DOCSLIB.ORG

Contents EXAM STRUCTURE

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Contents EXAM STRUCTURE Laws1075 --- Contracts Contents EXAM STRUCTURE ........................................................................................................................................................................... 2 CONTRACT ............................................................................................................................................................................................ 3 I. Identify term ................................................................................................................................................................................. 3 II. Incorporation ................................................................................................................................................................................ 3 III. Wholly in writing OR Partly oral or partly written ............................................................................................................. 5 IV. Construing term ........................................................................................................................................................................... 6 V. Terminate ...................................................................................................................................................................................... 6 A. Terminate by agreement ....................................................................................................................................................... 7 B. Terminate by failure of a contingent condition ............................................................................................................... 7 C. Terminate by breach .............................................................................................................................................................. 7 D. Termination for repudiation ................................................................................................................................................. 8 E. Termination by delay ............................................................................................................................................................. 8 VI. Election ..................................................................................................................................................................................... 9 VII. Frustration ................................................................................................................................................................................ 9 VIII. Damage ...................................................................................................................................................................................10 A. General principle ..................................................................................................................................................................10 B. Measures of damages ..........................................................................................................................................................11 C. Limitation of damages .........................................................................................................................................................11 G. Liquidated damage ...............................................................................................................................................................12 H. Actions for debts ...................................................................................................................................................................13 VITIATING FACTORS.....................................................................................................................................................................14 Misrepresentation: Rescind ..............................................................................................................................................................14 Misleading and Deceptive Conduct ...............................................................................................................................................15 Mistake .................................................................................................................................................................................................16 Duress: Voidable, rescind ................................................................................................................................................................17 Undue Influence: Voidable, rescind ..............................................................................................................................................17 Unconscionable Dealings: voidable, rescind ...............................................................................................................................18 Third Party Impropriety ....................................................................................................................................................................18 Recession(DAMAGE OF TORTS) ...............................................................................................................................................19 Unconscionable and unjust conduct under statute ......................................................................................................................20 I Unconscionable conduct (Part 2-2 ACL, s 20-22)--- Vitiating factors.........................................................................20 II Unjust contract (Contracts Review Act 1980 (NSW))---Vitiating factors Part..........................................................20 III. Unfair contract term law(ACL)--- Contract Part .............................................................................................................20 IV. Consumer guarantees(ACL) --- Contract Part ................................................................................................................20 1 Laws1075 --- Contracts EXAM STRUCTURE ALTERNATIVE APPROACH 1. Misrepresentation - Rep of existing fact, written, oral or implied - Opinion(fraudulent: Fitzpatrick; unequally known: Smith); Law: Taylor; Future fact: Edington - Duty to disclosure: false impression Curwen; later changed, fiduciary(for the other party’s interests) Mckenzie, Better position to know(insurance) Davies - Inducement 2. Misleading : s18 ACL - In trade of commerce(Inter-communication(Concrete Constructions )/private transaction(O’Brien)) - Audience: (specific audience(Butcher)/public at large(Campomar Sociedad Limitada)) - Remedies: s236, 237 242 243. 