BL Examnotes 0107

8/13/2019 BL Examnotes 0107

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Example of Flow Chart

Agreement

Does an agreement exist between the parties?

Is this an invitation Is this an offer?To treat? (announcesavailability for saleto public at large) How was the offer made?

By instantaneous In writingcommunication

Was an offer made in response?

Was offer communicated?

Was the offer Was a counter Was it a mereaccepted? offer made? request for

information?Yes

greement How was acceptance to occur?

!o

!o agreement "ame form as In writingoffer or as invo#ing $ostalstipulated or in %ule&equally advantageousmanner

When does acceptance occur?

General Rule Postal Rule

'n receipt of t day date andacceptance by offerer time of posting of unless !otice of acceptance unless%evocation received !otice of

before acceptance %evocation received before posting

& !ote that the $ostal %ule only applies to acceptance 'ffer revocation of offer or

re*ection of offer all must be communicated

An example of how your notes could look after summarising a topic ready for exams.


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+,+-+!." '/ 0'!.% 0.

A. DO E!"#C $ !OC#A% A&'EE E("!)

*'E!+ *"#O( 1 .H . .H+ $ %.I+" 2I2 (O" #("E(D .' 0%+ .+ ,+3 ,,Y+!/'%0+ B,+ 3%++-+!. 4 2omestic assumption applies in these circumstances1

5 H6"B !2 and WI/+ 44

a) If living together in harmony at the time agreement made7 "ocial presumption applied (Balfour v Balfour) 8holiday 4 money agreement 4 later

separated9 (Cohen v Cohen) 8dress allowance9

,+" b) If separated at time agreement made 7 "ocial presumption rebutted8particularly maintenance agreements9 (Merritt v Merritt)

: / -I,Y %% !3+-+!." 44 8even in the use of family assets left under administrationunder a will9 ( Murphy v Simpson ) 7 "ocial presumption applied

; 0,6B"< "'0I+.I+"< 8prises awarded9 7 "ocial resumption applied0=f (means contrary result) ( Clarke v Dunraven ) 80lub %ules may be contractual9

> /%I+!2" (agreements between) 7 "ocial presumption applies ( Cowar v Motor Insurers Bureau) 8lift to wor# and sharing e penses9

*'E!+ *"#O( #! 'E,+""ED (In this conte t rebutted means that the usual presumption nolonger applies and the alternative presumption applies) 4 2omestic="ocial presumption will usually

be rebutted if the consequences of brea#ing the agreement create a hardship for one of the parties

A DO E!"#C$!OC#A%

(i) / -I,Y

5 H6"B !2=WI/+ agreements where separated at time of agreement (particularlymaintenance agreements) ( M! Gre"or v M! Gre"or) 8wife compromised her rights9 ( Merrittv Merritt) 8transfer of property9 5Ex &ratia6 *ayments 7 voluntary payment not in return for wor# done9 -ay be enforceable if the promisee (person to whom monetary promise made) gave up a rightor something of value in return (/ war s v Skyways) 8premature retirements9

"he following are the notes on #("E("#O( 8abo2e1 written out with an index. "his is howyour indexed notes could look ready to take into the exam room.(Imagine that the following is the index to your set of notes 4 But note also that the following is *ustthe headings from the notes .he e planations and case references should be written out in full at thepages indicated in the margin ) $ 3+ I!.+!.I'!

C 2'-+".I0 = "'0I , 3%++-+!." 1

*'E!+ *"#O( 1 .H . .H+ $ %.I+" 2I2 (O" #("E(D .' 0%+ .+ ,+3 ,,Y +!/'%0+ B,+ 3%++-+!.5 H6"B !2 and WI/+ 44

a) If living together in harmony,+" b) If separated at time agreement 9 rebutted 9 intended to contract

: / -I,Y %% !3+-+!."; 0,6B"< "'0I+.I+"

> /%I+!2"

: *'E!+ *"#O( #! 'E,+""ED 4

;


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2'-+".I0="'0I ,(i) / -I,Y5 H6"B !2=WI/+

4 $roperty arrangements (Popiw v Popiw): / -I,Y "I.6 .I'!"

