CQUniversity
Division of Higher Education
School of Commerce and Law
LAWS11061
Contract Law A
Week 7
Term 1, 2014
CQUniversity 2014
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TABLE OF CONTENTS
1. SKILLS WEEK – TACKLING PROBLEM QUESTIONS .................................................................................. 3 1.1 Introduction ............................................................................................................................................. 3 1.2 Problem Questions .................................................................................................................................. 3 1.3 Our Problem Question .......................................................................................................................... 5 2. FIRST STEP: READ THE QUESTION ............................................................................................................. 7 3. SECOND STEP: IDENTIFYING THE ISSUES AND THE NON-­‐ISSUES ...................................................... 10 4. THIRD STEP: IDENTIFYING THE RELEVANT LAW ................................................................................ 14 5. FOURTH STEP: APPLYING THE FACTS TO THE LAW. ........................................................................... 15 6. FIFTH STEP: CONSIDERING OTHER POSSIBILITIES .............................................................................. 18 7. SIXTH STEP: CONCLUDING ........................................................................................................................ 19 8. SEVENTH STEP: DRAFTING A GOOD ANSWER ....................................................................................... 20 9. WHAT ARE MARKERS LOOKING FOR? .................................................................................................... 24 10. SUMMARY ................................................................................................................................................... 25 11. SAMPLE PROBLEM QUESTION ................................................................................................................. 26 2
1. Skills Week – Tackling Problem Questions
1.1 Introduction
At this point, half way through our first semester of contracts, we are going to pause
and take some time to look at legal study skills.
Why?
Previously, the structure of Contracts A was that there were eleven weeks of lecture
material, followed by a study/review week, which then led into the examination
period. Initially, the exam was one of the traditional three-hour invigilated exams,
until 2013 when we commenced using take-home exams.
Take-home exams are a lot of hard work, but they tend to require a different approach
to preparation. Students who struggled in the final assessment - and students who
struggle in the second, third and (for part timers) fourth year of the course - tended to
struggle with legal skills, rather than with the actual content of their subjects. As a
result, if we have eleven weeks of content but twelve weeks of teaching, it makes
more sense to use that additional week to work on legal skills, rather than leaving it as
a kind of “nothing week” at the end of the semester.
So why do it in the middle? The thing with skills is that they need to be practiced.
It’s not possible to just “cram” skills at the end of a term, the way you might (if
you’re lucky) be able to cram content. It’s much more useful to you to get access to
skills development earlier rather than later. We can’t do it at the very beginning
because you do need to understand some legal content in order to have a reasonable
crack at an answer. So now, once we have covered the elements of contract
formation, is the perfect time to focus on skills.
During this week’s lecture, we are going to concentrate on how to put together an
excellent answer to a legal problem question. History at CQU has shown us that this
is the area in which most students struggle. We want you to succeed!
1.2 Problem Questions
What exactly is a problem question, and how does it differ from other types of
assessment?
Problem questions are probably not unique to the study of law, but they are certainly
characteristics of the study of law - and they are not found in many other areas of
study. Unless you have previously had some legal training, you are unlikely to have
previously come across questions of this type.
Essentially, problem questions establish a legal scenario. It may be as short as a few
lines, but more often it will be much longer. Problem questions which are as long as a
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full page are not especially unusual. The student is then required either to provide
legal advice to one of the parties in the question, or to make conclusions about the
legal positions of the parties in the question.
This is quite different to factual questions, such as “What are the elements of contract
formation?” Such questions can be answered confidently, from direct knowledge.
Problem questions are also, however, very different from the persuasive essay
questions many of you will have undertaken during your secondary schooling, or in
disciplines such as the humanities. Problem questions do not ask you for a general
discourse on the areas of law - they ask for specific advice for the parties in question.
Let’s look at an example of each of these types of question, so you can see the
difference. For the sake of comparison, all three questions will be about capacity to
contract.
Factual question: What types of binding contract can a minor enter into? Provide
authorities for your answer.
Factual response: Minors can enter into contracts for necessities [Peters v Fleming
(1840) 151 ER 314], and they can enter into beneficial contracts of employment
[Green v Thompson [1899] 2 QB 1].
Persuasive essay question: Is it fair on the sellers of good to make contracts with
minors voidable, even if the contract is for a necessity, if it turns out that the minor
was already supplied with a suitable quantity of the necessary goods?
Persuasive essay answer: This might go on for several pages, but on the one hand we
might argue that this rule is unfair, since it means the seller might deal with the minor
fairly and in good faith, yet still end up suffering a loss; on the other hand we might
argue that the protection of vulnerable minors from unscrupulous dealing is
paramount, and that the benefits of the protection far outweigh any inadvertent
damage which might be done.
Problem question: Karen, who is sixteen years of age, walks into Terry’s electronics
retailer in the Union Hub of a university campus. She looks at several tablet
computers, and asks a series of questions about their capabilities and uses. The
questions seem to indicate that she intends to use the tablet as a study aid. The seller
sells the tablet to her, and she takes it away. Unbeknownst to the seller, Karen is not a
student at all, and her primary use for the tablet was social networking. Furthermore,
she was unable to afford the tablet, and had paid with money her parents had set aside
for her to undertake a TAFE course.
Karen now wishes to return the tablet for a full refund. Terry is unwilling to do this
as there was nothing wrong with the tablet, and he will be unable to resell it as the box
has been opened and the seals broken.
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Advise Terry whether the contract is enforceable.
Problem Answer: Obviously, we will learn more below about good problem answers.
