Contracts (Biukovic)
Dec 2008
Introduction to Contracts ................................................................................................................. 2
Formation of the Contract ................................................................................................................ 2
Offer............................................................................................................................................. 2
Offer and Invitation to Treat .................................................................................................... 2
Canadian Dyers Association Ltd. v. Burton, 1920 ......................................................... 3
Pharmaceutical Society of GB v. Boots, 1953 CA Eng .................................................. 3
Goldthorpe v. Logan: 1943 ENG CA .............................................................................. 3
Consumer Protection Act ............................................................................................... 3
Carlill v. Carbolic Smoke Ball Co: 1893 ENG ................................................................ 4
Harvela Investments v. Royal Trust: 1985 HL ............................................................... 4
R. v. Ron Engineering and Construction (Eastern) Ltd.: 1981 SCC .............................. 4
MJB Enterprises Ltd. v. Defence Construction Ltd.: 1999 SCC .................................... 4
Double N Earthmovers Ltd v. City of Edmonton 2007 SCC 3 ....................................... 4
Communication of Offer .......................................................................................................... 4
Williams v. Carwardine: 1833 ......................................................................................... 5
R. v. Clarke: 1927 Australian H.C. ................................................................................. 5
Acceptance .................................................................................................................................. 5
General ................................................................................................................................... 5
Livingstone v. Evans: 1925 Alberta S.C. ........................................................................ 5
Butler Machine Tools v. Ex-cell-o Corp: 1979 Eng CA .................................................. 5
Communication of Acceptance ............................................................................................... 6
Felthouse v. Bindley: 1862 NSCA .................................................................................. 6
Brinkbon v. Stahag Stahl: 1983 Eng .............................................................................. 6
Household Fire & Carriage Accident Insurance v. Grant: 1879 ENG CA ...................... 6
Holwell Securities v. Hughes: 1974 Eng CA .................................................................. 6
Electronic contract formation and related problems ............................................................... 7
ProCD v. Mathew Zeidenberg and Silken Mountain Web Services: 1996 US CA ........ 7
Rudder v. Microsoft Corp, Ont. S. C. (1999) .................................................................. 7
Kanitz v. Rogers Cable Inc. ............................................................................................ 7
Electronic Transaction Act, 2001 ................................................................................... 7
Termination of Offer .................................................................................................................... 7
Revocation .............................................................................................................................. 7
Unilateral Contracts ................................................................................................................ 8
Rejection and Counter Offer ................................................................................................... 8
Byrne v. Van Tienhoven: 1880 CPD .............................................................................. 8
Dickinson v. Dodds: 1876 CA [indirect revocation] ........................................................ 8
Errington v. Errington and Woods: 1952 KB [unilateral revocation] ............................... 8
Lapse of Time ......................................................................................................................... 8
Barrick v. Clark (1951) SCC ........................................................................................... 8
Manchester Diocesan Council v. Commercial Investments Ltd: 1970 ........................... 9
Certainty of Terms ....................................................................................................................... 9
May & Butcher v. R.: 1929 KB ....................................................................................... 9
Hillas and Co. Ltd. v. Arcos Ltd.: 1932 HL ..................................................................... 9
Foley v. Classique Coaches Ltd: 1934 CA Eng ........................................................... 10
Empress Towers Ltd. v. Bank of Nova Scotia: 1991 BCCA ........................................ 10
Mannpar Enterprises Ltd. v. Canada: 1999 BCCA ...................................................... 10
Wellington City Council v. Body Corporate, 2002, N.Z. C.A. ....................................... 10
Bawitko Investments Ltd. v. Kernels Popcorn Ltd, 1991, Ontario C.A. ........................ 10
Intention to create legal relations .............................................................................................. 10
Balfour v. Balfour: 1919 Eng CA .................................................................................. 11
Rose and Frank Co. v. JR Crompton and Bros. Ltd.: 1923 Eng CA ............................ 11
Toronto-Dominion Bank v. Leigh Instruments Ltd, 1999, Ontario CA .......................... 11
Consideration ............................................................................................................................ 11
1
6.1
Nature of Consideration ........................................................................................... 11
Thomas v. Thomas: 1842 Eng QB ............................................................................... 12
Jones v. Padavatton, 1969, All ER............................................................................... 12
6.2
Past Consideration................................................................................................... 12
Eastwood v. Kenyon: 1840 QB .................................................................................... 12
Lampleigh v. Braithwait: 1615, Eng. K.B. ..................................................................... 13
6.3
Forbearance ............................................................................................................. 13
B. (D.C.) v. Arkin: 1996 Man QB .................................................................................. 13
6.4
Pre-existing Legal Duty ............................................................................................ 13
Duty imposed by legal/public duty ........................................................................................ 13
Duty owed to a third party ..................................................................................................... 13
Pao On v. Lau Yiu Long: 1980, PC .............................................................................. 13
Duty owed to promisor .......................................................................................................... 14
Gilbert Steel Ltd. v. University Construction Ltd.: 1976 Ont CA .................................. 14
Williams v. Roffey Bros & Nicholls (Contractors Ltd.): 1990 Eng CA .......................... 14
Foakes v. Beer (1884) – Eng. HL................................................................................. 14
Re Selectmove Ltd. [1995] English CA ........................................................................ 15
Foot v. Rawlings [1963] SCC ....................................................................................... 15
Waiver and Promissory Estoppel .............................................................................................. 15
Central London Property v. High Trees House Ltd.: 1947 ........................................... 16
John Burrows Ltd. v. Subsurface Surveys Ltd.: 1968 SCC ......................................... 16
D & C Builders Ltd. v. Rees: 1966 England CA ........................................................... 16
Combe v. Combe: 1951, England KB CA .................................................................... 16
Walton Stores v. Maher: 1988 Aus HC ........................................................................ 16
M. (N.) v. A.(A.T.), 2003, BC CA .................................................................................. 17
Privity of Contract ...................................................................................................................... 17
Tweedle v. Atkinson, 1861 B&S ................................................................................... 17
Dunlop PneumaticTyre Co. v. Selfridge & Co. Ltd., 1915 AC HL ................................ 18
Beswick v. Beswick, 1966 Eng CA ............................................................................... 18
Beswick v. Beswick, 1968 Eng HL ............................................................................... 18
London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 SCC .......................... 18
Fraser River Pile & Dredge Ltd. v. Can-Dive Services, 1999 SCC .............................. 18
Introduction to Contracts
Elements of a K (common law):
 Consensual Agreement
o Offer
o Acceptance
 Consideration (something of value to law exchanged for promise)
 Intention to create legal relations (enter freely)
 Requirements of form (legality). More important in civil law.
