Case Law Notes 1.Docx

Case You are expected to have an understanding of the outcome of each of the cases below, to help you argue the legal principles In Weeks 1 2 you will be provided with the legal MAIN CORE principles i[.]

You are expected to have an understanding of the outcome of each of the

cases below, to help you argue the legal principles In Weeks 1-2 you will be provided with the legal MAIN CORE principles in the table From Weeks 3-11, you are expected to identify these principles YOURSELF in your reading

An offer can only exist if there is a firm promise

to do or to refrain from doing something The

mere supplying of information, whether in

response to a request or otherwise, is not an

offer to deal

Harvey v Facey [1893] AC

552

A mere display of goods for sale at marked

prices is generally regarded as an invitation to

treat, not an offer

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern)

Ltd [1953] 1 All ER 482 Fisher v Bell [1961] 1 QB

394

Advertisements are usually regarded as

invitations to treat Grainger & Son v Gough [1896] AC 325

It is possible for a statement not directed to any

specific group of acceptors to be an 'offer to the

world at large'

Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256

Offers must set out the means by which it can be

accepted

Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia

Ltd [2006] VSC 42

Once the acceptor has become aware of the

offer, it can be accepted and the acceptor’s

motive for accepting it is immaterial

Williams v Carwardine (1833) 5 Car &

P 566 The existence of the offer must be in the

offeree’s mind at the time of purported

acceptance and the 'acceptance' must be both in

response to and as a result of the offeree’s

knowledge of the offer

R v Clarke (1927) 40 CLR

227

Exaggerated statements that no reasonable

person would believe, known as 'puff', are not

binding on the party making them and do not

Leonard v Pepsico Inc 88 F

Supp 2d (SDNY 1999)

Principle Relevant cases

give the other party any grounds on which to

seek a remedy

The offeror’s entitlement to revoke is absolute Routledge v Grant [1828] 4 Bing 653

Any revocation of an offer must be

communicated to the offeree before it becomes

effective Until the offeree becomes aware of the

revocation, he or she can accept the offer and

any such acceptance will create a valid and

binding contract

Byrne & Co v Van Tienhoven & Co (1880) 5

CPD 344

Only if the promisee has paid to keep the offer

open or if the promise to keep it open has been

made by deed will the offeror not be able to

withdraw it This is a new and quite separate

contractual obligation to keep the offer open

called an 'option'

Goldsbrough Mort & Co Ltd

v Quinn (1910) 10 CLR 674

A counter-offer is a rejection of the original offer

and a substitution of a new offer for it The

counter-offer destroys the original offer and,

thereafter, it cannot be accepted

Hyde v Wrench (1840) 2

Beav 334

A mere inquiry is not an acceptance, but neither

is it a counter-offer or rejection It has an entirely

neutral effect on the offer, and when the offeror

replies, the offeree still has the option of

accepting or rejecting

Stevenson v McLean (1880)

5 QBD 346

Where firms have their own preprinted purchase

order forms and shipping vouchers or delivery

dockets with terms under which the orders are

sent or received, each set of terms is considered

a counter-offer and 'the set submitted last' takes

precedence

Butler Machine Tool Co Ltd

v Ex Cell O Corp(England)

Ltd [1979] 1 WLR 401

Where no time limit is stipulated, the offer must

still be accepted within a 'reasonable time' Once

that reasonable time expires, the offer

automatically comes to an end

Ramsgate Victoria Hotel v Montefiore (1866) LR 1 Ex

109

If you haven't already, make sure to review all assessments for this unit

Some key things to note:

 The three assessments cover material from the themes within the unit

 You are strongly advised to work progressively on all assessments throughout the teaching period Participating in the weekly

discussion activities will support you as you prepare for each assessment

Ensure that you take notes on the cases from each week to help you work towards the relevant assessment tasks

You are expected to have an understanding of the outcome of each of the cases below, to help you argue the legal principles In weeks 1-2 you will be provided with the legal principles in the table From weeks 3-11, you are expected to identify these principles yourself in your reading

In determining what constitutes a reasonable time, at

least two considerations are important:

a the nature of the subject matter of the

contract (and, in particular, whether it was of

a wasting nature); and

b the means used to communicate the offer

(the more urgent the means used, the more

reasonable it would be to presume that a

rapid reply was required)

Manchester Diocesan Council for Education

v Commercial & General

Investments Ltd [197

0] 1 WLR 241

Acceptance can occur through conduct

Brogden v Metropolitan Railway Company (1877) 2

App Cas 666

The offer must be present in the mind of the

“acceptor” when the “acceptance” occurs or there is

no true acceptance (that is, the act of acceptance

must have been in response to, and as a result of, the

offer)

R v Clarke (1927) 40

CLR 227

An acceptance can only be communicated by the

offeree or by an agent duly appointed for that

purpose Until the offeror becomes aware of

the acceptance, the acceptor is not bound

Powell v Lee (1908)

