Laws1075 ---

Contents EXAM STRUCTURE ...... 2 ...... 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 : Rescind ...... 14 Misleading and Deceptive Conduct ...... 15 ...... 16 Duress: Voidable, rescind ...... 17 : Voidable, rescind ...... 17 Unconscionable Dealings: voidable, rescind ...... 18 Third Party Impropriety ...... 18 Recession(DAMAGE OF ) ...... 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 (ACL) --- Contract Part ...... 20

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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: - precise recession; Equity: substantial recession(Alati); partial recession(Vadasz): (s21: for goods or services) 9. Statute: Contracts Review Act s 7(1)+ s8

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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, , 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 can be regarded as terms: doesn’t apply. Defence of non-est factum(Mistake). Equitable remedy of rectification

II. Incorporation A. Incorporation by signature - Generally, a party will be bound by the terms contained in a contractual document that he or she has signed, regardless of whether he or she has read or understood those terms(L’Estrange v Graucob, affirmed in Toll v Alphapharm)

♥ Toll v Alphapharm(deliver a vaccine, sign exclusion term in a consignment note) - Affirm the general rule - Three exceptions not to bind signature: not a contract; non-est factum; misrepresentation(if there is an unusual term, misrepresentation can arise & there is an extra requirement of sufficient notice to this unusual term) - The company will only be bound if the person who signed the document was an ‘agent’ of the company. (actual or ostensible authority to sign) Relevant considerations : often sign this kind? Within duty?..

♥ Curtis v Chemical Cleaning & Dying(wedding dress, sign a receipt to exclude specific risk(told by clerk) while contract contains all risks) - Signature rule does not apply if the document is not contractual - Signature rule does not apply if there is a misrepresentation(clerk creates false impression, whether knowingly or unwittingly)

B. Incorporation by notice - A party may allege that contract terms are displayed or delivered before the contract was made & actual knowledge or reasonable steps to provide AK - Notice on Contractual document: deemed notice/Presence is sufficient(Toll) - Notice on non-contractual document: notice must be sufficiently reasonable(Thornton) - Notice on unusual terms, extra steps to ensure notice must be fair and reasonable(Dillon)

♥ Oceanic Sun Line Special Shipping Company v Fay(book a cruise—pay the fair —exchange order—exchange ticket with when boarding) - Exchange order contains refunding fare if cancelled or exchanging another boat - Exchange order was a voucher or certificate of entitlement to be carried on already agreed terms.(Contract is made at the time of exchange order available) - Ticket containing exemption terms is after the contract was made, So void. - If exemption term can be incorporated, extra notice still requires.

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Laws1075 --- Contracts ♥ Thornton v Shoe Lane Parking(park a car in an automatic car park) - Contract is made when customer puts money into the machine(Automatic machine instead of human clerk), Therefore, ticket containing exemption clause is too late. - No adequate(reasonably sufficient) notice

♥ Baltic Shipping Co v Dillon(contract is only made when issuing tickets, this clause is unusual. 2 weeks before cruise, receive ticket containing exemption term) - Unusual terms requires Party to do more to provide sufficient notices. - A reasonable opportunity should be given

C. Incorporation by a course of dealing - Conduct must be regular and uniform, unchangeable context and hundreds of times(PS: dealing for years/regularly)

♥ Rinaldi & Patroni v Precision Mouldings(cart notes are prepared for the consignee to sign upon receiving the boat, previous 9/10 transactions) - Cart notes is not a contractual document, while a contractual document is an essential condition of incorporation by a course of dealings. - 9/10 times cannot satisfy the requirements of ‘regular or uniform’

III. Wholly in writing OR Partly oral or partly written - A written contract is presumed to contain or integrate all terms intended by both parties. Therefore, Parol evidence rule(in wholly written contract) prevents extrinsic evidence being given to add to, vary or contradict the terms of the contract. - However, this presumption can be rebutted by extrinsic evidence.(whether a document is sufficiently complete? Orally agreed? Subsequent conduct? ) - 1st exception: Partly oral and partly written - 2nd exception: : (promise; of the main contract, consistency) - 3rd exception: (if inconsistent with the main contract) - 4th exception: implied term(implied in fact/ in law/by statute(ACL)/ by custom) - 5th exception: ACL

♥ State Rail Authority of NSW v Health Outdoor(contract clause: terminate by 1 month notice, while officer promises terminate only be non-payment of rent) - Writing is an evidentiary but not conclusive evidence - Plaintiff knew that officer did not have the authority to change. Therefore, wholly in writing. - Not collateral contract since term of assurance contradict clause 6

♥ Hoyt’s v Spencer(written lease between A and B, B sublease to C, Contract: B can terminate at any time before 4 weeks, while B promises not to terminate unless A request) - A collateral contract cannot impinge on, alter the provision or rights created by the main contract

♥ Saleh v Romanous(Purchaser bought a land because Vendor induced P to rely on another beside land can be exploited jointly) - Promissory estoppel applies. (why collateral contract cannot?)

♥ Byrne v Australian Airlines(A dismissed because behaviours of stealing, sought relief from Clause 11 of Transit Worker Award)—Implied in fact - There is little evidence of express terms, which is an informed contract. - Formal contract requires 5 conditions(Reasonable &equitable; Necessary to business efficacy; so obvious without saying, clear expression, not contradict express term- BP Refinery) - Informed contract(flexible approach: business efficacy, without saying) - Business efficacy: whether the proposed term is necessary to enable the contract to operate in a business manner(Without cl11, employer is still entitled to terminate an employee by providing reasonable notices at general law) - Implied in law: - 1. Applicable to a defined category of contract - 2. The term must be suitable for it to be recognized as implied in all contracts of that class; that is, it must meet a test of ‘necessity’—:Byrne case & University of Western Australia v Gray

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