GoConqr has a new look! Let us know what you think.

Sign up free

Flashcards

1L Contracts flashcards

huilong English 81 cards

Cards in this deck (81)

  1. 1Canadian Dyers Association v Burton (1920)- There can be no contract unless there is an offer and acceptance of that offer
    - Whether an offer exists can be inferred from the wording and circumstances
  2. 2Pharmaceutical Society of Great Britain v Boots Cash ChemistsDisplay on shelf of goods is regarded as an invitation to treat; not an offer
  3. 3Carlill v Carbolic SMoke Ball- An advertisement to the world at large in which an offe is proposed does not require the offeree to notify the offerer of acceptance (Unilateral Offer)
    - In this case, a contract is formed when the offeree performs the stipulated act
  4. 4Goldthorpe v Logan- Unilateral contract
    - The offeror bears the risk of extravagant claims
  5. 5Harvela Investments v Royal Trust Co of Canada- A tender must comply with the form of invitation which it presents in the offer
    - If you vow to accept the highest offer, then it is a fixed bidding system
  6. 6R v Ron Engineering- The tendering process will constitue an unilateral offer where the call for tebders contains sufficient detail and specificity to indicate that they intend to be bound by the process
    - Contract A (Can't withdraw/ person inviting tenders must comply with the terms of the invitation)
    - Contract B (complete the work)
  7. 7MJB Enterprises v Defence Construction- Privelege clause must be read with the obligation to accept a compliant bid
    - Tender documents must express all operative terms but implied terms may be applied
  8. 8Blair v Western Mutual Benefit Assn- A communicated offer to one person cannot necessaril be reasonably understodd to be an offer to another
    - If an offer is not communicated formally or otherwise to the other party then it cannot, on the facts alone, create or intend to create an offer capable of acceptance
  9. 9Williams v Cawardine- Motive does not matter; required is the claimant's knowledge of the offer and there fulfilment of the requisite condition
  10. 10R v Clarke- The conduct must be undertaken with the knowledge of the offer but with an intention to accept the offer
  11. 11Livingston v Evans- As an exception to the counter-offer rule, the court may decide that the original offer still stands on the basis of the language used and the intermittent feelings of the parties
  12. 12Butler machine tool v Ex-cell-o Corp- In battle of forms, a contract is formed as soon as the last of the forms is sent and received without objection being taken to it (This will depend on the circumstances)
  13. 13- Tywood Industries v St-Anne-Nackawic-If there are unique terms in the contract during negotiations, you must draw attention to them to the other party (mirror image rule)
  14. 14ProCD v Matthew ZeidenbergElements of a contract can be binding and take force after the point of sale
  15. 15Dawson v Helicopter Exploration Co- Cancellation of a bilateral contract must be communicated and accepted by both parties
    - Silence does not constitute abandonment of the contract
    - judges tend to treat offers as claling for bi-lateral rather than unilateral contracts
  16. 16Felthouse v BindleyYou must communicate acceptance (by words or action), and silence is no mode of acceptance
  17. 17Saint-John tug boat v Irving Refinery- Contract remains in force if services are still rendered, up until the point that the services are cut off or explicit communication of the cancellation of the contract is given
    - Sometimes acceptance can be inferred from the conduct of the parties as well as words
  18. 18Eliason v Henshaw- The offeree must accept on terms of the offeror, who is master of the offer
    - Any departure from those terms invalidates the offer unless it is agreed to by the other party
  19. 19Household Fire and Carriage Accident Insurance v Grant- Postal rule: In the context of mailing, a contract is complete when the communication of acceptance is sent to the offeree, even in cases where the offeree does not receive the letter, but only if the communication was sent via recognized agent for the two parties
  20. 20Holwell Securities v Hughes- Postal rule does not apply when offeror specifies the need for NOTICE in writing
    - The Postal rule does not apply if its application would produce manifest inconvenience and absurdity
  21. 21Brinikibon v Stahag Stahl Und Stahl- In cases of instantaneous communication, the contract is complete when acceptance is received by the offeror and the jurisdiction of the receiver, unless the failur of the offeror to receive the communication sent bu the offeree results from the fault of the offerer
  22. 22Rudder v MicrosoftAcceptance may be communicated simply by clicking "I agree", such acceptance will apply to all terms, even those not read
  23. 23Dickinson v DoddsAn offer t osell may be withdrawn before acceptance without formal notice to the person whom the offer is made. It is sufficient if that person has actual knowledge that the offeror has done some act inconsistent with the continuance of the offer, such as selling the property to a third person
  24. 24Byrne v Van tienhovenWithdrawal, unless otherwise specified requires knowledge or notification (But that knowledge does not need to come from the offeror)
  25. 25Errington v Errington and Woods- Revocation of an offer cannot take place if the offeree is in the midst of completing the requirements of a unilateral offer (2 contracts at play here)
    - Courts may imply this term. It is not a general rule.
  26. 26Barrick v Clark- An offer will lapse if there is no acceptance within a reasonable time
    - An offer containing a stipulation that it will not be withdrawn for a certain time period is not enforceable unless it is an option
