CONTRACT Law

CONTRACT Law

26.06.2020

Duração do exame: 3 horas

Duration of the exam: 3 hours

Part I Direito dos Contratos

I (6 valores)

(limite de duas páginas)

Xxxxxx tem os dois filhos, Xxxxxxxxx, 4 anos, e Fonsicas, 7 anos, numa escola privada.

Em resultado da pandemia e como medida de precaução, o Estado português ordenou o fecho das escolas, tendo Guitolina e Fonsicas ficado, por isso, em casa, com os pais, desde então. Enquanto que Fonsicas, já no segundo ano, teve aulas online, Xxxxxxxxx não. A escola não alterou o valor das propinas de nenhum.

Xxxxxx, furiosa com a situação e, em especial, com a decisão da escola de não baixar as propinas, decidiu falar consigo, advogada(o) conceituada(o) na praça, para saber o que poderia fazer. Entre as várias hipóteses que tinha presente, das leituras que fizera online, ponderava resolver o contrato ou solicitar a sua alteração.

Diga o que lhe parecem as alternativas propostas por Xxxxxx, justificando a sua posição.

II (4 valores)

(limite de uma página)

Comente uma das seguintes afirmações:

(a) A natureza duradoura da prestação do empreiteiro, emergente do contrato de empreitada, é discutível.

(b) O regime jurídico do crédito ao consumo contém uma previsão expressa quanto às consequências jurídicas da verificação de uma coligação de contratos.

Part II. Comparatice Contract Law

No consultation of materials allowed

Section 1. Multiple Choice Questions (10 Questions)

(0,4 points per question - no penalty for an incorrect answer)

Consider the following scenario and answer all of the multiple choice questions below (10 Questions) - For each of the questions, check only one box.

On Monday 14th of Xxxxxxx 0000, Xxxxxx sent a letter by post to Xxxxxxx, offering to sell him her Bösendorfer piano for £1000. The letter arrived at Xxxxxxx' address the next day. On Wednesday 16th of October 2019, Xxxxxxx went to Xxxxxx'x house to see the piano, and told her: 'I would like to purchase this piano for £800. Should this be agreable to you, please let me know by post by Tuesday next week'. On Friday morning, Xxxxxx went to the post office to send him a letter informing him that she had decided to sell him her piano for the proposed sum of £800. On the same day, in the afternoon, Xxxxxxx saw an advert in the local newspaper placed by Xxxxxx stating 'Xxxxxxxx piano for sale, good used state, £700', accompanied by a contact number. He called the number provided and told Xxxxxx that he would like to purchase the piano. Xxxxxx informed him that he could come and collect the piano from her house that very evening. On Monday morning, Xxxxxxx telephoned Xxxxxx to inform her that he had found another piano and no longer wished to purchase her Bösendorfer piano. Xxxxxx was absent but Xxxxxxx left a message on her answering machine. On Tuesday 22nd of October, in the morning, Xxxxxxx received and opened Xxxxxx’x letter, and then checked his answerphone messages and heard the message Xxxxxxx had left the previous day.

Question 1: In English Contract law, Xxxxxxx' statement: 'I would like to purchase this piano for £800' constitutes:

☐ a) an offer

☐ b) an invitation to treat

☐ c) a counter-offer

☐ d) none of the above

Question 2: How would English Contract Law qualify Xxxxxx'x advert in the local newspaper stating 'Xxxxxxxx piano for sale, good used state, £700'?

☐ a) as an offer

☐ b) as an invitation to treat

☐ c) as a counter-offer

☐ d) all of the above

Question 3: How would French Contract Law qualify Xxxxxx'x advert in the local newspaper stating 'Xxxxxxxx piano for sale, good used state, £700'?

☐ a) as an offer

☐ b) as an invitation to treat

☐ c) as a counter-offer

☐ d) none of the above

Question 4. In English Contract Law, at which point would a legally binding contract between Xxxxxxx and Xxxxxx be deemed to have been formed?

☐ a) when Xxxxxxx went to Xxxxxx'x house to see the piano, and told her 'I would like to purchase this piano for £800'

☐ b) when Xxxxxx posted the letter informing Xxxxxxx of her decision to sell him the piano on Friday morning

☐ c) when Xxxxxxx received Xxxxxx'x letter on Tuesday 22nd of October

☐ d) a legally binding contract was never formed between Xxxxxxx and Xxxxxx in English Contract Law

Question 5. In French Contract Law, at which point would a legally binding contract between Xxxxxxx and Xxxxxx be deemed to have been formed?

☐ a) when Xxxxxxx went to Xxxxxx'x house to see the piano, and told her 'I would like to purchase this piano for £800'

☐ b) when Xxxxxx posted the letter informing Xxxxxxx of her decision to sell him the piano on Friday morning

☐ c) when Xxxxxxx received Xxxxxx'x letter on Tuesday 22nd of October

☐ d) when Xxxxxx listened Xxxxxxx' message on her answerphone

Question 6. In French Contract Law, at which point would a legally binding contract between Xxxxxxx and Xxxxxx be deemed to have been formed?

