This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines factors courts consider when deciding whether to imply terms into a contract to give it business efficacy or based on custom and past dealings between the parties. An objective test of intention is established to determine the meaning of contract terms based on commercial reasonableness rather than subjective beliefs.
Check out these study notes which I found online and which I think will be very useful to you. I have made hard copies which I will give to you at the next lecture.
Check out these study notes which I found online and which I think will be very useful to you. I have made hard copies which I will give to you at the next lecture.
Assignment writing Help in Australian Law is sometime crucial for Australian students. However if you are a student of Law in any Australian University and need assignment help Please visit our site and discuss with us.
www.onlineassignmentexpert.com is a provider of law essay writing help since 2005 and have create a niche of successful academic followers.
This slide was created to help a bunch of my friends get better informed for the 2013 Australian Federal Election. To understand the roles of our leaders and how exactly they get there. Hence the hashtag #electionprep101.
All of my information was adapted and synthesised from the Australian Parliamentary Education Office (PEO) website and their informative lesson plans for teachers.
More of which can be found here: http://www.peo.gov.au/teaching/parliamentary-lesson-plans.html
Vitiating Elements in the Formation of a Contract: Mistake and frustrationPreeti Sikder
Learning Objectives: Students will:
a) learn the difference between Common Mistake and Mistake negativizing Consent
b) discover the strong link between mistake and frustration
ACI’s National Forum on Admiralty & Maritime Claims and Litigation has been tailored to provide corporate counsel, claims counsel, and private practice defense attorneys with the expert knowledge and key strategies that they need to successfully defend against maritime litigation.
BOOK BUSINESS LAW TEXT&EXERCISES 8TH EDITIONChapter 153. .docxsimonlbentley59018
BOOK "BUSINESS LAW TEXT&EXERCISES 8TH EDITION
Chapter 15
3.
Promises made in conspirator of marriage.
After twenty-nine years of marriage, Robert and Mary Lou Tuttle were divorced. They admitted in court that before they were married, they had signed a prenuptial agreement and had agreed on its general term that each would keep his or her own property and anything derived from that property. But a copy of the prenuptial agreement could not be found. Can the court enforce the agreement without a writing? Why or why not? (see the statues of frauds- writing requirements).
5.
The parol evidence rule.
Evangel Temple Assembly of God leased a facility from Wood Care Centers, Inc., to house evacuees who had lost their home in a hurricane. The lease agreement stated that Evangel could end the least at any time by giving notice and paying 10 percent of the rent that would otherwise have been paid over the rest of the term. The lease agreement also stated that if the facility did not retain its tax exemption which was granted to it on Evangel’s behalf as
a church Evangel could end the lease without making the 10 present payment. Is parol evidence admissible to interpret this lease? Why or why not? ( see the parol evidence rule).
Chapter 16
3.
Third Party beneficiary.
David and Sandra Dess contracted with Sirva Relocation, LLC, to assist in selling their home. In the contract, the Desses agreed to disclose all information about the property on which Sirva “and other prospective buyers may rely in deciding whether and on what terms to purchase the Property.” The Kincaids contracted with Sirva to buy the house. After closing, they discovered dampness in the walls, defective and rotten windows, mold, and other undisclosed problems. Can the Kincaids bring action against the Desses for breach of their contract with Sirva? Why or why not? ( see third party beneficiaries)
5.
Duties that cannot be delegated.
Bruce Albea Contracting, Inc., the contractor on a highway project, subcontracted the asphalt work to APAC-Southeast, Inc. the contract prohibited delegation without Albea’s consent. In mid-project, APAC delegated its duties to Matthews Contracting Co. Albea allowed Matthews to finish the work. But Alea did not pay APAC for its work on the projects, arguing that APAC had violated the anti-delegation clause, rendering their contract void. Is Albea correct? Explain. (see assignments and delegations).
Chapter 17
3.
Specific performance.
Russ Wyant owned Humble Ranch in South Dakota. Edward Humble was Wyant’s uncle and held a two-year option to buy a ranch from Wyant. The option included specific conditions. Once it was exercised, for instance, the parties had thirty days to enter into a purchase agreement and the seller could become the buyer’s lender by matching the terms of the proposed financing. After the option was exercised, Wyant and Humble engaged in a lengthy negotiations. Humble, however, did not respond to Wyant’s proposed purchase .
