Part I - Formation of Contracts A contract may be defined simply as a legally binding agreement. Alternatively, it may be defined as a promise or set of promises which enforces the law. Contracts may be classified as either bilateral or unilateral. A bilateral contract is one where a promise by one party is exchanged with each other based on trust. A unilateral contract is one where one party promises to do something (usually pay a sum of money) in return for an act of the other party. An offer is a statement by one party of a willingness to enter into a contract on stated terms. An offer has to be communicated to the offeree An invitation to treat is simply an expression of willingness to enter into negotiations which may …show more content…
Exam tip: Remember to follow the three step process below in order to conclusively determine the validity of an exclusion clause. 1) Incorporation – is the clause a part of the contract? (a) Signature: L’Estrange v Graucob& Grogan v Robin Defence of ‘Non est factum’: Gallie v Lee& United Dominions Trust v Western (b) Reasonable notice: Parker v South Eastern Railway – must take reasonable steps to inform claimant Thompson v LMS Railway*– exclusion clause inside the railway timetable is good enough Sugar v LMS Railway – reference to the exclusion clause obliterated Henderson v Stevenson – an exclusion clause should be referred to on the front of the ticket Olley v Marlborough Court – the notice should not come after formation of the contract Chapelton v Barry UDC – the document must be of a contractual nature Spurling v Bradshaw – the red hand rule (c) Previous course of dealing: McCutcheon v David MacBryne Ltd – must be regular and consistent Henry Kendall v William Lilico – 100 contracts over 3 years is regular and consistent Hollier v Rambler Motors – 3 or 4 contracts over 5 years is not regular and …show more content…
See Avraamides v Colwill Enforcement:The right of the third party to enforce a term of the contract is subject to the terms of the contract: s.1(4). This means that the parties to the contract can impose conditions upon the third party’s ability to exercise his rights under the contract. For example, they could stipulate that the third party could receive a benefit under the contract only if he applied for it within a certain time period. Third parties have the same remedies as would be available to them if they were contracting parties, including the rights to damages and specific performance: s.1(5). Although the contract is enforceable by the promisee as well as the third party, there cannot be double liability for the promisor: s.5; so any recovery by the promisee would have the effect of reducing any award subsequently made to the third party. Consent to variations:Section 2 deals with the issue of amending and cancelling the contract. This states that, unless the contract provides otherwise, the parties to the contract may not rescind the contract, or vary it so as
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
With regard to fraudulent misrepresentation, the innocent party can recover damages whether or not they rescind the contract under the tort of deceit. Simila
-formed when parties have reached agreement on essential terms and have intention to create legal obligation. parties, obliged to perform o...
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
contract “refers to a contract drafted by one party in a position of power, leaving the weaker party
"A contract is a legally enforceable promise or set of promises. In other words, when promises have the status of contract, the contracting party harmed by a breach of the contract is entitled to obtain legal remedies against the breaching party" (Mallor et al., 2015, p. 320)
Hird and Blair, ‘Minding your own business – Williams v Roffey revisited: Consideration reconsidered’ [1996] JBL 254
S.6(3) states that as against a person dealing otherwise than as consumer liability for breach of the obligations arising from ss.13, 14 or 15 of the Sale of Goods Act 1979 can be excluded or restricted by reference to a contract term, but only in so far as the term satisfies the requirement of reasonableness.
National Provincial Bank Ltd v Ainsworth [1965] UKHL 1. Hill v Tupper (1863) 2 H & C 121.
Unilateral – some offers are purely one sided, made without the offeror’s having any idea whether they will ever be taken up and accepted, and thereby be transformed into a contract. For example when an advertisement where a person is rewarding another one if he finds his pet (which was lost). In this case the person who is making such an offer is not sure whether this offer will be ever accepted.
Victorian Stevedoring & General. Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73
The basic law of a contract is an agreement between two parties or more, to deliver a service or a product. And reach a consensus about the terms and conditions that is enforced by law and a contract can be only valid if it is lawful other than that there can’t be a contract. For a contract to exist the parties must have serious intentions, agreement, contractual capacity meaning a party must be able to carry a responsibility, lawful, possibility of performance and formalities. Any duress, false statements, undue influence or unconscionable dealings could make a contract unlawful and voidable.
Contracts and agreements have many key differences. A contract is an agreement between two parties that is legally binding. In order for a contract to be valid and have legal standing, it must have four requirements; consideration, contractual capacity, and legality. Without all four of these requirements it is not considered a contract and has no legal standing. An agreement is an understanding or some type of arrangement between two or more parties and does not need to have the four requirements that a contract must have. Most of the time, agreements are informal and not enforceable by law.
A contract is generally considered to be an exchange of promises or an agreement between parties which in due course legally binds the parties; this can be enforced by the English Law. A contract is always, referred to the basic foundations of Contract Law, which refers to promises being kept amongst two parties. It is clear that all people make contracts nowadays and do not even consider for a moment that they are forming contracts; these can be formal or informal, oral or written.