 Maturity (age), Capacity (mental health), and Consent
Formation of the Contract
Offer
Offer and Invitation to Treat
Invitation to treat:
 A statement of willingness to entertain an offer; invitation to others to make an offer;
terms can still be determined; often a prelude to a K.
Offer:

A promise to do or refrain from doing some specified thing in the future
2

A final and definite willingness to enter into a K and be bound by its terms; not much
negotiation, other side will just accept
General Rule:
 Giving a mere price quote or placing goods on shelf for sale or publishing advertisement
is not an offer but an invitation to treat: Pharmaceutical Society v. Boots
Exceptions:
 Need to consider: intention, conduct, surrounding circumstances to determine whether
price quote or ad is offer instead of invitation to treat: Canadian Dyers Association Ltd. v.
Burton, Goldthorpe v. Logan
 "Promise to world at large" to give something in return for performance of some action is
not invitation to treat but a unilateral offer: Carlill v. Carbolic Smoke Ball Co
Tenders / Bids / Auctions:
 Invitation to treat can specify the type of offer (bid) required; e.g. whether fixed price or
auction bids: Harvela Investments v. Royal Trust
 In a formal tendering process, call for tenders is not just an invitation to treat but an offer
(to accept tenders); submission of valid tender is acceptance of this offer (contract A); the
tender that is chosen is then basis for forming actual contract to do work (contract B); R.
v. Ron Engineering, MJB Enterprises Ltd. v. Defence Construction Ltd.
 If submitted tender is not valid (i.e. it does meet terms stated or implied in call for tenders)
then it does not result in a contract (contract A): MJB Enterprises Ltd. v. Defence
Construction Ltd.
 In auction, auctioneer is making invitation to treat; those who are bidding are making
offer; invitation or offer can be revoked before hammer is hit.
Canadian Dyers Association Ltd. v. Burton, 1920
FACTS: Burton selling house, quotes price to P who sends deposit; Burton accepts deposit and
sends deed but later refuses to acknowledge contract.
ISSUE: Was there an offer? Yes, because of conduct of D.
RATIO: a mere price quote is usually only an invitation to treat but to decide if there was an offer,
need to look into the intention and conduct of the parties and the surrounding circumstances.
Pharmaceutical Society of GB v. Boots, 1953 CA Eng
FACTS: Boots is a self-service pharmacist; P charges Boots with selling without supervision;
ISSUE: is displaying goods in a store an offer to sell? No, only an invitation.
RATIO: merchandise display = invitation to treat; offer = at cash register; acceptance = taking
customer's money
Goldthorpe v. Logan: 1943 ENG CA
FACTS: P sees newspaper ad for hair removal with guaranteed results; goes thru with the
procedure but it was unsuccessful
ISSUE: Was there a K based on the ad? Yes, ad was an offer because it made explicit promises
(guaranteed success) based on consumer’s performance.
RATIO: general principle is that ads are invitations to treat but that depends on the language
used and the conduct of the parties – can be an offer.
Consumer Protection Act
 Allows people to get out of certain K’s
 Stemmed from the misuse of standard form K’s
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Carlill v. Carbolic Smoke Ball Co: 1893 ENG
FACTS: D advertised that their smoke ball, if used properly, would prevent the user from
contracting the flu; offered money if didn’t work; P used it as directed and still got the flu
ISSUE: Was there an offer? Yes, it was a unilateral offer, not an invitation to treat, because of
guarantee and reward.
RATIO: if an ad promises something in return for performing certain actions then it is a unilateral
offer made to the public, not an invitation, a K is only concluded with those that fulfill the
conditions on the faith of the ad. No written notification of acceptance is required – performance is
sufficient. "Plain meaning" interpretation; unrealistic, vague, non-intentional K can still be upheld.
Harvela Investments v. Royal Trust: 1985 HL
FACTS: the R sent an invitation to the A and to Sir Leonard to bid on shares; the A offered
$2,175,000 and Leonard offered $2,100,00 or $101,000 higher than the next bidder; R gave it to
Leonard
ISSUE: was the sale a fixed bid or an auction? It was fixed, based on intention of seller.
RATIO: the seller controls the type of bidding and the intention of the seller can be deduced
through reading the provisions set out in the invitation to treat.
R. v. Ron Engineering and Construction (Eastern) Ltd.: 1981 SCC
FACTS: contractor D wanted to withdraw bid after deadline because of mistake in costs;
ISSUE: Is the D entitled to recover his tender deposit? No, he breached contract.
RATIO: the tender process is a 2 contract process (A and B); the call for tenders is the offer and
the bid submission is the acceptance; this leads to the formation of KA; entering into KA leads to
the contractual obligation that if bid is accepted will enter into KB which is the construction K.
MJB Enterprises Ltd. v. Defence Construction Ltd.: 1999 SCC
FACTS: the lowest bidder was non-compliant but was chosen anyway; the A says that privilege
clause allows it to choose whomever they please.
ISSUE: Does privilege clause allow them to accept a non-compliant bid? No, only allows them to
choose between valid tenders.
RATIO: two key points to remember: 1) notion of implied term of contract, in this case, that
contract A must be a valid contract to be considered, 2) decision that privilege clause does not
override the need to consider only valid contracts (implied terms of contract override explicit
terms of contract).
Double N Earthmovers Ltd v. City of Edmonton 2007 SCC 3
FACTS: City awarded contract to rival company despite non-compliant bid
ISSUE: By making KB with rival bidder's non-compliant bid, did City breach KA with P and breach
obligation to treat all bidders with fairness? No, KA does not survive creation of KB so City has no
contract or obligation to P
RATIO: Not every failure to comply with tender requirements invalidates bid; not obligated to
investigate bids
Communication of Offer
General rule:
 An offer must be explicitly and intentionally communicated in order to be valid
Rewards:
 Notices for rewards constitute a unilateral offer. Whoever has knowledge of the offer and
fulfills the stated requirements gets the reward regardless of motive: Williams v.