However you can see (I hope) that the answer to this third question will be very
different from the first two. Our task is not to simply show our knowledge; nor is our
task to make arguments about whether the law is good, or should be enforced. Our
task is simply to advise Terry. We might begin by noting that Terry has made a
contract with a minor; we might consider whether the contract was for a necessity,
given Karen’s “station in life”. We might consider whether the fact that the contract
was wholly executed makes any difference. However at the end of the answer, we
must advise Terry: Either the contract is enforceable, or it is not.
In many cases, students (particularly new law students) fail to make the distinction
between these three types of question, and it costs them many marks! Simply put:
In a problem question, you will not earn marks simply showing the marker that you
have some general knowledge about the law in the relevant area - this only works in
factual questions.
In a problem question, you will not earn marks by writing persuasively about why the
law is written the way is, or how it might be amended - this only works in persuasive
essay questions.
So, how do we complete an excellent problem question? We’re going to tackle this
by taking a sample question, and working through it together step by step. This
question is perhaps a little more detailed than most you will expect to see (particularly
in your first year of study) but that lets us get stuck in to a hard one together.
1.3 Our Problem Question
During his final year of high school, Carter completed a Certificate IV in Fitness,
which gave him the necessary qualifications to commence his dream job as a fitness
instructor and personal trainer. He finished school two weeks before his 18th
birthday, and immediately set about the process of establishing his personal training
business, with a ten thousand dollar trust fund payment from a trust established by his
parents when he was born.
Carter’s plan was to offer his clients “total fitness support” including not only
personal training sessions, but also guidance on sports nutrition and supplements.
Each client would pay him a weekly fee, and in return they would have a regular
training session, and he would supply them with pre-workout supplements and protein
supplements suitable for their age, fitness, and progress.
In the final few weeks of schooling, while he was planning for the commencement of
his business, Carter saw an online advertisement for a product called Intensamaxx.
The product was a blend of protein and caffeine, and promised “Massive muscle
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gains! Intensamaxx’s stimulating effect will pump up your workout strength and
endurance, and the protein hit fuels your body to build up muscle mass!” The
advertisement further stated that the product was “Laboratory tested at Intensa
International’s Institute of Fitness Research.”
Carter was impressed by the advertisement, and visited his local supplier, the
Supplement Barn, to negotiate a bulk supply of Intensamaxx, on an ongoing basis. In
the Supplement Barn, Intensamaxx was on open display, along with signage making
the same claims as the online advertisement. The supplier gave him a document
headed “Offer of commercial supply” and he took it away to consider it. Three weeks
after he finished his schooling he returned to the store and signed the section of the
document marked “Acceptance of offer.”
Around the same time, Carter approached the manager of his local gym, The
Powerhouse, where he had been training personally for about five years. He was on
friendly terms with the manager and knew all of the staff, so he felt this would be the
best place to commence his business. The manager provided him with a form headed
“Personal Training - Standard Agreement” and stated this was the agreement which
all of the personal trainers had to sign before they could commence using the gym to
train paying clients. Carter read the agreement carefully, and noted that it contained a
number of clauses, including the following:
(a)
A clause requiring Carter to certify that he had a Certificate IV in
Fitness;
(b)
A clause requiring Carter to wear appropriate clothing and footwear
while training, and requiring him to ensure his clients did the same;
(c)
A clause requiring Carter to become and remain familiar with the
gymnasium’s fire and evacuation plans;
(d)
A clause stating that the commencement of the contract was
conditional on Carter providing certified copies of current certificates
of insurance;
(e)
A clause requiring Carter to wear a specific gym-approved uniform
shirt while training clients;
(f)
A clause stating that Carter was forbidden from attempting to “poach”
clients of other trainers;
(g)
A clause noting that the management of The Powerhouse was entitled
to close the gymnasium at any time or vary its operating hours, without
notice;
(h)
A clause stating that Carter was to pay a monthly fee of $200 to the
gym, payable as an annual payment of $2400, to be paid in advance;
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(i)
A clause stating that Carter was also to pay the gym a 25% share of all
fees paid by clients;
(j)
A clause stating that all clients had to be members of The Powerhouse.
Carter felt that some of these conditions were a little harsh, but the Manager (who was
after all a nice guy) reassured him that these were the standard conditions. Carter
obtained and provided the necessary certificates of insurance, purchased the necessary
uniform shirt, and attended a briefing on the fire safety procedures.
The next day, Carter obtained his first client - his cousin Grace. Grace agreed to ten
personal training sessions, at $40 per session. She attended the first two sessions, and
seemed to enjoy the training. She also took away some Instamaxx and began
consuming it as directed. However after three sessions she decided that she was never
going to be a gym junkie, so she told Carter she did not want any more sessions.
Carter, however, insisted that she had agreed to pay him $400 for ten sessions, and he
demanded that she pay the money, noting that he was still prepared to train her.
In relation to each of the three business relationships described above, advise Carter:
(a)
Whether there is a valid contract; and
(b)
In general, what the relevant terms are.
2. First Step: Read the question
Reading the question seems like an obvious place to begin! However, simply reading
it through once like a story is not enough. You must read the question through at least
three or four times, and then begin making notes. You see, a question like this one presented as a narrative - is not really an effective way to convey information. What
we need to do is turn the narrative story into a set of facts which can be useful to us in
answering the question.
There are many ways to do this - here is mine (and I happen to think it’s pretty
good!).
The potential parties
My first step is always to work out who’s who in the zoo, and how they relate to one
another. This can become surprisingly complicated for a number of reasons. First, it
is not uncommon to face problem questions where there are a range of players perhaps even as many as 8 or 10. Second, there is no real naming convention for
these characters. Some examiners will simply call them A and B, others will use
humorous sets of characters based on current events or movies and fiction. While this
can be fun, it can be hard to think of the legal question characters, as opposed to the
real-life people. For the record, in my questions I use a random name generator.
