CONTRACTS
LAWS1075
NOTES
Ivan Brcic
Z5115185
Identifying the
... [Show More] Express Terms 6
1. Terms and the Communications of the Parties 6
2. Written Terms and the effect of signature (signed contract) 6
Effect of signature binds party 6
Circumstances in which the effect of signature may be avoided 10
3. Incorporation of Terms by Notice (unsigned contract) 10
Timing 10
Knowledge or Notice 11
Unusual Terms 13
4. Incorporation by Course of Dealing 13
Class Notes 15
5. Statements made during negotiations 15
Entire Contract Clauses Wholly in Writing 15
Parol Evidence Rule 15
Contracts that are Partly in Writing 16
Corbin on Contracts (Liberal Approach) (1950) 16
Strict vs Liberal Approach to the Parol Evidence Rule 16
Exceptions to the parol evidence rule in identifying terms 17
Collateral contracts 17
Requirements for establishing a collateral contract 18
Estoppel 19
6. When is a statement a term of a contract 20
Warranty vs Condition 22
Breach 23
Construing the Express Terms 23
1. Construction 23
2. Extrinsic Evidence in Constructing a Contract 24
Evidence Excluded 24
Evidence of the surrounding circumstances 24
Commercial Circumstances 24
3. The Process of Construction 26
Exclusion Clauses 28
The Common Law approach to exclusion clauses 28
Ordinary principles of construction and contra proferentem 30
Negligence 30
Implied Terms 31
When will terms be implied? 31
1. Terms implied in fact 31
BP Refinery 31
Conditions for a term to be implied 31
2. Terms Implied in Law 32
Requirements for implying terms in law for the first time? 33
The test of necessity 33
3. Terms Implied by Custom 33
Australian Consumer Law 36
The Australian Consumer Law: An Overview 36
Introduction 36
Background to the legislative scheme 36
Commonwealth 36
States and Territories 36
Overview of the ACL - INCOMPLETE 36
Part 2-1: Misleading and Deceptive Conduct 36
Frustration 37
Frustration as an excuse for non-performance 37
When is a contract frustrated? 37
The test for frustration 37
Test 37
Examples 37
Illustrations 37
Destruction of Subject Matter (destroy the basis of the contract) 38
Disappearance of the foundation of the contract (the basis of the contract is lost) 39
Limitations on the doctrine of frustration 41
Three important limitations 41
The consequences of frustration 41
Common Law 41
Statute Law 42
Termination (Pt 1) 43
Termination by Agreement 43
Categories of Agreement 43
Termination under the original contract 43
Express Powers to Terminate 43
Implied Right to terminate a contract of otherwise indefinite duration 43
Termination by subsequent agreement 44
1. Express Agreements 44
Partly performed contracts and the issue of consideration 44
Formal Requirements 44
2. Termination inferred from subsequent agreement 44
3. Termination by abandonment 45
Failure of a contingent condition 46
Contingent Conditions 46
Different uses of the word condition 46
Promissory conditions 46
Contingent conditions to performance and formation 46
Contingent conditions precedent and subsequent to performance 46
The Duty to Cooperate 46
Termination (Pt 2) 47
1. Termination for breach of an intermediate/innominate term 47
2. Termination for repudiation 50
The concept of repudiation 50
Repudiation and Anticipatory breach 51
Reasons for the doctrine of repudiation 51
The absence of willingness or ability 51
Repudiation and an erroneous interpretation of the contract 53
Termination for Delay (Pt 3) 54
Requirement of performance 54
Time is of the essence 54
Where time is not of the essence 54
Notice 54
Consequences of affirmation or termination 56
The right to elect 56
Contract is affirmed 56
1. Consequences of affirmation for the aggrieved party 56
2. Consequences of affirmation for the non-performing party 56
Contract is terminated 57
1. Consequences of termination for the aggrieved party 57
2. Consequences of termination for the non-performing party 57
Restrictions 57
Restrictions on the right to terminate 57
Readiness and willingness 58
Ready and Willing 58
Election 59
Estoppel 60
The Plea of Waiver (p 675) 60
Relief against forfeiture (an equitable remedy) – INCOMPLETE 61
Forfeiture arising on breach of contract 61
Property interest required 61
The unconscientious exercise of legal rights 61
Legione v Hately (1983) – liberal approach 61
Tanwar Enterprises v Cauchi [2003] – traditional approach 61
The Measure of Damages (Pt 1) 62
The Right to Damages 62
The Compensation Principle 62
1. Expectation Damages 62
Damages for breach of an obligation to build or repair 62
2. Reliance Damages 64
3. Damages for loss of a chance or opportunity 64
Damages for loss of a chance 64
Mitigation of Damage 64
Mitigation and subsequent transactions 64
Limits on damages (Pt 3) 66
Limitations relating to specific types of claim 66
Disappointment, distress, loss of reputation 66
Contributory Negligence 68
Liquidated Damages 68
The Penalties Doctrine 68
Penalties Doctrine and terms providing for the payment of money in the event of breach 68
Liquidated damages and penalties 68
Relevant considerations in identifying a penalty 68
Penalties and terms providing for the payment of money on the occurrence of events not involving a breach of contract 69
Collateral stipulations designed as security for the performance of a primary stipulation 69
Actions for Debt 74
Debts and Liquidated Damages 74
Requirements of an action for a debt 74
Right to debt accrues 74
1. Entire Obligations 74
2. Divisible Obligations 75
Substantial Performance 76
Payment independent of performance 77
Misleading or Deceptive Conduct 79
Vitiating Factors: Rescission 79
Bars to Rescission 80
Can a contract for the sale of goods be rescinded in equity for innocent misrepresentation? 80
Can an executed contract be rescinded for innocent misrepresentation? 80
Misleading or deceptive conduct 81
The “in trade or commerce” limitation 81
The relevant audience 83
Conduct directed at a large public audience 83
Conduct directed at identified individuals of groups 83
Mistake (1) 86
Overview 86
Types of Mistake 86
1. Common Mistake 86
2. Mutual Mistake 86
3. Unilateral Mistake 86
Common Law response to mistake 86
Constructionist Theory 86
Civilian Theory 86
Construing the contract 86
The promise is unconditional 86
Contracts void for mistake at common law 87
Rescission in equity 87
Mistake (2) 88
Rectification for common mistake 88
Note 89
Mutual or Unilateral Mistakes 90
1. Unilateral Mistake as to terms: common law void and equity (rescission) 90
2. Unilateral Mistake as to terms: rectification 92
Mistakenly signed documents: non est factum 92
Unconscionable and unjust conduct under statute 94
Part 2-2 of the ACL 94
Scope of the prohibition on unconscionable conduct 94
ACL and the TPA 1974 (Cth) 94
Unconscionable Conduct within the meaning of the unwritten law 94
Impropriety by third parties 96
Three party situations 96
The rule in Yerkey v Jones (1940) 96
The statutory prohibition on unconscionable conduct 97 [Show Less]