Contract Law: : Text and Cases

636 Pages·2012·3.575 MB·English

by  Thampapillai, Dilan;Tan, Vivi;Bozzi, Claudio

ContraCt LaW
TexT and Cases
dilan Thampapillai
Vivi Tan
Claudio Bozzi

ContraCt Law

ContraCt Law
TexT and Cases
dilan Thampapillai,
Vivi Tan &
Claudio Bozzi
1
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© Dilan Thampapillai, Vivi Tan and Claudio Bozzi 2012
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First published 2012
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National Library of Australia Cataloguing-in-Publication entry
Author: Thampapillai, Dilan.
Title: Contract law : text and cases / Dilan Thampapillai, Vivi Tan, Claudio Bozzi.
ISBN: 9780195574531 (pbk.)
Notes: Includes index.
Subjects: Contracts—Australia—Textbooks.
Commercial law—Australia—Textbooks.
Other Authors/Contributors: Tan, Vivi.
Bozzi, Claudio.
Dewey Number: 346.9407
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Contents
Table of Cases xviii
Table of Statutes liv
Preface lix
Acknowledgments lx
chapter 1 An introduction to law school 1
1.0 Commencing as a first-year law student 2
1.1 Tips for studying at law school 2
1.1.1 Understand what law is 2
1.1.2 Work effectively at law school 3
1.1.3 Practise the core legal skills 4
The common law method 4
Case law analysis 5
Legal problem solving 5
Statutory interpretation 6
Legal writing 6
Research 6
1.1.4 Remember that reputation matters 7
1.1.5 Be seen at law school 8
1.1.6 Read widely 9
1.1.7 Remember that law is a skills profession 9
1.2 Conclusion 9
chapter 2 Theories of contract law 10
2.0 Introduction 11
2.1 The contract as bargain 11
2.1.1 History 11
2.1.2 Theory 13
Standard form contracts 13
Ambiguity 14
Hypothetical and actual consent 14
2.2 The contract as promise 16
2.3 The contract as property 18
2.3.1 Property and the reliance theory of contract 20
[ vi ] Contents
2.3.2 Remedial action 21
The harm principle 21
The corrective justice principle 22
chapter 3 Offer 23
3.0 Introduction 24
3.1 Offer and acceptance 25
3.2 Offers 26
3.2.1 Is there an offer? 26
3.2.2 The existence of a definite promise 28
3.3 Invitations to treat 29
3.3.1 A framework for invitations to treat 32
3.4 Mere puffery 32
3.5 Different types of contracts 36
3.5.1 Unilateral and bilateral contracts 36
3.5.2 Shop sales 36
3.5.3 Auctions 37
3.5.4 Tenders 38
3.5.5 Ticket cases 38
3.6 Termination of offers 48
3.6.1 Revoking a unilateral contract 49
chapter 4 Acceptance 53
4.0 Introduction 54
4.1 Acceptance 54
4.1.1 ‘A meeting of minds’ 54
4.1.2 Consciousness of the offer 56
4.2 Communication of the acceptance 57
4.2.1 Silence as acceptance 59
4.2.2 Acceptance by conduct 59
4.3 Prescribed mode of acceptance 61
4.3.1 The postal rule 61
4.3.2 Instantaneous methods of communication 64
chapter 5 Consideration 69
5.0 Introduction 70
5.1 Defining consideration 70
Contents [ vii ]
5.1.1 The benefit/detriment requirement 71
5.1.2 The bargain requirement 72
5.2 Consideration must move from the promisee 73
5.3 Consideration need not be adequate but must be sufficient 74
5.3.1 Adequacy 74
5.3.2 Sufficiency 75
5.4 Illusory consideration 76
5.5 Past consideration is not adequate consideration 77
5.6 Compromise and forbearance to sue as consideration 78
5.6.1 Compromise 78
5.6.2 Forbearance 79
5.7 Existing duties 79
5.7.1 Existing public duty imposed by law 80
5.7.2 Existing duty imposed by a contract in which the promisee
is already bound 80
5.8 Promises to pay lesser sums 84
chapter 6 Capacity to contract 87
6.0 Introduction 88
6.1 Minors 88
6.1.1 The position under the common law 88
6.1.2 Statutory amendments to the common law 89
6.2 Mentally disabled and intoxicated persons 91
6.3 Corporations 93
6.3.1 What is a corporation? 93
6.3.2 Legal capacity to contract 94
6.3.3 Contracts preceding incorporation 95
6.4 Unincorporated associations 96
6.4.1 Liability of committees 97
6.5 The Crown 98
6.6 Bankrupts 100
6.6.1 Vesting and transfer of property on bankruptcy 100
6.6.2 Disclaiming onerous property 101
6.6.3 Rights and responsibilities following bankruptcy 102
6.7 Married women 104
[ viii ] Contents
chapter 7 Intention to create legal relations 106
7.0 Introduction 107
7.1 Domestic arrangements 108
7.1.1 From presumption to construction 109
7.2 Commercial arrangements 110
7.2.1 Express exclusions 110
7.2.2 Mere representations and puffery 111
7.2.3 From presumption to construction 113
Ermogenous v Greek Orthodox Community of SA Inc 114
7.3 Particular situations 116
7.3.1 Government schemes and agreements 116
7.3.2 Voluntary associations 117
7.3.3 Registered companies 118
chapter 8 Certainty and completeness 120
8.0 Introduction 121
8.1 Certainty 123
8.1.1 Severability 123
8.1.2 Clauses capable of more than one meaning 125
8.1.3 Discretion and ‘subject to finance’ clauses 127
8.2 Illusory promises 130
8.3 Completeness 132
8.3.1 Specific performance 133
8.4 Agreements to negotiate in good faith 135
chapter 9 Estoppel 141
9.0 Introduction 142
9.1 The concept of estoppel 142
9.1.1 A unified doctrine of estoppel? 144
9.1.2 An argument for maintaining the distinction 146
9.2 Promissory estoppel 148
9.2.1 Elements 155
i Assumption 157
ii Inducement 157
iii Detrimental reliance 157
iv Knowledge 158