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So, in our problem question, here are the players:
1.
Carter. Our client. Trying to establish a business as a personal trainer.
2.
Supplement Barn supplier. Supplying Carter with supplements.
3.
The Powerhouse Gym Manager. Providing venue for Carter’s training
sessions.
4.
Grace. Carter’s cousin. Also his first client.
So you can see, we now understand who each person is, and what their relationships
are. This can be far more complicated when the parties other than our client also have
relationships with one another.
You should also bear in mind that sometimes a party will be a corporation or
company, not always an actual person.
Finally, we have clearly identified who our client is. You would be surprised how
often students submit answers where they provide advice to entirely the wrong
person.
Actions with potential legal consequences
The second step is to read the problem again, taking notes to answer the question
“What’s going on?” by looking for any actions which may have potential legal
consequences - even if you’re pretty sure the problem is not going to be relevant to
our answer:
1.
Carter has just finished school.
2.
Carter is turning 18 in the middle of the process.
3.
Carter is establishing a small business.
4.
Supplement Barn is making advertising claims about Intensamaxx.
5.
Carter and the Supplement Barn are making a contract for supply of
Intensamaxx.
6.
Carter has a pre-existing membership with The Powerhouse.
7.
Carter is making a contract with The Powerhouse to operate his business from
their premises.
8.
Grace signed up for a training program.
9.
Grace decided the training program was not for her.
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You can see, at this point, that we are no longer dealing with a long and complex
narrative story. We’re starting to pick out of the story the relevant information which
will let us provide a good answer. We’re not done yet though!
Separate out the different questions
Most problem questions will consist of more than one mini-scenario. In our problem
question, I have kept them basically separate; however it is not unusual for examiners
to wind the stories together so that you need to go through and separate them. So,
now that we have had three passes at the problem (an initial reading, a second reading
to identify the characters, a third reading to identify the relevant actions), we make a
fourth pass to tease out the separate stories. I like to give them separate titles, as
follows:
1.
Carter and the Supplement Barn. Carter wants to supply his clients with
the supplement Intensamaxx. He has been persuaded by the advertising
claims of Intensamaxx. The Supplement Barn can supply him with
appropriate quantities of Intensamaxx.
2.
Carter and The Powerhouse. Carter is already a member of this gym. He
wants to use it as the venue to train his clients. The gym has a standard
agreement which is uses for trainers who wish to do this. Carter has been
given a copy, and has started using the gym with his clients.
3.
Carter and Grace. Grace is Carter’s cousin. She signed up for ten sessions.
She completed some sessions and took some Intensamaxx. She now wants to
stop training. Carter isn’t happy.
Establish a timeline for each question.
Finally, you will find that in many problem questions, when things happen is as
important as what actually happens. We therefore need to establish a timeline for
each of our separate legal questions. For the current question, the timeline would
look something like this:
Carter and the Supplement Barn
1.
Carter decides to offer clients supplements.
2.
Carter sees advertising by Intensamaxx.
3.
Carter visits Supplement Barn and sees more Intensamaxx advertising.
4.
Carter is given supply offer to take away and consider.
5.
Carter turns 18.
6.
Carter accepts the offer and supply commences.
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Carter and The Powerhouse
1.
Carter has pre-existing membership of the gym.
2.
Carter decides to use the gym as his venue.
3.
Gym provides Carter with a copy of the standard agreement.
4.
Carter provides certificates of insurance.
5.
Carter purchases uniform shirt.
6.
Carter attends fire evacuation briefing.
7.
Carter begins training Grace at The Powerhouse.
Carter and Grace
1.
Grace signs up for ten sessions.
2.
Grace begins training.
3.
Grace accepts supply of Intensamaxx.
4.
Grace decides to stop training before completing ten sessions.
Can you see how, after this process, we are now in a much stronger position to begin
tackling the legal issues? Naturally, over time, this process will become more and
more familiar to you, and therefore you will be able to zap through it much more
quickly - however at this point, I strongly recommend you start slow! It’s an
investment of time, trust me. I have marked way too many papers submitted by
students who thought they knew how to tackle these questions without being
systematic.
3. Second Step: Identifying the Issues and the
Non-Issues
You will probably have already been introduced to the IRAC process of legal
reasoning - Issues, Rules, Apply, Conclude. Now we can get into that process. Our
first step is to identify the issues. However it is also important to identify the nonissues. Often, examiners will toss facts and issues into a question, simply to try to
throw students off the scent. Sometimes students who fail to properly identify the
issues will spend half their paper about something completely irrelevant, and their
marks will suffer. This seems harsh, but properly identifying relevant legal issues is a
very important assessment task - which is another great reason to learn how to do it
well!
Issues of fact v issues of law
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Before we go any further, it’s important to be able to distinguish issues of fact from
issues of law. Both can be extremely important - but they are quite different in
nature. So, what’s the difference?
Let’s imagine a situation where two parties are before the court on a Contract matter.
The plaintiff sent the defendant an offer, which was due to expire at 5.00PM on
Thursday the 31st. The defendant claims to have mailed the response at 4.30PM on
Thursday the 31st. However, the plaintiff claims that according to the postmarking,
the acceptance was not sent until the following day, after the offer’s expiry, so there is
no contract. If we look at this situation, we can pretty clearly see that there are two
separate issues:
First, does the postal acceptance rule apply to this situation? This is an issue of law.
It does not ask us whether specific things happened in the real world. Rather, it asks
us which legal rules apply to the situation. In this situation, it seems there is actually
no dispute about the law. Both parties seem to accept that the postal acceptance rule
would apply, provided the letter was posted on time.
