T he first requirement to form a contract is an agreement between the parties, generally referred to as a mutual manifestation of assent. Both parties must intend to contract and must agree to the same terms. Typically, mutual assent is found through...Contract Formation • February 4th, 2017
In finding assent, the courts apply an “objective test” which looks to the parties’ words and actions (outward manifestations) and not to what they may have subjectively believed. The test of a party’s intent is viewed from the perspective of a reasonable person
TOPIC 1 AGREEMENT 2Contract Formation • October 12th, 2019
Contract FormationContract Formation • May 31st, 2021
AGREEMENT – OFFER AND ACCEPTANCE 2Contract Formation • July 2nd, 2021
Law: when parties disagree on HOW certain terms are to be interpreted, the court may have to decide. Step 1: Can extrinsic materials be used **not always relevant** - Parties may wish to adduce extrinsic evidence to support a certain construction of a term.- However, this is only applicable if the PER does not apply (analyse from above if this applies) Q: When can surrounding circumstances be considered?A: Only in cases of ambiguity (Jireh in HCA)→ Narrow approach: court can only refer to surrounding circumstances to construe terms if there is ambiguity (Codelfa, Botanic Gardens).- Ambiguity = language is “susceptible of more than one meaning” (Royal Botanic Gardens)▪ i.e. not admissible to contradict the language of the contract when it has a plain meaningA: Always → Broad approach: court can consider surrounding circumstances regardless of ambiguity.- Surrounding circumstances = commercial purpose, background, market in which the parties operate The narrow approach prevails in Austra
Contract formationContract Formation • May 11th, 2018
Under English law, contracts can be made orally and in a dynamic business environment, this frequently happens. However, whether a binding agreement has been made depends upon the core principles of a contract being satisfied. Generally speaking, for a contract to be valid and binding, there must be:
Governing Law: either Common Law or the UCC. UCC: is the governing law for the sales of goods. Common Law: is the governing law for all other transactions that are not goods. (ex: services)Contract Formation • October 12th, 2020
Mixed Goods/Service: use the predominant purpose test. Looking at the main intended purpose of what they are bargaining for, which ever dominants controls.
CONTRACT FORMATIONContract Formation • September 10th, 2021
MacRobertson Miller Airline Services v Commissioner of State Taxation (WA)………………………… p.6 Offers distinguished from invitations to treat………..…………………….……………………………. p.7 Pharmaceutical society of Great Britain v Boots Cash Chemists (Southern) Ltd..…………..…..……… p.7 Mobil Oil Australia v Wellcome International Pty Ltd…………….……..…………………..…..……….. p.8 Termination of an offer…………..………………………………….……..…………………..…..……… p.9 AGREEMENT: ACCEPTANCE……………………………………….….…..……….…………..…… p.10 Relationship between the offer + acceptance……………….……………………………….………….. p.10 The Crown v Clarke………………………………………………………………………………………. p.10 Communication of acceptance……………………………………………………………..……………. p.11 Felthouse v Bindley..………….……….…….…….………………………………….……….…….……. p.11 Empirnall Holdings v Machon Paull Partners Pty Ltd.……………………………………….………… p.12 Brambles Holdings v Bathurst City Council…………….……….……..……………………………..…. p.13 Method of communication…….…….……………………………….……………………………..…… p.15 Brinkibon v Stahag Stahl US………………………………………………….……
Topic 1 – Contract formationContract Formation • June 15th, 2016
CONTRACT FORMATION AGREEMENT - OFFER & ACCEPTANCEContract Formation • November 8th, 2022
- “An offer may be described as the indication by one person to another of his or her willingness to enter into a contract with that other person on certain terms” - Carter, Peden & Tolhurst, Contract Law in Australia (6th ed, 2013) [3-07]
Types of contracts:Contract Formation • November 20th, 2024
Unilateral Contracts “This is a potential unilateral contract/agreement, as only P has a duty to perform…”Formed by the exchange of a promise for requested conduct (Carlill)> Same conduct constitutes acceptance and performance by the offeree.> At the time of formation, only the party making the promise has outstanding obligations. Bilateral Contracts “Here, this is a bilateral contract/agreement, as both parties have obligations to perform…”Contract formed by the exchange of promises. Acceptance and performance are two separate events.At time of formation, both parties have outstanding obligations to perform.
CONTRACT FORMATIONContract Formation • November 15th, 2021
- Courts note agreement can be made even without an identifiable offer & acceptance (Heydon JA in Brambles) or with confusing offer & acceptance (MacRobertson)
Agreement - OfferContract Formation • April 26th, 2021
o [X] must prove that a reasonable person in the position of [offeree] would believe that an offer was intended, and that a binding agreement would be made upon acceptance (Carbolic).