O.W. Bunker: A Common Law Perspective On Multi-Lateral Cooperation In Insolve...Eugenio Vaccari
The O.W. Bunker collapse triggered a plethora of insolvency-related litigation around the world.
Despite the similarities in results, a closer look at these rulings casts serious doubts on the future of multi-lateral co-operation in insolvency matters.
This presentation suggests that coordination efforts among insolvency claimants should be extended to cover any further litigation, which remains in the availability of the parties but that is not stayed by the filing of the insolvency proceeding .
How to Create Map Views in the Odoo 17 ERPCeline George
The map views are useful for providing a geographical representation of data. They allow users to visualize and analyze the data in a more intuitive manner.
Palestine last event orientationfvgnh .pptxRaedMohamed3
An EFL lesson about the current events in Palestine. It is intended to be for intermediate students who wish to increase their listening skills through a short lesson in power point.
Unit 8 - Information and Communication Technology (Paper I).pdfThiyagu K
This slides describes the basic concepts of ICT, basics of Email, Emerging Technology and Digital Initiatives in Education. This presentations aligns with the UGC Paper I syllabus.
Ethnobotany and Ethnopharmacology:
Ethnobotany in herbal drug evaluation,
Impact of Ethnobotany in traditional medicine,
New development in herbals,
Bio-prospecting tools for drug discovery,
Role of Ethnopharmacology in drug evaluation,
Reverse Pharmacology.
The French Revolution, which began in 1789, was a period of radical social and political upheaval in France. It marked the decline of absolute monarchies, the rise of secular and democratic republics, and the eventual rise of Napoleon Bonaparte. This revolutionary period is crucial in understanding the transition from feudalism to modernity in Europe.
For more information, visit-www.vavaclasses.com
Students, digital devices and success - Andreas Schleicher - 27 May 2024..pptxEduSkills OECD
Andreas Schleicher presents at the OECD webinar ‘Digital devices in schools: detrimental distraction or secret to success?’ on 27 May 2024. The presentation was based on findings from PISA 2022 results and the webinar helped launch the PISA in Focus ‘Managing screen time: How to protect and equip students against distraction’ https://www.oecd-ilibrary.org/education/managing-screen-time_7c225af4-en and the OECD Education Policy Perspective ‘Students, digital devices and success’ can be found here - https://oe.cd/il/5yV
Operation “Blue Star” is the only event in the history of Independent India where the state went into war with its own people. Even after about 40 years it is not clear if it was culmination of states anger over people of the region, a political game of power or start of dictatorial chapter in the democratic setup.
The people of Punjab felt alienated from main stream due to denial of their just demands during a long democratic struggle since independence. As it happen all over the word, it led to militant struggle with great loss of lives of military, police and civilian personnel. Killing of Indira Gandhi and massacre of innocent Sikhs in Delhi and other India cities was also associated with this movement.
We all have good and bad thoughts from time to time and situation to situation. We are bombarded daily with spiraling thoughts(both negative and positive) creating all-consuming feel , making us difficult to manage with associated suffering. Good thoughts are like our Mob Signal (Positive thought) amidst noise(negative thought) in the atmosphere. Negative thoughts like noise outweigh positive thoughts. These thoughts often create unwanted confusion, trouble, stress and frustration in our mind as well as chaos in our physical world. Negative thoughts are also known as “distorted thinking”.
This is a presentation by Dada Robert in a Your Skill Boost masterclass organised by the Excellence Foundation for South Sudan (EFSS) on Saturday, the 25th and Sunday, the 26th of May 2024.
He discussed the concept of quality improvement, emphasizing its applicability to various aspects of life, including personal, project, and program improvements. He defined quality as doing the right thing at the right time in the right way to achieve the best possible results and discussed the concept of the "gap" between what we know and what we do, and how this gap represents the areas we need to improve. He explained the scientific approach to quality improvement, which involves systematic performance analysis, testing and learning, and implementing change ideas. He also highlighted the importance of client focus and a team approach to quality improvement.
The Roman Empire A Historical Colossus.pdfkaushalkr1407
The Roman Empire, a vast and enduring power, stands as one of history's most remarkable civilizations, leaving an indelible imprint on the world. It emerged from the Roman Republic, transitioning into an imperial powerhouse under the leadership of Augustus Caesar in 27 BCE. This transformation marked the beginning of an era defined by unprecedented territorial expansion, architectural marvels, and profound cultural influence.
