Contracts Revision Session 1 LSS Revision Tutorial Thursday

Contracts Revision Session 1 LSS Revision Tutorial Thursday 3 Nov 2011 @ 1 pm

Coping with Contracts • Need to be linear and chronological (don’t just seize on the first issue you see). • Need to develop your own summary that is based on the life-cycle of the contract, includes the issues that crop up at each stage, the rules for how to deal with those issues, and authority for them. • Cases are crucial - but not much use if you don’t know where they fit into the bigger picture. • Closed book exams don’t have to be as scary as they seem - you can fit a lot on 4 pages if you are taking notes on the right things (and are strategic about how you prepare)

This session • Holistic view of the course • Not cover rules from cases specifically • How to prepare for the exam Note: this covers the topics that we did in Semester 1 2011 - some of these may have changed for you…

Life-cycle of the Contract Formation (is there a contract? ) Construction (what are the terms of the contract? ) Discharge (was the contract performed? Breached? Frustrated? ) Remedies (what remedies are available if things have gone wrong? ) Vitiating Factors (what other underlying issues need to be considered? )

Formation Offer • What constitutes an offer • Duration of offer • Termination of offer Acceptance • Rules of Acceptance • Revocation of Acceptance Consideration • What is and isn’t ‘good’ consideration

Formation (cont…) Uncertainty and Incompleteness • Illusory, Incomplete and Uncertain contracts (know the difference!) • What happens if court decides it is one of these? • ‘Subject to’ contracts (subject to finance, subject to written contract) Agreements to Agree/Negotiate • Are they enforceable? • In what circumstances?

Formation (cont…) Intention to Create Legal Relations • Commercial and domestic presumptions Requirement of Writing • Statute of Frauds (which contracts need to be in writing? ) • Rules for notes or memorandums of contract • What happens if not in writing and should be? Estoppel • What is it? • When might it apply?

Construction Express terms • what is written / actually said • Decide if puff, mere representation or actual term Incorporation of terms • By signature • By notice (ticket cases) • By course of dealing • By reference

Construction (cont…) Implied terms • By fact • By common law • By statute • By custom and usage Things affecting application/interpretation of term: • Privity • Parol Evidence Rule • Limitation and Exclusion Clauses Collateral Contracts

Discharge Breach • Late performance (time stipulations, notices to perform) • Defective performance (substantial performance) • Non performance (order of performance) Frustration • In what circumstances?

Discharge (cont…) Right to Terminate? • Why want it? • Under what circumstances is it available? • What constitutes affirmation? • What constitutes repudiation?

Remedies Damages • Substantive v Nominal • Unliquidated damages (expectation damages, reliance damages) • Liquidated damages (become debts) Equitable remedies (know what and when) • Promissory estoppel • Specific performance • Injunction

Vitiating Factors Duress • Physical duress • Economic duress Undue Influence • Presumed • De facto presumed • Actual Unconscionable Conduct • Common law • Statute (ACL)

Vitiating Factors (cont…) Misrepresentation and Misleading Conduct • Fraudulent • Negligent • Innocent • Statute (ACL) • Remedies? Mistake • Unilateral • Common • Mutual • Non est factum • Rectification of documents

Your challenge: 1. For each topic: make a list of the rules that govern it with the authority for that rule in brackets. 2. Identify which topics you don’t understand as well as others and re-read lecture notes, cases, etc. If you are still unsure, email your tutor and ask questions. 3. Refine this to a 4 page summary (be creative with font, colour, formatting). 4. Consider flash cards for cases - rule one side case name on the other and use these for revision. 5. Test out your summary by doing a practice exam (even if it’s just issue-spotting) - and refine the summary.

Tomorrow’s session • Exam techniques for Contracts