Complete Contracts 'a' Study Notes

Contract Law Notes Contracts ‘A’ Page 9

Offer -

Bilateral ral cont ontrac racts Unil nilateral cont ontract acts Offe Offers rs to the the pub publi licc at at lar large ge

What is an offer? - Mere puff   - Suppl upply y of of inf infor orm matio tion - Invitation to to tr treat

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Categorizing transactions - Advertisements a) Advertis Advertiseme ements nts in a catalog catalogue ue or a curri curricula cular  r   b) Advertis Advertiseme ements nts in newsp newspaper aperss or magazin magazines es c) Advertis Advertiseme ements nts appea appearing ring on the the interne internett d) Disp Displa lay y of good goodss - Auctions a) Advertisement of auction b) Auctions with reserves c) Auctions wi without a reserve - Tendering - Standing of offers  Options

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Communication of an offer 

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Termination of an offer  - An offe offerr may may be term termin inat ated ed by a) Revocation by the offeror   b) Rejected by the offeree c) Lapse of time d) Failure ure of of a condi ondittion su subje bject to to wh which the the offer was made e) Death

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Acceptance

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Requirements of acceptance Acceptance must correspond to offer  - Offer Offeree ee must must have have know knowle ledge dge of of and and act act in rel relia iance nce to to an offer 

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A cou count nter er offe offerr is is not not acce accept ptan ance ce Acce Accept ptan ance ce must must be unqu unqual alif ifie ied d Mere Mere enqu enquir iry y does does not consti constitu tute te acc accept eptanc ancee

 Notification to the offerer of the fact of acceptance - Meth ethod of accep ceptanc ance a) Method hod of of ac accept eptance nce st stipul pulated by by off offer  b) Acceptance by by silence c) Acceptance by conduct - Insta Instant ntane aneous ous com commu muni nicat cation ion:: Accept Acceptan ance ce must must be communicated a) General rule b) Meani aning of of ins insttanta ntaneo neous com comm municati catio on - Post ostal ac accep ceptance nce ru rule a) Statement of the rule b) Policy behind the rule c) To wh what co communication do does th the ru rule extend d) Where is th the ru rule displaced e) Revoca ocation of ac accep ceptanc ance pr prior to rec receeipt

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Bre akd own of  mec hani sm to com  plet e

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Acceptance in unilateral contracts - Acce Accept ptan ance ce comm common only ly by cond conduc uctt - Withd Withdra rawal wal of of an offe offerr after after accep accepta tance nce has has comm commenc enced ed Who may accept an offer? Contract formation: time and place - Inst Instan anta tane neou ouss comm commun unic icat atio ion n - Po st

Certainty and Completeness

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Statement of the rule - Facets ets to to the the pri princip cipal Page 18 Ambiguity and uncertainties - Individual terms - Agre Agreem emen ents ts to nego negoti tiat atee Saving ambiguous, uncertain or meaningless terms - Link Link to exte extern rnal al stan standa dard rd - Link Link to reas reason onab able lene ness ss stan standa dard rd - Severance - Waiv Waiver er or remo remova vall of of cert certai aint nty y Incomplete agreement - Agree Agreeme ment nt conta contains ins mech mechani anism sm to to com compl plete ete a) Reference to a third party  b)  b) Disc Discre reti tion on reta retain ined ed by cont contra ract ctin ing g part party y

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A cou count nter er offe offerr is is not not acce accept ptan ance ce Acce Accept ptan ance ce must must be unqu unqual alif ifie ied d Mere Mere enqu enquir iry y does does not consti constitu tute te acc accept eptanc ancee

 Notification to the offerer of the fact of acceptance - Meth ethod of accep ceptanc ance a) Method hod of of ac accept eptance nce st stipul pulated by by off offer  b) Acceptance by by silence c) Acceptance by conduct - Insta Instant ntane aneous ous com commu muni nicat cation ion:: Accept Acceptan ance ce must must be communicated a) General rule b) Meani aning of of ins insttanta ntaneo neous com comm municati catio on - Post ostal ac accep ceptance nce ru rule a) Statement of the rule b) Policy behind the rule c) To wh what co communication do does th the ru rule extend d) Where is th the ru rule displaced e) Revoca ocation of ac accep ceptanc ance pr prior to rec receeipt

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Bre akd own of  mec hani sm to com  plet e

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Acceptance in unilateral contracts - Acce Accept ptan ance ce comm common only ly by cond conduc uctt - Withd Withdra rawal wal of of an offe offerr after after accep accepta tance nce has has comm commenc enced ed Who may accept an offer? Contract formation: time and place - Inst Instan anta tane neou ouss comm commun unic icat atio ion n - Po st

Certainty and Completeness

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Statement of the rule - Facets ets to to the the pri princip cipal Page 18 Ambiguity and uncertainties - Individual terms - Agre Agreem emen ents ts to nego negoti tiat atee Saving ambiguous, uncertain or meaningless terms - Link Link to exte extern rnal al stan standa dard rd - Link Link to reas reason onab able lene ness ss stan standa dard rd - Severance - Waiv Waiver er or remo remova vall of of cert certai aint nty y Incomplete agreement - Agree Agreeme ment nt conta contains ins mech mechani anism sm to to com compl plete ete a) Reference to a third party  b)  b) Disc Discre reti tion on reta retain ined ed by cont contra ract ctin ing g part party y

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Saving incomplete agreements - Inc Incompl ompleetio tion of of te terms - Fail Failur uree to to spe speci cify fy a pri price ce a) Contract si silent on on price  b)  b) Cont Contra ract ct prov provid ides es for for part partie iess to to agre agreee in in the the future c) Contr ntract mak makee pr provi ovision sionss fo for me mechan hanism to complete d) Contract pr provides fo for payment of a reasonable price - Subj ubject to to agr agreeements  Subject to finance agreements a) Satisfactory finance b) Steps to to be be ta taken to to ob obtain fi finance  Subject to contract

Intention to create legal relations Statement of rule Domestic and social relationships - Presumption - Rebu Rebutt ttin ing g the the pres presum umpt ptio ion n a) Husband and wife b) Separated husband and wife c) Other family relationships d) Social relationships Commercial agreement - Presumption - Rebu Rebutt ttin ing g the the pres presum umpt ptio ion n Government activities - Commerc ercial ial agre agreeement ents - Poli olicy initiative tivess Voluntary associations

Circumstan ces indicating absence of  intent - Hon our  clau se - Pro moti onal  puff  and free gifts - Ex grati a  pay men ts and with out  prej udic e offe rs - Lett er  of  com fort - Lett er  of  inte nt and und erst andi ng

Consider ation

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 Nature of consideration - Consideration in bilateral contracts Page 23

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Con side ratio n in unil ater  al cont ract s Exe cute d and exec utor  y cons ider  atio n

Rules governing considerati on - Con side ratio n mus t mov e fro m the  pro mis ee

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a) Benefit need not move to the promisor  b) Joint promises c) Overlap with Doctrine of privity Consideration must be bargained for  Consideration must be sufficient a) General principal b) Consideration need not be adequate c) Consideration can be nominal Consideration must not be past a) General principal b) Past consideration distinguished from executed consideration

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Consideration and formal agreements - Deeds Consideration: specific examples - Moral consideration - Performance of existing duties a) Performance of existing contractual duties b) Performance of a public duty c) Where promise is made to a third party - Payment of a debt a) Rule in Pinnel’s case b) Circumstances in which the rule will not operate Parties enter into a deed Accommodation to benefit the creditor  Amount owing is disputed Payment by a third party Composition with creditors - Forbearance to sue - Bargain for conduct already performed

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Equitable Estoppel Elements of estoppel - Assumption of expectation - Encouraged or induced - Reliance - Knowledge or intention - Detriment - Failure to avoid detriment

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Remedies Page 41

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Privity

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General rule Statutory abrogation of rights - Queensland a) Promisor   b) Beneficiary c) Promise d) Acceptance e) Defences f) Variation and rescission of promise g) Imposition of burdens h) Common law still applicable - Commonwealth Insurance Contracts Act 1984 (Cth) s 48 Entitlement of a named person to  claim - Maritime contracts of carriage a) Servants or agents of sea carriers b) Consignees and endorsees So called exemption at common law - Agency  Definition  Exemption clauses and third parties  Trusts  Unjust enrichment

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Nat ure of  cont ract nee ding writ ing Req uire men ts of  writ ing: cont ent

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Formalities Guarantees - Nature of guarantees - Transaction which are not guarantees a) Contracts of indemnity b) Promise of guarantee made to the debtor  c) Person agrees to take over the debt of  another  d) The agreement imposes no personal liability on the person e) Letters of comfort - Requirements of writing: content a) Information particular to the guarantee b) Acknowledgement of the agreement - Requirements of writing: signed by party to be charged or  agent Contracts relating to land

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Establish ing contr actua l terms

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a) Information particular to the guarantee b) Acknowledgement of the agreement Requirements of writing: signed by party to be charged or  agent

Joinder of document - Reference to a document a) Documents that are physically connected b) Documents that are executed at the same time - Reference to a transaction Effect of statutory non-compliance: common law - Contract valid to pass title - Recovery of money paid under unenforceable contract a) Recovery of deposit b) Recovery of amount more than deposit - Other restitutionary claim may still be available Effect of statutory non-compliance: equity - Doctrine of part performance a) Acts are unequivocally referable to some such contract b) Acts done in reliance on the agreement and with knowledge of the other party c) Acts done by the party seeking to enforce the contract d) Oral contract must be otherwise enforceable - Estoppel - Constructive trust

Incorporati on by signature a) Gen eral rule b) Wh en the rule is disp lace d Incorporati on by notice: unsigned document a) Rea sona  ble step s take n by the defe nda nt

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 b) Reasonable steps must be taken on or before contract formation Incorporation by notice: signs c) Reasonable steps taken by the defendant d) Reasonable steps must be taken on or before contract formation

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Incorporation of notice: website

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Incorporation by reference

Page 59 Incorporati ng oral terms - Mer   e  puff  - Rep rese ntati on or  term a) W ord s or  co nd uct of   par  tie s

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b) Knowledge and expertise of statement maker  c) Statement maker has control in relation to information d) Oral statement not reduced to writing e) Interval of time Collateral contracts a) Nature of a collateral contract  b) Bipartite and tripartite collateral contracts c) Consistency with the main contract

Parole evidence rule - Statement of the rule - When the rule applies - Exceptions of the rule a) Evidence of a collateral contract  b) Evidence that the written contract is not yet in force c) Evidence that the written contract was later  varied or changed d) Evidence to imply a term e) Evidence necessary for rectification Implied terms - Terms implied to give effect to the presumed intention of  the parties a) Term implied on the basis of business efficiency b) Term implied from previous consistent course of dealings c) Term implied from custom or usage d) Term implied to complete an agreement - Terms implied irrespective of parties intentions e) Term implied as a legal incident of a  particular class of contract f) General duty of co-operation g) Implication of duties of good faith, fair  dealings and reasonableness h) Term Implied by statute

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Construction of terms

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Interpreting the meaning of terms - General approach - Admissible evidence a) The parole evidence rule b) Factual matrix Page 59

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Exceptions to the parole evidence rule Ambiguity  Identification of subject matter   Identification of parties and their   relationship Identification of the real  consideration Custom or usage  Rectification  Inadmissible evidence a) Subjective intention b) Prior negotiation c) Subsequent conduct

Legal effect of words: types and terms - Promissory terms a) Conditions The statutory position  b) Warranties The statutory position  c) Intermediate or innominate terms Contingencies - Conditions precedent - Conditions subsequent Exemption clauses - Specific rules of construction a) The contra proferentem rule b) Attempts to exempt negligence The rules regarding attempts to  exempt negligence c) The four corners rule

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Contract Law Exam Notes Offer: An offer is an expression to another of a willingness to be bound by the stated terms  Australian Woollen Mills Pty Ltd v The Commonwealth

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Bilateral Contracts Under Bilateral Contracts each party undertakes to the other party to do or to refrain from doing something, and in the event of his/her failure to preform his/her  undertaking, the law provides the other party with a remedy. United Dominions Trust Ltd v Eagle Aircraft Services Ltd 

Unilateral Contracts Under unilateral contracts the promisor undertakes to do or to refrain from doing something if another party, the promisee, does or refrains from doing something, but the promisee does not at the time of the offer undertake to do or to refrain from doing that thing. United Dominions Trust Ltd v Eagle Aircraft Services Ltd 

The position in such cases is simply that the consideration on the part of the offeree on the part of the offeree is completely executed by the doing of the very thing that constitutes acceptance of the offer.  Australian Woollen Mills Pty Ltd v The Commonwealth

Offers to the Public at Large An offer can be made to the public at large. Carlill v Carbollic Smoke Ball Company

What is not an Offer? Mere Puff  Sometimes statements can be regarded only as ‘mere puffery’- the claims are made only for advertising purposes and mean nothing. Carlill v Carbollic Smoke Ball Company

Supply of Information The supply of information is not an offer. A request for information must be discerned from a contractual offer. A clearer  indication of a preparedness to enter into a contract, than merely providing terms or  information upon which a party maybe prepared to enter into such a contract, is needed.  Harvey v Facey

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Invitation to Treat An invitation to treat is an indicator of a parties willingness to negotiate entry into a contract. It is a technique used by a party who desire another party to make an offer  and cannot be construed or the terms be accepted as if it were a valid legal offer in itself. Carlill v Carbollic Smoke Ball Company

The display of goods in a store is an invitation to treat.  Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd 

An advertisement that gives information about goods for sale and their price will generally be an invitation to treat rather than an offer.  Partridge v Crittenden

Categorizing Transactions Advertisements Most advertisements are considered invitations to treat but some may be regarded as offers depending on language used in the advertisement and other relevant factors. a) Advertisements in a catalogue or in a curricular. Circulars, which provide information about items for sale and their prices, are regarded as invitations to treat. If it were regarded as an offer and the manufacturer  ran out of stock, they would be in breach of contract for anyone who accepted such an offer as they could not provide stock  Grainger v Gough

 b) Advertisements in Newspapers and Magazines. These are also considered invitations to treat unless the advertisement is couched in terms which indicate the retailers willingness to be bound if the specified terms are accepted (eg. there is a promise (Carlill) rather than a mere invitation (  Partridge v Crittenden). c) Advertisements appearing on the Internet. The application of the same principle as newspapers and magazines is used. d) Display of Goods.

