A very quick revision of Contract Law

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A very quick revision of Contract Law
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Offer

• An expression of willingness to contract on
  certain terms with the intention it shall become
  binding as soon as it is accepted by the person
  to whom it is addressed.
• Can be specific or general (Carlill v. Carbolic-
  offer made to the whole world)
• Can be express
• Can be implied
• Distinguish from an invitation to treat- shop
  windows, shop displays, small adverts. More
  specific, the more likely to be an offer
• Termination at any time before acceptance
• Distinguish counter-offer from request for
  further information

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Acceptance

• Agreement to all the terms of an offer by words
  or conduct
• Must be communicated
• Method may be prescribed
• Position of silence
• Ignorance of the offer
• Post
• Telegrams

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Consideration

• An act or promise of one party which is the price
  for which the promise of the other is bought
• Must be sufficient (of value to the other party)
  but need not be adequate (appears a fair bargain)
• Must not be vague and must move from the promisee
• Must not be past
• Performance of an existing duty- doing more than
  the exisitng duty, sailor cases
• Part payment of a debt- Pinnels case
• Promissory estoppel

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Intention to create legal relations

• An intention to be legally bound by the agreement
  entered into
• Social and domestic- presumption
• Commercial- presumption
• REMEMBER THE PRESUMPTIONS CAN BE REBUTTED.

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Terms of a contract

• Can be written, oral or a combination
• Difference between a term and a representation-
  remedies available.
• Consider
• Specialist knowledge of representor
• Importance placed on issue
• Distance in time between statement and contract
• Strength of the inducement
• Oral contracts
• Degree of notice
• Course of dealing
• When was notice given?
• Written contracts
• Rule in LEstrange v. Graucob
• Parol evidence rule
• Implied terms- by statute (e.g.Sale of Goods
  Act), by the courts (facts, officious bystander,
  business efficacy)

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Duress

• Unfair pressure which forces another to contract
  (e.g. violence, threat etc.)
• Makes contract void
• Economic duress- more than commercial pressure.
  Consider
• Did the person protest?
• Was there an alternative?
• Independent advice taken?
• Steps taken to avoid the contract after entering
  into it?
• Makes contract voidable

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Undue Influence

• Unfair pressure which does not amount to duress.
• No fiduciary relationship- undue influence must
  be proved by the injured party
• Fiduciary relationship- presumption is that
  stronger party has exerted undue influence. Can
  be rebutted along lines in Re Brocklehurst
• Banking cases- can be either!

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Misrepresentation

• Must be more than mere commendation, statement of
  opinion, statement of future intentions or a
  statement of law
• Silence will not normally amount to
  misrepresentation but may- conduct, half-truth,
  change of circumstances, position of skill/
  responsibility, duty to disclose
• Untrue statement must induce the other party
• Misrepresentation can be fraudulent (Derry v.
  Peek), negligent or innocent.
• In negligent or innocent misrepresentation, 1967
  Act shifts burden to representor to prove
  innocence, a burden that is difficult to shift
• Remedies
• Rescission, unless affirmation, 3rd. Party
  rights, impossible, lapse of time, statute
• Damages- tort of deceit, deemed fraud under
  Misrepresentation Act 1967

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Exclusion Clauses

• Limitation clauses and exclusion clauses
• Incorporation
• Not too late
• Brought to others attention in a reasonable way
• Not in course of dealing
• Not obscured
• Interpretation
• Main purpose of contract
• Contra proferentem rule
• Overriding oral statement
• Legislation
• Unfair Contract Terms Act 1977
• Unfair Contract Terms in Consumer Contract
  Regulations 1999

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Mistake

• A false assumption made by one or both parties in
  the formation of the contract
• Common mistake- existence, quality (note the
  fundamental nature required), title
• Mutual mistake- parties at cross-purposes
• Unilateral mistake
• Written documents- remember LEstrange but also
  non est factum

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Discharge of a contract

• Performance- total (exact and complete),
  substantial, partial, timing (of the essence),
  vicarious
• Breach- a condition (repudiate or damages) or
  warranty (damages), actual or anticipatory.
• Full damages to innocent party, burden of loss
  wholly on the party at fault
• Frustration (neither party at fault). Law Reform
  (Frustrated Contracts) Act 1943. Impossibility,
  illegaility, radical change in circumstances
• Money returned to where it came from. Burden of
  loss of shared. Benefits/ expenses orders may be
  made.

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Remedies

• Damages.
• Liquidated (fixed- set by parties.)
• Unliquidated (set by courts). Assessed on
  expectation and/or reliance basis
• Repudiation/ rescission- contract ended. Back to
  original position
• Specific performance
• Injunction
• Stop now orders- OFT has powers to stop unfair
  business