Download LAWS4103 Contract and more Lecture notes Law in PDF only on Docsity! LAWS 4103 Contract SAMPLE EXTRACT LAWS4103 Contract CONTENTS Formation of Contracts Page 3 Formalities Page 12 Estoppel Page 13 Terms of a Contract Page 16 Implied Terms Page 26 Termination Page 30 Remedies Page 36 Misrepresentation, Misleading & Deceptive Conduct Page 39 LAWS4103 Contract • Prospective detriment = where a party threatens to depart from an assumption, question if that departure would/will cause detriment. • A conjectural/speculative possibility of detriment is not sufficient. ➢ Reasonableness. • Concerned with whether relying party is deserving of protection. o Whether relying party acted reasonably in adopting assumption. o Whether relying party acted reasonably in taking detrimental action. ➢ Unconscionable Conduct. • Concerned with whether the representor is deserving of blame. • Representor’s knowledge of assumption/intention to induce reliance relevant. • Commonwealth v Verwayen (1990) 170 CLR 394 –Deane J: unconscionable conduct must be determined in context of reasonableness of relying party to adopt assumption & take detrimental action on that assumption. ➢ Departure or Threatened Departure. • Estoppel cannot arise until departure/threatened departure from an assumption relied upon. • Some argue estoppel comes into effect once assumption induced & reasonably relied upon. Estoppel & Contract ➢ Formation – equitable estoppel may arise if offeror leads offeree to believe that offer will not be revoked & offeree acts to their detriment in reliance of that assumption. ➢ Privity – a person not party to a contract but who has been led to believe that they are a party to, or will receive a benefit under, a contract may be able to establish an estoppel if they have acted in detrimental reliance (Trident General Insurance v McNiece Bros (1988) 165 CLR 107). ➢ Formalities – where a party has acted to their detriment on the faith of an expectation that a written contract will come into existence, that party may be able to obtain relief through equitable estoppel. LAWS4103 Contract Misrepresentation/Misleading/Deceptive Conduct Misrepresentation (Common Law) ❖ Fraudulent (rescission, damages available). ❖ Negligent (rescission, damages available). ❖ Innocent (rescission, no damages). ❖ Must be separate from contract. ❖ Must be actionable. ❖ Must be a statement of fact. ➢ Not a statement of law. ➢ Not a statement of intention (Edington v Fitzmaurice). ➢ Not a statement about the future (Balfour v Hollandia Ravensthorpe). ➢ Not a statement of opinion (Bisset v Wilkinson; Smith v Land & House Property). ❖ Silence. ➢ Needs to be positive misrepresentation. ➢ Half-truth (rent payed but not that represented; Awaroa Holdings v Commercial Securities). ➢ Change in circumstances (With v O’Flanagan; Jones v Dumbrell). ❖ Reliance. ➢ Must be reliance on representation (Holmes v Jones). ➢ No obligation to check truth (Redgrave v Hurd). ➢ Need not be sole reliance (Edgington v Fitzmaurice). ➢ Gould v Vaggelas – representee has onus of proof of reliance, representor may have evidentiary onus to contrary, inducement inferred from facts where statement calculated to induce followed by entry into contract. ❖ Rescission. ➢ Only contractual remedy open to a representee. ➢ Act & choice of the party (need clear words or conduct). ➢ Contract is said to be voidable (parties restored to pre-contract conditions). ➢ Car & Universal Finance v Caldwell – communication unnecessary where representation is fraudulent. ➢ If contract rescinded for misrepresentation, then all consideration & promise returned (termination would mean accrued rights/obligations do not need to be returned). ➢ Bars to rescission. o Impossibility of restitution (Alati v Kruger – must be able to substantially return). o Affirmation by election or imputation (Coastal Estates v Melevende – must have known a right to rescind, but only applies to fraudulent misrepresentation). ❖ Damages. ➢ Causation of misrepresentation. ➢ To put plaintiff in position before there was any reliance on the representation.