☐ a) When Xxxxxxx told Xxxxxx on the phone that he would like to purchase the piano

☐ b) When Xxxxxx informed Xxxxxxx that he could come and collect the piano from her that evening

☐ c) When Xxxxxxx collected the piano from Xxxxxx'x house

☐ d) None of the above

Question 7. Under English Contract Law, did Xxxxxxx validly revoke his offer to Xxxxxx?

☐ a) Yes, he validly revoked his offer when he telephoned Xxxxxx and left a message on her answering machine on Monday morning

☐ b) Yes, he validly revoked his offer when Xxxxxx and llistened to the message that Xxxxxxx had left on her answering machine on Tuesday morning

☐ c) No, he did not validly revoke his offer to Xxxxxx because the revocation took place within the time period he had given to Xxxxxx to accept the offer

☐ d) None of the above

Question 8. Imagine that Xxxxxxx had seen Xxxxxx'x advert on Thursday 17th of October and posted a letter informing Xxxxxx that he had found another piano and no longer wished to purchase her Bösendorfer piano on that same day, and that said letter arrived on Monday 21st of October. The rest of the scenario remains identical to the original scenario described above. What would English Contract Law consider?

☐ a) In that case, Xxxxxxx would have validly revoked his offer to Xxxxxx when he told Xxxxxx that he would like to purchase the piano advertised in the newspaper

☐ b) In that case, Xxxxxxx would have validly revoked his offer when he posted the letter informing Xxxxxx that he had found another piano and no longer wished to purchase her Bösendorfer piano

☐ c) In that case, Xxxxxxx would not have validly revoked his offer to Xxxxxx because the revocation would have been received after the acceptance letter had been posted

☐ d) None of the above

Question 9. Imagine that Xxxxxx had answered her phone when Xxxxxxx called on Monday to inform her that he had found another piano and no longer wishes to purchase her Bösendorfer piano. The rest of the scenario remains identical to the original scenario described above. What would French Contract Law consider?

☐ a) that a contract between Xxxxxxx and Xxxxxx had not been formed as Xxxxxxx' offer had been revoked when he called on Monday to inform her that he had found another piano and no longer wished to purchase her Bösendorfer piano

☐ b) that the revocation was abusive as it would have taken place within the time period given to Xxxxxx to accept the offer

☐ c) that Xxxxxxx may be held liable in tort under the French Civil Code

☐ d) all of the above

Question 10. Going back to the original scenario described above, under the Principles of European Contract Law (see Article 2:202 reproduced below in Question 11), did Xxxxxxx validly revoke his offer to Xxxxxx?

☐ a) Yes, he validly revoked his offer to Xxxxxx when he called Xxxxxx to tell her that he would like to purchase the piano advertised in the newspaper.

☐ b) Yes, he validly revoked his offer when he telephoned Xxxxxx and left a message on her answering machine on Monday morning

☐ c) Yes he validly revoked his offer when Xxxxxx listened to the answering message on Tuesday 22nd of October

☐ d) No, his revocation was ineffective because it had taken place before the end of the period he had fixed for its acceptance

Section 2. Please answer 3 and only 3 of the following 5 questions.

(2 points per question)

Question 11: Article 2:202 of the Principles of European Contract Law provides that:

(1) An offer may be revoked if the revocation reaches the offeree before it has dispatched its acceptance or, in cases of acceptance by conduct, before the contract has been concluded under Article 2:205(2) or (3).

(2) An offer made to the public can be revoked by the same means as were used to make the offer.

(3) However, a revocation of an offer is ineffective if:

(a) the offer indicates that it is irrevocable; or

(b) it states a fixed time for its acceptance; or

(c) it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.

Explain and analyse this article. Do the same principles apply in relation to the revocation of an offer under French and English Contract Laws?

Question 12: Professor Xxxxxxx wrote ‘An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable’. Explain this definition of the doctrine of consideration, and analyse the role played by this doctrine in English Contract Law. Illustrate your answer with case law.

Question 13: Consider the following scenario. In September 2018, Xxxxxxx moved to Oxford to study medicine. Xxxxx, his father, promised to give Xxxxxxx £1000 a month for rent and maintenance during his studies. In March 2019, Xxxxx and Xxxxxxx had an argument and Xxxxx stopped sending money to Xxxxxxx. Xxxxxxx comes to see you to seek advice as to whether he can sue his father for breach of contract under English Contract Law. Advise him using case law to illustrate your answer.

Question 14: Article 1102 of the French Civil Code provides that:

Everyone is free to contract or not to contract, to choose the person with whom to contract, and to determine the content and form of the contract, within the limits imposed by legislation. Contractual freedom does not allow derogation from rules which are an expression of public policy.

Analyse this article. Are there some limitations to the principle of freedom of contract under French Contract Law? Is the situation the same in English Contract Law? Illustrate your answer with case law.

Question 15: In the English case of Combe vs. Combe (1951), Xxxx Xxxxxxx stated that the doctrine of promissory estoppel could only be used 'as a shield, not as a sword'. Explain what the doctrine of promissory estoppel refers to and analyse this statement. Illustrate your answer with case law.

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