2596859
Description
Flashcards by Michaela Seal, updated more than 1 year ago
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Created by Michaela Seal
almost 9 years ago
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| Question | Answer |
| contract | a legally enforceable exchange of promises |
| source of contract law | mostly common law -statutes fill in gaps or modify (ie Sale of Goods Act) |
| requirements of a contract | -offer -acceptance -consideration -certainty of terms -intention to create legal relations -formalities (eg written) |
| contract is formed at this time | at point of acceptance |
| consensus ad idem | "a meeting of the minds" -offer and acceptance |
| offer | -must be communicated orally or written -key terms -must be capable of being accepted -time specification (if no end time, reasonable length of time) |
| acceptance | -must still be valid to be accepted -not a counter-offer, unequivocal -must be communicated (written or oral) |
| exception to acceptance needing to be communicated | -unilateral contracts: performance is acceptance -mailed acceptance is acceptance at time of posting -E-commerce: click is often acceptance |
| consideration | some contribution to the exchange by each party -can either be benefit or detriment to person receiving consideration -must be adequate, does not have to be sufficient |
| exception to consideration needed | when contract is signed under seal (eg bank loan guarantees) |
| certainty of key terms | conditions: fundamental term, if not met the contract is void or voidable warranties: non-fundamental, if not met can sue for damages -expressed and implied terms |
| contra preferendum rule | contract strictly interpreted against party that drafted it, especially if other party is unsophisticated |
| intention to create legal relations | -objective, not subjective -not merely social or family relations, unless intended to be binding |
| contract unenforceable if | -for illegal purposes -entered into under duress -entered into as a result of misrepresentation -lack of capacity to contract -mutual mistake about critical term |
| privity of contract | -only those privy to contract can enforce it (parties to contract or principle of contracting agent) -not merely beneficiary of contract, unless agency or trust relationship |
| contract performance | -parties are held to their precise obligations exceptions: force majeure (due to "act of God") or contract is frustrated (eg dead horse) |
| remedies for breach of contract | -compensatory damages -punitive damages -specific performance |
| compensatory damages | -"but for" test: what position would the parties be in if not for breach -plaintiff required to mitigate their damages -partial performance --> quantum meruit damages -damages must flow naturally/directly from breach of contract |
| punitive damages | -when defendant acted in "high-handed" or unfair manner -to further punish defendant and to deter behaviour that caused breach in first place |
| specific performance | -order to perform contract duty -used when damages are not adequate |
| Carlill v Carbolic Smoke Ball Co. | -exception of need to notify of acceptance of performance in unilateral contracts, performance is enough if clear enough (eg lost dog advertisement) |
| employment contract: reasonable notice of termination of employment | how long should it take to find another job (position, length of service, age) -minimum notice or severance payment |
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