(ii) /%I+!2"; @oint agreements to enter competitions

B 0'--+%0I , %% !3+-+!."

; *'E!+ *"#O( #! "/A" CO("'AC" #! #("E(DED in the followingsituations14

5 Ad2ertisements : 'ffers made in 3est or 3oke

c=f (however) a court could hold otherwise ('yulasy v Rowan); greements where A no intention to be legally bound is stated> /onour Clauses

A sample exam -uestion)'n 5C "eptember rthur offers to sell his antique des# to Harry for DC EEE Harry subsequentlyinspects the des# and says to rthur F.he des# is in e cellent condition and IFd li#e to have it .hereFsno doubt that I could afford to buy this des# if I could pay for it in three installments !othing furtheris said concerning the des# 'n 5G "eptember Harry sends a letter to rthur in which he accepts

rthurFs original offer 'n 5 "eptember Harry learns that rthur has sold the des# to %ichard forD EEE 'n :E "eptember rthur receives HarryFs letter of acceptance

dvise Harry whether he has an action against rthur for breach of contract 3ive detailed reasons foryour answer

.o get a clear picture of related events it is useful to draw a diagram1

A /

5 offer H

: H will buy if can pay in instalments

; 5G "eptember H accepts offer

> 5 "eptember H learns sold des# to %

C :E "eptember receivesHJs acceptance

>


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!e t step1

isolate areas of dispute which may occur these are the issues an issue is a fact of a situation that could have more than one legal interpretation .hat is more thanone law could apply to it .he statement1 KIJd li#e to have it LJ (one fact) could be interpreted in more than one way legallyIt could be1& an acceptance of the offer & a request for more information& a counter offer

questioning attitude is important

.he issues are indicated by elliptical circles in the following diagram1

reas of possible dispute

A /

5 offer H

: 0ounter offer? H will buy%equest for more if can pay inInformation? instalments

; 5G "eptember 4 Haccepts offer

> %evocation of 5 "eptember H 'ffer learns sold

des# to %

C :E "eptember which occurred receives HJs first M acceptance acceptance

or revocation?

C


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*lan of Answer

offered H des# (DCEEE)

HJs reply

0ounter offer? %equest for more(Hyde v Wrench) information?

("tevenson @aques v-c,ean)

H re*ected Js offer open Js offer still(H intended to add could be acceptednew terms)

therefore no contract=no breach

cceptance occurredwhen?

$ostal rule apply?

Yes !oacceptance before acceptance after revocation revocation

contract e ists= no contract= breach therefore no breach

Answer

n offer has clearly been made by rthur to sell his antique des# to Harry for DCEEE .he firstquestion is whether HarryJs reply was a counter offer or a request for further information If it was acounter offer then as was held in Hyde v Wrench it amounted to a re*ection of rthurJs offer

rthurJs offer would therefore have terminated and hence could not be accepted and there wouldhave been no contract If it was a request for further information as in "tevenson @acques v -c,eanthe offer was still open and could have been accepted

.o be an offer (whether an original offer or a counter offer) a statement must contain a promise or promises and not *ust a fact or information as was indicated in Harvey v /acey "o the question becomes did Harry intend his statement to be a promise to buy the des# on condition that he could payfor it in three instalments? If he did then it was a counter offer and he could not sue for breach of

contract

lternatively Harry could *ust have been commenting on his own ability to pay thereby see#ingfurther information from rthur about what method of payment would be acceptable to him In my