3. Mistake - Common mistake: ◼ existence of subject matter-condition precedent -void CL(MaRea) and voidable equity(Solle). However, if one party know the non-existence, breach ◼ Quality of subject matter, unless fundamentally different, void-CL(Bell, Great Peace) - Unilateral mistake: ◼ identity: face to face(Lewis)- no void; non face to face(Cundy)- Voidable under equity(Taylor and Smith); ◼ Term: voidable (Taylor) - Mistakenly record documents: rectification : common intention +convincing proof 4. Duress: pressure, illegitimate, causation; [person(Barton); goods(Hawker); economic interests(North Ocean Shipping) 5. Undue Influence: Presumed relationship(parent/child, guardian/ward, solicitor/client, doctor/patient)/ Actual relationship- the shift of the proof, rebut by independent advice (Westmelton) 6. Unconscionable dealing: special disability(Drunkness(Blomley); Mental disorder(Gibbons); Lack of explanation(Amadio), emotional dependence(Louth); inadequate bargaining power(NO-ACCC)), knowledge of disability 7. Unconscionable conduct-Statute ACL ss20-22 8. Recession: Common law- precise recession; Equity: substantial recession(Alati); partial recession(Vadasz): (s21: for goods or services) 9. Statute: Contracts Review Act s 7(1)+ s8 2 Laws1075 --- Contracts CONTRACT I. Identify term A. Whether a statement is a term or mere representation - An oral statement is binding when the statement is made as a promise and intended by the parties to be part of their contractual agreement - Whether the statement would reasonably be considered a binding contractual promise by a person placed in the situation of the parties. ♥ JJ Savage & Sons v Blakney(buy a boat, estimated speed 15 while only 12, ) - Nature of word: Estimate cannot manifest the intention –‘promise, guarantee, warrant can’ ♥ Oscar Chess Ltd v Williams (buy a car, 1948 made while 1939 produced, registration book has been fraudulently altered) - ‘I believe’ cannot manifest the intention to bind the promise. - Seller with no personal knowledge is not placed in a better position. - A reasonable bystander would conclude that seller did not intend to bind himself so as to warrant that … ♥ Dick Bentley Productions v Harold Smith (buy a car, seller verbally fraudulently inform running only 20000 miles) - Representation is dishonest contrary to innocent representation(in Oscar) - Representation is a specific purpose to induce an act - Seller has the better position to know the truth of statement. ♥ Equuscorp v Glengallan Investment(an executed and written load contract, while an earlier oral agreement on different terms) - The execution of the formal written contract discharged any prior oral agreement. - Oral evidence can be regarded as terms: Parol evidence
Load more

Recommended publications
  • Parol Evidence Rules and the Mechanics of Choice
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2019 Parol Evidence Rules and the Mechanics of Choice Gregory Klass Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2048 https://ssrn.com/abstract=3150616 Gregory Klass, Parol Evidence Rules and the Mechanics of Choice, 20 Theoretical Inq. L. 457 (2019). This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Contracts Commons, and the Evidence Commons 457 Parol Evidence Rules and the Mechanics of Choice Gregory Klass* Scholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, however, are as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard express integration rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms should automatically be integrated against consumer- side communications, and never integrated against a business’s communications. The argument for each rule rests on the ways parties make and express contractual choices in these types of transactions. Whereas Dagan and Heller emphasize the different values at stake in different spheres of contracting, differences among parties’ capacities for choice — or the “mechanics of choice” — are at least as important.
    [Show full text]
  • THE DOCTRINE of CARLISLE and CUMBERLAND BANKING CO. V
    661 THE DOCTRINE OF CARLISLE AND CUMBERLAND BANKING CO. v. BRAGG.* The facts of this well known case. are that Bragg was induced by the fraud of Rigg to, sign a guarantee of the latter's debts upon;. the representation that it was an insurance paper. On an occasion when Rigg and the defendant had been drinking together, Rigg produced a paper purporting to relate to insurance, and asked Bragg to sign it, explaining that a similar paper which Bragg had signed on a previous day had become wet and blurred by the rain. The defendant signed without reading it. In an action brought by the Bank an the guarantee,-Bragg pleaded non est factum. The jury found that the defendant did not know that the document was a guarantee, and that he was negligent in signing. The Court of Appeal held that, in contemplation of law, Bragg had never signed the instrument, and that his negligence did not estop him from setting up the plea of anon est factum. Before this decision there was a strong current of long recognized authority for the proposition that a person who negligently executes an instrument is estopped as against third parties who acquired rights under it.' Thoroughgood's Case is the first decision.. Lord Coke held that if a deed be explained in wards other than the truth it shall not bind the unlettered layman who is deceived.3 Skinner reports a case where the court commented on a defendant's liability under a carelessly signed lease; "being able to read it was his own folly, otherwise if he had been unlettered."3a Sheppard declares that if a party who can read seals a deed without reading it, or if illiterate or blind, without requiring it to be read over to him, then although the deed be contrary to his mind, it is good and unavoid- able.4 Thus, in the absence of negligence the illiteracy of the person *This article was submitted in the competition for the Carswell Essay Prize in Dalhousie Law School and was given first place by the Faculty.
