Contracts Revision Session 1

1
Contracts Revision Session 1

• LSS Revision Tutorial -
• Thursday 3 Nov 2011 _at_ 1pm

2
Coping with Contracts

• Need to be linear and chronological (dont just
  seize on the first issue you see).
• Need to develop your own summary that is based on
  the life-cycle of the contract, includes the
  issues that crop up at each stage, the rules for
  how to deal with those issues, and authority for
  them.
• Cases are crucial - but not much use if you dont
  know where they fit into the bigger picture.
• Closed book exams dont have to be as scary as
  they seem - you can fit a lot on 4 pages if you
  are taking notes on the right things (and are
  strategic about how you prepare)

3
This session

• Holistic view of the course
• Not cover rules from cases specifically
• How to prepare for the exam
• Note this covers the topics that we did in
  Semester 1 2011 - some of these may have changed
  for you

4
Life-cycle of the Contract

• Formation (is there a contract?)
• Construction (what are the terms of the
  contract?)
• Discharge (was the contract performed? Breached?
  Frustrated?)
• Remedies (what remedies are available if things
  have gone wrong?)
• Vitiating Factors (what other underlying issues
  need to be considered?)

5
Formation

• Offer
• What constitutes an offer
• Duration of offer
• Termination of offer
• Acceptance
• Rules of Acceptance
• Revocation of Acceptance
• Consideration
• What is and isnt good consideration

6
Formation (cont)

• Uncertainty and Incompleteness
• Illusory, Incomplete and Uncertain contracts
  (know the difference!)
• What happens if court decides it is one of these?
• Subject to contracts (subject to finance,
  subject to written contract)
• Agreements to Agree/Negotiate
• Are they enforceable?
• In what circumstances?

7
Formation (cont)

• Intention to Create Legal Relations
• Commercial and domestic presumptions
• Requirement of Writing
• Statute of Frauds (which contracts need to be in
  writing?)
• Rules for notes or memorandums of contract
• What happens if not in writing and should be?
• Estoppel
• What is it?
• When might it apply?

8
Construction

• Express terms
• what is written / actually said
• Decide if puff, mere representation or actual
  term
• Incorporation of terms
• By signature
• By notice (ticket cases)
• By course of dealing
• By reference

9
Construction (cont)

• Implied terms
• By fact
• By common law
• By statute
• By custom and usage
• Things affecting application/interpretation of
  term
• Privity
• Parol Evidence Rule
• Limitation and Exclusion Clauses
• Collateral Contracts

10
Discharge

• Breach
• Late performance (time stipulations, notices to
  perform)
• Defective performance (substantial performance)
• Non performance (order of performance)
• Frustration
• In what circumstances?

11
Discharge (cont)

• Right to Terminate?
• Why want it?
• Under what circumstances is it available?
• What constitutes affirmation?
• What constitutes repudiation?

12
Remedies

• Damages
• Substantive v Nominal
• Unliquidated damages (expectation damages,
  reliance damages)
• Liquidated damages (become debts)
• Equitable remedies (know what and when)
• Promissory estoppel
• Specific performance
• Injunction

13
Vitiating Factors

• Duress
• Physical duress
• Economic duress
• Undue Influence
• Presumed
• De facto presumed
• Actual
• Unconscionable Conduct
• Common law
• Statute (ACL)

14
Vitiating Factors (cont)

• Misrepresentation and Misleading Conduct
• Fraudulent
• Negligent
• Innocent
• Statute (ACL)
• Remedies?
• Mistake
• Unilateral
• Common
• Mutual
• Non est factum
• Rectification of documents

15
Your challenge

• 1. For each topic make a list of the rules that
  govern it with the authority for that rule in
  brackets.
• 2. Identify which topics you dont understand as
  well as others and re-read lecture notes, cases,
  etc. If you are still unsure, email your tutor
  and ask questions.
• 3. Refine this to a 4 page summary (be creative
  with font, colour, formatting).
• 4. Consider flash cards for cases - rule one one
  side case name on the other and use these for
  revision.
• 5. Test out your summary by doing a practice exam
  (even if its just issue-spotting) - and refine
  the summary.

16
Tomorrows session

• Exam techniques for Contracts