The empire's roots lie in the city of Rome, founded, according to legend, by Romulus in 753 BCE. Over centuries, Rome evolved from a small settlement to a formidable republic, characterized by a complex political system with elected officials and checks on power. However, internal strife, class conflicts, and military ambitions paved the way for the end of the Republic. Julius Caesar’s dictatorship and subsequent assassination in 44 BCE created a power vacuum, leading to a civil war. Octavian, later Augustus, emerged victorious, heralding the Roman Empire’s birth.
Under Augustus, the empire experienced the Pax Romana, a 200-year period of relative peace and stability. Augustus reformed the military, established efficient administrative systems, and initiated grand construction projects. The empire's borders expanded, encompassing territories from Britain to Egypt and from Spain to the Euphrates. Roman legions, renowned for their discipline and engineering prowess, secured and maintained these vast territories, building roads, fortifications, and cities that facilitated control and integration.
The Roman Empire’s society was hierarchical, with a rigid class system. At the top were the patricians, wealthy elites who held significant political power. Below them were the plebeians, free citizens with limited political influence, and the vast numbers of slaves who formed the backbone of the economy. The family unit was central, governed by the paterfamilias, the male head who held absolute authority.
Culturally, the Romans were eclectic, absorbing and adapting elements from the civilizations they encountered, particularly the Greeks. Roman art, literature, and philosophy reflected this synthesis, creating a rich cultural tapestry. Latin, the Roman language, became the lingua franca of the Western world, influencing numerous modern languages.
Roman architecture and engineering achievements were monumental. They perfected the arch, vault, and dome, constructing enduring structures like the Colosseum, Pantheon, and aqueducts. These engineering marvels not only showcased Roman ingenuity but also served practical purposes, from public entertainment to water supply.
1. Contracts 200011
Terms of Contracts: Incorporation of
Terms, Express Terms, and Implied
Terms
Lecturer: Francois Brun
1
2. Overview of Contractual Terms
• L’Estrangev F Graucob Ltd [1934] 2 KB 394
[10.46C]
• Oscar Chess Ltd v Williams [1957] 1 WLR 370
[10.30C]
• Dick Bentley Productions Ltd v Harold Smith
(Motors) Ltd [1965] 1 WLR 623 [10.10C]
• JJ Savage & Sons P/L vBlakney (1970) 119 CLR
435 [10.06C]
2
3. Overview (cont.)
• Hospital Products Ltd v United States Surgical
Corporation (1984) 156 CLR 41 [11.09], [11.10]
• Toll (FGCT) P/L vAlphapharm P/L (2004) 219
CLR 165 [10.71]
• Curtis v Chemical Cleaning & Dyeing Co [1951]
1 KB 805 [10.73]
• Thornton v Shoe Lane Parking Ltd [1971] 2 QB
163 [10.55C]
3
4. Overview (cont.)
• Oceanic Sun Line Special Shipping Company
Inc v Fay (1988) 165 CLR 197
• Baltic Shipping Co v Dillon (1993) 176 CLR 344
[34.25]
• Balmain New Ferry Co Ltd v Robertson (1906)
4 CLR 379
4
5. Overview (cont.)
• CodelfaConstruction v State Rail Authority of
NSW (1982) 149 CLR 337 [11.12]
• Con-Stan Industries of Australia v Norwich
Winterthur Insurance Ltd (1986) 160 CLR 226
[11.13]
• BP Refinery (Westernport) Pty Ltd v Hastings
Shire Council (1977) 180 CLR 266
5
6. L’Estrangev F Graucob Ltd [1934]
• General rule that a party is bound to a contract
they sign: L’Estrange.
• Defendant provided a cigarette vending machine
with the terms supplied on a brown paper form.
It contained terms that excluded any express or
implied warranty. Both parties signed.
• Machine didn’t work. Plaintiff succeeded at trial
on the grounds of a breach of implied warranty.
6
7. L’Estrange (cont.)
• Maugham LJ, on appeal, held that the brown
paper form “may well constitute a contract in
writing… the written document admittedly
related to the purchase of the machine by the
plaintiff…even if she did not know its
contents.”
7
8. Oscar Chess Ltd v Williams [1957]
• Express terms require an objective test:Oscar
Chess Ltd
• Defendant sold a car that was a 1948 model to
Oscar but actually ten months later, they
found out that is was a 1939 model.