Carwardine
 Exception: if don’t act on reliance of offer (are not aware of offer or give no regard to
offer) then not entitled to reward: R. v. Clarke
4
Williams v. Carwardine: 1833
FACTS: the D offered reward for information regarding brother’s murderer; on deathbed, the P
gave a statement that led to the conviction of the murderer; asked for reward and was denied
ISSUE: Is P entitled to the reward? Yes, b/c was aware of offer although had ulterior motive for
accepting
RATIO: acceptance of offer is legally binding agreement, regardless of the motives of acceptance
R. v. Clarke: 1927 Australian H.C.
FACTS: reward offered for info regarding murderer; D snitched to save own skin; says that he
was aware of the reward but forgot when he gave the information
ISSUE: should the D get the reward even though he was not induced by the reward? No, must
have some reliance on offer to get reward.
RATIO: a person is not entitled to a reward if they did not act in any reliance on the offer; must be
aware of the offer to get the reward; in general, acceptance has to be in response to an offer.
Acceptance
General
Counter-offers / Battle of forms:
 replying to offer with modified terms is a counter-offer (not acceptance); a counter-offer is
a rejection of the original offer (a mere inquiry is not a counter-offer or rejection); the
original offeror accept counter-offer, make new offer or revive the original offer; an offer
that has been rejected cannot later be accepted except with the consent of the offeror:
Livingstone v. Evans
 in battle of forms general rule is ‘last shot’ rule: there is a contract as soon as the last
form is sent and accepted without objection; however, in cases of dispute over terms
must reconcile totality of correspondence (look at all shots not just first shot or last shot):
Denning in Butler Machine Tools v. Ex-cell-o Corp
Livingstone v. Evans: 1925 Alberta S.C.
FACTS: D offers to sell P land for $1800; P counter-offers lower price; D replies that he cannot
reduce the price; P writes accepting the offer but D sells to someone else.
ISSUE: Was reply “can’t reduce price” a renewal of original offer? Yes, because reiterates original
price.
RATIO: a counter-offer is a rejection of the original offer but it is possible to revive an original offer
by replying back to a counter-offer, depending on the surrounding circumstances. An offer that
has been rejected cannot later be accepted except with the consent of the offeror; (note that a
mere inquiry is not a rejection).
Butler Machine Tools v. Ex-cell-o Corp: 1979 Eng CA
FACTS: buyer and seller send forms back and forth regarding price of a machine; when delivery
comes the seller has increased the price and there is a dispute about it.
ISSUE: Whose terms and conditions prevail? In this case, buyer’s terms prevailed since the seller
finally signed and returned their form.
RATIO: battle of forms: Lord Denning identifies several possibilities for courts:
1. Last shot: K is concluded upon the terms of the last document sent and not objected to
2. First shot: a contract is concluded upon the terms of the first document.
3. All shots count and the court must discover its terms on an objective basis:
a) K is concluded upon terms drawn from all the documents that have passed between the
parties when the terms can be reconciled as to give a harmonious result; or
b) if material points are not agreed upon, differences irreconcilable and K is not concluded
5

Which test prevails depends on circumstances; need to look at totality; courts have
discretion to choose;
Communication of Acceptance
General rules:
 Acceptance must be communicated to offeror (silence is not valid acceptance): Felthouse
v. Bindley
 Recipient rule: acceptance is effective when received by the offeror (true for all
instantaneous communication; e.g. phone, telex): Brinkbon v. Stahag Stahl
 If an offeror has not insisted on one mode of acceptance, use mirror image rule:
Manchester Diocesan Council v. Commercial Investments Ltd
Exceptions:
 Unilateral offers do not require communication of acceptance (acceptance is based on
performance): Carlill v. Carbolic Smoke Ball
 Mailbox rule: acceptance still needs to be communicated but is effective when it is
delivered to post office, not when received (true for non-instantaneous communications;
e.g. mail, courier, telegraph): Household Fire & Carriage Accident Insurance v. Grant
 Exceptions to mailbox rule: does not apply if it leads to absurdity or inconvenience; does
not apply if the offer explicitly states that the acceptance must reach the offeror: Holwell
Securities v. Hughes
Felthouse v. Bindley: 1862 NSCA
FACTS: nephew offers to sell horse to uncle; the uncle makes a counter-offer; nephew intends
acceptance but before can deliver horse it is accidentally sold at an auction; uncle sues the
auctioneer.
ISSUE: Was there a complete K between the nephew and the P (and therefore did P own the
horse)? No, acceptance was not clearly communicated.
RATIO: silence is not acceptance of an offer except specified; in general the offeror is in control
of the mode of acceptance but the courts are reluctant to allow offeror to impose acceptance
when a party is silent.
Brinkbon v. Stahag Stahl: 1983 Eng
FACTS: offer (by seller in Vienna) and acceptance (by buyer in London) sent by telex.
ISSUE: Where was contract formed? The recipient rule applies, so K formed when acceptance
received by sellers in Vienna.
RATIO: General recipient rule applies to instantaneous communications such as telex.
Household Fire & Carriage Accident Insurance v. Grant: 1879 ENG CA
FACTS: D makes an application to buy shares; P confirms the sale by a letter sent thru the post;
the letter never made it to the D; company goes under and P seeks payment.
ISSUE: was there a K here for the sale of shares? Yes, because of mailbox rule.
RATIO: establishment of the mailbox rule – the K is complete when the acceptance is posted and
the offeror is bound by that acceptance even if he never receives it (the post office was the agent
of both parties).
Holwell Securities v. Hughes: 1974 Eng CA
FACTS: Hughes sent a letter by post to exercise an option; it was never received; it was
expressly stated in offer that acceptance must be received in writing;
ISSUE: Does the postal rule apply and was there a K? No, postal rule does not apply because of
specification that acceptance must be received.
RATIO: postal rule should not apply if the offer explicitly states that the acceptance must reach
the offeror or if it leads to an inconvenience or absurdity
6
International Convention on Sale of Goods, Art 18(2)(3) and 24
Art. 18 (2) Acceptance of offer effective at moment when indication of assent reaches offeror. Not
effective if not does not reach offeror within fixed time or reasonable time.
Art. 18 (3) Assent may be signalled by act; acceptance effective at moment of act.
Art. 24 Offer, declaration of acceptance, or any other indication of intention reaches addressee
when made orally or delivered personally
Electronic contract formation and related problems
ProCD v. Mathew Zeidenberg and Silken Mountain Web Services: 1996 US CA
FACTS: D buys consumer version of ProCD software but uses for commercial purposes.
