Professional Documents
Culture Documents
In-Class Exercise
on Lecture Topics 1 and 2
In tutorials this week
Closed Book
Worth 10%
Lecture 4
Contract Law (Contd)
Promissory estoppel, Intention,
Terms of a Contract
Major Assignment
Discussion Forum
Available from this week
One per tutorial group
For students to use to collaborate with their tutorial
group as they wish (voluntary)
Tutors will provide details about how to use the
Discussion Forum for your tutorial class
NO MARKS attached to this but a very useful
collaboration tool
Discussion Forum
Students are welcome to attach relevant articles,
media releases, images, videos, podcasts, cases etc
to their postings, if they wish
Students are especially encouraged to read and
to comment on the work of their peers
Be respectful and sensible about what you post
Your Tutors
NOTE: YOUR TUTORS ARE YOUR PRIMARY
POINT OF CONTACT
Make the most of your tutor!
Work closely with your tutor and communicate with your
tutor
Tutors will let you know details of their face-to-face
consultation times : see information in the Tutorial Program
All queries should go to your tutor in the first instance
Your tutor will let you know if your query needs to be referred
to me or to a member of the administrative team
Lecture 3: Summary
Tutorial Attendance
Agreement
Offer
Acceptance
Lecture 3: Summary
Lecture 3: Summary
1. The Offer
Must be
Firm promise
Communication: Notice of Offer (Carlill v Carbolic Smoke
Ball)
Revocation of offer to occur before acceptance
Invitation to treat (Pharmaceutical Society of Great Britain v
Boots): offer to make an offer
Counter-Offers (Hyde v Wrench)
Requests for Information (Harvey v Facey)
10
Lecture 3: Summary
Consideration: what is it?
Lecture 3: Summary
2. The Acceptance
Must be in response to Offer (R v Clarke)
Communicated (note: silence is not acceptance: Felthouse v
Bindley)
Express or implied (eg by conduct: Brogden v Metrop Rway
Corp; Empirnall Holdings)
Absolute, unqualified
Any conditions must be fulfilled
Clear and certain
Postal Rule/Instantaneous communications
11
12
Lecture 3: Summary
Rules for Consideration
Lecture 3: Summary
Consideration: what is it?
It is what the promisor gives in exchange for the
return promise or the return action from the promisee
1.
Coulls v Bagott
A B+C
13
Lecture 3: Summary
Rules for Consideration
14
Lecture 3: Summary
Rules for Consideration
Cases:
Lampleigh v Braithwait
Re Caseys Patents
See Latimer at 5-410
15
Lecture 3: Summary
Rules for Consideration
16
Lecture 3: Summary
Rules for Consideration
Therefore:
Consideration must be
Present (executed) consideration which is an act done now
in return for a promise when the act is completed: see
Latimer at 5-430
Or
Future (executory) consideration where the parties agree to
exchange promises to do something in the future: see
Latimer at 5-420
17
18
Lecture 3: Summary
Rules for Consideration
Lecture 3: Summary
Rules for Consideration
19
Lecture 3: Summary
Rules for Consideration
20
Todays lecture
Cases:
Musumeci v Winadell Pty Ltd
Williams v Roffey Bros & Nicholls (Contractors) Ltd
See Latimer at 5-470
Representation vs terms
Parol evidence rule
Express vs implied terms
Collateral contracts
Conditions and warranties
Uncertain terms
Meaningless terms
Ambiguous terms
21
22
Overview - Lecture 4
Terms of a Contract
Insufficient Consideration
1.
Cases:
Stilk v Myrick
Hartley v Ponsonby
23
24
Insufficient Consideration
2.
3.
26
Promissory estoppel
Promissory estoppel
Cases:
Central London Property Trust Ltd v High Trees
House Ltd
Legione v Hateley
Waltons Stores (Interstate) Ltd v Maher
See Latimer at 5-485
Promissory estoppel
28
30
Subject to contract
Presumed intention
The courts have to determine objectively whether the parties
intended the agreement to be legally enforceable
Expressly NO intention
Subject to contract clauses
Document not in its final form
Subject to preparation of written document
Case:
Masters v Cameron: see Latimer at 5-250
31
32
Presumed intention
Presumed intention
Traditionally:
Traditionally:
PRESUMED NO INTENTION
Commercial or business
PRESUMED INTENTION TO BE BOUND
33
34
Intention
Presumptions now abolished
Traditional approach no longer apply
Better approach: situation will DEPEND ON THE
FACTS OF A CASE
Cases:
Ermogenous v Greek Orthodox Community of SA Inc:
wrong to formulate prescriptive rules concerning intention
Evans v Secretary, Department of Families, Housing,
Community Services and Indigenous Affairs
See: Latimer at 5-090
36
Voluntary agreements
Domestic agreements
Cases:
Teen Ranch Pty Ltd v Bro
Cases:
Balfour v Balfour
Cohen v Cohen
Wakeling v Ripley
Evans v Secretary, Department of Families, Housing,
Community Services and Indigenous Affairs
See Latimer at 5-090
38
The contract
Intention: Commercial/Business
Case:
39
Contents of a contract
40
Representations
42
Representations and
the parol evidence rule
Representation
Cases:
Oscar Chess Ltd v Williams
Bentley (Dick) Productions Ltd v Harold Smith (Motors) Ltd
43
Representations
and the parol evidence rule
44
45
46
Implied Terms
Case:
The Moorcock
48
Implied Terms
See:
Australian Consumer Law, which is Schedule 2 of the Competition
and Consumer Act, 2010 (Cth)
49
Types of terms
Condition or Warranty
1. Condition
2. Warranty
50
Cases:
Bettini v Gye
Poussard v Spiers
(Compare these two decisions)
Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market
See Latimer at 6-050
51
Uncertain terms
52
Meaningless terms
53
54
Ambiguous terms
Exclusion Clauses
55
56
What are the key facts that are relevant to the problem?
2. Identify key, relevant statutory provisions and case law
principles
Ask:
(a) does a statutory provision apply to this situation and does it
provide a specific answer to the problem?
(b) are there any cases which have dealt with a similar fact
situation to the one you are considering and/or which have
interpreted any relevant statutory provisions?
NOTE: you should provide the name/section of any relevant
legislation and the names of any relevant cases in your
answer
Jot down the names of cases that you have studied, where the
facts were similar, if not identical to the ones in the problem you
are considering
Note any factual differences from previous cases and state
whether or not you consider that the differences matter to your
problem
Often the facts of a problem may be similar to but a little
different to those in a decided case: think about whether any
factual differences matter
Whether or not any differences matter will depend on the scope
of the legal principle that the relevant case stands for
57
58
59
60
Next lecture
61
Exclusion Clauses
Collateral contracts
Changing terms of a contract
Capacity
Privity
Agency
Vitiating elements (eg mistake, misrepresentation, unconscionable
conduct etc)
62