• Even despite the logbook identified it as a
1948 model Morris. At trial it was found that
this was an express term of the contract that
the car was a 1948 model.
8
9. Oscar Chess (cont)
• On appeal, Denning LJ held “If the seller says, ‘I
guarantee that it is a 1948 Morris…there is a
clearly a warranty…the seller is making himself
contractually responsible.”
• Objective test applied, “the intelligent bystander
would, suggests, say that the seller did not intend
to bind himself so as to warrant that it was a
1948 model, there is only the log-book to go by.”
• The warranty was not binding.
9
10. Dick Bentley v Harold Smith
• Distinguish Dick Bentley v Harold Smith,where
warranty was binding.
• Car dealer (Mr Smith) sold a car to Bentley
and said that there was 20,000 mileage on the
car, and this was later found to be untrue.
Bentley sued for breach of warranty.
10
11. Dick Bentley (cont.)
• Held: Lord Denning MR: “Warranty intended
depends on the conduct of parties, on their
words and behaviour, rather than on their
thoughts….Mr Smith was in a position to
know, or at least find out, the history of the
car…his statement turned out to be quite
wrong. He ought to have known better. There
was no reasonable foundation for it.”
11
12. JJ Savage & Sons P/L vBlakeney
• Blakeneypurchased a boat JJ Savage with an
estimated speed of 15 miles per hour.
• The contractual document between the parties
made no reference to the capacity of the boat to
attain any particular speed. It was then found
that the boats’ speed was only 12 miles per hour.
• At trial, it was not held to be a term or warranty.
On appeal to the Full VSC, held to be a collateral
warranty by way of representation.
12
13. JJ Savage (cont.)
• BarwickCJ, Kitto, Menzies, Owen and Walsh
JJ, held: “When the letter was written, the
negotiations for the construction and delivery
of the boat were incomplete”
• There is nothing in the evidence to support
the view that the respondent (Blakeney)
included any requirements as to the speed of
the motor boat.
13
14. JJ Savage (cont.)
• Consider: Timing of statement and reducing
contract to writing or Special skill and
knowledge of a party: Oscar Chess Ltd v
Williams; or Importance of statement:
Couchmanv Hill [1947] 1 All ER 103.
14
15. Hospital Products vUSSC
• Hospital Products contracted to distribute goods
for USSC, however began selling in competition.
Whether the representation creates a binding
contractual obligation depends on the intention
of the parties.
• A representation made in the course of
negotiations which result in a binding agreement
may be a warranty: [1] it may become a term of
the agreement itself, or [2] may be a separate
collateral contract.
•
15
16. Toll (FGCT) P/L vAlphapharm P/L
• The credit application form, representative of RT
signed without reading the conditions of
contract.
• Clause 6 provided that the carrier be responsible
to the customer for loss and damage in relation
to the goods.
• The Court held that where, as had occurred, a
person signed a document, which was intended
to affect legal relations and knew that it
contained contractual terms, that person was
bound by those terms.
16
17. Curtis v Chemical Cleaning [1951]
• Curtis, Plaintiff/respondent had a dress
cleaned by Chemical Cleaning Co the
defendant/appellant.
• The Plaintiff was asked by the Defendant to
sign a receipt to exempt any liability for
damage to beads or sequins.
• A stain was later left by the appellant.
17
18. Curtis (cont.)
• Denning LJ: Held that “by failing to draw
attention to the width of the exemption
clause, the assistant created the false impression
that the exemption only related to beads and
sequins.”
• The receipt was “only a voucher for the customer
to produce when collecting the goods” and “ not
to contain conditions exempting the cleaners
from their common law liability.”
18
19. Thornton v Shoe Lane Parking Ltd
• Mr Thornton parked his car at a multi-storey
automatic car park owned by the defendant.
• Express terms were on a notice before he
paid, “All cars parked at owner’s risk”.
• Mr Thornton then had a car accident and sought
damages.
• Lord Denning MR: The customer is bound by
those terms as long as thy are sufficiently brought
to his notice beforehand. Reasonable steps were
made to bring notice prior to contract formation.
19
20. Oceanic Sun Shipping v Fay (1988)
• Brennan J: Qld man entered into travel
agreement to Greece, subject to cl. 13 “exclusive
jurisdiction to the laws of Greece”.
• Following injury on the trip, sued for negligence.