ISSUE: Are license terms enforceable if inside of box ("hidden")? Is acceptance at time of sale?
RATIO: License terms enforceable if user agrees to license; user must have opportunity to refund
goods if don't accept license
Rudder v. Microsoft Corp, Ont. S. C. (1999)
FACTS: P's class action suit against D for breaching contract by failing to provide reasonable or
accurate info regarding user accounts and by charging users' credit cards
ISSUE: Are users bound by terms of K when they are presented in electronic format?
RATIO: Scrolling function analogous to flipping pages of K; if user clicks "I agree" twice without
reading terms, still bound by them
Kanitz v. Rogers Cable Inc.
FACTS: P filed class action against D for adding arbitration clause to K. Notice of change was
prominent, but actual contract text was not. K states continued use of service constitutes
acceptance of new terms.
ISSUE: Is this unconscionable? No, b/c K in plain language and allowed for changes with proper
notice; customers can be reasonably expected to navigate through website to view changes.
RATIO: unconscionability test: i) inequality between two parties (yes – "take it or leave it"); ii)
stronger preys on weaker (yes), iii) resulting improvident agreement (no)
Electronic Transaction Act, 2001
Makes “click-through” contracts enforceable. Adopted in all provinces including Quebec.
Electronic contracts treated same as non-electronic contracts. Email treated (by statute) as
instantaneous although scholars think mail-box rule should apply – no precedent in case law.
Parties are free to decide of they want to use e-modes, that’s fine, but need to be consistent and
agree.
Termination of Offer
Revocation
General Rules:
 An open offer can be revoked any time before offer is accepted. The revocation of an
offer takes effect when it is communicated to offeree and mailbox rule does not apply:
Byrne v. Van Tienhoven
 Acceptance of offer by one party amounts to revocation of offer to all other parties; offer
is dead (as if offeror had died) and revocation does not have to be directly
communicated: Dickinson v. Dodds
 General rule for unilateral contracts used to be that could any time before performance
completed but now rule is a unilateral K cannot be revoked once performance has begun:
Errington v. Errington
Other forms of rejection (by offeree) or revocation (by offeror):
7




Explicit rejection or silence
Counter-offer (terminates original offer)
if offeror dies (or goes bankrupt) then offer dies with him/her; cannot accept after death
Time lapse (explicitly stated or “reasonable” time): see next section
Unilateral Contracts
Rejection and Counter Offer
Byrne v. Van Tienhoven: 1880 CPD
FACTS: buyer accepts offer from seller before it receives revocation notice from seller (but after
revocation notice was put in mail)
ISSUE: Was revocation effective or did contract stand? The contract was binding because
revocation received too late.
RATIO: the mailbox rule does not apply to revocation; an offer can be withdrawn before it is
accepted but communication of revocation, in order to be effective, has to reach the offeree
before they accept the offer
Dickinson v. Dodds: 1876 CA [indirect revocation]
FACTS: the D was selling house; made offer to P, specifying date that offer was open till; P found
out indirectly that D offered house to another and who had accepted; the P gave his acceptance
but D said it was too late b/c he had already sold it to another.
ISSUE: Was the D bound to hold an offer open till date specified? Does the revocation have to be
directly communicated to the affected party? No on both counts, the offer was revoked as soon
as 3rd party accepted offer.
RATIO: a promise to hold an offer open is not binding unless the consideration is provided in
return; once offer is accepted by one party it is no longer open to other parties; in this case
revocation can be communicated indirectly or even not at all;
Errington v. Errington and Woods: 1952 KB [unilateral revocation]
FACTS: father-in-law made a unilateral promise to give house to daughter-in-law as long as they
made mortgage payments; he died; the estate owned the house
ISSUE: Was the promise binding and if so did it survive his death? Yes, there was a unilateral K
and the daughter-in-law was performing.
RATIO: a unilateral K cannot be revoked once the offeree has started performing (even if offeror
dies).
Lapse of Time
General Rules:
 An offer that is expressly stated to last for a fixed time cannot be accepted after that time;
and an offer that contains no express provision limiting its duration terminates after lapse
of a ‘reasonable time’; determination of reasonable time is based on conditions and
conduct within each case: Barrick v. Clark
 It is offeror’s conduct and intentions that are relevant to determining if offer has lapsed
Barrick v. Clark (1951) SCC
FACTS: A potential purchaser took 25 days to respond to an offer of farm land. By that time, the
land had been sold to someone else.
ISSUE: Was acceptance within reasonable lapse of time of offer? No, based on correspondence
of this case, offeree took too long.
RATIO: An offer will expire in a reasonable amount of time depending on the nature and
character of the offer and normal business practices. Rule = Words + Conduct + Circumstances +
Nature of the K.
8
Manchester Diocesan Council v. Commercial Investments Ltd: 1970
FACTS: the P was selling property; D sent acceptance letter conditional on the approval of
minister of Education; by time approval was given the D no longer wanted it.
ISSUE: Was this a reasonable delay? Yes, the seller knew would take time and intended to stick
with offer.
RATIO: re-emphasis of last ratio; an offer must be accepted within a reasonable time based on
conditions of each case; may be extended if the conduct of the offeree within that period indicates
an intention to accept and this is known to the offeror.
Certainty of Terms
General rules:
 general rule is all essential terms have to be settled on to conclude a valid contract; a
bare agreement to agree is not binding: May v. Butcher, Bawitko Investments Ltd. v.
Kernels Popcorn Ltd.
 if terms are so vague and uncertain as to be unenforceable then contract is no good, but
if can give terms meaning based on intent of parties then contract binding under those
meanings: Hillas and Co. Ltd. v. Arcos Ltd.
 however where possible courts will try to save contract by giving reasonable meaning to
vague terms (softens May v. Butcher); this meaning must be based on some benchmark,
formula or mechanism provided in the contract: Hillas and Co. Ltd. v. Arcos Ltd, Empress
Towers Ltd. v. Bank of Nova Scotia
o exception: the actions and intention of parties can be enough to enforce a K that
is missing an essential term such as price: Foley v. Classique Coaches Ltd
 general rule is it is not sufficient for essential term to be ‘negotiated in good faith’ since
this mechanism is too subjective: Mannpar Enterprises Ltd. v. Canada, Wellington City
Council v. Body Corporate
Two latin rules:
- contra proferentem: if terms are vague, interpretation goes against drafter of contract.