The second issue asks when exactly did the defendant post the letter? This is not a
legal question; it does not relate to a matter of law. It relates only to the real-world
facts as they apply in this situation. In this case, the dispute is largely about facts.
Can the defendant prove that they actually posted the letter prior to the expiry of the
offer? If so, there will be a contract.
It is crucial that you become practiced at separating issues of fact from issues of law.
Don’t get confused between the two!
Issues and non-issues
So, let’s get back to the problem question at hand. This is the single most important
stage of the process of answering problem questions. If you get this wrong, then no
matter what else happens, you will end up with a poor answer. You must now go
through the question, based on your reading notes above, and systematically work
through the relevant law to identify the relevant issues. This is where the flow charts
you have been provided with every week will be worth their weight in gold.
In this case, we have been asked about contract formation. We know, from the
material in weeks 2-6, that there are certain key elements for use to look for. In
relation to each of the three contracts, let’s go through and do that now.
Carter and the Supplement Barn
1.
Did the parties have capacity? Potential issue #1 arises here. Carter
was not yet 18 when the offer was made, but he was 18 when it was
accepted. No issues of capacity seem to arise regarding the
Supplement Barn guy.
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2.
Did the parties intend to create legal relations? No issues here. Pretty
clear both parties approached the situation as a commercial
transaction.
3.
Was there an offer, and what were its terms? Potential issue #2 arises
here, as to whether the advertising claims about Intensamaxx were
part of the offer, especially as they are on display in the shop. Note
though that we are not really told anything about the contents of the
written offer.
4.
Was the offer accepted? The offer seems to be pretty clearly accepted
by Carter’s signature on the document.
5.
Did each side provide consideration? Again, no issue here. Carter has
promised to provide money, and the Barn has promised to provide
supplements.
6.
Are there issues with certainty, completeness, or illusory promises?
Obviously hard to be sure given that we are not really told anything
about the offer document, but there are no apparent issues on the facts
given.
Summary of potential issues:
#1
Did Carter have capacity?
#2
Are the Intensamaxx claims part of the contract?
Carter and The Powerhouse
1.
Did the parties have capacity? No issue here. We are told Carter saw
the gym “around the same time” as he made the contract with the
Supplement Barn, which suggests after his 18th birthday.
2.
Did the parties intend to create legal relations? Pretty clearly they did.
This was a commercial arrangement of a fairly routine type (for the
gym at any rate).
3.
Was there an offer and what were its terms? The offer was made by
the gym, and was the document entitled “Personal Training - Standard
Agreement”. We are not told all of its terms, but the relevant terms
are those set out in the points marked (a) through (j) in the question.
Potential issue #3 arises however, as some of the terms seem to be
conditional. For instance, the contract would not commence at all
unless Carter provided copies of the insurance documentation.
4.
Was the offer accepted? Potential issue #4 arises here. Nothing in the
facts actually says that Carter accepted the offer, for instance by
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signing the agreement. However we do find out that he produced the
insurance documents, attended the evacuation briefing, bought the
appropriate shirt, and held at least some training sessions with Grace.
So there are pretty clear indications that there was some form of
acceptance.
5.
Did each side provide consideration? No issues here. Carter promised
to pay money, and the gym promised to provide a facility.
6.
Are there issues of certainty, completeness, or illusory promises?
Potential issue #5 arises here. Paragraph (g) of the offer basically
gives The Powerhouse a discretion about whether to keep up its side of
the bargain. They can withdraw services at any time, and Carter has
already paid ahead for those services. Potentially an illusory
promise?
Summary of potential issues:
#3
Some of the terms of the offer seem to be conditional. Is this a
problem?
#4
Was the offer actually accepted?
#5
Is The Powerhouse actually under an obligation at all, or is it
just illusory?
Carter and Grace
1.
Did the parties have capacity? No issue here. Carter is well and truly
18 by this time.
2.
Did the parties intend to create legal relations? Issue #6 arises here.
Was this intended as a contract between family members, or was it
intended to be a contract of a commercial type?
3.
Was there an offer and what were its terms? The offer was made by
Carter, and seems to have been $400 for ten sessions plus some
(undefined) amount of Instamaxx. No real issues arise here.
4.
Was the offer accepted? We are told Grace “agreed” so we can safely
infer the offer was accepted.
5.
Did each side provide consideration? No issues here. Carter promised
to provide personal training and a supplement, and he appears to have
actually done so. Grace promised to provide $400 for the ten sessions.
It is not clear whether she actually paid, but this is not an issue of
contract formation.
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6.
Are there issues of certainty, completeness, or illusory promises? No
issues here.
Summary of potential issues:
#6
Did Carter and Grace intend to create legal relations?
So, after this process, we have identified the potential issues which we will need to
resolve in order to provide an excellent answer to this problem question. All this
work, and we’ve now just finished the “I” in “IRAC”!
4. Third Step: Identifying the Relevant Law
The good news is that because we’ve now done all the preparatory work carefully, we
can move much more quickly. We now need to identify the correct law for each of
the six issues we have identified. This is simply a matter of legal research - using
your textbook, your lecture notes, and the appropriate online databases. For each
issue, we need to identify the relevant points of law, and also the relevant authorities.
After the research process, we end up with a list which looks something like this:
#1
Did Carter have capacity?
•
•
•
•
#2
Minors have very limited ability to enter into binding contracts. [Zouch d
Abbott & Hallet v Parsons (1765) 97 ER 1103]
I can identify no authority saying an offer cannot be made to a minor.