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Items appearing in retail outlets, even if the price is attached, are regarded as an invitation to treat.  Pharmaceutical Society of Great Britain v Boots Cash Chemists .

Auctions a) Advertisement of Auctions The advertisement of an auction is considered an invitation to treat on the part of the auctioneer. The auctioneer may withdraw items from the auction or cancel the auction all together without incurring any liability from potential bidders.  Harris v Nickerson

The auctioneer may withdraw various lots from the auction or cancel the auction altogether without incurring any liability from potential bidders.  Harris v Nickerson

 b) Auctions with Reserve Each bid represents an offer, which the auctioneer may reject or accept. Acceptance of an offer occurs, and an agreement is formed, when the auctioneer knocks down the  property to the successful bidder. Because the agreement is not formed until the bid is knocked down, the bidder can withdraw a bid (offer) before this time.  Payne v Cave

c) Auction without a Reserve Even in an auction without a reserve, each bid represents an offer that could be accepted or rejected by the auctioneer.  AGC Ltd v. McWhirter 

Tendering An advertisement for tenders will generally be the same as an advertisement for an auction, which is akin to an invitation to treat. Therefore no liability will be incurred if the person does not accept any of the tenders or even consider them in a bona fide way. Each tender will be considered an offer, which can be accepted or rejected. Spencer v. Harding 

Standing Offers

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A standing offer is an indication by one party of his/her willingness to provide goods over a specified period of time. A standing offer is accepted every time an order is placed. If the goods are not delivered or are refused the offending party will be in breach of contract. Great Northern Railway Co v. Witham

An offeror may withdraw the offer, anytime, before acceptance of the offer is made in the form of an order. Further, unless the parties agree to the contrary, there is no obligation of the offeree to order goods only through the offeror, (eg. the offeree may choose not to accept the standing offer) Colonial Ammunition Co v Reid 

Options The standing offer may be revoked at anytime before acceptance by the offeree. However, if the offeree provides consideration (eg paying money) to the offeror to keep the offer open for some period, the offer cannot be withdrawn during this period.  Routledge v Grant 

Communication of an Offer For an offer to be valid it must be communicated to the offeree by the offeror, or  someone authorised by the offeror. Cole v Cottingham

An offer becomes effective once it is communicated to the offeree Taylor vLaird 

Acceptance must take place in reliance upon an offer. If the offeree performs a  particular act that corresponds to the terms of the offer without knowledge of the offer, there is no agreement, and no contract comes into existence. Tinn v Hoffman & Co

If it is an offer to the world at large, the offer could be accepted by any fulfilling the requirements of the offer. Carlill v Carbolic Smoke Company

Termination of an Offer

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An offer may be terminated at any time before it is accepted. However, once an offer  is accepted it becomes irrevocable. Goldsbrough Mort & Co Ltd v Quinn

An offer may be terminated by a) Revocation by the offeror  Revocation is the formal withdrawal of the offer by the offeror. Before acceptance, an offer can be freely revoked Goldsbrough Mort & Co v Quinn Veivers v Cordingly

Unless there is a promise, supported by consideration or under seal, by the offeror to keep it open for a fixed period.  Routledge v Grant 

A revocation will only be effective once it has been communicated to and received by the offeree  Bryrne v Leon Van Tien Hoven

In unilateral contracts, the offer cannot be withdrawn after the offeree has begun to  perform the necessary conditions of acceptance of the offer and completion of the contract.  Abbot v Lance

 b) Rejected by the offeree The rejection must be communicated to the offeror before it is effective. Once rejected, an offer cannot be later accepted. If an offeree attempts to accept the offer   but introduces new terms, the offeree is rejected the offer and is deemed to be making a counter offer  Stevenson Jaques & Co v McLean

c) Lapse of time An offeror may stipulate that his or her offer must be accepted within a certain period of time, and if the offeree fails to accept, the offer will lapse. If no time is prescribed, the offer must be accepted within a reasonable time.  Ramsgate Victoria Hotel Co v Montefiore

d) Failure of a condition subject to which the offer was made

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If a condition upon which the offer is made is not fulfilled the offer will lapse McCaul Pty Ltd v Pitt Club Ltd  e) Death If the offeror dies and the offeree has not been notified of that death, it is still possible for the offeree to accept the offer, thus binding the offeror’s estate. If the offeree has  been notified of the death he/she cannot accept the offer. Coulthart v Clementson

 Nor can a representative of the offerors estate accept the offer on their behalf  therefore the offer lapses  Reynolds v Atherton

Acceptance: Requirements of Acceptance Acceptance of an offer is the expression, by words or conduct, of assent to the terms of the offer in the manner prescribed or indicated by the offer. Thus acceptance may  be expressed or implied  HBF Dalgety v Morton

There are two requirements to satisfy for valid acceptance to occur: 1. The offeree must agree to accept the terms of the offer  2. This information must be communicated to the offeror.

Acceptance must correspond to Offer Offeree must have knowledge of and act in reliance to an offer The offeree must have knowledge of the terms of the offer at the time of purported acceptance. Acceptance is not valid if two identical offers are made or if a party  performs the act of acceptance without knowledge of the offer. Tinn v Hoffman

A Counter Offer is not Acceptance

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If a counter offer is made, the original offer is rejected and the counter offer can then itself be accepted or rejected. Once a counter offer is made and the original offer  rejected, the offeree can no longer accept the original offer   Hyde v. Wrench

A purported acceptance that departs from the terms of the offer but only in a minor  non-material way may be effective and not amount to a counter offer  Turner Kempson v Camm

Acceptance must be Unqualified If there is an agreement on all terms of the offer, and the parties intend to be bound immediately, this would be considered unqualified acceptance of the offer. Masters v Cameron

Mere Inquiry does not Constitute Acceptance After receiving an offer, an offeree may want further clarification of one or more terms. This inquiry can at most, only communicate interest but not acceptance nor  rejection of an offer. Stevenson Jaques v McLean

Notification to the Offeror of the Fact of Acceptance The offeree must communicate acceptance of the offer to the offeror and agreement is not complete until such communication is affected.  Powell v Lee Soares v Simpson

Method of Acceptance What is an appropriate method of acceptance in any given situation will depend on each situation, whether the offeror has outlined a specified method of acceptance with in the offer, or if it is not stipulated, the appropriate method of acceptance will depend on the intention of the parties as derived from the particular facts. Whether  acceptance has occurred depends on whether the offeree has complied with the requirements for the method of acceptance for the particular situation. a) Method of Acceptance Stipulated by Offeror  The offeror may stipulate how acceptance should take place (eg. the performance of  an act, return post etc.). If acceptance does not occur in this way, generally there is no agreement.

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Although, if the offeree accepts in a manner that is more advantageous for the offeror, then the acceptance will be valid Tinn v Hoffman

Also, if the method of acceptance was inserted for the convenience of the offeree, the offeree may wave the benefit of the clause and accept in a different way Or even if a manner of acceptance is prescribed in the offer, on the true construction of the terms in the offer, this may not be the only method of acceptance that will be effective Manchester Diocesan Council for Education v Commercial & General Investments  Ltd 

 b) Acceptance by Silence The offeror cannot stipulate silence to constitute consent under any circumstances.  Felthouse v Bindley  Empirnall Holdings Pty Ltd v Machon Paul Partners Pty Lty  Braund v Mutual Life & Citizens’ Assurance Co Ltd 

The technique of delivering a product with a notice stating that unless the goods are returned within a stated period (or rejection communicated in a different way), the  buyer will be taken to have agreed to buy the product on the stated terms is now  prohibited by statute. Trade Practices Act 1974 (cth) s. 64 & s.65  Fair Trading Act 1989 (qld) s.52 & s.53

c) Acceptance by Conduct An offeror may stipulate the manner of acceptance by advising the offeree that if  he/she wishes to accept the offer, the offeree should perform stipulated acts waiving the need to communicate acceptance. Acceptance can be express or implied.  Brogden v The Director of the Metropolitan Railway Company Carlill’s case

Instantaneous Communication: Acceptance must be communicated a) General Rule When the mode of acceptance is instantaneous communication, the general rule of  law is that the contract will be formed when acceptance of the offer is communicated to the offeror and that communication is received.

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 Entores L D v Miles Far East Corporation  Brinkibon Ltd v Stahag Stahl und Stahlwarenhandels-Gesellshaft mbH 

 b) Meaning of instantaneous Communication Face to face communication, telephone conversations and telex messages are all considered forms of instantaneous communication.  Entores L D v Miles Far East Corporation  Reese Bros Plastics Ltd v Hammon-Sabelco Australia Pty Ltd 

Postal Acceptance Rule The postal acceptance rule is the exception to the general rule that acceptance occurs when it is communicated to the offeror. a) Statement of the rule Where the circumstances are such that it must have been within the contemplation of  the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is completed as soon as it is posted.  Henthorn v Fraser 

The rule operates only where the post is an acceptable method of communication  between the two parties (eg. the offer was made by post or it is stipulated in the offer  that the post is an acceptable method of communication)  Adams v Lindsell 

 b) Policy behind the rule The postal rule promotes contractual certainty. c) To what communication does the rule extend The postal acceptance rule applies to forms of communication that are akin to mail  but does not extend to any form of instantaneous communication, even if that communication bears some similarities to communication by post. Coot Pty Ltd v Admin Management Pty Ltd 

d) Where is the rule displaced? The rule is displaced if the court decides that it was not within the contemplation of  the parties that the post was an accepted method of communication. Whether the  postal rule is displaced turns the intention of the offeror. If the offeror says or implies that actual notification is required before an agreement if formed the postal acceptance rule will be displaced.

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 Bressan v Squires

e) Revocation of the acceptance prior to receipt The offer is formed when the letter of acceptance is posted. A subsequent purported withdrawal of that acceptance will be ineffective. There is still no definitive Australian authority on the issue, only early New Zealand dicta that’s suggests that it cannot be withdrawn in this way and an even earlier  Scottish authority to suggest that it can!! Weinkheim v Arndt (NZ)  Dunmore (Countess) v Alexander (Scottish)

Acceptance in Unilateral Contracts Acceptance commonly by conduct The requirement for acceptance to be communicated is often impliedly waived. Acceptance is affected by the offeree by performing the requirements that are specified by the offeror. Carlill v Carbollic Smoke Ball Company

Withdrawal of an offer after acceptance has commenced Generally, once an offeree has begun to accept the offer by performing the acts stipulated, it is likely to be too late for the offeror to withdraw the offer and claim there has been no contract formation.  Abbot v Lance

Who may accept an offer? An offer can only be accepted by the person to whom it was made.  Reynolds v Atherton

Acceptance may be communicated only by the offeree or his or her agent  Powell v Lee

If an offer is made to the public at large it can sometimes be accepted by a number of    people. InCarlill’s Case the offer was capable of acceptance by anyone who qualified under the terms of their offer (eg. anyone who purchased a smoke ball, however, in the case of a reward, while many people may have the information which qualifies them for the reward, only the first person to come forth will be eligible).

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Carlill’s case

Contract formation: time and place Instantaneous communication A contract is formed when and where the offeror receives and accepts the acceptance communicated.  Hampstead Meats Pty Ltd v Emerson & Yates Pty Lty  Entores L D v Miles Far East Corporation

Post If the postal acceptance rule applies, the contract is formed when, and at the place that, the letter of acceptance is posted.  Henthorn v Fraser 

The Postal Rule can be excluded {Covered earlier in “The postal Acceptance Rule” at (d)}  Holwell Securities Ltd v Hughes  Bressan v Squires

Certainty and Completeness: Concepts of uncertainty or vagueness are relevant to a determination of whether there has been an offer made which is capable of acceptance, and whether the parties could have had the requisite intention to enter into legal relations. If an offer is so vague that the respective obligations of the parties on acceptance are unclear, it is unlikely to be a valid offer in legal terms. Similarly, if the terms of the offer are vague and uncertain, it may indicate that the parties lack intention, not having yet reached the stage of negotiations at which each intends to be legally bound to the other party.