99 LT 284

The offeror cannot stipulate that silence (such as not

actively declining the offer) is a means of acceptance

Felthouse v Bindley (1862) 11

CBNS 869 The postal rule states that where the parties

contemplate acceptance by mail, acceptance will be

complete as soon as the letter is properly posted

Adams v Lindsell (1818) 106

ER 250 The postal rule specifically applies to acceptances by Entores Ltd v Myles

Principle Relevant cases

mail and by telegram For other forms of

communication, the general rule applies and

acceptance occurs when and where the offeror

receives the communication This includes

acceptances by telephone, telex, teleprinter, facsimile

machine and other forms of instantaneous or

near-instantaneous communication

Far East Corporation [1955] 2

QB 327

Where the postal rule or a “deemed acceptance”

provision applies, a posted acceptance will be

effective, even if it becomes lost, is never delivered or

is abnormally delayed

Household Fire and Carriage Accident Insurance Co v Grant (1879) 4 Ex D

216 The offeror can negate the postal rule by requiring

actual communication instead of the constructive

communication, either by expressly stipulating that

they must receive the acceptance for it to become

effective or by implication where it's clear that

uncommunicated acceptance was not intended

Holwell Securities Ltd

v Hughes [1974] 1 All

ER 161

If money is contributed as part of expense sharing,

there is still no contract unless there is evidence of

intention to create a legally binding contract

Coward v Motor Insurers

Bureau [1963] 1 QB

259 Agreements between spouses are not contracts

because the parties did not intend that they should be

attended by legal consequences Domestic

agreements between spouses are outside the realm of

contract altogether

Links to an external site.Balfour v

Balfour [1919] 2 KB

571

It is possible for a spouses to create a binding

contract, for example as part of a separation

arrangement

Merritt v Merritt [1970] 2 All

ER 760 Where adult members of a family other than husband

and wife share a household, the financial

arrangements which they make may be intended to

have contractual effect

Riches v Hogben (1986) 1 Qd

R 315

Principle Relevant cases

In commercial agreements, it is presumed the parties

intend to create legal relations However, if the parties

expressly deny intention by stating that negotiations

are ‘subject to contract’ or that any agreement is to be

‘binding in honour only’ then there is no contract

Ermogenous v Greek Orthodox

Community(2002)

209 CLR 95

Rose & Frank Co v Crompton

Bros [1923] 2 KB 261

An agreement between persons who share a

household, but which has nothing to do with the

management of the household, will probably be

intended to be legally binding

Simpkins v Pays [1955] 1 WLR

975

If the act put forward as consideration was performed

before any promise of reward was made, it is not valid

consideration

Eastwood v Kenyon (1840) 113

ER 482

As long as some value is given, consideration need not

be ‘adequate’ (that is, be of equal or greater value to

the promise) There is no remedy for someone who

makes a bad bargain

Thomas v Thomas (1842) 3 QB

234

Forbearance (a promise not to do something that the

promisee was entitled to do or not exercising a

present right at the request of the promisor) can

constitute good consideration

Dunton v Dunton (1892) 18

VLR 114

You are expected to have an understanding of the outcome of each of the cases below, to help you argue the legal principles In Weeks 3-11, you are expected to identify the legal principles that these cases relate to in your reading and complete the table for your study notes as modelled in weeks

1-2

Principle Relevant cases Textbook section

Mercantile Bank of Sydney v Taylor (1891)

12 LR (NSW) 252

4.3

Van Den Esschert v Chappell [19

60] WAR 114

4.8

De Lassalle v Guildford [19

01] 2 KB 215 4.14

Hoyts Pty Ltd

v Spencer (191

9) 27 CLR 133

4.15

JJ Savage &

Sons v Blakney (197

0) 44 ALJR 123

4.17

Routledge v McKay [1954]

1 All ER 855

http://www.e-l awresources.co uk/Routledge-v-Mackay.php Link

s to an external site

Oscar Chess

v 4.12

Principle Relevant cases Textbook section

Williams [195

7] 1 All ER

325 [PDF, 17KB]

Dick Bentley Productions Pty Ltd v Harold Smith (Motors) Pty Ltd [1965] 1

WLR 623

4.12

Ellul v Oakes [1972]

3 SASR 337 4.12

BP Refinery (Westernport ) Pty Ltd v Shire of Hastings (19

77) 180 CLR 266

4.34

L’Estrange v Graucob [193

4] 2 KB

394 Links to

an external site

4.28

Toll (FGCT) Pty Ltd v Alphapharm Pty

Ltd [2004]

HCA 52

http://classic.au stlii.edu.au/au/jo urnals/UNELawJ l/2005/9.pdf Lin

ks to an external site

Curtis v Chemical Cleaning and Dyeing Co

[1951] 1

KB 805 Links

4.29

Principle Relevant cases Textbook section

to an external site

(Clarke 2010)

Le Mans Grand Prix Circuits Pty Ltd v

Iliadis [1998]

4 VR 649

Clarke, B., Kapnoullas,

S., When is a signed document contractual? Taking the 'Fun' out of

'Funfair' [2001]

QUTLawJJI 4 (http://classic.aus t

lii.edu.au/au/journ als

/QUTLawJJl/2001/ 4.htm Links to an ext

ernal site.)

Class Session Discussion