A contract with a minor is generally voidable not void in any event. [Zouch d
Abbott & Hallet v Parsons (1765) 97 ER 1103]
A contract with a minor becomes binding if the minor ratifies the contract on
attaining majority. [Harris v Wall (1847) 154 ER 51]
Are the Intensamaxx claims part of the contract?
•
•
•
#3
Advertising puffery can be distinguished from terms of an offer. [Carlill v
Carbolic Smokeball Company [1892] 2 QB 484]
Advertising claims more likely to be part of the process of inviting to treat.
[Partridge v Crittenden [1968] 2 All ER 421]
A second or further offer nullifies any previous offers [Hyde v Wrench (1840)
49 ER 132].
Some of the terms of the offer seem to be conditional. Is this a problem?
•
#4
Offers can be conditional [Financings Ltd v Stimson [1962] 3 All ER 386].
Was the offer actually accepted?
•
Offers can be accepted by clear conduct [Brogden v Metropolitan Railway Co
[1877] 2 App Cas 666].
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#5
Is The Powerhouse actually under an obligation at all, or is it just illusory?
•
•
#6
There is no contract where one party has a wide discretion as to whether or not
to perform its obligations [Roberts v Smith (1859) 157 ER 861].
The court will look to either complete the contract or sever the illusory term
where possible, to allow the rest of the contract to operate. [Fitzgerald v
Masters (1956) 95 CLR 420]
Did Carter and Grace intend to create legal relations?
•
•
There is a presumption that agreements between family members are social
rather than commercial, and are therefore not enforceable [Balfour v Balfour
[1919] 2 KB 571].
The presumption can be rebutted [Balfour v Balfour [1919] 2 KB 571].
After this exercise, you can see the answer to our problem question really starting to
come together. However there are a couple of important points to note.
First, you will note that I have made no attempt, at this point, to start speculating
about how these points of law might play out in our problem scenario. I haven’t for
instance, said “There is a presumption that agreements between family members are
not binding, but in this case the presumption will be rebutted.” All I have done is
identified the relevant bits of law. Applying them comes in our next step. At the
moment, just gather them - with an open mind.
Second, you will note that every point of law comes with an authority. This is
incredibly important. It’s not good enough to just state what the law is - you must
back up your statement by showing where the law is stated.
In this particular instance, the authorities are all cases. For your purposes, as
undergraduates studying any subject in your degree (other than international law or
jurisprudence, which have their own rules), the only acceptable authorities are cases
and legislation.
Read that again: The only acceptable authorities are cases and legislation.
I want that imprinted on your minds. When you submit answers to problem
questions, don’t cite the textbook - it is not an authority. Don’t cite my lecture notes I am not an authority. Don’t cite the online databases you used to find the
information - those databases are not an authority. By all means use these research
tools to help you track down the authorities, but then you must read and cite the actual
authority. No options. No short cuts.
Read that one more time: The only acceptable authorities are cases and legislation.
Got it? Excellent.
5. Fourth Step: Applying the Facts to the Law.
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Now we get to the good bit - applying the law to the issues. This is where our legal
reasoning really comes together, and we produce the actual answer to the problem.
The process is actually pretty simple. For each issue, we look at the relevant law, we
look at the relevant facts, and we see what happens when we bring them together.
The process looks something like this:
Issue #1
Did Carter have capacity?
The law:
1. Minors have very limited ability to enter into binding contracts.
[Zouch d Abbott & Hallet v Parsons (1765) 97 ER 1103]
2. I can identify no authority saying an offer cannot be made to a
minor.
3. A contract with a minor is generally voidable not void in any event.
[Zouch d Abbott & Hallet v Parsons (1765) 97 ER 1103]
4. A contract with a minor becomes binding if the minor ratifies the
contract on attaining majority. [Harris v Wall (1847) 154 ER 51]
Apply facts:
#2
Even though he was a minor when the offer was made by the
Supplement Barn, Carter was an adult when the contract was formed.
Even if he had been a minor, the contract would only have been
voidable not void, and by continuing to accept supplies of the
supplements, Carter has ratified the contract after attaining his
majority.
Are the Intensamaxx claims part of the contract?
The law:
1. Advertising puffery can be distinguished from terms of an offer.
[Carlill v Carbolic Smokeball Company [1892] 2 QB 484]
2. Advertising claims more likely to be part of the process of inviting
to treat. [Partridge v Crittenden [1968] 2 All ER 421]
3. A second or further offer nullifies any previous offers [Hyde v
Wrench (1840) 49 ER 132].
Apply facts:
#3
The advertising signs posted in the Supplement Barn are likely only to
be regarded as puffery, because they are in overblown and hyped-up
terms. In any event, the offer was contained in the written document
given to Carter. Even if the Intensamaxx claims had formed some part
of some earlier offer, the later offer extinguished them.
Some of the terms of the offer seem to be conditional. Is this a problem?
The law:
Offers can be conditional [Financings Ltd v Stimson [1962] 3 All ER
386].
16
Apply facts:
#4
The Powerhouse’s offer was conditional on providing the certificates
of insurance. These were provided. The condition was appropriate.
There is no problem.
Was the offer actually accepted?
The law:
Offers can be accepted by clear conduct [Brogden v Metropolitan
Railway Co [1877] 2 App Cas 666].
Apply facts:
Both sides of the contract have pretty clearly been acting as though the
contract was in place and operational. Carter has begun training his
client, and has met the other requirements of the contract. We’re not
sure if any cash has changed hands as yet, but the gym seems to have
been allowing Carter to use its facilities. Acceptance by conduct
seems to have occurred.
#5
Is The Powerhouse actually under an obligation at all, or is it just illusory?
The law:
1. There is no contract where one party has a wide discretion as to
whether or not to perform its obligations [Roberts v Smith (1859) 157
ER 861].