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opinion HarryJs statement contained no promises He did not promise to buy it on condition he could pay by instalments He merely stated a fact about his financial circumstances and the method of payment he could manage He was tal#ing around the offer perhaps see#ing a response from rthur before deciding how to respond to rthurJs offer .herefore Harry made no counter offer and

rthurJs offer remained open

It is now necessary to determine if and when Harry accepted the offer If the $ostal %ule applied then

acceptance occurred on the 5Gth

(that is at the time of posting M !unin Holdings $ty ,td v .ullamarine+states $ty ,td) .here is probably not sufficient evidence to decide the issue absolutely It is notdisclosed how rthurJs offer was made Whether the $ostal %ule applies depends on whether theofferor has contemplated and e pressly or impliedly approved the post as a mode of acceptance If theoffer was made verbally then probably the $ostal %ule did not apply .herefore acceptance did notoccur until the :E th when rthur received the letter If the offer was made by post then acceptancewould probably have occurred on the 5G th (that is when Harry posted the letter) If the latter appliesthen Harry has an action for breach of contract If the former applies then the result depends onwhether rthur revo#ed his offer prior to the :E th

By selling the des# to %ichard rthur clearly intended to revo#e his offer However as decided inByrne v Nan .ienhoven the revocation must be communicated to the offeree However therevocation does not have to be communicated by the offeror in person It may be made by any other

person provided it is reasonable in the circumstances for the offeree to rely upon that other person In2ic#inson v 2odds the court decided that revocation is effective if it is communicated to the offeree

by a reasonably reliable source It seems clear that this has happened in this case and hence Harrycannot accept rthurJs offer because it no longer e ists

In my opinion Harry has little chance of success because either1a) there was a counter offer or

b) the $ostal %ule does not apply and revocation occurred prior to acceptance

Introductory "entences

#ssue

.his question raises two issues firstly and secondly

.he issuesF raised in this question are

.here are two issues raised in this question .hey are

.wo issues are evident in this question .hey are

.wo issues need to be addressed in this question .hey are

.wo issues require discussion in this question .hey are %aw.he law in this area states that In this area the law states that .he law states that .he law requires that

.he law stipulates that

.he law says that We can say that the relevant law is Cases

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It was held in the case of v that .he case of v demonstrates this area of law.he law is demonstrated in the case of v In the case of v the law is upheld.he law is refuted in the case of v.he case of v demonstrates illustrates clarified highlights shows e plains manifests e hibits e emplifies .his (the law) has occurred in cases such as P v LLL and v

where

Apply

If we apply the law to the present problem we see that In applying the law to the present problem we see that When applying the law to this problem it can be seen that

pplying these principles of law to the sub*ect question we can see that It is necessary now to apply the law to the present problem fact situation In thisinstance It co ul d b e a gu ed th at LLL LLL L Ho wev er i t is not an acceptable argument

because LLLLLLLLL

Conclusion-y advice to is that he could succeed in his action against In conclusion can ta#e act ion against

'ur conclusion in the present case therefore is that .o conclude can sue for Conse-uences0onsequently can claim that he is entitled to hence he will .he consequences would be that would get hence

What is the difference between `void' contracts and `voidable' contracts? Give an example of each.Void contracts are a nullity .hey have never e isted and never had any legal effect /or e ample if amista#e is proven to have occurred then the court will declare that the contract was void for mista#ethat is the contract never e isted at all

Voidable contracts are formed through the wrongdoing of one of the parties Noidable contracts are perfectly valid contracts and are effective until the wronged party ta#es action to avoid the contract bye ercising their right to rescind the contract If one party to a contract misrepresents an importantdetail then the innocent party can avoid or rescind the contract .he contract then cannot be enforced

by the guilty party ma#ing it voidable

Examples of a bare pass and a substantive answer

Facts)