Statement of the Rule In order to constitute a valid contract the parties must so express themselves that their  meaning can be determined with a reasonable degree of certainty. It is plain that unless this can be done it would be impossible to hold that the contracting parties had the same intentions; in other words the consensus ad idem would be a matter of mere conjecture G Scammell and Nephew Ltd v HC and JG Ouston

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Facets to the principal There are a number of facets to this principle: •

A contract containing language that is so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention will be unenforceable The uncertainty may relate to one of the pivotal terms of the agreement or may go to the very heart of the agreement.

G Scammell and Nephew v HC & JG Ouston •

Even where uncertain or ambiguous language is not used, if the parties have not agreed on all of the essential terms of the agreement, the contract will be unenforceable.

 Loftus v Roberts •

A contract will be unenforceable if it reserves a discretion for one party not to carry out his or her obligations

Thorby v Goldberg 

Ambiguity and Uncertainty Individual Terms There can be no contract unless what the parties agreed can be determined objectively with a reasonable degree of certainty. A number of different terms have been used to describe clauses that are struck down for want of certainty. Whether the clause is said to be vague, ambiguous or uncertain matters little, the clause is void. Sometimes the court will label a term meaningless or illusory. A meaningless clause is one to which a meaning cannot be attributed and will be treated the same way as an uncertain clause. An illusory clause has an identifiable meaning but will be treated as uncertain as it promises an illusory term. The modern approach appears to emphasise the courts willingness to uphold an agreement entered into by the parties, particularly where the circumstance indicate that the parties intended to be bound by the agreement.  Lend Lease Financial Planning Ltd v Southcap Pty Ltd 

Agreements to Negotiate If parties do not reach final agreement on essential terms, instead agreeing to finalise such matters at a later time, the contract is an agreement to agree, therefore it is incomplete and will not be enforced.

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 Booker Industries Pty Ltd v Wilson Parking Qld Pty Ltd 

If an agreement to negotiate is regarded as an agreement to agree, it to will be unenforceable Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd 

However, it was contemplated by Kirby P (in Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd) , that in appropriate circumstances, an agreement to negotiate could  be enforceable. He concluded that if the parties provided good consideration and the terms of the agreement to negotiate were sufficiently certain, such agreement might  be enforceable. One mechanism to make an agreement to negotiate more certain, it was suggested, would be to include a provision referring matters in dispute to a third  party.

Saving Ambiguous, uncertain or meaningless contracts Link to External Standard A clause in a contract, which, on its face, appears uncertain, may be enforceable if a meaning can be given to it by reference to an external standard. The parties may  provide for “a standard, machinery or formula designed by the parties to take the  place of their own agreement”.  Hawthorn Football Club v Harding 

The reference may be made in a direct way for example, incorporating standard hire  purchase terms used by the particular hiring company. If such a set of standard hire  purchase terms exists, the clause will be valid. Recourse may also be made to external standards, even where the contract itself does not expressly provide such a link.  Hillas and Co Ltd v Arcos Ltd 

Specifications agreed in the original contract could be regarded as an external standard. Sometimes, the contract may provide for one or more terms to be inserted by a third  party. (In a fashion, this is also a link to an external standard).  Hawthorn Football Club v Harding  Godecki v Kirwan

Link to reasonableness standard The court may be willing, in some circumstances, to adopt principles of  reasonableness to make certain something that, on its face, is not.

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‘The implication of what is just and reasonable to be ascertained by the court as a matter of machinery where the contractual intention is clear but the contract is silent on some detail’  Hillas and Co Ltd v Arcos Ltd 

Severance The invalidity of one term will not necessarily mean that the whole contract will be unenforceable. In some circumstances the invalid term can be severed and the remainder of the contract will be enforceable. Generally, if the parties would have intended to be bound in the absence of an uncertain clause, the clause can be severed and the remainder of the contract is enforceable  Fitzgerald v Masters

If the offending clause forms a pivotal part of the contract, so that without out it the  parties could not have intended to be bound, severance of the particular clause is not  possible. Whitlock v Brew

Waiver or Removal of Uncertainty If a clause is inserted in a contract for the benefit of one party only, but is drafted in such vague terms as to make it void, that party can choose to waive the benefit of the clause and have the remainder of the contract specifically enforced. Whitlock v Brew

Incomplete agreement The courts will not lend their aid to the enforcement of an incomplete agreement,  being no more than an agreement for the parties to agree at some time in the future.  Booker Industries Pty Ltd v Wilson Parking Qld Pty Ltd 

Agreement contains mechanism to complete It may suit the needs of contracting parties not to finalise various aspects of their  agreement, but rather to insert in a mechanism for determining one or more terms at a later date for example external standard or third party. a) Reference to a third party Parties to a contract may leave terms of the contract to be decided by a third party, even essential terms. Godecke v Kirwan  Hawthorn Football Club Ltd v Harding 

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 b) Discretion retained by a contracting party It is uncertain that a contract that leaves minor terms to be determined by one of the contracting parties is enforceable. A contract that leaves essential matter for later determination by one of the contracting parties will be unenforceable as it is either incomplete or uncertain or   because the promises contained in the agreement are illusory. Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd 

However, if a subsidiary matter was left to the determination of one of the parties such as how the contractual obligations are carried out by that party, it may be enforceable. Godecke v Kirwan

Breakdown of Mechanism to Complete If the parties a mechanism for determining a term and that mechanism fails, the court will not substitute it’s own view and complete the agreement. Milnes v Gery

If the disputed issue is one of something such as the “price” of something (eg. Rent), a court may be prepared to determine a fair and reasonable price, and not to regard that determination as completing the agreement for the parties.  Booker Industries Pty Ltd v Wilson Parking Qld Pty Ltd  Sudbrook Trading Estate Ltd v Eggleton

Saving Incomplete Agreements Implication of Terms There is a willingness of the courts to imply terms into an agreement. It is not for the court to make the contract for the parties, or to go outside the words they have used, except insofar as there are appropriate implications of law, as for instance, the implication of what is just and reasonable to be ascertained by the court as matter of  machinery where the contractual intention is clear but the contract is silent on some details.  Hillas v Arcos

However, the court may not rewrite the agreement for parties where the parties themselves have failed to agree on essential terms. The greater the number of terms not finally agreed upon by the parties, the less inclined the court will be to exercise its discretion to imply a term. A contract could only be regarded as concluded if the  parties agreed on the three essential elements: “the parties”, “the subject matter” and

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“the price” and if these elements have been agreed upon with sufficient certainty the court will provide the rest.  Hall v Busst 

In addition, there are two other factors that may be relevant in the courts determination. First, if it is clear that the parties have gone beyond the state of negotiation and intend to be contractually bound, the court will be more minded to imply a term and enforce the agreement.  Hillas v Arcos

Secondly, and related to the first, if the contract has between partly executed, for  example in a contract for the sale of goods, property has been delivered and title has  passed, the court will seek to imply a term necessary for the validity of the agreement  Hall v Busst 

Failure to specify price a) Contract silent on price The general principle is that a contract will only be regarded as valid if the parties to it agree on price (as this is one of the essential terms), this means that if there is no agreement on price stipulated in the contract, then the contract is not complete, and would not be upheld by the court.  Hall v Busst 

However, there are exceptions. There is a distinction between the sale of land and sale of goods with respect to the implication of terms by a court. For the sale of goods, the court is sometimes prepared to imply a term that the purchaser will pay a reasonable price for the goods. This intention is demonstrated for example, where the contract is partly executed and  property in the goods has passed. A court will not imply a term for payment at a reasonable price into a contract for the sale of land  Hall v Busst 

 b) Contract provides for parties to agree in future An agreement to agree in the future also offends against the general principle of  completeness. However, in some instances, in contracts for the sale of goods the court may imply a reasonable price and the contract will be upheld.  Foley v Classique Coaches Ltd 

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However, if the contract is to sell land, or on rental in an option to renew a lease, it is unlikely to be upheld) and will be treated as such matters which are silent on price. Stocks &Holdings Pty Ltd v Arrowsmith

c) Contract makes provision for mechanism to complete A contract that contains a mechanism for setting a term at a later time is likely to be valid. It is not uncommon for such a mechanism to be used in relation to setting a  price. Godecke v Kirwan

d) Contract provides for payment of a reasonable price Whether the agreement is upheld as being sufficiently certain may turn on the nature of the subject matter in dispute. A contract for the sale of goods at a reasonable price is likely to be valid. Sale of Goods Act 1896 (Qld)

Reasonable price is an objective standard that can be determined without further  agreement between the parties. If one party breaches the agreement, the court can assess the price to be attributed to the goods, and damages can be awarded accordingly.  British bank of Foreign Trade Ltd v Novinex Ltd 

However, clauses to attribute reasonable price to the sale of land will generally be uncertain or for the sale of goods if they are unique or of very special character eg original painiting  Hall v Busst 

Subject to agreements: Sometimes parties may be ready to sign a contract but not able or not prepared to commit to one or more aspects of the agreement. In these circumstances parties may decide to enter into agreements subject to the happening of a particular event.

Subject to finance agreements Contracts for sale may contain a clause stating that the contract is subject to the  purchaser receiving approval for finance on satisfactory terms and conditions. The contract is immediately binding on the parties but will come to an end if the purchaser  is unable to obtain finance and terminates the contract pursuant to its terms. Meehan v Jones

a) Satisfactory Finance 27

It has been argued that a clause that provided for finance to be obtained on ‘satisfactory terms’ is either to uncertain to be valid or gave the purchaser such a wide discretion that it was illusory. The High Court disagreed, and stated that as the clause was inserted for the benefit of the purchaser, the determination of whether the finance was satisfactory was left to the purchaser  Meehan v Jones

 b) Steps to be taken to obtain finance The finance clause in most standard land contracts imposes an obligation on the  purchaser to take all steps reasonably necessary to obtain finance approval. Meehan v Jones

Subject to Contract For agreements that are formed subject to contract, the case could fall into one of  three categories: 1. The parties have reached finality in arranging all terms and intend to be immediately bound to perform those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. The parties intend to be bound immediately thus a binding contract is formed. Masters v Cameron  Branca v Corbarro

2. The parties have completely agreed upon all terms and intend no departure from or addition to those terms, but have made performance of one or more of  those terms conditional upon the execution of a formal document. An offer in such a case is not expressed to be subject to or conditional upon a formal execution of a contract and all essential terms have been agreed upon thus a  binding contract is formed. Masters v Cameron  Niesmann v Collingridge

3. The intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. Parties in such a case do not intend to be bound until they entered into a formal document thus no binding contract is formed. Masters v Cameron

The category a particular case falls into turns on the intention of the parties. If the  parties intend the agreement to be binding on them even before entry into the final contract, the contract will fall into one of the first two categories.

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Masters v Cameron.