- ejusdem generis: general terms should be interpreted to follow meaning of specific terms
Statutes:
- Sale of Goods Act: provides guidelines for interpreting contracts if terms are not
specified. Section 12: if price not set (or means of determining price not set), buyer must
pay “reasonable price”. Section 13: if third party fails to set price then contract is void
unless goods have already been delivered.
May & Butcher v. R.: 1929 KB
FACTS: wanted to buy tents but left price and dates open to negotiation from “time to time”; there
was arbitration clause included; the two parties could not reach an agreement
ISSUE: Are the terms of the K sufficiently defined to constitute a legally binding K b/t the parties?
No, an agreement to agree is not binding.
RATIO: All essential terms must be defined; an agreement to agree is not binding;
NB: Not considered a good decision since this strict interpretation does not follow later decisions
that recognize right to use of arbitration.
Hillas and Co. Ltd. v. Arcos Ltd.: 1932 HL
FACTS: the D was to supply timber at price that would be determined according to published
price list; D opted out and sold timber to another company; P sued for breach;
ISSUE: Is the K enforceable? Yes, since vague terms can be given meaning and parties intended
to be bound by K.
9
RATIO: Where possible courts will interpret vague terms in context of whole contract; this
meaning must be based on some benchmark, formula or mechanism provided in the contract;
softens May v. Butcher
Foley v. Classique Coaches Ltd: 1934 CA Eng
FACTS: the D agreed to buy land from the P and buy petrol from them; the price of the petrol was
not specified; after three years D went elsewhere for petrol
ISSUE: Is the D bound to buy the petrol from the P? Yes, since had not objected for three years,
K was still enforceable.
RATIO: the actions and intention of parties can be enough to enforce a K that is missing an
essential term such as price.
Empress Towers Ltd. v. Bank of Nova Scotia: 1991 BCCA
FACTS: P leased to the D bank with an option to renew; the rental rates would be market value
prevailing at the start of the renewal term as mutually agreed upon; D wanted to exercise their
option to renew the lease but P stalled;
ISSUE: was renewal clause in contract binding? Yes, even though price not set, since benchmark
was given. Parties must negotiate in good faith.
RATIO: this is exception to CL rule that duty to negotiate in good faith is not contractually binding;
if there is a formula (market value) but no mechanism, then court can supply a mechanism (good
faith).
Mannpar Enterprises Ltd. v. Canada: 1999 BCCA
FACTS: P granted permit to extract gravel; there was a right to renew but price not set; D elected
not to give P renewal;
ISSUE: is the renewal clause binding? No, since price not set.
RATIO: an agreement to agree is not binding without formula, benchmark or objective
mechanism to determine rent; good faith is of no help.
Wellington City Council v. Body Corporate, 2002, N.Z. C.A.
FACTS: P sued for breach by Council to negotiate in good faith to sell leased property. Council
appealed.
ISSUES: was duty to negotiate in good faith binding? No, too subjective.
RATIO: a bare agreement to negotiate in good faith is not sufficient to enforce a contract; ‘good
faith’ as a subjective concept is not legally binding. If contract specified clear objective
mechanism for parties to follow then the process could be enforceable (e.g. tender contracts).
NB: in civil law countries, ‘good faith’ is a legal obligation. In common law it is not and whether it
is enforced depends on very fine distinctions between cases (e.g. long term relationship,
evidence of intent, presence of formula).
Bawitko Investments Ltd. v. Kernels Popcorn Ltd, 1991, Ontario C.A.
FACTS: parties made an initial oral agreement to grant the franchise; talks broke down over
written contract.
ISSUES: was the oral contract a binding agreement to grant the franchise? No, because not all
essential terms were agreed upon.
RATIO: contract not formed until all essential terms are agreed on.
NB: certainty, intention and consideration are usually wrapped up together; if all three are present
then court will be more likely to rule for binding contract.
Intention to create legal relations
General rules:
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an agreement will not constitute a binding contract unless it is one which can reasonably
be regarded as having been made in contemplation of legal consequences: Balfour v.
Balfour
there is a strong presumption in social and family agreements that they are not intended
to be legally binding unless they are expressly specified otherwise: Balfour v. Balfour
there is a strong presumption in commercial agreements that they are intended to be
legally binding unless they are expressly specified otherwise: Rose and Frank Co. v. JR
Crompton and Bros. Ltd
consider all factors; intent, certainty, consideration and sophistication of parties,
reasonable person test, to decide legality of agreement; e.g. comfort letters known by
businesses not to be binding: Toronto-Dominion Bank v. Leigh Instruments
Balfour v. Balfour: 1919 Eng CA
FACTS: P sued her husband for allowance money promised; they separated; husband did not
pay; lower court found for wife
ISSUE: was there a binding obligation? No, an agreement b/w a husband and a wife (when made
while amicable) is one where there was no intention of legal consequences.
RATIO: there must be proven intention of the parties to create an agreement with legal
consequences in order for the courts to treat is as such and there is a presumption that an
agreement b/t a husband and a wife is not such an agreement.
NB: definition of consideration given: “consideration, as we know, may consist either in some
right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss or
responsibility given, suffered, or undertaken by the other.”
Rose and Frank Co. v. JR Crompton and Bros. Ltd.: 1923 Eng CA
FACTS: the parties signed an ‘honourable’ agreement that was said not to be legally binding; D
breaches agreement;
ISSUE: Was the honourable pledge clause binding? No, because there was explicit intention not
to be legally binding
RATIO: intent will usually be inferred in a concluded business contract, but not if there is clear
language expressing otherwise.
Toronto-Dominion Bank v. Leigh Instruments Ltd, 1999, Ontario CA
FACTS: ‘comfort letters’ were provided to Bank to assure them loans would be repaid; as a result
Bank provided Leigh line of credit; debt not paid
ISSUE: Were comfort letters binding? No, based on circumstances and sophistication of parties it
should have been understood that letters were not legally binding
RATIO: consider all factors; intent, certainty, consideration and sophistication of parties, to decide
legality of agreement.
Consideration
6.1
Nature of Consideration
Consideration:
An act, forbearance, or promise by one party to a contract that constitutes the price for which he
buys the promise of the other.