2. The court will look to either complete the contract or sever the
illusory term where possible, to allow the rest of the contract to
operate. [Fitzgerald v Masters (1956) 95 CLR 420]
Apply facts:
#6
There’s a problem here. The Powerhouse’s main obligation - to
provide a gym - actually turns out to be illusory, because The
Powerhouse can stop, any old time they please. The court might sever
the clause allowing The Powerhouse to withdraw its services, although
this could create practical difficulties (for instance, what if they lose
power supply?). The court might also imply into the provision that the
necessary fees would be refunded during any period of outage,
although this starts to depart from the intentions of the parties. It may
just be that the contract is void.
Did Carter and Grace intend to create legal relations?
The law:
1. There is a presumption that agreements between family members
are social rather than commercial, and are therefore not enforceable
[Balfour v Balfour [1919] 2 KB 571].
2. The presumption can be rebutted [Balfour v Balfour [1919] 2 KB
571].
17
Apply facts:
The presumption will most likely apply here as a starting position.
However the fact that Grace agreed to pay Carter makes it look more
like a commercial arrangement; so does the fact that it was reasonably
detailed about the number of sessions etc.
So, you can see that at this point we’re very very close to having a finalised answer.
We’ve identified all of the issues, identified the relevant bits of law, and brought the
two together. We’ve formed tentative views about how the law stands in relation to
each issue. Not much remains, before we can start actually writing our answer.
Applying bad law
Before moving on from this section, it’s worth taking a few moments to consider the
difficulties of applying bad law. As a law student (and even more so as a practicing
lawyer) you will often be required to provide advice about the law as it stands.
Sometimes, the law as it stands will be absolutely infuriating to you. You will look at
the authorities in disbelief, and wish you had a magic wand to change the law. Guess
what? You don’t, and neither do I. At the end of the day, you must apply the law
according to the authorities, and not according to your own sense of justice. I promise
you, sometimes examiners will test you out on this point, by providing you with a
problem question where the outcome seems entirely unjust. Sadly, sometimes, that’s
the way the law is.
Once you have completed your degrees, there will be endless opportunities for you to
become involved in law reform groups or other lobby groups, to try to improve the
law. I wish you every success - but until then, if you want to be a successful student,
you must apply the law as it is, warts and all.
6. Fifth Step: Considering Other Possibilities
We all like to think we’re infallible. Unfortunately, the older I get, the more I realise
I’ve never been so! It’s therefore always worth taking a few moments, at the end of
the legal reasoning process, to ask yourself two questions: “How confident am I?”
and “What if I’m wrong?” I can’t tell you the number of times that my bacon was
saved as a law student because I took the time - often a very short amount of time - to
work through this process. It looks something like this:
Issue #1
Did Carter have capacity?
Thoughts:
Even if I’m wrong here and Carter lacked capacity, the contract would
still have only been voidable and he has pretty clearly ratified it. I’m
confident of this answer.
Issue #2:
Are the Intensamaxx claims part of the contract?
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Thoughts:
The only thing which has me slightly concerned here is this “Intensa
International Institute of Fitness Research” which seems to be trying to
make out that the claims behind Intensamaxx are scientific, not just
puffery. However on balance, claims by a company’s own “Institute
of Fitness Research” are still not likely to be believed by most people,
and in any event those claims were extinguished by the written offer
from the Barn. There’s nothing in the facts to suggest Carter
specifically relied on these claims.
Issue #3:
Some of the terms of the offer seem to be conditional. Is this a
problem?
Thoughts:
Pretty confident here, particularly as the condition was met without
any difficulty.
#4
Was the offer actually accepted?
Thoughts:
#5
Is The Powerhouse actually under an obligation at all, or is it just illusory?
Thoughts:
#6
My main concern here is that the offer might have prescribed the
manner of acceptance, and might have excluded acceptance by
conduct. However nothing in the problem question actually says
anything about such a term. It still might be worth covering off on the
point that parties can establish their required means of acceptance.
The authority for this point is Carlill v Carbolic Smokeball Company
[1892] 2 QB 484.
I’m pretty confident about the illusory nature of the contract. I’m
much less confident about what the court might do - whether the
contract would just be invalid, whether the term might be severed, or
whether the term might be amended. Without more information - and
given that there is no actual dispute at this stage - it’s really hard to
say. The best outcome would be for the parties to amend the contract
by consent.
Did Carter and Grace intend to create legal relations?
Thoughts:
I feel like the presumption here can be safely rebutted, but I am
concerned that Grace might argue she only ever signed up for the
sessions to help Carter get his business off the ground - as a matter of
family support, rather than a strictly business arrangement. If she
could show this, then it might be harder to rebut the presumption. So
I’m much less confident about this answer than some of the others.
7. Sixth Step: Concluding
19
At this point, we can take the final preliminary step: concluding. You would be
amazed how many students miss this bit out! They do all the research, and make all
of the arguments, but then cost themselves marks in the end by failing to tie all of that
legal reasoning into actual conclusions; or, alternatively, they give a general
conclusion which does not actually answer the question.
In this case, for each of the three contracts, we have to answer the following
questions: is there a valid contract, and if there is, what are its terms? Nothing more,
nothing less. So, before we begin drafting our actual answer, it’s good to have those
conclusions worked out and right in front of us:
Carter and the Supplement Barn
There is a valid contract between Carter and the Supplement Barn, and its terms are
those listed in the “Offer of Commercial Supply” signed by both parties.
Carter and The Powerhouse
The Powerhouse made an offer to Carter, who has accepted it by his conduct.