Intention to create legal relations: Statement of the Rule To create a contract there must be a common intention of the parties to enter into legal obligations, mutually communicated expressly or impliedly.  Rose and Frank Co v JR Crompton & Bros Ltd 

The courts use an objective test in making a determination about the intention of the  parties. In making an objective determination of the parties intention, the court looks at the surrounding circumstances and asks if a reasonable person would regard the agreement as intended to be binding. Merritt v Merritt 

Domestic and social relationships Presumption The presumption is that domestic and social agreements are not intended to have legal force.  Heslopv Burns  Balfour v Balfour   Jones v Padavatton

Rebutting the presumption The presumption can be easily rebutted for example if parties who are in a familial relationship are contracting in a business context or if a husband and wife enter into an agreement in circumstances in which they are no longer living in harmony. Similarly, if the words used in the contract indicate a legal intention, the presumption that may otherwise have arisen may be rebutted. Case Examples:

a) Husband and Wife Parties involved in a domestic relationship, will generally not have intended legal consequences to follow their arrangement thus a contract will not be enforceable. Given many couples now choose to cohabit without marrying, the same presumption

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should apply where an agreement is entered into between a couple living in a de facto relationship.  Balfour v Balfour 

 b) Separated husband and wife Where parties are divorced, separated, or in the process of separating, the negotiation do not take place in the context of natural love and affection therefore there is no room left for the application of such a presumption and the court will generally find that the requisite contract intent existed. Merrit v Merrit 

c) Other familial relationships Parties in other familial relationships are considered the same as married or de facto couples, and it is presumed that they do not intend to cerate legal relationships as the agreements made in this context are based on natural love and affection. The bond of  natural love and affection is likely to weaken according to the remoteness of the tie and will subsequently be easier to rebut.  Jones v Padavatton

In fact, those cases where the court finds that the presumption has been rebutted, one or more of the following factors are often relevant The seriousness of the conduct involved (such as moving countries or  giving up full time employment) The expense involved, especially if the relevant party is not wealthy Whether there is or has been a degree of hostility in the relationship The closeness of the family ties Whether the subject matter of the agreement is business or commercial in nature •

• • • •

Examples  Jones v Padavatton Wakeling v Ripley  Roufos v Brewster  d) Social Relationships The presumption of lack of legal intent can extend beyond familial relationships to agreements entered into in a social context, or agreements made between friends.  Heslop v Burns

However, a court will not always find that the parties lacked legal intention, even when the arrangement is clearly made between friends or a relative in a social setting. (eg. parties who pool funds to enter a competition in one person’s name may intent 30

that arrangement to have legal consequences. Therefore, if the person wins, action can be brought to force that person to share the winnings with the other members of  the groups. While this is fair, it is doubtful that parties who participated in syndicate intended their action to have legal consequences). The court may be more likely to uphold such a decision if large amounts of money are involved. Simpkins v Pays

Commercial Agreement Presumption Where parties negotiate and agree in a business setting, it is assumed that the parties intended the agreement to have legal consequences. Therefore, the party alleging that an agreement relating to business matter is of no legal effect has the heavy onus of  demonstrating that to be the case.  Edwards v Skyways

It can sometimes be difficult determining whether a transaction has taken place in a  business setting, a broad approach to what constitutes a business setting must be adopted.  Esso Petroleum Co Ltd v Customs & Excise

Rebutting the Presumption The intention not to create legal relations may be evident in a number of different ways. For example, the agreement may contain an express clause that no legal consequences flow from the document, or the overall tenor of the particular document may indicate that the parties had no intention to enter into legal relations.  Rose and Frank Co v JR Crompton & Bros Ltd 

Government Activities Commercial Agreements If a government contract arises out of the commercial need for the operation of  government, for example the order of stationary or contracts to purchase vehicles, the usual contractual principles apply to determine whether a contract has been formed. For other types of contracts, increased formality may be required to demonstrate the necessary legal intent when one of the contracting parties is the government. Coogee Esplanade Surf Motel Pty Ltd v Commonwealth of Australia

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Policy Initiatives Where the government activity relates to a policy initiative a court may be less likely to find that the parties intended to enter contractual relations.  Australian Woollen Mills v The Commonwealth  Administration of PNG v Leahy

Voluntary associations Unless there was some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not  be treated as amounting to an enforceable contract. Cameron v Hogan

The parties could possess requisite legal intent if the member has a proprietary interest in the club. Cameron v Hogan

Circumstances indicating absence of intention Honour Clauses The presumption that arises in a commercial context is that the parties intended to create legal relations by entering the agreement. It is however, open for the parties to form a contrary. The presence of an honour clause in contracting parties agreements will indicate by express words that they did not intend the agreement to have legal consequences.  Rose and Frank Co v JR Crompton and Bros Ltd   Jones v Vernon’s Pools Ltd 

Promotional puff and free gifts Where language such as ‘free gift’ is used, or an apparently extravagant claim is set out in an advertisement, there may be a tendency to think that a person who acts in response to the advertisement may not intend legal consequences to follow. To determine whether the requisite intention exists, the court will look not only at the words used, but also at the entire context in which the advertising takes place.  Esso Petroleum Co Ltd v Customs & Commissioners of Customs & Excise

Similarly, if the language used conveys intention, such as the deposit of $1000 in a  bank for the purpose of payment, it would have legal consequences. Carlill v Carbolic Smoke Ball Co

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Ex gratia payments and without prejudice offers Parties who offer to make an ex gratia payment or who write a ‘without prejudice’ letter which is accepted, are still seen to posses the intention to create legal relations.  Edwards v Skyways.

The words ex gratia do not carry a necessary, or even a probably, implication that the agreement is to be without legal effect . . . a party is certainly not seeking to include the legal enforceability of the settlement itself by describing the contemplated  payment as ex gratia.  Edwards v Skyways.

Letter of Comfort Central to the determination of whether a letter of comfort gives rise to legal intent is whether the parties intended to create legal obligations by the giving and receiving of  the letter. To determine this, the courts look at the construction of the document and the circumstances surrounding its sending. The following points were considered by the authority in assigning legal intent to the letter of comfort: On a construction of the letter, the terms were sufficiently promissory in nature. The letter was part of a commercial transaction in which there is a  presumption that legal relations were intended. Intention is deduced from the document as a whole seen against the  background of the practices of the particular trade or industry. •

•

•

 Banque Brussels Lambert SA v National Industries Ltd 

Letter of intent and understandings Parties sometimes conduct their affairs on the basis of an understanding between them, which may arise orally or be put in writing. Question about its contractual standing may arise where one party no longer wishes to be bound. A related issue arises in the area of letters or documents of intent. Generally, a letter of intent or an understanding will represent something short of an intention to enter a concluded agreement. Coogee Esplande Surf Motel v Commonwealth Milner & Son v Percy Bilton Ltd 

Consideration: Whether or not a promise that is part of an agreement can be enforced depends on, among other things, whether the promisee has given consideration for the promise. Consideration is perhaps best understood as an act or promise of an act which is the 33

 price paid for the other's promise. The common law will only enforce a promise for  which a price is paid.  Dunlop Pneumatic Tyre Co v Selfridge & Co

The development of the Doctrine of Promissory Estoppel, under which a promise that has been relied upon to another’s detriment may be enforced by that other despite the lack of consideration. Waltons v Maher 

Nature of Consideration An act or forbearance of one party, or the promise there of, is the price for which the  promise of the other is bought, and the promise thus given for value is enforceable.  Dunlop Pneumatic Tyre Company v Selfridge & Company Ltd 

Consideration in Bilateral Contracts A bilateral contract is formed where the parties exchange promises. At the time agreement is reached, each party makes a promise. The price paid for that promise –  the consideration – is the other party’s promise. Each party promises to do an act or  refrain from doing an act. United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd 

Consideration in Unilateral Contracts Unlike bilateral contracts, a unilateral contract does not constitute an exchange of   promises. The only promise is the one made by the promisor to do or refrain from doing an act if the other party does or refrains from doing an act. Thus, the act or  forbearance itself, rather than the promise, constitutes the consideration. United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd 

Executed and executory consideration In bilateral contracts, the consideration is considered executory. In bilateral contracts each party exchange promises with the other to do or refrain from doing an act. This means that the obligation to perform has not yet fallen due, therefore the consideration is “executory”. In unilateral contracts the parties do not exchange  promises. Only one party will make the promise and an obligation will only arise if  the other party carries out the specified acts. Consideration for the promise is not executory because the act has not been promised by the promisee. If the promisee chooses to and does perform the specified acts, the consideration is “executed”.

Rules governing consideration

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Consideration must move from the promisee For there to be a contract between the promisor and the promisee, consideration must move from the promisee.  Dunlop Pneumatic Tyre Company v Selfridge & Company Ltd  Trident General Insurance Company Ltd v McNiece bros Pty Ltd  Tweddle V Atkinson

a) Benefit need not move to promisor  It will generally be the case that consideration moves from the promisee to the  promisor, whether the promisee promises to pay money, or do or forbear from doing an act. However, it is sufficient if consideration moves from the promisee to a third  party at the direction of the promisor.  b) Joint promisees When a promise is made to joint promisees, it is enough if consideration is given by one on behalf of all because it is then deemed to have moved from all. Coulls v Bagot’s Executor & Trustee Co Ltd 

c) Overlap with doctrine of privity The doctrine of privity provides that only a person who is a party to a contract can sue on it. A promisee is only able to sue on a promise if the promisee has given consideration for the promise. Tweddle v Atkinson

Consideration must be bargained for The act of forbearance must be done in reliance of the promise and at the request of  the promisor and not done for other reasons (that are unrelated to the contract in question). Combe v Combe  Australian Woollen Mills Pty Ltd v The Commonwealth

Consideration must be sufficient a) General principle To be valid, consideration must be sufficient in that it is ‘something which is of value in the eyes of the law’. Consideration may be valid although it cannot be given monetary equivalent. Thomas v Thomas

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 b) Consideration need not be adequate Consideration must be sufficient but need not be adequate. The court will not enquire into the adequacy or value of the consideration. Chappell & Co v Nestle Co Ltd 

A moral obligation or worthy motive does not constitute consideration.  Eastwood v Kenyan Thomas v Thomas White v Bluett 

c) Consideration can be nominal Consideration will be regarded as valid even if it is nominal only. (Eg. Token gesture) Thomas v Thomas  Lennox v Cameron  Niesmann v Collingridge

Consideration must not be past a) General Principle The consideration will be regarded as being past if it has already flowed from the  promisee to the promisor prior to the agreement being entered into.  Roscorla v Thomas  b) Past consideration distinguished from executed consideration If the act, forbearance or promise that is claimed to be consideration has already occurred or been given before the agreement is entered into, the consideration is past not executed.

Consideration and formal agreements Deeds Formal agreements are signed under seal, and are more commonly referred to as deeds. Because of the solemnity or seriousness of the manner of execution of such documents, the common law has recognized these agreements as valid even if  consideration has not been provided. Simple agreements are agreements other than formal agreements, which are oral or written and require consideration to be valid.

Consideration: specific examples

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Moral Consideration A promise made because of a sense of moral obligation to the promisee will not be sufficient consideration to support that promise.  Eastwook v Kenyon

A promise made because of the love and affection that the promisor and promisee have for each other, or that the promisor has for the promisee is not legally recognized (without consideration) White v Bluett 

Performance of existing duties a) Performance of existing contractual duties Generally a promise by one party (the promisee) to perform an existing contractual duty owed to another party (the promisor) does not constitute good consideration for  the promisor’s promise. Wigan v Edwards

Where the plaintiff is bound by an existing contractual duty to the defendant,  performance of that duty will not amount to sufficient consideration to support a further promise made by the promisor, unless the duty is exceeded. Stilk v Myrick 

A court may be prepared to find that the parties have agreed to abandon their original agreement and enter a new one.  Hartley v Ponsonby

The court may be willing to accept performance of an existing contractual duty as good consideration where it provides a benefit to the promisor. Williams v Roffey Bros

 b) Performance of a public duty Where a public duty is imposed upon the plaintiff by law, performance of that duty is insufficient consideration for the defendants promise unless the duty is exceeded. Glasbrook Bros v Glamorgan County Council 

c) Where promise is made to a third party A promise to perform an existing contractual duty owed to another party can be good consideration for a promise.

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 Pao On v Lau Yiu Long   New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd 

Part Payment of Debt a) Rule in Pinnel’s Case A promise to pay part of a debt cannot constitute consideration for a creditor’s  promise to forgo the balance (commonly referred to as the ‘rule in Pinnel’s case’).  Pinnels case

If an amount of money is owing by a debtor to a creditor, and those parties enter into a subsequent agreement that the creditor will accept a lesser amount in full satisfaction of the amount, the later amount agreement will generally not be binding  because the debtor has not provided consideration for the creditor’s promise to forgo the balance due. Therefore, even if the debtor acts on this agreement by paying the lesser sum agreed – and the sum is accepted by the creditor – the creditor will generally be able to sue the debtor for the balance due.  Foakes v Beer 

 b) Circumstances in which the rule will not operate •

Parties enter into a deed

Consideration is not required, however, for specialty agreements (formal agreement under seal). If the parties enter into a deed under which the creditor forgoes part of  the amount owing, that arrangement will be enforceable despite the absence of  consideration. •

Accommodation to benefit the creditor

If a debtor provides consideration for the creditor’s promise, Pinnel’s rule will not apply. Van Burgen v St Edmonds Properties

Examples of how the arrangement could be altered by the creditor: Payment on an earlier than scheduled date Payment at a location more convenient to the creditor  Payment in a currency more desirable to the creditor  • • •

Payment made at a different place for the debtor's convenience does not evade the rule.

