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