However the contract they purported to make, is void because the key obligation of
the gym (to provide gym facilities) is illusory. It is not clear what the court’s
approach might be if Carter sought to enforce this contract - the court might simply
void the contract, it might imply additional terms, or it might sever the offending
term.
Carter and Grace
Carter and Grace have a contract, and its terms are as indicated in the question: Carter
must provide ten sessions plus supplements, and Grace must pay $400.
8. Seventh Step: Drafting a good answer
Only now, after all this thinking and all this work - only now, are we in a position to
write an excellent answer to a problem question. At this point, the answer should
almost write itself. We simply add an introduction, a general outline of the relevant
law, and then apply a simple IRAC pattern to each issue, before concluding our paper.
Below, I set out an answer to this problem question, which I as a marker would most
likely award a High Distinction. Here we go:
This paper advises Carter in relation to each of three contracts he has sought to enter
into, as part of the process of establishing a personal training business. The paper
concludes that Carter has contracts with The Supplement Barn, a supplier, and with
Grace, a client; however it is likely the purported contract with The Powerhouse, a
gymnasium, will be void as some of its key terms are illusory.
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This paper only considers issues of contract formation. Formation of a contract
requires a number of elements. Each of the parties must have the capacity to contract
[Zouch d Abbott & Hallet v Parsons (1765) 97 ER 1103], they must intend to create
legal relations [Balfour v Balfour [1919] 2 KB 571], there must be offer and
acceptance resulting in a “meeting of the minds” between parties [Integrated
Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR
11,110], each party must give consideration for the obligations of the other [Rann v
Hughes (1778) 101 ER 1014], and the contract must be sufficiently certain and
complete [Scammell & Nephew v Ouston [1941] AC 25]. While each of these
elements has been considered for each of the contracts, the analysis in this paper is
restricted to elements where potential legal issues appear to arise.
First purported contract - Carter and The Supplement Barn
For this contract, The Supplement Barn made an offer, in the document marked
“Offer of Commercial Supply” and the offer was accepted by Carter. Two issues
arise in relation to this contract: whether Carter had capacity to enter the contract, and
whether the product claims made regarding the Intensamaxx supplement form part of
the contract.
Generally speaking, minors cannot enter into binding contracts [Zouch d Abbott &
Hallet v Parsons (1765) 97 ER 1103]. However in Queensland the age of majority is
18 years of age [Law Reform Act 1995, s.17]. In this case, an offer was made to
Carter prior to his 18th birthday. However an offer is not a contract; the offer itself
does not purport to create any legal relations between the parties. By the time Carter
accepted the offer, and therefore undertook legal obligations, he had turned 18 and
therefore had the full capacity to enter into a contract.
Even if Carter had entered into the contract prior to turning 18, the contract would
have been voidable at his election, rather than being void outright [Harris v Wall
(1847) 154 ER 51]. In this situation, on turning 18 he could have ratified the conduct,
either in writing or by his conduct, and this would have made the contract binding
upon him. In either case, capacity issues will not impede the formation of this
contract.
A second issue for this contract is whether the advertising claims made regarding
Intensamaxx formed part of the offer. Advertising claims may sometimes be mere
puffs, but if the advertiser makes special efforts to invest them with credibility, they
might be regarded as part of an offer [Carlill v Carbolic Smokeball Company [1892] 2
QB 484].
In this case, the claims by Intensamaxx are most likely puffs; however, in any event,
the terms of the offer are those contained in the “Offer of Commercial Supply” given
to Carter by the Supplement Barn. Unless the Offer document repeated the
Intensamaxx claims, those claims do not form part of the final offer which was
accepted by Carter. Even if they formed part of an earlier offer, or part of an
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invitation to treat, earlier offers are extinguished by a later offer [Hyde v Wrench
(1840) 49 ER 132].
Consequently, I conclude that there is a valid contract between Carter and the
Supplement Barn. Its terms are those set out in the “Offer of Commercial Supply”
which was accepted by Carter, who had turned 18, signing the “Acceptance of Offer”
section.
Second purported contract - Carter and The Powerhouse
For this contract, The Powerhouse made an offer, and its terms were those set out in
the document marked “Personal Training - Standard Agreement.”
One of the terms of the offer made contract formation conditional on Carter producing
certificates of insurance. However conditional offers are acceptable at law
[Financings Ltd v Stimson [1962] 3 All ER 386] and Carter subsequently met the
condition by providing the insurance certificates. This issue does not appear to
jeopardise the contract formation.
The given facts do not actually indicate whether Carter ever actually accepted the
offer. A contract is not formed until an offer is accepted, and acceptance is
communicated to the offeror [Powell v Lee (1908) 99 LT 284]. However, acceptance
can sometimes be communicated by conduct, in particular by undertaking the conduct
required of the contract were in effect [Brogden v Metropolitan Railway Co [1877] 2
App Cas 666]. In this case Carter has done a number of things required by the
contract, which he would not have done if he had not accepted the offer: he produced
the insurance certificates, attended the fire evacuation briefing, bought the shirt, and
began training his first paying client in the gymnasium. All of these actions are
consistent with there being a contract on foot. I conclude that Carter, by his conduct,
accepted the gymnasium’s offer.
The terms of the contract include those set out in dot points (a) through (j) of the
“Personal Training - Standard Agreement.” However term (g) creates an additional
legal issue. This term essentially provides The Powerhouse with a broad discretion
whether or not to comply with its fundamental obligations under the contract. It
appears that The Powerhouse can simply decide, at any time, for any reason, without
notice, to stop providing Carter with the gymnasium facility which forms the
foundation of its obligation. This discretion makes The Powerhouse’s promise
illusory [Roberts v Smith (1859) 157 ER 861]. A contract with an illusory provision
may void unless the relevant clause can be severed or amended by the court
[Fitzgerald v Masters (1956) 95 CLR 420].