•

Amount owing is disputed

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The rule in Pinnel’s case will only operate when there is no dispute between the  parties as to the amount owed. If the parties cannot agree on an amount owing, they may wish to enter into a compromise agreement. In the case of a compromise, although the creditor promises to accept an amount less than what the creditor  contends is the account of the debt in full settlement of the debt, the debtor has  provided consideration for the creditor’s promise. The debtor has agreed to pay an amount more than the debtor believes to be due. This is good consideration even if  the creditor is in fact correct and the amount claimed by the creditor is actually due.  H B F Dalgety LTd v Moreton •

Payment by a third party

If a debtor is unable to meet his debt to the creditor and obtains assistance from a third party to do so, the third party to placate the creditor may offer a lesser some than the full amount owed to bring the matter to an end. As the third party is not indebted to the creditor, his/her promise to pay an amount should be good consideration for the creditor’s promise to forgo the balance of the debt. The fact that payment is by a third party and not the debtor takes the case outside the operation of the rule in Pinnel’s case.  Hirachand Punamchand v Temple •

Composition with creditors

Under a composition with creditor’s agreement, the creditors all agree to accept  payment of something less than the full amount owing by the debtor, in exchange for  giving the debtor a full release. Creditors may agree to such an arrangement if it appears that this is the most likely avenue to recover any amount from the debtor   In the Estate of Whitehead 

Forbearance to sue A forbearance to sue or to refrain from exercising some legal right may constitute consideration, even if the plaintiff would have been unsuccessful in the original claim, provided: - The claim was reasonable and not frivolous or vexatious The plaintiff honestly believed the claim would succeed - The plaintiff did not conceal from the defendant any facts that to the  plaintiff’s knowledge might affect the validity of the claim.  Hercules Motors Pty Ltd v Schubert 

Bargain for conduct already performed The exception to the rule that past consideration will be ineffective to support a  promise is that if the services would only have been provided on the basis of   payment. 39

In some cases it is possible to infer that a certain sum would be paid, and a subsequent promise merely fixes the amount of payment.  Re Casey’s Patents  Lampleigh v Braithwaite  Pau On v Lau Yiu Long 

In all cases where a promisee seeks to enforce a promise made after the provision of  the services, or other conduct relied upon, the promisee must be able to demonstrate that 1. the act must have been done at the promisor’s request: 2. the parties must have understood that the act was to be remunerated either by  payment or the conferment of some other benefit 3. payment, or the conferring of the benefit, must have been legally enforceable had it been promised in advance  Pau On v Lau Yiu Long 

Equitable Estoppel The Doctrine of Equitable Estoppel states that a promise not supported by consideration could give rise to rights in circumstances where it would be unconscionable conduct for the promisor to renege on the promise. An estoppel may arise from pre-contractual negotiations Waltons Stores (Interstate) Ltd v Maher  For equitable estoppel to apply there must be unconscionable conduct by one party. (Unconscionable conduct denotes a creation or encouragement by the defendant in the other party of an assumption that a contract will come into existence or a promise will be performed and for the other party to have relied upon that assumption to his or  her detriment to the knowledge of the first party). Waltons Stores (Interstate) Ltd v Maher  Milchaus Investments Pty Ltd v Larkin

However, a different result may apply where the parties subsequently execute a formal contract that is expressed to constitute the whole of the contract between the  parties, but where one party asserts that the other is estopped from relying on rights created by the written contract due to an assumption formed during negotiations Skywest Aviation Pty Ltd v Commonwealth

The elements of estoppel must be positively proved and will rarely if ever be inferred Chellaram & Co v China Ocean Shipping Co

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Elements of Estoppel Assumption or Expectation There must be a clear and unambiguous assumption or expectation by Party A that a contract will come into existence or that a promise will be fulfilled. Waltons Stores (Interstate) Ltd v Maher 

Encouraged or Induced A clear and unambiguous representation may be implied from words used or be adduced from a failure to speak, where there was a duty to speak, or from conduct. Thompson v Palmer  Waltons Stores (Interstate) Ltd v Maher 

If a party acts upon mere hope rather than a belief induced or encouraged by the other   party, it will not be sufficient grounds for estoppel  Lorimer v State Bank of New South Wale Chellaram & Co v China Ocean Shipping Co

If an unauthorized statement is made to the knowledge of the principle in circumstances where the principal knows or ought to know that the statement is being relied upon, a failure to deny the statement is in fact authorized and may reasonably  be relied upon by the other party. Corpers (No. 664) Pty Ltd v NZI Securities Australia Ltd 

Reliance The party claiming estoppel must act or abstain from acting in reliance upon the assumption or expectation.  Australian Securities Commission v Marlborough Goldmines Ltd 

The parties reliance upon an assumption must be reasonable. Waltons Stores (Interstate) Ltd v Maher 

The characteristics of the plaintiff in assessing the reasonableness of the reliance, are relevant. (Eg. if the parties are stockbrokers and merchant banker experienced in commerce with the intention of their solicitor to prepare formal documentation or are large commercial entities represented by solicitors).  Austotel Pty Ltd v Franklins Self Serve Pty Ltd  Capital Market Brokers Pty Ltd v Hamelyn UPC Ltd 

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Knowledge or Intention The party who induced the adoption of an assumption or expectation must know or  intend the other party to act or abstain from acting on reliance on the assumption or  expectation. Waltons Stores (Interstate) Ltd v Maher 

Detriment The relevant detriment is that of the plaintiff, not the defendant. Gobblers Inc Pty Ltd v Stevens

There must be a link between the assumption or expectation created and the detriment suffered. Gobblers Inc Pty Ltd v Stevens  Australia & New Zealand Banking Group v PA Wright & Sons Pty Ltd   Re Ferdinando

The party claiming estoppel must suffer detriment in the sense that ‘as a result of  adopting the assumption as the basis of action or inaction, the plaintiff will have  placed himself in a position of material disadvantage if departure from that assumption is permitted Thompson v Palmer 

The detriment is determined as at the date the defendant seeks to resile from the assumption or expectation he or she has encouraged or induced, and upon which the othe party has acted  Lorimer v State Bank of NSW 

Failure to avoid detriment The object of the equity (equitable estoppel) is not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or  detriment goes unfulfilled , will be suffered by the party who has been induced to act or to abstain from acting on it Waltons Stores (Interstate) Ltd v Maher 

The party encouraging or inducing the assumption must fail to avoid the detriment suffered by the party claiming estoppel, by failing to fulfil the assumption or  encouragement. Waltons Stores (Interstate) Ltd v Maher 

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Depending on the circumstances, the defendant may be required to do no more than warn the plaintiff that the assumption or expectations mistaken before the plaintiff  incurs irreversible detriment  Lorimer v State Bank of NSW 

It may be possible to show the relevant detriment where the defendant has made an attempt to avoid detriment being suffered by the plaintiff but the attempt proves to be inadequate. Silovi Pty Ltd v Barbaro

Remedies The object of equitable estoppel is not necessarily to enforce promises but to avoid the detriment suffered by a party who relies on a promise. Therefore the remedy for equitable estoppel is the minimum equity to do justice  between the parties (Commonwealth v Verwayen However, in some circumstances the enforcement of a promise may be the only means of avoiding the detriment. Waltons Stores (Interstate) Ltd v Maher 

The remedy should be proportionate proportionate to the unconscionability. unconscionability. Normally Normally this will be reliance loss rather than expectation loss, (Eg. compensation for loss incurred in reliance on the assumption rather than making good the expectation of the parting invoking estoppel). Commonwealth v Verwayen

There may, however, be a prima facie entitlement to have the expectation made good where the relief to reliance would exceed what could be granted by enforcing the expectation. Also, where the nature or likely extent of the detriment cannot be accurately or  adequately predicted, it may be necessary in the interest of justice that the assumption  be made good to avoid the possibility of detriment. Conversely, if the enforcement of the expectation is shown to be too great a remedy it will not be enforced. Giumelli v Giumelli

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Privity General rule A third party to a contract is unable to acquire rights or benefits under the contract. Wilson v Darling Island Stevedoring Co  Price v Easton Tweddle v Atkinson

Statutory Abrogation of Privity Queensland The Property Law Act  1974 (Qld) s55 (1) provides that:

A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise. (a) Promisor  The relevant promisor under the statue is the party who actually makes the promise for the benefit of the beneficiary. In the absence of an assignment, the promise is not  binding upon a new party who merely stands in the shoes of the promisor who makes the promise. (Eg. where the promise is made by a trustee of a trust who, in turn, is subsequently replaced by a new trustee, the promise will not be binding on the new trustee).  Re Davies

(b) Beneficiary For the purpose of  s55, a party is clearly a beneficiary if they are expressly named in a contract as receiving the benefit of performance of work under a contract  Re Burns Philp Trustees

A person who is not named in the promise but is incidentally benefited by the  promise generally cannot enforce the promise in reliance of  s55.  Re Burns Philp Trustees  Northern Sandblasting Pty Ltd v Harris

(c) Promise

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Promise is defined in s55 (6) as being a promise: Which is or appears to be intended to be legally binding and Which creates or is intended to create a duty enforceable by a beneficiary • •

A contractual term that merely regulates the relationship between promisor and  promisee will not be enforceable by a third party if it does not amount to a promise to  benefit the third party and create an enforceable duty  Davis v Archer Park Newsagency Rockhampton

(d) Acceptance Section 55(6) defines ‘acceptance’ as an assent by words or conduct communicated  by or on behalf of the beneficiary to the promisor – or to a person authorised on his or  her behalf – in the manner (if any) specified in the promise and within the time specified in the promise.

It seems that an acceptance must on its face be an assent. It is insufficient for there to  be words or conduct that is merely consistent with acceptance.  Re Davies

It may be sufficient if the promise comes to the notice of the beneficiary’s solicitor.  Re Davies

Provided the beneficiary’s assent purports to accept the promise, it is immaterial if in fact the purported acceptance precedes the promise to benefit the beneficiary thus an anticipatory acceptance may suffice.  Hyatt Australia Ltd v LTCB Australia Ltd 

(e) Defences Section 55(4) provides that any matter that would otherwise be relied on as rendering a promise void, voidable or unenforceable will be available by way of defence in  proceedings for the enforcement of a duty under  s 55.

The intended object of this subsection provides that defences such as mistake, fraud, misrepresentation, Stature of Frauds and Statue of Limitations etc, which may be available to the promisor against the promisee are also available to the former against the beneficiary. (f) Variation or Rescission of Promise Under  s 55 (2), before acceptance, the parties to the contract may vary or rescind the   promise. However, s 55(3) provides that after acceptance, their terms of the promise and the duty of the promisor or beneficiary may be varied or discharged only with consent of the promisor and the beneficiary.

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(g) Imposition of Burdens Section 55(3)(b ) states that the beneficiary will be bound by any promise or duty that is imposed as part of the promise that benefits him or her. An obligation may be imposed upon the beneficiary but only as part of a promise that confers a benefit upon him/her. (h) Common Law Still Applicable Section 55(7) saves the common law so that where the statue cannot be applied, the common law still does. Consequently, a beneficiary who is unable to make out a case under the statute would be left to rely on an exception to the privity doctrine if one were available in the circumstances.

Commonwealth  Insurance Contracts Act 1984 (Cth) s48 Today in Australia, insurance cases are the subject of legislation to overcome the Privity rule. Section 48 of the Insurance Contracts Act 1984 has provided a third  party with a right to recover directly from an insurer the amount of his or her loss.

Entitlement of named persons to claim Where a person who is not a party to a contract of general insurance is specified or  referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends, that person has a right to recover  the amount of the person's loss from the insurer in accordance with the contract notwithstanding that the person is not a party to the contract. Section 48 of the Insurance Contracts Act 1984

Maritime contracts of carriage (a) Servants or agents of sea carriers

If the privity rule were to be applied, then the usual exemption from liability that appear in contracts of carriage exempting the carrier from liability to the owner of  goods for loss or damage to the goods could be simply evaded by, for example, suing instead the servants or agents of the carrier. This has, in the past, been avoided by the inclusion of a bill of lading evidencing the contract of carriage a provision known as a ‘  Himalaya Clause’ . Such a clause makes the carrier the agent for its servants, agents or independent contractors in relation to an exemption of liability for loss or damage to the goods. The clause has been held effective to exempt from liability third parties to the contract of carriage such as the master, crew, or stevedores who are entrusted with loading and unloading the goods.

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 Now by force of law rather than by provisions in a contract, parties such as the master  and crew – but not individual contractors such as Stevedores – may now rely on the exemptions contained in a contract entered into between the carrier and the owner of  the goods shipped by sea. Carriage of Goods by Sea Act 1991 (b) Consignees and indorsees

All rights in the original contract of carriage are transferred to a third party buyer as from the time of consignment or indorsement. Effectively, therefore, a consignee or  indorsee may now enforce rights under a contract to which he or she was a third  party. Sea Carriage Documents Act 

Secondly, all outstanding liabilities under the original contract of carriage are transferred to a third party buyer when he or she demands or takes delivery of the goods. Thus, it is possible to impose a burden on a consignee or indorsee despite the fact that he or she was a third party to the original contract of carriage. Sea Carriage Documents Act .

So called exceptions at common law Agency Agency is a legal relationship between two people where one of them, the principal, give to the other, the agent, the authority to create legal relations between the  principal and the third party. If the agent acts within his or her actual authority, either  express or implied, or within his or her ostensible authority, such act will bind the  principal: that is the principal can take action in his or her own name to enforce the contract made by the agent or become personally liable should the contract be  breached. Trident General Insurance Co Ltd v McNiece Brothers Pty Ltd  Teheran Europe Co Ltd v St Belton Ltd 

Definition The principal is not a stranger to a contract made by the agent, he is one of the parties, the agent being the medium by which the contract is made.  Harvester Co of Aust Pty Ltd v Carrigans Hazeldene Pastoral Co

The principles of agency may also apply where the agent does not disclose to the other contracting party that he or she is acting on behalf of a principal if the other   party is willing to contract with anyone on whose behalf the agent acts, such willingness may be assumed by the agent.