G


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personF .he question thus becomes =should he have #nown of the clause?F not =did he actually #nowof theS clause?F .his highlights the distinction between actual and constructi2e #nowledge.he law relating to e clusion clauses is well defined but is governed by the question of whether weare considering a case of a signed contract or a case where nothing has been signed by the victim Inthe latter case the offending clause is usually printed on a tic#et or doc#et handed to the victim and=ordisplayed upon the business premises2ealing first with tic#ets or doc#ets the court will apply two tests .hese are the =nature of thedocument= test and the =reasonable notice= test .he nature of the document test means that the courtwill loo# at the piece of paper upon which the e clusion clause is printed and as# whether ob3ecti2elytested it is a contractual document? Is it a piece of paper upon which a reasonable person woulde pect to find contractual terms or does it have some other 4function such as a receipt ( Chapleton 2,arry +rban District Council. ) or proof of ownership ( Causer 2 ,rown ) If it does have some otherfunction it is not a contractual document and cannot be relied upon If it is a contractual documentthen ( and only then ) the court will as# whether reasonable steps have been ta#en to bring thee istence of the clause to the notice of the customer ( *arker 2 !outh Eastern 'ailway Co>"hornton 2 !hoe %ane *arking> "hompson 2 %ondon idland < !cottish 'ailway Co.1.If the clause is displayed on the premises it will be effective if prominently displayed ( ,almain (ew

Ferry Co 2 'obertson ) even if the actual customer has not seen it or could not read it if he had seenit ("hompson 2 %

Another -uestion and the methodology to answer.

Ben decides to sell his car He has owned it for ; years having bought it second4hand from a caredealer When he bought the car Ben was told that it had only one previous owner who had carefullymaintained the vehicle and always had it regularly services by the same dealer from whom Ben had

bought it It had never been in an accident nd the mileage shown on the odometer was genuine Benwas assuredBen #new that some of the statements made to him by the dealer from whom he bought the car werewrong since his own mechanic had told him the car had been in a serious accident and had travelledmany more #ilometres than the odometer indicated !evertheless Ben thought that 4 since he had

been deceived by the dealer from whom he bought it 4 it was reasonable for him to also deceiveanyone who bought the car from Ben and he advertised it as in e cellent condition accident free and

so onWhen @ane came to inspect 4the car in response to BenFs advertisement Ben repeated that the car hadno accident history and the odometer reading was genuine@ane buys the car from Ben at the price requested by Ben

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fter owning the car for only a short time @ane discovers that some of the statements made to her byBen were untrue and she consults you for advice as to her legal rights ssume that it can be proventhat the car as described 4 by Ben and bought by @ane for D:> EEE is worth that price but that itJs truevalue (given the accident history and increased mileage) is D5O EEE

dvise @ane4

T What action (if any) can she now ta#e against Ben?T Isolate areas of dispute which may occur

these are the issuesT an issue is a fact of a situation that could have more than one legal interpretation .hat is more than

one law could apply to itT the statements made by Ben to @ane could be interpreted in more than one way legally

.hey could1 be a term of a contract or a mere representation be a misrepresentation

T questioning attitude is important

!tep re the statements a term of the contract? If they are a term of the contract are they a condition or a warranty?

4 a condition is a ma*or term of the contract that is the substance of the contract4 breach of a condition entitles the in*ured party to rescind the contract and sue for damages4 breach of a warranty a minor term of the contract entitles the in*ured party to an award ofdamages only %escission is not available4 %escission is restoring the parties to their original precontractual position 4However there are a number of factors that can ma#e claiming rescission impossible pply discussion of law to facts 0ome to a conclusion

!tep @T re statements a misrepresentation?T re they an innocent or fraudulent misrepresentation?4 an innocent misrepresentation is a false representation made by a person who at the time ofma#ing it believed it to be true

remedy is rescission of contract4a fraudulent misrepresentation is a representation made by a person who when they were ma#ingit had no honest belief in its truth4 elements required to establish fraudulent misrepresentation

T statement must be factTstatement must be falseT person who ma#es statement must have no belief in the truth of the statementT the statement must be intended to persuade the other party to enter the contract and have that effect

remedy is rescission and damagesT pply discussion of law to factsT 0ome to a conclusion

!tep 'f ma*or consideration is what the parties want? If @ane wants to hand car bac# and get damages thenshe may argue fraudulent misrepresentation or a breach of a condition of a term of the contract andclaim rescission and damages If she wants to #eep the car she may claim damages for losses sufferedas a result of the overpayment .hus she may argue that the false statements were a breach of awarranty of a term of the contract

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BL Examnotes 0107