General Rules:
 A consideration of some legal and economical value is required (unless contract is
formally made under seal, e.g. deed): Thomas v. Thomas
 Consideration must be sufficient but not necessarily adequate (must have some
economic value, but doesn’t need to be a realistic price for the promise it buys): Thomas
v. Thomas
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Consideration must move from the promisee; can be a benefit given to the promisor or a
detriment or loss from the promisee: Thomas v. Thomas
Consideration must be ‘fresh’: i.e. it may be executory (future promise) or executed at
time of contract (present act or forbearance) but must not be in past (except for certain
exceptions – see next section)
If there is evidence of duress (coercion) or fraud (misrepresentation with intent to induce
action) or undue influence, then is not good consideration: Pao On v. Lau Yiu Long
Thomas v. Thomas: 1842 Eng QB
FACTS: dying husband declared it was his wish that wife have the house; executors
complied under condition she pay 1l a year for repairs and that she not marry again; after
the co-executor died the D tries to evict her;
ISSUE: Was the agreement b/w the P and the D legally binding? Was there
consideration? Yes, because of 1 pound payment.
RATIO: moral obligation (to respect wishes of deceased) is not consideration since does
not move from promisee and does not have economic value, but payment of nominal fee
is valid consideration. “Consideration means something which is of some value in the eye
of the law.”
Jones v. Padavatton, 1969, All ER
FACTS: daughter left good job in States to go to law school in England, mother promised support
(first by monthly allowance then by providing house). After few years, relations break down and
mother sues to get house back.
ISSUE: Was there intention to be legally binding? Were the terms too uncertain to be binding? Is
there good consideration?
RATIO: family agreements are presumed not to be legally binding; terms too vague and uncertain
cannot be binding;
NB: what daughter gave up, even if not a direct benefit to mother, does constitute good
consideration (see next section).
6.2
Past Consideration
General rule:
 any act or forbearance that occurs before promise is given is not valid consideration:
Eastwood v. Kenyon
Exception: when following three conditions are met (taken from Pao On v. Lau Yiu Long):
1. the act of the promisee must be done at the promisor’s request; see Lampleigh v.
Braithwait
2. the parties must have understood that the act was to be remunerated by a payment or
the conferment or some other benefit, and;
3. the payment, or the conferment of benefit must have been legally enforceable had it been
made in advance
Eastwood v. Kenyon: 1840 QB
FACTS: P was guardian of girl and spent $ on her education; she promised to pay the
debt; Sarah married the D and he promised to pay but never did;
ISSUE: was D’s (husband and wife) promise binding? No, because consideration
occurred before promise.
RATIO: the court says that moral obligation is nudum pactum (a voluntary promise
without consideration); and past consideration is not valid consideration.
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Lampleigh v. Braithwait: 1615, Eng. K.B.
FACTS: D killed somebody; P rode around to get a pardon from the king at the request of
D; the D then promised 100l for the P’s effort but never paid.
ISSUE: should the P get the $ based on promise or was consideration past? Should get $
RATIO: A past act is good consideration for a subsequent promise if that act was
requested by the promisor and a reasonable person would expect to be paid.
6.3
Forbearance
General Rule:
 If there is honest and serious intention to sue, forbearance or settlement (two forms of
compromise) can be valuable consideration at common law.
Exception:
 forbearance is not binding consideration in cases where the threatened claim is invalid:
B. v. Arkin
B. (D.C.) v. Arkin: 1996 Man QB
FACTS: kids caught shoplifting in Zellers; mom pays fee in return for not being sued in
civil court; finds out she could not be sued and seeks to recover money.
ISSUE: Can she get money back? Yes, since agreement was not valid.
RATIO: forbearance is not binding in cases where the claim is invalid; but if it is a valid
claim then forbearance is good consideration; sets important precedent of exception to
rule that forbearance is good consideration.
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Pre-existing Legal Duty
Duty imposed by legal/public duty
Promising to perform an act when already under a legal duty to perform is not sufficient
consideration to support another promise, but an act done, which is in excess of the
legal duty, will be sufficient consideration Ward v. Byham
Duty owed to a third party
The performance of an existing obligation to a third party is sufficient consideration to
support a promise between the promisor and promisee
Pao On v. Lau Yiu Long [1980] A.C. 614: the past performance of a pre-existing
contractual obligation to a third party can be valid consideration if meets test for past
consideration above
Pao On v. Lau Yiu Long: 1980, PC
FACTS: P’s company agrees to sell out to D’s company in exchange for shares; the P agrees to
hold on to 60% of the stock, with understanding that he get some protection in case the stock
crashes; later makes protection deal with the D directly (not D’s company) but when stock does
crash, D refuses to buy back shares;
ISSUE: Was there valid consideration for side deal? Was this deal cut under duress?
Consideration was valid and there was not undue duress.
RATIO: a promise to perform, or performance of a pre-existing duty to third party can be valid
consideration. Past performance can be consideration if three conditions are met:
1. The act of the promisee must be done at the promisor’s request
2. The parties must have understood that the act was to be remunerated by a payment or
the conferment or some other benefit
3. The payment, or the conferment of benefit must have been legally enforceable had it
been made in advance
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NB: there was commercial pressure to contract but this is normal business practice and
experienced commercial parties should be able to handle it; there was no fraud, coercion or
undue duress so as to vitiate consent.
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Duty owed to promisor
General rule is that promises made on basis of existing contractual duties already owed
promisor are not binding. There must be new consideration to support new promise. Stilk
v. Myrick (promise to pay sailors more midway through voyage not binding). Hartley v.
Ponsonby (sailors that brought ship back to port after other deserted were awarded their
promised reward since they went above and beyond their normal duty.)
A modification to a contract is invalid unless supported by new consideration or if original
contract is rescinded: Gilbert Steel Ltd. v. University Construction
Pre-existing legal duty owed to the promisor may be a valid consideration for a
subsequent promise if the promisor derives practical benefit from the agreement and if
not given under economic duress: Williams v. Roffey
Agreement to accept lesser sum in satisfaction for whole amount is not good
consideration (in creditor/debtor situation): Foakes v. Beer, and Re Selectmove (Canada)
Forms of payment other than cash can be ‘new’ consideration for agreements to repay
debts: Foot v. Rawlings
Gilbert Steel Ltd. v. University Construction Ltd.: 1976 Ont CA
FACTS: P entered into a written K with the D to deliver steel at fixed price; a new written K was
subsequently entered into with a higher price; there was then an oral K for a second price
increase;
ISSUE: was the 2nd increase binding? No, there was no new consideration.