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Teheran – Europe Co Ltd v St Belton (Tractors) Ltd 

Exemption clauses and third parties The issue of whether a party who is not party to a contract, particularly for the carriage of goods, can nevertheless rely on an exemption from liability contained in that contract. An exclusion clause in a document like a bill of lading may be drafted so at to effectively protect third parties such as stevedores if four conditions are met: 1. the relevant bill of lading must make it clear that the stevedore is intended to  be protected; 2. the bill of lading must also make it clear that the carrier is contracting not only on its own behalf but also as agent for the stevedores in relation to the exemption; 3. the carrier was so authorised by the stevedores, although later ratification by the stevedores will do; and 4. any difficulties concerning consideration moving from the stevedores are overcome. If these four conditions are satisfied, the carrier-promisor effectively contracts as agent for the stevedore-beneficiary. Scruttons v Midland Silicones

Trusts A trust is created where a trustee holds property on behalf of a beneficiary. The trustee holds the legal title to such property subject to the interest of the  beneficiary in such property. A promisee will be regarded as a trustee of a promise if it was the clear intention of  that party at the time of the contract was entered into. Unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, the courts will be reluctant to infer such a trust exists.  Re Schembsman Trident v McNiece

Whether a trust is created will depend on a true construction of the terms of the contract and the intention of the parties. In deriving intention from the language that the parties have employed the courts may look to the nature of the transaction and the circumstances, including the commercial necessity of the arrangement. Trident v McNiece

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The intention required to create a trust need not be held by both parties, it is sufficient if the promisee alone holds the intention. Trident v McNiece

Unjust Enrichment If an insurer is paid and refuses to offer benefit to a third party on the ground that they are not party to the contract, the third party may take action on the principles of unjust enrichment. Trident v McNiece

The key element of unjust enrichment is the unconscionability of the defendant’s conduct in retaining a particular benefit at the expense of the plaintiff. But this issue remains whether the benefit retained by the defendant is the premium paid or the  promised benefit. An argument could be made that the defendant has been unjustly enriched only to the extent of the premium paid to it.

Formalities Provided a contract is validly formed and there are no vitiating factors, action can usually be brought to enforce a verbal contract. Notwithstanding this general  proposition however, a limited number of contracts must be evidenced by writing for  them to be enforceable.

Guarantees A contract of guarantee must be in writing and signed by the party to be charged in order to be enforceable. “No action may be brought upon any promise to guarantee any liability of another unless the promise upon which such action is brought, or some memorandum or note of the promise, is in writing, and signed by the party to be charged, or by some other person by the party lawfully authorised”. Section 56(1) of the Property Law Act 1971 (Qld)

Nature of Guarantee A contract to answer for the debt, default or miscarriage of another who is primarily liable to the promisee. Yoeman Credit Ltd v Latter 

Transactions which are not guarantees

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Transactions that are not guarantees ‘will not’ have to comply with the statutory requirements of formalities. a) Contracts of indemnity In an indemnity, the surety undertakes primary liability, rather than secondary liability, meaning that the surety will be liable notwithstanding that the principal transaction is unenforceable Yeoman Credit Ltd v Latter 

 b) Promise of guarantee made to the debtor  It is possible for a person to promise the principal obligator (the debtor), rather than the creditor, that he or she will pay the debt of the debtor. As the promise is not made to the person with whom the principal obligor contracts, the contract is not one of  guarantee  Eastwood v Kenyon

c) Person agrees to take over the debt of another  Where a debtor and creditor have entered into a contract of loan, it could occur that a third party agrees with the creditor to take over the debt of the debtor. Such an arrangement is not a contract of guarantee and therefore need not comply with the statutory requirement of formality. Gray v Pearson

d) The agreement imposes no personal liability on the person If a person does not undertake personal liability, but instead proffers his or her   property as security to the promisee under the principal transaction it is not a guarantee.  Harvey v Edwards, Dunlop & Co Ltd 

e) Letters of comfort Whether the letter of comfort is binding as a contractual document, so that he third  party may be called upon to pay, depends on the construction of the document. Frequently the issue is whether there was an intention by the parties, namely the third  party and the lender, to create legal relations.  Banque Brussels Lambert SA v Australian National Industries Ltd 

Requirement of writing: content For a contract of guarantee to be enforceable the relevant statutory provision requires either the promise is to be in writing, or some ‘memorandum or not’ of the promise is

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to be in writing. The provision does not, however, elaborate on precisely the information that must be contained in the writing to satisfy the statutory requirement.  Property Law Act 1974 (Qld)

Guidance from case law, in Harvey v Edwards Dunlop & Co, provides that the document must contain ‘all essential terms of the agreement’. a) Information particular to the guarantee First, ‘the guarantee must contain the names of the relevant parties: the lender, the debtor and the guarantor’. It may happen that the guarantee makes reference to a  party without expressly identifying them. Authorities suggest that even if a party is not expressly identified, ‘a description of the party will be sufficient if the description used can be explained by extrinsic evidence without having to resort to evidence to  prove the intention of the author.  Rosser v Austral Wine & Spirit Co

Secondly, ‘the relevant terms of the guarantee must be stated’. This would generally require the amount of debt being guaranteed must be specified. If the guarantee is given of the amount advanced by the lender together with interest on that amount, the interest payable by the debtor should also be specified. There are two other important caveats to the general proposition that a guarantee must contain all of these essential terms. First, while the lender must provide valuable consideration to the guarantor for a valid contract of guarantee to be formed, the nature of that consideration will not be required to be contained in the guarantee.  Property Law Act  1974 (Qld) s 56(2)

Second, where a material term has been omitted from the guarantee, there may be limited circumstances in which the guarantee will still be enforceable against the guarantor for example, if the term is for the benefit of the lender, the lender will be entitled to waive the benefit of the oral term not reduced to writing to enforce the guarantee as modified (Eg. A waiver to collect interest on the amount owed if details of the interested are omitted)  Hawkins v Price

 b) Acknowledgement of the agreement The writing must contain an acknowledgement of a concluded agreement.  Pirie v Saunders Tiverton Estates Ltd v Wearwell Ltd 

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Requirement of writing: signed by party to be charged or agent To satisfy the statutory provision, the promise or note or memorandum of the promise must be ‘signed by the party to be charged, or by some other person by the party lawfully authorised’. (Upon the debtor’s default, the lender will seek to enforce the guarantee against the guarantor. Therefore, it is the guarantor who is the party to be charged within the meaning of the provision. To satisfy the formalities requirement, therefore, the guarantee must be signed by the guarantor).  Property Law Act  1974 (Qld)

To apply this principle in the context of a guarantee, if the guarantor’s name appears on the guarantee, and it is the guarantor’s intention that the name authenticates the document, it will be sufficient to satisfy the statutory requirement.  Durrell v Evans

Contracts relating to land No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised.  Property Law Act  (Qld) s 59

Nature of contract needing writing The requirement of formality applies to a contract for the sale of land or any interest in land as well as a contract for the other disposition of land or any interest in land.  Property Law Act  (Qld) s 59

Requirement of writing: content As was the case for guarantees the document must contain ‘all the essential terms’, is also relevant to land.  Harvey v Edwards, Dunlop & Co

a) Information particular to the contract There are four matters that must be recorded to satisfy the statutory requirement in a contract involving land. Twynam Pastoral Co v Anburn

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1. The document must contain the parties to the contract Williams v Byrnes

As with guarantees, as long as the intention of the parties is clear, extrinsic evidence may be introduced to establish the identity of the parties.  Rosser v Austral Wine & Spirit Co

2. The property must be adequately described.  Pirie v Saunders South Coast Oils v Look Enterprises

If the property the subject of the sale is part only of a particular lot, care must be taken to specifically identify the portion being sold.  Pirie v Saunders

In contrast, if freehold property is sold subject to an existing leasehold and the leasehold interest is known to the purchaser, there is authority to suggest that the  property is sufficiently described even if there is no reference to the lease. Timmins v Moreland Street Property Co

3. The consideration for the promise, namely the price, must be recorded  Burgess v Cox Wain v Walters

4. The principal terms of the contract must be disclosed. (Eg. If the parties require time to be of the essence, that condition should be included in the contract). Failure to include in the document all essential terms might not necessarily be fatal to the plaintiff, if the term omitted is for the benefit of the plaintiff they may waive the benefit of clause and seek enforcement of the contract without it.  Petrie v Jensen

 b) Acknowledgment of agreement The writing must contain an acknowledgment of agreement as well as the terms of the agreement. Such acknowledgement may be expressed or implied in the writing.  Pirie v Saunders Tiverton Estates Ltd v Wearwell Ltd 

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There will be insufficient writing where a contract is made ‘subject to contract’ in the sense of a condition made before the formation of the contract. Tiverton Estates Ltd v Wearwell Ltd   Darter v Molloy

Requirement of writing: signed by party to be charged or agent The document must be signed by the party to be charged.  Property Law Act  (Qld)

(If there is purported contract for the sale of the land and the seller claims not to be  bound by the agreement, the seller will be the party to be charged for the purposes of  any action brought. Similarly, if the buyer claims not to be bound, the buyer will be the party charged). A person may have been taken to sign a document if the signature is absent as long as the name of the party is placed on the document and that party expressly or impliedly indicates that he or she recognizes the writing as being an authenticated expression of  the contract. It is sufficient if a person who is duly authorised by the party to be charged signs the document.  Pirie v Saunders

Joinder of documents It is possible to satisfy the statutory requirement of writing even if all of the relevant information is not contained in the one document. A document may be able to be  joined if there is a reference, express or implied, to another document or to a transaction.  Harvey v Edwards, Dunlop and Co

Reference to a document Where the document signed by the defendant makes reference to another document,  joinder of that document is permitted. Tonitto v Bassal 

As the document joined in this way is referred to in the document signed by the defendant, it follows that the joined document will be in existence at the same time the document is signed by the defendant. There are two exceptions to this general  position. a) Documents that are physically connected

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A document physically connected to the document signed by the defendant may be  joined. M’Ewan v Dynon

Where a letter is signed by the defendant and sent to the plaintiff, but the letter does not, on its own, contain the necessary information, the court will allow the envelope to be joined to the letter. In this way, there will be a note or memorandum of the information on the envelope, namely the name of the plaintiff.  Pearce v Gardner 

 b) Documents that are executed at the same time . ‘Where two documents relied on as a memorandum are signed and exchanged at one and the same meeting as part of the same transaction, so that they may fairly be said to have been to all intents and purposes contemporaneously signed, the document signed by the party to be charged should not be treated as incapable of referring to the other document merely because the latter, on a minute investigation of the order of  events at the meeting, is found to have come second in the order of preparation and signing. Timmins v Moreland Street Property Co

Reference to a transaction. Where the writing signed by the party to be charged refers to a transaction (rather  than a document), Joinder is allowed and parol evidence may be given to explain the transaction, and to identify any document relating to it.  Fauzi Elias v George Sahely & Co

Effect of statutory non-compliance: common law Under common law principles, if a contract fails to comply with statutory provisions ‘no action can be brought’. Therefore if one of the parties refuses to complete a contract, no action can be taken by the other party to enforce the contract…  Property Law Act  (Qld)

…Action cannot be brought for specific performance… Tiverton Estates Ltd v Wearwell Ltd 

…Or for damages for breach. Timmins v Moreland Street Property Co

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Contract valid to pass title Although a contract failing to comply with statutory requirements will be unenforceable, it will be a valid contract. This means that, if the contract is  performed by the parties, it will be effective to pass good title. Maywald v Riedel 

Recovery of money paid under unenforceable contract a) Recovery of deposit A deposit paid by a buyer is considered to be ‘an earnest to bind the bargain’. If the sale is not completed due to the buyer’s default, the deposit is liable to forfeiture to the vendor. This is the position if the contract is one that complies with or fails the statutory requirements of formality.  Freedom v AHR Constructions

Where an enforceable contract for the sale of land is not completed because of the seller’s default, the deposit is recoverable by the buyer as money had and received upon a total failure of consideration, where the consideration for which it was paid is the conveyance or transfer that has not taken place. The action is one brought in restitution, not on the contract.  Fullbrook v Lawes

 b) Recovery of amount more than deposit If the purchaser breaches the contract and refuses to complete the purchase, any deposit paid may be forfeited. However, it is likely that any amount over and above that which is deemed to be the deposit could be recovered.  Freedom v AHR Constructions Other restitutionary claim may still be available

If the contract is unenforceable, it will not usually prevent a claim in restitution for  recovery on a quantum meruit (so much money as the plaintiff deserves to have)  basis.  Pavey & Mathews Pty Ltd v Paul 

Effect of statutory non-compliance: equity Doctrine of part-performance

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If parties enter into an oral contract for the sale of land and, relying on that contract, one party does certain acts, the courts may be prepared to grant that person specific  performance of the contract if four conditions are satisfied. a) Acts are unequivocally referable to some such contract The acts relied upon by the plaintiff must unequivocally referable to some such agreement as is alleged between the parties.  Regent v Miller  Maddison v Alderson .