• Held: “The contract of carriage was made when
the exchange order was issued and the exclusive
jurisdiction clause was not known to Dr Fay and
was not incorporated in the contract of carriage”.
It was not part of the contract.
20
21. Baltic Shipping v Dillon (1991)
• Baltic (D/A) operated a cruise liner, which sank
and caused Dillon (P/R) to have nervous shock
and trauma. Dillon sued successfully for damages.
Baltic appealed on the grounds that terms in the
contract limited liability.
• Kirby P: “the limitation of liability for damage
expressed not in dollar sum but in terms of the
‘units of account’… there was more, before the
time fixed, that the carrier could have done to
bring the unusual provisions to the notice of the
passenger.
21
22. Balmain New Ferry Co Ltd v Robertson
• Robertson paid and entered a turnstile for a
ferry service operated by Balmain Ferry.
• After trying to walk out he was required to pay
to leave.
• O’Conner J: There was no express
contract, and the terms must therefore be
implied from the circumstances.
22
23. Balmain New Ferry Co (cont.)
• The company undertook to carry him from the
wharf.
• The only contractwhich could be implied from
those circumstanceswere that the plaintiff was
permitted to enter the wharf for the purpose
of that contract being performed.
• The company was entitled lawfully to impose
the condition of a penny payment on all who
used the turnstiles.
23
24. Balmain New Ferry Co (cont.)
• The company, therefore, being lawfully
entitled to impose that condition, and the
plaintiff being free to pass out through the
turnstile at any time on complying with it.
• The Plaintiff had only himself to blame for his
detention, and there was no imprisonment of
which he could legally complain.
24
25. Con-Stan v Norwich Winterthur
Insurance
• Terms may be implied in Custom.
• Con-stan issued insurance premiums through
a company called Bedford, but Bedford did not
pass on the premiums to Norwich.
• Norwich then sued to recover the premiums.
• Court held: Appeal by Con-Stan dismissed, no
implied terms by custom.
25
26. Con-Stan v Norwich Winterthur
Insurance
• Implied terms by custom must meet the indicia
of:
– [1] A justification that the implication of a term into a
contract is a question of fact, that it must be
something that the industry engages in:Nelson v Dahl
(1879) 12 Ch D 581.
– [2] Custom must be well known so as to acquiesce a
reasonable person making a contract
– [3] Must not be contrary to an express term
– [4] No knowledge of the custom is necessary to the
individual.
26
27. Codelfa Construction v State Rail
Authority of NSW
• Facts: SRA contracted with Codelfa to build a rail
line through the Eastern Suburbs. Codelfa
commenced work operating three shifts a day.
Considerable noise, dust and vibration were
caused by the work operating three shifts a day.
An injunction was granted.
• Codelfaclaimed for additional costs for loss of
profit from the injunction.
• The claim was also submitted on the grounds that
there was an implied warranty that should
provide for the breach.
27
28. Codelfa Construction v State Rail
Authority of NSW
• The court had to determine whether an
injunction should be implied in a contract, and
whether the injunction frustrated.
• Mason J: The terms were determined by the
SRA in advance and there is some force in the
argument that the SRA looked to Codelfa to
shoulder the responsibility for all risks not
expressly provided for in the contract.
28
29. Implied Terms by fact
• Mason J set out test in BP Refineries v
Hastings (1977) 180 CLR 266:
– Implication of the term must be reasonable and
equitable between the parties.
– The term must be necessary to give business
efficacy to the contract. If a contract is
commercially effective without the term, the court
will not imply it. A term will be implied if the
contract is unworkable: (Byrne v Australian
Airlines Ltd (1995) 185 CLR 411
29
30. BP Refineries (cont.)
– The term must be so obvious that implication goes
without saying.
– The term must be capable of clear expression and
reasonably certain in its operation. (In Codelfa, the
High Court refused to imply a term into the
contract because it was impossible to say with any
certainty what that term would have said.)
– The implied term must not contradict an express
term of the contract nor deal with a matter
already sufficiently dealt with by the contract.
30
31. Objective test of intention
• Objective test of intention isto determine
what the parties’ intended.
• Consider reasonable party expectations, and
Commercial convenience.
• Determine whether the terms are
unreasonable or absurd, the courts choose to
avoid the ‘capricious, unreasonable
inconvenient, or unjust’:Westpac vTanzone Pty
Ltd[2000] NSWCA 25.
31