RATIO: a modification of a K must be supported by new consideration (or by rescinding original
contract and entering into whole new contract.)
NB: a good contract should include clause to allow such modifications to take effect, e.g. by
automatically rescinding and reinstating contract.
Williams v. Roffey Bros & Nicholls (Contractors Ltd.): 1990 Eng CA
FACTS: the D entered into a K to renovate 27 flats; the D was concerned would not finish in time
so promised additional money for each flat finished;
ISSUE: was there consideration for the D’s promise to pay an additional price per flat?
RATIO: the benefit that the D received was sufficient for consideration – finish the construction on
time and avoid penalty costs; no economic duress found here b/c it was the D that suggested the
increase in $;
NB: This case has not been followed (yet) in Canada, but could be used to make distinction from
general rule set by Gilbert Steel.
Foakes v. Beer (1884) – Eng. HL
FACTS: Foakes owed $ to Beer who promised that she would not sue him as long as he made
down payment and paid instalments; Foakes paid her back full amount; Beer sued him when he
refused to pay interest.
ISSUE: Was Beer’s promise binding? No, because agreement to pay lesser sum in satisfaction of
whole amount (including interest) is not binding.
RATIO: Agreement to accept lesser sum in satisfaction for whole amount is not good
consideration; rule provides full protection to creditors, but can get around it using promissory
estoppel; see High Trees (England) and Robichaud (Canada).
NB: this CL law rule has been overruled by legislation in many provinces; Law and Equity Act,
s.43 in BC.
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Re Selectmove Ltd. [1995] English CA
FACTS: Selectmove proposed income tax repayment schedule; tax rep did not have authority to
accept but said would ask supervisor; there was no response; Selectmove made some payments
and wanted to enforce arrangement; Govt wanted full amount
ISSUE: Was repayment deal enforceable? No, since not clear acceptance and no consideration
(confirms Foakes v. Beer).
RATIO: General rule in Canada concerning pre-existing duty to promisor set by Gilbert Steel but
be aware of English cases; if creditor/ debtor situation can apply Foakes; if goods and service
contract situation then can apply Williams.
Foot v. Rawlings [1963] SCC
FACTS: made repayment deal including acceptance of lower interest in return for regular
instalment payments; Rawlings sued for full amount part way through repayment;
ISSUE: Was repayment deal enforceable? Yes, since there was slight modification of
consideration.
RATIO: Forms of payment other than cash can be ‘new’ consideration for agreements to repay
debts, even if full amount is not repaid. The SCC circumvented Foakes v. Beer, which has
generally been superseded anyway by Denning in High Trees
Waiver and Promissory Estoppel
Estoppel – A bar that prevents one from asserting a claim or right that contradicts what one has
said or done before or what has been legally established as true.
Promissory Estoppel:
 Modern concept of promissory estoppel established by House of Lords in Hughes v.
Metro Railway Co
 Lord Denning developed the modern law of promissory estoppel in Central London
Property Trust Ltd. v. High Trees House Ltd., indicating that the following elements are
required to found a promissory estoppel (referring to Hughes):
o a clear and unequivocal promise or representation as to future conduct which
indicates that the promisor will not enforce all his rights under the existing
contract with the promisee
o which the promisee relies on and which it would be unconscionable or
inequitable for the promisor to revert and insist upon his full contractual rights
General rules of promissory estoppel:
1. Existing legal relationship between the parties at the time the statement on which the
estoppel is founded was made: Combe v. Combe
2. Sword or Shield - promissory estoppel can usually only be argued as a shield against
existing contractual rights, and not as a sword to create new rights: Combe v. Combe,
Gilbert Steel Ltd. v. University Construction Ltd.
3. Inequitable to go Back - estoppel only enforced if it would be inequitable and
unconscionable for promisor to go back on promise: D & C Builders Ltd. v. Rees
4. Promise - there must be a clear promise or representation made by the party, by words
or by conduct, against whom the estoppel is raised, establishing her or his intent to be
bound by what she or he has said: John Burrows Ltd. v. Subsurface Surveys
5. Reliance - there must have been reliance, by the party raising the estoppel, upon the
statement or conduct of the party against whom the estoppel is raised; not necessary to
show detriment, only inequity
Waiver:
 One party elects to forgo some legal right available to him in favour of the use of a
different right or ability to take a particular action
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Promissory estoppel used when it would be inequitable not to do; not if there is true
accord between parties: Foakes v. Beer
Denning; “The principal of waiver is simply this: if one party by his conduct, leads another
to believe that the strict rights arising under the contract will not be insisted on, intending
that the other should act on that belief and he does act on it, then the first party will not
afterwards be allowed to insist on the strict legal rights when it would be inequitable for
him to do so.”: W.J. Alan & Co. v. El Nasr Export & Import Co
Must have (1) a full knowledge of rights, and (2) an unequivocal and conscious intention
to abandon them: John Burrows Ltd. v. Subsurface Surveys ("friendly indulgence" not
waiver)
Can retract waiver and revive waived rights if not inequitable and give reasonable notice:
International Knitwear Architects Inc. v. Kabob Investments, Petridis v. Shabinsky (not
enough notice)
Central London Property v. High Trees House Ltd.: 1947
FACTS: P reduces the rent for D during the war b/c they could not fill the flats; when the war was
over they were able to fill the flats; the P asks for the original agreed rent retroactively from when
the flats were full.
ISSUE: Is the promise to accept a lower rent enforceable? If so, for how long?
RATIO: Denning decision establishing promissory estoppel; uses equity to get around strict
Foakes v. Beer principle; a promise intended to be binding, intended to be acted on and in fact is
acted on, is binding even if there is no consideration. Duration of promissory estoppel is
determined by circumstances – in this case only for the duration of low vacancy.
John Burrows Ltd. v. Subsurface Surveys Ltd.: 1968 SCC
FACTS: P selling business to D; payment by instalments except contract allowed P to demand
full amount if the D failed to make payments on time; P allows some late payments but then gets
fed up and demands full payment;
ISSUE: Did the P relinquish his rights to original contract by initially allowing late instalment
payments? No, because never intended to waive his rights.
RATIO: waiving of rights must be clear and unequivocal; friendly indulgence cannot be regarded
as intention to waive rights permanently;
D & C Builders Ltd. v. Rees: 1966 England CA
FACTS: P owed money for work done for the D; D’s wife paid partial sum only and bullied P into
signing a receipt that it was accepted as payment in full.
