause would amount to enforcement of the parties’ freedom to contract, which is a public policy concern. 5.1. On the facts, the defendant clearly stated that it wanted the contract to be in writing for the sake of certainty, thus explaining their reasoning for the non-variation clause. Enforcing the non-variation clause is thus enforcing the defendant’s freedom to contract. 5.2. As stated in the case of Brisley v Drotsky , the limitation imposed by the clause is itself a manifestation of the parties’ ‟contractual freedom pursuant to which they, by prior design, agreed to this limitation in order, to enhance certainty in their future dealings and to minimise disputes between them.‟ 6. The clause is in the interest of both parties, for the sake of certainty in their dealings with one another. It is not a right conferred only upon the defendant. A non-variation clause clearly operates in favour of both
Common law dictates that the acceptance must be a mirror image of the offer, regardless of what the difference may be. The Pride v Lewis case is an example of the mirror image rule in action. Pride owned a house which they listed for sale but found a renter in the meantime. Lewis made an offer on the house with a closing date of May 15th, and the Prides accepted but changed the closing date to June 1st and proceeded to evict their tenant and take the house off the market. When the Lewises never showed up to closing, the Prides relisted the house but were never able to find another tenant and ended up selling the house for $15,000 less than the Lewis’s had offered. The Prides sued the Lewises for breach of contract but lost due to the mirror image rule. The different closing date in the acceptance effectively rejected the Lewises offer and no contract was formed. The UCC is not as stringent on the acceptance, it utilizes a “battle of forms” as dictated in section 2-207 which checks for a substantive difference between the offer and the acceptance, such as price, goods ordered, delivery date, and other similar matters. It could also allow a term from the acceptance to be considered a valid part of the contract unless the offer expressly limited acceptance, the new terms would substantively alter the offer with differences such as price, or the offeror objects to the new terms within a reasonable time
... 1 helps to make sure that no one takes advantage of their rights. The Notwithstanding Clause is another significant reason why it is okay to have limitations on certain rights.
One such difference lies in the acceptance of an offer. Under the common law of contracts, an acceptance must objectively manifest intent to contract. Under the UCC, a contract for the sale of goods may be formed in any manner sufficient to show agreement, including conduct by both parties that recognizes the existence of a contract, even without an explicit expression of
Legal Studies Essay Joey Agerholm Exclusion clauses determine the liability of something that might go wrong within a contract. They are used by sellers as an attempt to avoid or limit their liability. The seller has the advantage over the buyer who must agree to the clauses to purchase the product/service. Because of the buyers disadvantage the court takes such cases, involving exclusion clauses, very seriously, and the content of the clauses are carefully interpreted. With the current Trade Practises Act and the Fair Trading Act the standard form of business contract is adequate and effective in protecting the buyer. The Trade Practise Act is the most effective legislation for the protection of the consumer. It implies to the following situations:- - “A promise by the seller that the buyer will become the owner” If a car dealer breaks a promise or part of a contract, for example that he has the right to sell a car, and the car is stolen then although the buyer will have to give the car back he/she will get her money back. - “ A promise by the seller that goods will fit the description supplied by the seller” In this case the buyer is protected if the seller makes a promise, which is a condition of the contract, describing the product, and when the buyer receives the product, it does not match the description. - “ A promise where the seller is made aware of the purpose for which the goods are required, that the goods will be reasonably fit for that purpose” This condition is implied when the buyer makes the purpose of the goods needed known to the seller, and the buyer then relies on the seller’s judgement in providing the correct product. For example it would not be reasonable if you made the seller aware that you wished to purchase something suitable for mowing the average suburban backyard and you were sold a tractor. - “A Promise that goods are of merchantable quality” According to this act a good is considered to be merchantable if they are suitable for the prospect for which other similar goods are sold, involving the description applied to them, the price and any other relevant information. This act does however does not protect the consumer if he/she has examined the product and missed any defects that should have been seen or if the seller made him/her aware of the defect prior to the purchase of the product.
nature of s. 281 lent itself to legal debate under section 2 of the relatively
A negotiated contract that must be compliant with the Truth in Negotiations Act is one that the government tends to try to avoid because of the complexity and additional costs associated with this particular contract type. No longer are the days of World War II that would consider this as faster method of contracting.
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
The court refused to help Campbell in enforcing its legal contract because “the court felt the contract was extremely one-sided. [ Also], it was wrong for Campbell to ask for the court’s help in enforcing this unconscionable bargain (one that “shocks the conscience of the court”)” (Rogers,
Many times because of ambiguous wording contract details are up for interpretation and courts need to intervene to resolve disputes. Contract disputes can sever business and personal relationships, but that does not need to be the case. Faith in God can sometimes be the mediation needed to resolve conflicts and mend relationships that otherwise would not have been strong enough to flourish.
HILLIARD, J. And O’SULLIVAN, J. (2012) The Law of Contract [Online] 5th Ed. Oxford: Oxford University Press. Available from - http://books.google.co.uk/ [Accessed: 2nd January 2014]
The first problem with the renegotiation of this contract was the projected demand for VCM creating a “buyers market”, according to the textbook, “the demand was high, but the supply was to increase exponentially” (Lewicki, Saunders, and Barry 2010) Reliant was already locked into a five year contract with Pacific Oil, but there would be stiff competition at the expiration of the that contract. Knowledge of this market situation put Reliant in a position of leverage and trapped Pacific Oil into a desperate sign at all costs scenario. Gaudin and Fontaine assumed that even with a fluctuation with price; Reliant would sign a new because of their established relationship Pacific Oil. Gaudin and Fontaine’s assumption opened themselves up to more concessions by not attaching conditions to the price adjustment. They could have countered with a reduction of the formula price on the condition of contract length.
This judgment given set criterion which is still been used in the modern court system and due to this case it was developed that an offer of contract can be unilateral and doesn’t have to be made to a specific party only. Also it was developed to that the acceptance of an offer does not require a notification and that once the concerned party purchases the product the contract is active then and there itself. And it was also established that purchase of an item is a fine example of consideration and therefore makes it a valid contract. (Smith, 2000).
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.