(NOT Oral, but must always be supported by written evidence)
Counter offer occurs when...
Offeree rejects the offer by attaching conditions to the acceptance
Is made to the world at large
Is not the same as an invitation to treat
Is accepted by performing an act
Requires an intention to create legal relations
Acceptance which is subject to condition...
Amounts to a rejection
Acceptance of an offer is effective at the time of posting
Past consideration is bad consideration
Consideration must be sufficient
Part-payment of a debt is not good consideration
Consideration is the price that the promisee pays for the bargain
(NOT Consideration must be adequate)
Intention to be legally bound
Roscorla v Thomas
The legal issue was whether there was consideration to support the promise that the horse was not vicious?
It was decided that the seller’s promise was not binding as it was made after the sale had been completed and the buyer had given nothing in return for it.
It was held that past consideration is no good consideration.
There are however exceptions to the rule that an agreement to accept a lesser sum of money than is owing is not a binding contract. The parties can ensure that they have a binding agreement if:
They put the agreement in a deed
The agreement requires the debtor to give the creditor something (no matter how trifling its value) in exchange for the creditor agreeing to let the debtor off part of the debt
The creditor agrees to take part payment on an earlier day than the full payment was due (the theory here is that the creditor has received an advantage in the form of interest that he can earn on the lesser amount paid early).
(NOT the parties agreed to pay the exact amount owed)
A threatened failure by a party to the contract to perform their obligations
Basic rule that only those who are a party to the contract are affected by it
Where a contract is voidable
The injured party may negate the contract
NOT an acceptable remedy for breach of contract
Contract can be discharged by operation of law
When a contract comes to an end it is 'discharged' by
Operation of law
Exceptions to the rule of precise performance
Where the contract is divisible.
Where partial performance has been accepted. An implied promise to pay for partial performance will be possible only if it can be inferred from all the circumstances.
Where performance is prevented by the other party.
Where there has been substantial performance.
A term in a contract that destroys the right upon the happening of the event
Implied term of a contract is
A reasonable amount of time for a contract to be concluded
The rule of evidence which states that additional oral evidence is not considered by the courts to contradict, vary, add to or subtract from its terms when a contract is complete on its face
The Parol evidence rule
A breach of a condition of a contract will allow the injured party to rescind the contract and claim for damages
A total breach of a contract will allow the injured party to rescind the contract and claim damages
A partial breach of a contract [breach of condition or breach of warranty] will allow the injured party to seek damages
A breach of a warranty of a contract will allow the injured party to rescind the contract
Conditions must be satisfied for a term to be implied
It must be reasonable and equitable
It must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it
It must be so obvious that 'it goes without saying'
It must be capable of clear expression
It must not contradict any express term of the contract
Implied warranties and conditions in contracts involving consumers are currently found in the Trade Practices Act 1974 (Cth)
(Replaced by the Competition and Consumer Act 2010 (Cth))
Consumer for the ACL if the goods purchased
Are of a kind ordinarily acquired for personal, domestic or household use or consumption
Are a vehicle or trailer acquired for use principally in the transport of goods (s 3(1))
Are not required for re-supplied or for being used up or transformed in business (s 3(2))
Section 18 Australian Consumer Law
Misleading and deceptive conduct
Section 33 of the Sales of Goods Act 1923 (NSW)
Delivery is a voluntary transfer of possession
Delivery is not the same as transfer of ownership.
If there is no agreement, the goods must be delivered to the seller’s place of business if there is one, if there is not, they must be then delivered to the seller’s residence.
If contract requires the seller to send the goods to buyer, but doesn’t fix a time for them to be sent, the seller must send them within reasonable time.
If the goods are in the possession of a third person, there is no delivery by seller to buyer unless and until the third person acknowledges to the buyer that the goods are being held by that person on the buyer’s behalf.
Section 54 ACL
Goods are of acceptable quality
Section 56 ACL
Goods must match their description
Section 57 ACL
Goods must match their sample
The rule that one cannot give what one doesn’t possess is acknowledged in the Sales of Goods Acts, section 26 (1), which states that a buyer from a non-owner gets no better title than the seller. Exceptions are...
Sale by an agent of the owner
Sale by mercantile agent
Sale under voidable title
Sale in market overt
Special powers of sale
Sales of Goods legislation DOES NOT
Regulate contracts between consumers and corporations
The Australian Consumer Law implies a number of guarantees into all consumer contracts
Section 64 of the Consumer law provides that implied guarantees cannot be excluded
Section 51 of the Consumer law provides that that the supplier has clear title in the goods, and can thus transfer ownership to the consumer.
The Sale of Goods Act 1923 (NSW), s 5 provides a broad definition of goods.
Section 3 of the Competition Consumer Act 2010(Cth)