    [Show full text]
  • National Bank of Harvey V. Pauly, 280 Nw2d 85
    |N.D. Supreme Court| National Bank of Harvey v. Pauly, 280 N.W.2d 85 (N.D. 1979) Filed May 9, 1979 [Go to Documents] IN THE SUPREME COURT STATE OF NORTH DAKOTA The National Bank of Harvey, a national banking association, Plaintiff and Appellee v. Donald P. Pauly, d.b.a. Don Pauly Cheese, Inc., and Don Pauly Cheese, Inc., a Wisconsin corporation, Defendant and Appellant Civil No. 9563 Appeal from a Judgment of the First Judicial District Court, the Honorable John O. Garaas, Judge. AFFIRMED. Opinion of the Court by Sand, Justice. Lamb, Schaefer, McNair & Larson, P.O. Box 2189, Fargo, for Plaintiff and Appellee; argued by Leland M. Stenehjem, Jr. Schlosser & Schmitz, P.O. Box 1762, Bismarck, for Defendant and Appellant; argued by Orell D. Schmitz. [280 N.W.2d 86] National Bank of Harvey v. Pauly Civil 9563 Sand, Justice. The issue involved in this case concerns the admissibility of parol evidence to vary the terms of a written notation contained on the face of a check. The appellant, drawer of the check, argued it was error on the part of the trial court to allow the admission of parol evidence to establish an oral agreement varying the terms of a notation which stated the purpose for which the check was issued. We affirm. The National Bank of Harvey, appellee, filed a summons and complaint on 3 August 1977 seeking judgment against Donald P. Pauly, individually, and Don Pauly Cheese, Inc., a Wisconsin corporation, for payment on a $30,000 promissory note plus interest. The defendant appellant answered, asserting as an affirmative defense that the note had been satisfied as evidenced by a draft on the account of Don Pauly Cheese, dated 26 July 1975 in the amount of $30,000 payable to the National Bank of Harvey.
    [Show full text]
  • Beyond Unconscionability: the Case for Using "Knowing Assent" As the Basis for Analyzing Unbargained-For Terms in Standard Form Contracts
    Beyond Unconscionability: The Case for Using "Knowing Assent" as the Basis for Analyzing Unbargained-for Terms in Standard Form Contracts Edith R. Warkentinet I. INTRODUCTION People who sign standard form contracts' rarely read them.2 Coun- sel for one party (or one industry) generally prepare standard form con- tracts for repetitive use in consecutive transactions.3 The party who has t Professor of Law, Western State University College of Law, Fullerton, California. The author thanks Western State for its generous research support, Western State colleague Professor Phil Merkel for his willingness to read this on two different occasions and his terrifically helpful com- ments, Whittier Law School Professor Patricia Leary for her insightful comments, and Professor Andrea Funk for help with early drafts. 1. Friedrich Kessler, in a pioneering work on contracts of adhesion, described the origins of standard form contracts: "The development of large scale enterprise with its mass production and mass distribution made a new type of contract inevitable-the standardized mass contract. A stan- dardized contract, once its contents have been formulated by a business firm, is used in every bar- gain dealing with the same product or service .... " Friedrich Kessler, Contracts of Adhesion- Some Thoughts About Freedom of Contract, 43 COLUM. L. REV. 628, 631-32 (1943). 2. Professor Woodward offers an excellent explanation: Real assent to any given term in a form contract, including a merger clause, depends on how "rational" it is for the non-drafter (consumer and non-consumer alike) to attempt to understand what is in the form. This, in turn, is primarily a function of two observable facts: (1) the complexity and obscurity of the term in question and (2) the size of the un- derlying transaction.