  27. 27R v CAERules of construction: When a contract is vague, the court will often try to find the meaning in all the clauses rather than nulilfying the contract.
  28. 28May and Butcher v R- If an agreement does not adequately address an essential term, then there is no enforceable contract
    - Agreements to agree may constitute valid contracts, but its breach does not generate any loss
  29. 29Hillas n Co v Arcos- What can be made certain is certain
    - Courts may look at prior performance or industry standards to determine specifics of a contract
  30. 30Foley v Classique CoachesWhere there has been a course of dealings in the past, missing terms such as price may be implied and a reasonable price assumed.
    - Part performance will mean that the parties intended contract to be binding
  31. 31Empress Towers v Bank of Nova ScotiaIn an agreement where terms are to be negotiated, the court may imply (a) that the parties will negotiate in good faith, and (b) that agreement will not be withheld unreasonably
  32. 32Mannpar Enterprises v Canada- A duty to negotiate is unworkable in the absence of an objective benchmark or standard against which to measure this duty
    - The implications of the term can only be made if it is the case that both parties would be likely to agree that such terms should be applied in order to abide by the officious bystander test
  33. 33Wellington City Council v Body Corporate 51702- For there to be an enforceable ocntract, the parties must have reached consensus on all essential terms or at least upon objective means of achieving certainty
    - Good faith alone is not an objective standard
  34. 34Bawitko Investments v Kernels PopcornWhen the contract is incomplete because: - Essential provisions are not agreed upon
    - Language is too general or uncertain
    - Intention of parties is to defer legal obligations after formalization of contrac
    - Then preliminary agreement cannot constitute an enforceable contract
  35. 35Dalhousie College v The Estate of Arthur BoutilierA charitable pledge even though formally made and seriously intended is saidto be a mere gift and even the detrimental reliance upon the party whom it was made is not sufficient consideration
  36. 36Brantford General Hospital Foundation v Marquis EstateIn order for a promise to be enforceable, it requires consideration.
    - The naming was not requested by Mrs. Marquis and thus cannot be considered consideration for her
  37. 37Wood v Lucy, Lady Gordon DuffAn implied promise of one party can be sufficient consideration and therefore create a contract
  38. 38Eastwood v Kenyon- A past benefit not conferred at the request of the defendant is not sufficient consideration to constitute a contract
  39. 39Lampleigh v Brathwait- A request coupled with the promise to pay are enough to make a binding contract even though the request and the promise to pay may be separated in time
    - Where a past benefit was conferred at the benficiary's request, and where a reward would reasonably be expected, the promisor would be bound by his promise
  40. 40Thomas v Thomas- Consideration may be something small as long as it is of some value in the eyes of the courts
  41. 41Callisher v BischoffheimA forbearance to sue on a disputed claim can be valid consideration if:
    (a) the claim is reasonable in itself, and not vexatious or frivolous; (b) that the claiment has an honest belief in the chance of its success and,
    (c) that the claiment has not concealed from the other party any fact which to the claimant's knowledge, might affect the validity of the claim.
  42. 42Pao On v Lau Yiu LongAn act done for a third party before the giving of a promise to make a payment or confer some other benefit can be consideration for the promise if:
    a. The act must be done at the promisor's request
    b. The act was to be remunerated by the payment or conferment of some other benefit
    c. Payment of a benefit must be legally enforced had it been promised in advance
  43. 43Stilk v MyrickThe performance of a pre-existing contractual duty which already is owed to the promisor is no consideration for another contract
  44. 44Gilbert Steel v University Cont. LtdA promise to perform a pre-existing contractual duty already owed to the promisor does not constitute consideration without something more
  45. 45Williams v Roffey BrosA promise to perform an existing obligation can amount to good consideration provided there are practical benefits to the promise
  46. 46Foakes v BeerPinnel's rule: Payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for the whole because a lesser sum cannot be a satisfaction to the plaintiff for a greater sum.
  47. 47RE: Selectmove- Confirms Pinnel's rule: A lesser sum on due date is not good consideration for the whole
  48. 48Foot v Rawlings- A negotiable instrument can be substituted for cash t osatisfy the exception to the Pinnel rule
    - Payment BEFORE due date can be satisfaction
  49. 49Hughes v Metropolitan Railway CompanyThe parties who have entered into terms afterwards by their own action or through their own consent entered upon a course of negotiations which has the effect of leadning on of the parties to suppose that the strict rights arising under the ocntract will not be enforced, the party who otherwise might have enforced those rights will not be allowed to do so where it would be inequitable having regarded to the dealings that have taken place between.
  50. 50Central London Property v High Trees HouseA promise that was intended to be binding and intended to be acted upon and which was in fact acted upon should be considered to be binding so long as it's term properly apply even if there is no consideration
    - Promises to accept less may be enforceable as a shield
  51. 51John Burrows v Subsurface Surveys- Friendly indulgences are not promises and promissory estoppels do not apply in such cases