ISSUE: Is the partial payment sufficient based on receipt? No, because promise was made under
duress and equity only aids those with clean hands.
RATIO: promissory estoppel only used when it would be inequitable not to do so; if there is not
true accord between parties (e.g. if promise was made under duress) then estoppel is not
applicable.
Combe v. Combe: 1951, England KB CA
FACTS: 7 years after divorce wife claims instalments of money that was promised to her by
husband during divorce.
ISSUE: Can the wife use estoppel to enforce this promise? No, cannot use estoppel to enforce a
promise where no legal obligation existed before.
RATIO: Denning warns against stretching High Trees principle to create new legal obligations
between parties where none existed before; this is more extreme case of trying to use estoppel
as sword than in Robichaud
Walton Stores v. Maher: 1988 Aus HC
FACTS: the A (Walton) wanted to lease land from R and wanted R to demolish building and begin
new construction immediately; the R prepared lease and A said that they would notify R if had
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any objections within one day; the R started to demolish and erect the new building; 3 weeks later
A told them that the lease changes were not approved;
RATIO: promissory estoppel usually requires a pre-existing legal obligation but it can be used in
the absence of that relation if there is a reasonable expectation of legal relations and a reliance
on the promise such that it would be inequitable to not enforce it.
Estoppel used as sword; can’t encouraging (even by silence) other party to act to their detriment
based on your representation when unconscionable outcome will result.
NB: this precedent used in Canada but only in proprietary estoppel cases; is persuasive but not
highly so; not followed yet in England;
M. (N.) v. A.(A.T.), 2003, BC CA
FACTS: Mr. M made promise to Ms. A. that would pay her mortgage in England if came to live
with him in Canada; she did come but relationship broke down and he did not pay mortgage;
ISSUE: Is promise binding? No, because no pre-existing legal relations and no reasonable
expectation of legal relations.
RATIO: BC decision upholding Denning view that estoppel not intended to use as sword where
no legal relations pre-exist: court said “a necessary element of promissory estoppel is the
promisee’s assumption or expectation of a legal relationship.”
Privity of Contract
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Only parties who have created K are parties to it; third parties cannot enforce obligations,
even if they receive all or part of the benefits of the K: Beswick v. Beswick
Consideration must move from party entitled to sue upon K: Tweedle v. Atkinson
Horizontal privity – third party closely connected: Beswick v. Beswick
Vertical privity – chain of contracts: Dunlop Pneumatic Tyre v. Selfridge
Exceptions
Statute in England (and Canada, in limited contexts) to allow third parties to enforce
contractual terms if they are the person or member of the class of persons for whose
benefits the term was placed into K; limited statutes in Canada e.g. NB Land Reform Act
In employment K in Canada, third party employees can benefit from employer's limited
liability clause if:
1. parties in contract intended to confer the benefit of the contractual defense on a third
party (expressly or impliedly)
2. employees acting in course of employment and performing K services at time of loss
Test from London Drugs Ltd. v. Kuehne & Nagel Int'l Ltd., applied in Fraser River Pile &
Dredge Ltd. v. Can-Dive Services Ltd.
Circumventing privity
 Suit by party to K: Beswick v. Beswick, Jackson v. Horizon Holidays Ltd.
 Arguing third party ("C") is agent for B, thus party of K. Difficult to establish, must show
consideration, must accept burdens of promises. Furthermore, party cannot act in K in
two capacities: Dunlop Pneumatic Tyre v. Selfridge
 Collateral K
 Assignment: taking rights and duties of another party; forbidden for many K
 Subrogation: subspecies of assignment; involves transferring one's personal claim and
allowing another party to step in and sue for you: Fraser River Pile & Dredge Ltd. v. CanDive Services Ltd.
Tweedle v. Atkinson, 1861 B&S
FACTS: P was promised money from parents and in-laws; father in law did not pay
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ISSUE: Was P entitled to sue? No, K b/t two parents and "no stranger to the consideration can
take advantage of a contract, although made for his benefit"; "natural love and affection is not
sufficient consideration"
RATIO: Consideration must move from party entitled to sue upon the K
Dunlop PneumaticTyre Co. v. Selfridge & Co. Ltd., 1915 AC HL
FACTS: Dunlop (R) sold tires to Dew on agreement that 10% discount given only to those in
motor trade and list prices would be upheld for others; Selfridge (A) bought from Dew and sold
tires for below list price
ISSUE: Can R sue A? No, only one K b/t R and Dew and no consideration from R to A
RATIO: Only a person who is a party to K can sue on it; reiteration of ratio in Tweedle v. Atkinson
Beswick v. Beswick, 1966 Eng CA
FACTS: Company transferred to nephew on agreement that nephew support widow after uncle's
death; nephew refused to pay widow past first instalment
ISSUE: Can widow sue? Yes, as executrix of husband's estate she is contracting party
RATIO: Where a K is made for the benefit of a third person who has a legitimate interest to
enforce it, it can be enforced by the third person in the name of the contracting party
Beswick v. Beswick, 1968 Eng HL
ISSUE: Can widow sue in personal capacity? No, only as administratrix of estate.
NB: Overturns 1966 decision, but widow still recovers. Remedy of specific performance
inadvertently benefits her personal capacity anyways.
London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 SCC
FACTS: A hired R to deliver transformer. R had clause limiting movers' liability unless additional
charges paid. A did not obtain additional insurance. Movers damaged transformer.
ISSUE: Can employees claim benefits of employer's contractual limitation of liability clause? Yes,
i) if clause expressly or impliedly extends its benefits to employees; ii) employees acting in course
of employment; iii) employees performing K services at time of loss
RATIO: Depends on intention of parties. R's movers are third-party beneficiaries to clause, not
subject to unlimited liability; doctrine of privity relaxed to meet commercial realities
Fraser River Pile & Dredge Ltd. v. Can-Dive Services, 1999 SCC
FACTS: A's barge sank while chartered to R. A's insurance company Under K, A's insurer waived
right of subrogation against R. A and insurer later brought negligence action against R, sought
R's waiver of right to waiver of subrogation clause
ISSUE: Is R, third-party beneficiary, entitled to rely on waiver of subrogation clause? Yes. London
Drugs Test applies – all three conditions satisfied
RATIO: A and insurers cannot revoke unilaterally R's rights once they have developed into actual
benefit
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