    [Show full text]
  • Parol Evidence of Fraud Is Admissible to Prove the Invalidity of a Contract - Riverisland Cold Storage, Inc
    William Mitchell Law Review Volume 40 | Issue 1 Article 5 2013 He Said She Said: Parol Evidence of Fraud Is Admissible to Prove the Invalidity of a Contract - Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass'n Kathryn Albergotti Sascha Yim Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Albergotti, Kathryn and Yim, Sascha (2013) "He Said She Said: Parol Evidence of Fraud Is Admissible to Prove the Invalidity of a Contract - Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass'n," William Mitchell Law Review: Vol. 40: Iss. 1, Article 5. Available at: http://open.mitchellhamline.edu/wmlr/vol40/iss1/5 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Albergotti and Yim: He Said She Said: Parol Evidence of Fraud Is Admissible to Prove HE SAID SHE SAID: PAROL EVIDENCE OF FRAUD IS ADMISSIBLE TO PROVE THE INVALIDITY OF A CONTRACT—RIVERISLAND COLD STORAGE, INC. V. FRESNO-MADERA PRODUCTION CREDIT ASS’N Kathryn Albergotti† and Sascha Yim†† I. INTRODUCTION ...................................................................136 II. HISTORY ..............................................................................139 A. The Parol Evidence Rule ..................................................139 B. The Codification of the Parol Evidence Rule in the California Statutes ..........................................................139 C. The Parol Evidence Rule—Case Law ................................140 D. The Exception: Permitting Parol Evidence of Fraud to Establish the Invalidity of the Instrument...........................141 E.
    [Show full text]
  • The Objective Theory ®F Contract and the Rule in V Estrange V
    VOL. L11 SEPTEMBER 1974 SEPTEM RE No. 3 THE OBJECTIVE THEORY ®F CONTRACT AND THE RULE IN V ESTRANGE V. GRAUCOB Halifax, N.S. Introduction In a recent article, J. R. Spencer criticizes the so-called rule in L'Estrange v. Graucob' on the ground that it contradicts the settled theory of agreement which underlies the law of contract generally? It seems, he says, to be generally accepted that a person who signs a contractual document may not dispute his agreement to any of the terms which it contains, unless he can establish one of three defences : (a) fraud, (b) misrepresentation, or (c) non est factum.' Spencer submits that this rule is wrong, and that there is a fourth defence which ought to be open to the party who signed the document, namely the defence that he simply did not agree to the term in question. Everyone says that the common law theory of agreement is, "objective", which means that the parties have to be judged by what they outwardly ap- peared to decide rather than by what they inwardly meant to decide. But this, Spencer claims, is vague, and to see what this "objective" theory really means we must look at the cases upon which it is based. One of these cases is Smith v. Hughes.' Although it usually features under "mistake", mistake is often no more than the other side of agreement. According to Smith v. Hughes, * R. A. Salnek, of the Faculty of Law, Dalhousie University, Halifax, N.S. '[193412 K.B. 394. Signature, Consent, and the 11le in L'Estrange v.