    - For promissory estoppels to apply, there must be a promise intending to alter legal relations, and this intention must be clear and unambiguous (by words or conduct)
  52. 52DC builders v ReesPromissory estoppels is not applicable where the promise was extracted under duress
  53. 53Saskatchewan River Bungalow v Maritime Life AssuranceA person who waives their right, can restore that right by giving reasonable notice in reasonable time.
  54. 54International Knitwear Architects inc v Kabob Investments ltdNotice of reasonable period must be given before promissory estoppel can be revoked, but does not need to be dated
  55. 55WJ Alan n Co v El Nsar Export n ImportDetriment is not necessary for waiver to be valid, all that is required is reliance
  56. 56Societe Italo-Belge v Palm and Vegetable OilsEstoppels only takes effect where equity demands
    - Needs to show reliance
  57. 57Combe v CombePromissory estoppel does not create new causes of action where none existed before
    - Use as a shiled, not a sword
  58. 58Petridis v ShabinskyWaiver can be used as a sword (as opposed to promissory estoppel)
  59. 59M(N) v A(AT)- No legal relationship
    - Promissory estoppel can only be used as shield
  60. 60Balfour v Balfour- In family relationsm there is a rebuttable presumption against the creation of legal relations
  61. 61Rose and Frank Co v JR Crompton- In commcerical context, the parties can specifically exempt their agreemetn from having legal effect if they use appropriate language to attain that result
  62. 62TD Bank v Leigh InstrumentsLetters of comfort are not binding agreements
  63. 63Royal Bank v Kiska- A mere wording cannot replace an actual seal, unless parties intended to interpret it as such
    - Gummed wafer is sufficient
  64. 64Dynamic transport v OK Detailing- The courts will strain to find sufficient writing to satisfy the statute of frauds and in certain cases oral evidence will be permitted for the purposes of explanation
  65. 65Delgman v Guaranty Trust co.In order to invoke the doctrine of part performance, the cats must be unequivocal, they must have relation to the agreement and to no other
  66. 66Thompson v Guaranty Trust Co.Acts of part perfromance that are unequivocally referable to SOME interest or contract in land render the contract enforceable
  67. 67Tweddle v AtkinsonConsideration must move from the party entitled to sue upon the contract
    - Third party beneficiary cannot sue
  68. 68Dunlop Pneumatic Tyre Co v Selfridge3 principles of ENglish contract law:
    1. Only a person who is party to a contract can sue on it
    2. If a person with whom a contract is not under seal has been made is to be able to enforce it, consideraiton must have been given byu him to the promisor or to some other person at the promisor's request
    3. A principal not named in the contract may sue upon it if the promise really contracted as his agent. But to have right to sue, he must giuve consideration
  69. 69Beswick v Beswick (1966)As administrator of Peter's estate, the wife would sue (but no in her
    personal capacity)
    - DENNING J: Mrs. Beswick has a legitimate interest to enforce the contract as it was made for her benefit she has an interest protected by law
  70. 70Beswick v Beswick (1968)An administrator/ executrix of an estate may sue for specific performance even if adminstrator was not a party to the original contract
    - Overturns Dennings previous reasoning
  71. 71McCannell v Mabee McLaren MotorsIf the promisee is contracting as agent on behalf of a third party, the doctrine of privity has no application between the third party and the promissor
  72. 72New Zealand Shipping Co v AM Satterthwaite1. The 3rd Party was intended to receive the benefit under the contract
    2. The promissor is acting as agent for the third party
    3. The promisor has authority from the third party to act as its agent
    4. Consideration must move from the third party
  73. 73London Drugs v Kuehne and Nagel InternationalEmployee exception test:
    1. The limitation of liability clause must either expressly or by implication extend its benefit to the employees who seek to rely on it
    2. The employees seeking the benefit of the clause must have been acting in the course oif their employment and must have been performing the very services provided for in the contract between their employer and the customer when the loss occurred
  74. 74Edgeworth Constuction v ND LEa and AssocEmployment exception created in London Drugs is dependent on the intention of the parties and not their status as employees
  75. 75Vandepitte v Preferred Accident Insurance Co.A trust will only arise to benefit a 3rd party beneficiary in the circumstances where it is clear that the parties actually intended to create a trust relationship
  76. 76Fraser River Pile n Dredge v Can-Dive ServicesExpansion of London drugs test:
    1. The parties intended to extend a contractual benefit to the third party b) Where the third party was acting in the manner established in the contract in which it is not a party
  77. 77Dynamic Transport v OK Detailing (2)In appropriate circumstances, the courts will find an implied promise by one party to take steps to bring about the event constituting the condition precedent
  78. 78EastWalsh Homes ltd v Anatal developmentsHas to be a reasonable probability of realizing a substantial monetary benefit; If only a mere chance lost, then only nominal damages awarded
  79. 79Turney v ZhilkaA true condition precedent cannot be waived
  80. 80Beauchamp v BeauchampNo strict literalism when interpreting conditions precedent
  81. 81Barnett v Harrisonreaffirmation of the Turney v Zhilka rule
    - Laskin dissented for a relaxation of the rule

Information

Description
Flashcards on 1L Contracts flashcards, created by huilong on 06/12/2013.
Created by
huilong
Views
161
Rating

Feedback

What is it about?

What do you think of the new look?

How do you like it?