The payment of money alone cannot be regarded as a sufficient act of part  performance. Maddison v Alderson . Steadman v Steadman Cooney v Burns

Giving instructions and the ensuing preparation of documents are unlikely to be considered sufficient acts of part performance. Steadman v Steadman

 b) Acts done in reliance on the agreement and with knowledge of other party The plaintiff must show that the acts were done in reliance on the agreement and with the knowledge of the other parties. McBride v Sandland 

It is not necessary that the acts be required by the contract but the fact that they were done voluntarily is sufficient.  Regent v Miller 

c) Acts done by the party seeking to enforce the contract The acts of part performance must be by the party who is seeking to enforce the contract.  King v Grimwood 

d) Oral contract must be otherwise enforceable The plaintiff must be able to show that the contact would have been enforceable had it satisfied the statutory requirement of writing. The agreement must be concluded and satisfy the usually contractual requirements for enforceability.

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McBride v Sandland 

Estoppel Alternatively, in appropriate circumstances a party may be estopped from relying on the Property Law Act  Walton Stores v Maher 

Constructive trust In an appropriate situation, a person can claim an interest in land on the basis of  creation of a constructive trust although there is no writing.  Baumgartner v Baumgartner 

Establishing Contractual Terms: In determining whether written terms form part of the contract the parties, the crucial issue is whether the parties can be regarded as having assented to the written terms. Olly v Marlborough Court Ltd 

Incorporation by Signature a) General Rule When a document containing contractual terms is signed, in the absence of fraud or  misrepresentation, the party signing the document is bound by its terms. It is immaterial whether the signing party has read the document or not.  L’Estrange v F Groucob Ltd 

 b) When the Rule is Displaced The party may not be bound by the terms even though the contract is signed if the circumstances indicate that the signature does not signify assent. This may be the case if: The person relying on the clause misrepresented its effect. •

Curtis v Chemical Cleaning & Dying Co •

The document signed is thought to have no contractual effect.

 DJ Hill & Co Pty Ltd v Walter H Wright Pty Ltd 

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•

The person signing can plead non est factum (The mind did not accompany the signature…no intent). (The person relying on the defence must show that the document is radically different from the one he/she thought they were signing. Usually used for blind or  illiterate people).

 Petelin v Cullen

Incorporation by Notice: Unsigned Document A person is likely to be bound the terms in a written document (not signed by him or  her) if reasonable notice of the existence of the terms has been given, and this notice was given before or upon contract formation. a) Reasonable Steps must be Taken by Defendant Reasonable steps must be taken to give the class of person to which the recipient  belonged, notice of the existence of the term. (This is a question of fact).  Parker v The South Eastern Railway Co Mendelssohn v Normand Ltd 

In determining whether reasonable steps were taken it may be relevant whether the document was one that would be assumed by a reasonable person to be contractual in nature. Causer v Browne Mendelssohn v Normand Ltd 

If reasonable steps are taken it does not matter if the recipient of the notice did not read the terms or that he or she were unable to read them. Thompson v London Midland & Scottish Railway Co.

The onus will be on the defendant to demonstrate that the document was not delivered to the plaintiff as a voucher or receipt, but as a contractual document. Causer v Browne

 b) Reasonable steps taken before or upon contract formation Reasonable steps must be taken to bring terms to the attention of the plaintiff before, or at the time of, contract formation. Thornton v Shoe Lane Parking Ltd 

Effect of Person not being able to Read or Understand Terms

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A person who is particularly unworldly, and does not know that a particular document will contain contractual terms, will still be bound by those terms, providing the issuer  took reasonable steps to bring that fact to the notice of people in general.  Parker v The South Eastern Railway Co

Incorporation by Notice: Signs A person is likely to be bound the terms in a sign if reasonable notice of the existence of the terms has been given, and this notice was given before or upon contract formation. a) Reasonable steps taken by the defendant Reasonable steps must be taken to give the class of person to which the recipient  belonged, notice of the existence of the term. (This is a question of fact).  Balmain New Ferry Co Ltd v Robertson Olly v Marlborough Court Ltd 

If reasonable steps are taken it does not matter if the recipient of the notice did not read the terms or that he or she were unable to read them. Thompson v London Midland & Scottish Railway Co.

 b) Reasonable steps taken before or upon contract formation Reasonable steps must be taken to bring terms to the attention of the plaintiff before, or at the time of, contract formation. Thornton v Shoe Lane Parking Ltd 

Effect of Person not being able to Read or Understand Terms A person who is particularly unworldly, and does not know that a particular document will contain contractual terms, will still be bound by those terms, providing the issuer  took reasonable steps to bring that fact to the notice of people in general.  Parker v The South Eastern Railway Co

Incorporation by Notice: Website The issue is yet to be encountered by the courts by it is likely it will apply the same  principles as the incorporation of terms in an unsigned document or on a sign. Reasonable steps must still be taken and these steps must have occurred prior to or  upon contract formation.

Incorporation by Reference

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Terms contained elsewhere can be incorporated into a contract by reference to those terms, regardless of whether the document incorporating those terms is signed by the  parties or is a ticket or a sign. Smith v South Wales Switchgear Co Ltd 

Incorporating oral Terms Mere Puff  A “puff” is an exaggerated claim about the subject matter that is not intended to be taken seriously. There is no common law consequences that arise from such sales talk. However, an excessive or exaggerated claim/s can now be a breach of statute. Trade Practices Act 1974 (Cth)

Representation or Term A statement will be a term of a contract if it is intended to be promissory in nature. A statement will be promissory in nature if the statement maker warrants its truth. Oscar Chess Ltd v Williams  Hospital Products Ltd v United States Surgical Corporation

a) Words and conduct of the parties The words and conduct of the parties can give an indication of intention. (It is relevant whether the words are promissory in nature as well as the conduct of the  parties that indicate the importance of the statement).  Harling v Eddy

 b) Knowledge or expertise of the statement maker  If the party who made the statement is in a better position than the other party to ascertain the accuracy of the statement, it is probably a term. Mihaljevic v Eiffel Tower Motors Pty Ltd 

c) Statement maker has control in relation to information A person who has control over the subject matter will be in the position to guarantee the truth of the statements.  Hospital Products Ltd v United States Surgical Corporation

d) Oral statement not reduced to writing

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A statement that is made orally but not included when the contract is reduced to writing may be an indication that the parties did not intend it to be contractual in nature.  Routledge v Mckay

All of the previous factors are indicators of intention only. Failure to reduce an oral statement to writing is not determinative of the matter. As illustrated in:  Hospital Products Ltd v United States Surgical Corporation

If an oral statement later becomes part of the written contract, it is likely it was intended to form part of the contract. Oscar Chess Ltd v Williams

e) Interval of time If there is a long interval between making the statement and the conclusion of a contract, it is probably not a part of the contract.  Routledge v Mckay

Collateral contracts a) Nature of a collateral contract A collateral contract is one in which the consideration for a promise is the making of  another contract.  Heilbut Symons & Co v Buckleton  De Lassalle v Guildford 

Three elements must be established: • • •

A statement must be made to induce entry into the contract The statement must be relied upon The statement relied upon must be promissory in nature.

 JJ Savage & Sons Pty Ltd v Blakney

Where the main contract precedes the collateral contract there can be no contract as  past consideration is not good consideration.  Hercules Motors v Schubert 

 b) Bipartite and tripartite collateral contracts

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A collateral contract is bipartite where the parties to it are the same as those who enter  the main agreement. Shepperd v The Council of the Municipality of Ryde

A collateral contract may be tripartite where the parties to it are different from the  parties in the main contract. Wells (Merstham) Ltd v Buckland Sand & Silica Co Ltd 

c) Consistency with the main contract The courts will only recognise a collateral contract if it is consistent with the terms of  the main contract.  Hoyt’s Pty Ltd v Spencer 

(There has been criticism of this rule as it does not give effect to the actual intention of the parties) In an appropriate case estoppel may apply. Waltons Stores v Maher 

Parole evidence rule Statement of the rule When a contract is reduced into writing, and the contract appears in the writing to be entire, it is presumed that the writing contains all the terms of it and evidence will not  be admitted of any previous or contemporaneous agreement, which would have the effect of adding to or varying the contract in any way. Mercantile Bank of Sydney v Taylor 

(The rule applies to two aspects: 1. the content of the contract and 2. the interpretation of contracts…Here the rule applies to the content).

When the rule applies The rule does not apply when the parties intend a contract to be partly in writing and  partly oral. Couchman v Hill 

Regarding the content of the contract: If the parties intended the contract to be wholly in writing, parole evidence is not admissible to add to, vary or contradict the writing.

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 Robertson v Kern Land Pty Ltd 

The intention of the parties is construed objectively. Couchman v Hill 

Exceptions to the rule a) Evidence of a collateral contract The collateral contract is a separate contract, therefore the rule preventing evidence  being led to effect the main contract does not apply to it.  De Lassalle v Guildford 

 b) Evidence that the written contract is not yet in force Evidence that the contract has not yet commenced operation is admissible, even if the  parties have signed the agreement.  Pym v Campbell 

c) Evidence that the written contract was later varied or discharged Evidence can be led demonstrating that the agreement has been varied or discharged.  Narich Pty Ltd v Commissioner of pay-roll Tax

(The parole evidence rule prevents the introduction of evidence regarding what happened “before” the agreement was reduced to writing, not evidence that the  parties “later” agreed to change or end it). d) Evidence to imply a term The court may hear evidence regarding a term that is one that is implied by the common law. (This will depend on why the term is sought to be applied). Summers v The Commonwealth

e) Evidence necessary for rectification Extrinsic evidence may be allowed to rectify a contract where the agreement can not  be regarded as reflecting the common intention of the parties or a mistake in the writing of the contract (such as the wrong price recorded unintentionally). Maralinga v Major Enterprises  NSW Medical Defence Union Ltd v Transport Industries Insurance Co Ltd 

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Implied Terms Terms implied to give effect to the presumed intention of the parties a) Term implied on the basis of business efficacy A term that is either so obvious there was no need to express it, or not thought of by the parties may be implied by the courts in order to successfully carry out the contract. The Moorcock 

The following elements must be satisfied before a court will imply a term on the basis of business efficiency. •

•

The implication must be reasonable and equitable. The implication must be necessary to give business efficacy to the contract so that no term will implied if the contract is effective without it.

•

The term must be so obvious that “it goes without saying”.

•

The term must be capable of clear expression.

•

The term must not contradict any express term of the contract.

 BP Refinery (Westernport) Pty Ltd v Shire of Hastings Codelfa Constructions Pty Ltd v State Rail Authority of NSW 

If the parties have gone to some length to reduce their agreement to writing and to ensure it reflects their intentions, it is difficult to suggest that the term omitted is so obvious that it goes without saying.  Ansett Transport Industries v Commonwealth

 b) Terms implied from previous consistent course of dealings If two parties have made a series of similar contracts each containing certain conditions, and then they make another without expressly without expressly referring to those conditions it may be that those conditions ought to be implied.  Henry Kendall & Sons v William Lillico & Sons Ltd 

Relevant to the assessment are - The number of dealings between the parties; and - The consistency of the dealings between the parties.

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 Horrier v Rambler Motors (AMC) Ltd   Henry Kendall & Sons v William Lillico & Sons Ltd  Chattis Nominees Pty Ltd v Norman Ross Homeworks

c) Term implied from custom or usage A term can be implied if there is existence of a particular custom or usage that is recognised as giving effect to the intentions of the parties. Sagar v Ridehalge Con-Stan Industries of Australia Pty Ltd v Norwich Winterhur Insurance (Aust) Ltd 

The following elements must be satisfied before a court will imply a term on the basis of custom or usage: - The existence of the custom or trade usage is a question of fact. -

The custom or trade usage must be so well known that all parties can reasonably be assumed to have imported that term into the contract.

-

The term will not be implied if it is contrary to the express terms of the agreement.

-

A person may be bound although they had no knowledge of the term  provided the requirements of the second element are established.

Con-Stan Industries of Australia Pty Ltd v Norwich Winterhur Insurance (Aust) Ltd 

d) Term implied to complete an agreement A court may attempt to construct the contract by implying the necessary term in order  to fill in the gaps and complete an agreement.  Hillas (WN) & Co Ltd v Arcos Ltd 

Term implied Irrespective of parties intention e) Term implied as a legal incident of a particular class of contract Terms may be implied as a matter of law in contracts of a particular class. (Examples of some of these classes are given at p256 of text).  Liverpool City Council v Irwin Samuels v Davis  Derbyshire Building Co Pty Ltd v Becker 

Although terms of this kind are implied through necessity, the parties may expressly agree to the contrary.

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 Byrne v Australian Airlines Ltd  Gemmel Power Farming Co Ltd v Nies  Derbyshire Building Co Pty Ltd v Becker 

f) General duty of co-operation It is an implied term of all contracts that each party agrees to do all things necessary to enable the other party to have the benefit of the contract.  Butt v McDonald 

The parties may expressly agree to the contrary.  Butt v McDonald 

Examples: •

There is a duty to comply with reasonable requests.

Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd  •

There is a duty not to impair the basis of the contract.

 RDJ International Pty Ltd v Preformed Line Products •

There is a duty to do all thing necessary to enable the agreement to be completed.