    [Show full text]
  • United States District Court Eastern District of Louisiana
    Case 2:02-cv-00236-HGB-ALC Document 176 Filed 04/14/08 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA BANK OF LOUISIANA CIVIL ACTION VERSUS NO. 02-0236 AETNA US HEALTHCARE, INC., SECTION: “C” (5) AETNA LIFE INSURANCE COMPANY, AND AETNA INSURANCE COMPANY OF CONNECTICUT ORDER AND REASONS Before the Court is a Motion in Limine to Exclude to Preclude Evidence Regarding Pre- Contract Matters, filed by the plaintiff, Bank of Louisiana (“BOL”) (Rec. Doc. 167). The defendants, Aetna US Healthcare, Inc., Aetna Life Insurance Company, and Aetna Insurance Company of Connecticut (“Aetna”), oppose the motion. Having considered the record, the memoranda of counsel and the law, the Court has determined that the Motion in Limine should be granted in part, and denied in part. In their motion, BOL argues that the contract between itself and Aetna was an integrated agreement, and thus, parol evidence regarding “pre-contract materials” should be excluded from evidence. In opposition, Aetna asserts that the “pre-contract materials” are necessary to clarify the terms of the agreement. Indeed, Aetna maintains that the contract’s provisions are 1 Case 2:02-cv-00236-HGB-ALC Document 176 Filed 04/14/08 Page 2 of 3 susceptible to more than one interpretation, and that parol evidence is needed to illustrate the parties’ true intentions. Finally, Aetna argues that the “pre-contract materials” are necessary to rebut BOL’s detrimental reliance claim. The general rule regarding parol evidence is contained in Louisiana Civil Code Art. 1848: Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature.
    [Show full text]
  • Important Concepts in Contract
    Munich Personal RePEc Archive Practical concepts in Contract Law Ehsan, zarrokh 14 August 2008 Online at https://mpra.ub.uni-muenchen.de/10077/ MPRA Paper No. 10077, posted 01 Jan 2009 09:21 UTC Practical concepts in Contract Law Author: EHSAN ZARROKH LL.M at university of Tehran E-mail: [email protected] TEL: 00989183395983 URL: http://www.zarrokh2007.20m.com Abstract A contract is a legally binding exchange of promises or agreement between parties that the law will enforce. Contract law is based on the Latin phrase pacta sunt servanda (literally, promises must be kept) [1]. Breach of a contract is recognised by the law and remedies can be provided. Almost everyone makes contracts everyday. Sometimes written contracts are required, e.g., when buying a house [2]. However the vast majority of contracts can be and are made orally, like buying a law text book, or a coffee at a shop. Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations (along with tort, unjust enrichment or restitution). Contractual formation Keywords: contract, important concepts, legal analyse, comparative. The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not fulfill the terms it advertised In common law jurisdictions there are three key elements to the creation of a contract. These are offer and acceptance, consideration and an intention to create legal relations. In civil law systems the concept of consideration is not central. In addition, for some contracts formalities must be complied with under what is sometimes called a statute of frauds.
    [Show full text]
  • Interpretation of Words and the Parol Evidence Rule Arthur L
    Cornell Law Review Volume 50 Article 3 Issue 2 Winter 1965 Interpretation of Words and the Parol Evidence Rule Arthur L. Corbin Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Arthur L. Corbin, Interpretation of Words and the Parol Evidence Rule , 50 Cornell L. Rev. 161 (1965) Available at: http://scholarship.law.cornell.edu/clr/vol50/iss2/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE INTERPRETATION OF WORDS AND THE PAROL EVIDENCE RULE* Arthur L. Corbint GROWTH OF THE LAW, IN SPITE OF LONG REPETITION OF FORMALISTic RULES At an earlier date, this author warned that "in advising clients and in predicting court decisions, it must always be borne in mind that the assumption of uniformity and certainty in the meaning of language, however erroneous, has been made so often and so long that it will be repeated many times in the future."1 This prediction has been fully borne out in the court opinions that have been published in the fourteen years since it was made. It is still being said, sometimes as the ratio decidendi but more often as a dictum representing established law, that extrinsic evidence is not admissible to aid the court in the interpretation of a written contract (an integration) if the written words are them- selves plain and clear and unambiguous.
    [Show full text]
  • Rectification Non Est Factum
    • Mistakenly advertised for $66 • True price in fact $3,854 • Online error corrected after a few hours • A’s (group of friends) purchased more than 1,600 printers • Held • A’s were aware of the mistake • Described as ‘predatory pack hunters’ • Knowledge of mistake + unconscionable conduct sufficient for equity to set aside contract Rectification Rectification, where available, will amend a contract to give effect to the true intention of the parties. In the case of unilateral mistake, rectification will only be ordered where: It is established by clear and conceiving proof that at the time of the execution of the instrument the relevant party or parties at the case may be had an actual intention as to the effect which the instrument would have which was inconsistent with the effect which the instrument as executed did have in some clearly identified way. The following prerequisites must be establishes: • One party must be mistaken about a particular term of the contract • The unmistaken party must be aware of the other party’s mistake • The unmistaken party must not have drawn the mistake to the other party’s attention The following elements are also required before rectification will be granted: • The unmistaken party must benefit from resisting rectification • The unmistaken party must be guilty of some sharp practice or fraud in not revealing the mistake Even in cases where fraud or sharp practice has not been established, the courts have generally required some sort of unconscionable conduct on the part of the unmistaken party before
    [Show full text]
  • Simmons Da Silva LLP - 1 / 3 - 31.07.2018 2
    1 The Defence of Failure to Understand and Other Reasons for ILA admin · Friday, March 24th, 2017 By Bruce Duggan Independent Legal Advice One of the most frequent questions/irritants Borrowers raise/experience in a commercial transaction is the requirement for their spouse to obtain independent legal advice. Typically, the complaint is that the spouse knows that what they are signing is a guarantee and that it is an inconvenient and needless expense to have to obtain independent legal advice, especially if it is being repeated for a second time in the case of refinancing. The function of independent legal advice is to overcome defences that the Bank would not have been aware of. Defences such as failure to understand, mistake, undue influence, duress, fraud and misrepresentation are ready weapons available to guarantors. If successful, any of these defences would leave the guarantee or other loan documents signed by such person unenforceable. This article reviews the defence of failure to understand also known as non est factum. Failure to Understand/Non Est Factum Simmons da Silva LLP - 1 / 3 - 31.07.2018 2 The basis of this defence is that the person signing did not understand the document signed, that the document was represented as being different from what the person signing thought they were signing and they were not careless in signing. Where this defence is established it becomes the Bank’s obligation to prove that the person signing did know what they were signing. Such “at risk” people can include those who have, for example little formal education, a lack of fluency in English, little understanding of the purpose of the financing or a lack of understanding regarding the loan terms.
    [Show full text]
  • Defense Counsel Journal April, 2000
    Defense Counsel Journal April, 2000 Feature *209 WHAT'S HAPPENING TO THE PAROL EVIDENCE RULE? MORE HOLES IN THE DIKE Increasingly and alarmingly, parties face greater risks of losing their contractual bargains, no matter how unambiguous they may seem. Copyright © 2000 International Association of Defense Counsel; Mark O. Morris, Elizabeth Evensen I SAY to-mah-toe; you say to-ma-toe. Do we have a meeting of the minds? Should a court hear evidence to understand what we mean by "tomato?" It appears the same judicial trends that are making it easier and more lucrative to blame others in tort contexts now are invading the contractual arena to increase an unsatisfied party's chances of avoiding or altering unambiguous contractual obligations. Sanctity of contract has been a hallmark of American commerce. One of the guardians of this sanctity has been the parol evidence rule, which was developed to prevent contracting parties from trying to offer evidence to vary the terms of an unambiguous contract. Unfortunately, creative lawyers have persuaded some courts to effectively abandon the rule. The result is creating uncertainty in contractual relationships, turning contract interpretation into a sophomoric exercise that undermines expectations of certainty. CONTEXTUALISM V. TEXTUALISM A. General The rule derives its names from the French word parole, meaning a spoken or an oral word. This term has become a misnomer, however, because the rule now refers not only to oral, but also to written evidence. In addition, commentators agree that the rule is not a rule of evidence because it does not deal with a proper method of proving a question of fact.
    [Show full text]