 Adelaide Petrolium v Poseidon

g) Implication of duties of good faith, fair dealing and reasonableness It has been suggested that the courts may be prepared to imply a duty for the parties to act in good faith in preforming a contract.  Renard Constructions v Minister for Public Works  Butt v McDonald 

h) Terms implied by statute A term may be implied into a contract by a relevant statute. However these terms may  be negatived or varied by express agreement. Sale of Goods Act 1896 (Qld) Trade Practices Act 1974 (Cth) Consumer Credit Code 1994  Hire Purchase Act 1959 (Qld)  Insurance Contracts Act 1984 (Cth)  Etc.

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Construction of Terms Interpreting the meaning of terms General approach Construction of contracts may be seen as involving two activities. Firstly, ascertaining the meaning of the words used (Question of fact). Secondly, determining the legal effect of those words (Question of law).  Life Insurance Co of Australia Ltd v Phillips

A document is read as a whole. George v Cluning   Amalgamated Television Services Pty Ltd v Television Corporation Ltd 

The purpose is to construe the document as to produce what it was ultimately intended for.  Hume v Rundell   Lloyd v Lloyd 

The court does its best to give effect to the parties’ bargain.  Hillas & Co Ltd v Arcos Ltd  York Airconditioning & Refrigeration (Australasia) Pty Ltd v Commonwealth

In giving effect to the agreement: -

The court will endeavour to be neither to astute nor too pedantic.

 Hillas & Co Ltd v Arcos Ltd  Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd 

-

The court will steer clear of meanings that are commercially unworkable or inconvenient.

 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd 

The court takes an objective approach to interpretation as that of a reasonable third  parties view point, rather than the subjective or actual intentions of the parties.  Hospital products Ltd v United States Surgical Corporation Taylor v Johnson

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Admissible evidence a) The Parole Evidence rule When a contract is reduced into writing, and the contract appears in the writing to be entire, it is presumed that the writing contains all the terms of it and evidence will not  be admitted of any previous or contemporaneous agreement, which would have the effect of adding to or varying the contract in any way. Mercantile Bank of Sydney v Taylor 

(The rule applies to two aspects: 1. the content of the contract and 2. the interpretation of contracts…Here the rule applies to interpretation). When a formal document is conclusive of a contract, its meaning can only be determined by reference to words in that document. Gordon v McGregor   Allen v Carbone

 b) Factual matrix When determining the parties intentions, the court may take into account not only the words recorded in the document but also the evidence of the surrounding circumstances  Allen v Carbone  DTR Nominees Pty Ltd v Mona Homes Pty Ltd 

The evidence of the surrounding circumstances must be known to both parties, although if facts are notorious the court may presume knowledge of them. Codelfa Construction Pty Ltd v State Rail Authority of NSW 

In a commercial contract it is appropriate for the court to have reference to the commercial purpose of the contract, which in turn presupposes knowledge of the way the transaction started, its background, and the context and market in which in parties are operating.  Reardon Smith Line Ltd v Yengvar Hansen-Tangen Codelfa Construction Pty Ltd v State Rail Authority of NSW 

c) Exceptions to the parole evidence rule •

Ambiguity

Cases of obvious or underlying ambiguity. It may not always be safe to assume that the words of a document will simply carry their plain or ordinary meaning.

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White v Australian & New Zealand Theatres Ltd   Hope v RCA Photophone of Australia Pty Ltd  •

Identification of subject matter 

Extrinsic evidence is admissible to resolve ambiguity about the subject matter of the contract. White v Australian & New Zealand Theatres Ltd  Cf. Hope v RCA Photophone of Australia Pty Ltd  •

Identification of parties or their relationship

Extrinsic evidence is admissible to resolve an ambiguity concerning the identity of  the parties of the agreement.  Edwards v Edwards GR Securities Pty Ltd v Baulkham Hills Private Hospital 

It may also be used to resolve an ambiguity concerning the capacity or the relationship between the parties. Gilberto v Kenny •

Identification of real consideration

Extrinsic evidence is admissible in order to prove/identify the real consideration under a contract.  Pau On v Lou Yiu Long  Yaroombe Beach Development Co v Coeur De Lion Investments Pty Ltd  •

Custom or Usage

Where the language used has a particular meaning (eg. By custom or usage in a  particular trade, industry or region), evidence of that meaning is admissible, even if  there is no patent ambiguity. Summers v Commonwealth Thornley v Tilley •

Rectification

Extrinsic evidence may be admitted to show that a parties’ intention was not accurately recorded in the written instrument. In the appropriate circumstances the document may be rectified so that it accords with the parties’ actual agreement. Maralinga v Major Enterprises  Bacchus Marsh Concerntrated Milk Co Ltd v Joseph Nathan & Co Ltd 

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Inadmissible Evidence In particular the following extrinsic evidence is inadmissible: a) Subjective intention Evidence of the actual, subjective intentions of the parties is not admissable  Life Insurance Co of Australia Ltd v Phillips  DTR Nominees Pty Ltd v Mona homes Pty Ltd 

 b) Prior negotiations The negotiations that preceded the agreement are not permitted as it is only the final document that properly reflects a consensus between the parties.  Prenn v Simonds Cf. Codelfa Construction Pty Ltd v State Rail Authority of NSW per Mason J.

c) Subsequent conduct Anything that the parties’ say or do after the contract can not be used in order to aid in the construction of the contract  Administration of Papua & New Guinea v Daera Guba Codelfa Construction Pty Ltd v State Rail Authority of NSW 

Legal effect of words: types of terms Promissory terms A promissory term is one pursuant to which a party makes a promise to another party regarding events that will or will not occur in accordance with the agreement. If the  party fails to carry out the promise, that party will have breached the term. The effect of the breach depends upon whether the term is classified as a condition, a warranty, or an intermediate term. Determination of the appropriate term is an objective test of  the parties intention, taking into account their words and conduct.  Bowes v Chaleyer   Associated Newspapers Ltd v Bancks

a) Conditions A condition is a term that is essential to the performance of the contract. The promise is of such importance to the promisee that he would not have entered into the contract without assurance of the performance of the promise, and this ought to have been apparent to the promisor.  Associated Newspapers Ltd v Bancks

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Any breach of this type of term will allow the innocent party to terminate further   performance of the contract and to claim damages for the breach.  L Schuler AG v Wickman Machine Tool Sales Ltd 

The fact that a term is described in an agreement as a condition, is persuasive not conclusive.  L Schuler AG v Wickman Machine Tool Sales Ltd 

If damages alone seem to be an inadequate remedy, the courts may be persuaded to construe a term as a condition.  Ankar Pty Ltd v National Westminster Finance (Australia) Ltd   Associated Newspapers Ltd v Bancks (Regarding essentiality)

The courts may be influenced to construe a term as a condition if a particular  construction leads to an unreasonable result.  L Schuler AG v Wickman Machine Tool Sales Ltd   Associated Newspapers Ltd v Bancks (Regarding essentiality)

The statutory position .



In legislation relating to the sale of goods, it is implicit in the drafting that a  breach of condition in a contract for the sale of goods will have the same effect as a breach of condition under the common law. Sale of Goods Act 1896 (Qld) s.14 (2)

 b) Warranties A warranty is a term that is subsidiary to the main purpose of the contract, a breach of  which only entitles the innocent party to damages.  Bettini v Gye  Ellul v Oakes 

The statutory position .

An agreement with reference to goods which are the subject of a contract of sale  but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages but not the right to reject the goods and treat the contract as repudiated. Sale of Goods Act 1896 (Qld) s.3

It has also been suggested that this test might also apply at common law.

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 Associated Newspapers Ltd v Bancks

c) Intermediate or innominate terms An intermediate term is once that stands between a condition and a warranty and cannot be satisfactorily classified as either.  Ankar Pty Ltd v National Westminster Finance (Australia) Ltd   Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd 

It may be defined as a term capable of a variety of breaches, some serious some trivial.  Bunge Corporation New York v Tradax Export SA (Panama)

The remedy for the breach of an intermediate term varies according to the severity of  the breach. If the breach deprives the innocent party of substantially the whole of the benefit of  the contract, then the innocent party will be entitled to terminate the contract. If the effect of the breach is not significantly serious, the innocent party will only be able to claim damages  Associated Newspapers Ltd v Bancks  Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd 

The court must first ascertain the intentions of the parties in order to categorise the term. If the court decides it is an intermediate term it then determines the gravity of  the breach  Bunge Corporation New York v Tradax Export SA (Panama)

In order to determine the seriousness of the breach a number of matters may be taken into account: -

The degree of performance up to the breach compared to the  performance required under the contract.

-

Whether damages will adequately compensate the lost expectations of  the innocent party.

-

Whether the expectations of the party in breach would be unfairly  prejudiced by terminating the contract.

-

Attitude and conduct of the party in breach including the likelihood of  the breach persisting

 Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd 

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The decision in Hong Kong Fir Shipping  case also applies to a contract for sale of  goods. Cehave NV v Bremer Handelgesellschaft mbH 

Contingencies Since a contingency clause may be able to be construed as either a condition  precedent or a condition subsequent the essential question is what effect does the contingency have on the contract.  Perri v Coolangatta Investments Pty Ltd 

Under appropriate circumstances a party may be estopped from relying upon a contingency.

Condition precedent A condition precedent is a condition that will prevent a contract from coming into existence until such time as the condition is fulfilled.  Perri v Coolangatta Investments Pty Ltd 

Condition subsequent A condition subsequent is a condition within a contract that has taken effect. However  the performance of the contract is prevented until the condition is fulfilled. Meehan v Jones

Clauses such as “subject to finance”, “subject to rezoning” or “subject to town  planning approval” are conditions subsequent. Meehan v Jones

A party may waive a condition subsequent that is solely for their own benefit Meehan v Jones

If the clause is for the benefit of both parties, either may be able to terminate. Such a clause may only be waived with the consent of both parties.  Raysun v Taylor 

Where a clause provides for the a contract to be rendered void on the occurrence or  non-occurrence of an event, and the event is out the control of both parties, the contract may be automatically ended if the event occurs.

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Carpentaria Investments Pty Ltd v Airs

A clause such as “subject to contract” is usually categorised as a condition precedent  but it will depend on the intention of the parties

Exemption clauses There are three main types of exemption clauses: 1.

A complete exclusion of a parties liability

Eg. Thomas National Transport (Melb) Pty Ltd v May & Baker (Aust) Pty Ltd  2. A limitation to the extent of liability to a particular maximum amount. Eg. Darlington Futures Ltd v Delco Australia Pty Ltd  3. Liability may be subject to certain preconditions, such as the commencement of any suit or the giving of notice of a default within a certain time. Eg. New Zealand Shipping Co Ltd v A N Satterthwith & Co Ltd  The court must apply the same rules of interpretation regardless of the kind of  exclusion.  Darlington Futures Ltd v Delco Australia Pty Ltd 

Exemption clauses may involve the determination of two separate issues: •

Whether the clause forms part of the contract

(This is covered earlier in “Incorporating Written Terms” ). •

Whether, on the true construction of the clause it covers the liability that has arisen.

An exemption clause is determined by construing the clause according to its natural and ordinary meaning, read in light of the contract as a whole.  Darlington Futures Ltd v Delco Australia Pty Ltd 

Specific rules of construction There are also a number of specific rules of construction that help to interpret an exemption clause. Thomas National Transport (Melb) Pty Ltd v May & Baker (Aust) Pty Ltd 

a) The Contra Proferentem rule

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An exemption clause will be construed according to which parties benefit the clause was inserted for in case of ambiguity. Thomas National Transport (Melb) Pty Ltd v May & Baker (Aust) Pty Ltd   Darlington Futures Ltd v Delco Australia Pty Ltd 

 b) Attempts to exempt negligence A clause will relieve a party of liability for negligence of their own or the servants or  agents, if it expressly or impliedly covers such liability. A term will cover such liability if there can be no ground of liability other than negligence to which it could refer. Thomas National Transport (Melb) Pty Ltd v May & Baker (Aust) Pty Ltd  •

Rules regarding attempts to exempt negligence

The Privy Council in stated the following rules in: Canada Steamship Lines Ltd v The King 

i) Express exclusion is effective. ii)

Where the “only” possible cause of action against the defendant is an action for damages based on negligence, then the court will interpret a “wide” clause to cover the defendant’s liability for negligence.

 Alderslade v Hendon Laundry Ltd 

iii) If the words used in the clause are wide enough to cover negligence, but there is some other ground of liability other than negligence, the clause will be read as applying only to that other ground of liability and will not operate to exclude the claim for negligence. White v John Warwick & Co Ltd 

For the first rule to apply it there would have to be the use of the word negligence or a close synonym. Smith v South Wales Switchgear Ltd 

c) The four corners rule A person can only rely on the conditions of a contract, that were intended to protect them, if they have carried out the contract in the way that they had contracted to do. Thomas National Transport (Melb) Pty Ltd v May & Baker (Aust) Pty Ltd  Council of the city of Sydney v West   Davis v Pierce Parking Station Pty Ltd 

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