The court generally prefers to save contracts where possible [Scammell & Nephew v
Ouston [1941] AC 25], so it is possible the Court might amend the contract, for
instance by implying a requirement for reasonableness on the part of The
Powerhouse. However the better solution would be for the parties to renegotiate the
22
contract to correct this defect. I would therefore advise Carter that at this point the
contract may well be invalid as a fundamental obligation is illusory, and he should
bring his concerns to the immediate attention of the other party.
Third purported contract - Carter and Grace
For this contract, we are not told for certain who made and who accepted the offer. It
appears, since Grace “agreed” to the obligations, that Carter was the offeror, and
Grace accepted the offer in some appropriate way. The terms are those set out in the
facts: Ten personal training sessions for $400, although there also appears to be an
obligation to supply Grace with supplements.
All of the elements of contract formation appear to be present for this contract, except
that there is a question as to whether the parties intended to create legal relations.
Carter and Grace are family members. Agreements between family members are
presumed to be social rather than contractual agreements, although this presumption
is rebuttable [Balfour v Balfour [1919] 2 KB 571].
In this case, there is evidence to rebut the presumption. The arrangement between
Carter and Grace appears to be a normal business relationship of the type Carter
intends to establish with each of his clients. He is obliged to provide her with
professional training services (and supplements), and she is obliged to pay him
money. A commercial arrangement, even between family members, will be enforced
by the court [Roufos v Brewster (1971) 2 SASR 218].
Consequently, in my view, there is a valid contract between Carter and Grace, and its
terms are as indicated above. There appears to be a dispute between Carter and
Grace, but that dispute relates to the performance of the contract, rather than its
formation.
Summary
Carter has valid contracts with the Supplement Barn, and with Grace. All of the
elements of contract formation are present for those contracts.
In relation to the purported contract with The Powerhouse, the process of offer and
acceptance has been completed, but the contract contains an illusory term which
allows The Powerhouse discretion whether to perform its fundamental obligations
under the contracts. There is a real danger that this contract would be unenforceable,
and Carter should address this concern with the other party as a matter of urgency.
Now, that answer comes in at just 1300 words, give or take! And yet we have dealt
with a broad range of issues, provided no less than 17 authorities, stated the relevant
legal principles, and thoroughly convinced the marker that we know what we’re
talking about.
You give me a paper like that, I’ll give you a great mark. Simple.
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9. What are Markers Looking For?
Nowadays, in most subjects, markers will provide you with a marking rubric, which
shows how the marks for a paper are allocated. This is a great guide as to what the
marker is looking for when they mark your paper. this is also a relatively recent
innovation - nothing like this existed when I was an undergraduate, so we spent a lot
of time guessing at what the markers were looking for.
Rubric or no rubric, I’ve marked a lot of assignments and there are a few key
questions every examiner will be asking while they work their way through your
assignment - and not all of them will be on the rubric!
Question #1: Does the student understand the relevant legal principles?
This is the most important question of all. Your assignment is not just an assignment.
It’s a chance to show the examiner that you have been able to identify the relevant
legal principles, and that you understand the operation of those principles.
The student who is able to identify and understand the relevant legal principles will
do well.
The student who is unable to identify the relevant legal principles, but who does
actually understand the legal principles, will usually give a padded-out answer where
they list virtually every legal principle they think even might be relevant, in the hopes
that they hit the target somewhere (trust me, this stands out to a marker). Provided
they do actually exhibit some understanding, this student will not do too badly. They
won’t get a great mark, but I’m not going to fail them either.
The student who identifies the relevant principles, but who then cannot adequately
explain them, is in a good deal of trouble. With papers like this, I start to wonder how
the student was even able to select the correct principles (after all, if they don’t seem
to understand …) These students are either going to barely pass, or barely fail.
Finally, the student who is unable to identify any of the relevant principles, and who
does not show any understanding … well, this student’s paper is going to be a bit of a
train wreck, really. It makes me sad to fail a student, but sometimes it’s the only
honest thing to do.
Question #2: Has the student done any independent research?
This one can be tricky. After all, the authority is the authority, and there’s no point
finding some obscure case and citing it, when you really should be citing the key
authority. However sometimes it can be really clear that a student has not done
anything more than open their textbook and copy out the relevant list of authorities.
Do yourself a favour - before you cite a case, actually get your hands on a copy and at
least read it through. You’ll find that you can often use little quotations, or draw
parallels between the facts of the authority and the facts in the problem questions.
24
These are little hints to the examiner. They say “Yes, actually, I did go and read the
case!” We notice.
On the other hand, any student who cites my lecture notes is giving me a pretty broad
hint that they did no research at all. I wouldn’t fail a paper for this alone … but it
would be tempting to do so.
Question #3: Has the student taken the time to think about the structure and logic of
their paper?
If you have a look at the sample assignment I’ve written above, one thing you’ll
notice is that all of my planning has resulted in an assignment which is almost
automatically well structured. I am systematically taking the marker by the hand and
leading them through the issues, one by one, in logical fashion. That’s exactly what
an examiner wants to see. A student who understands all of the legal principles, cites
all of the correct authorities, and who even applies those legal rules correctly, might
still get a poor mark if their paper is such a mish-mash of thoughts that it is
impossible to follow logically.
Question #4: Is the student’s writing readable and well-proofed?
Don’t underestimate the importance of a well-written, well-proofed paper. One of my
favourite subjects to teach is Advanced Statutory Interpretation and Legal Drafting, a
subject you will take in second or third year. In that subject, one of the things I
emphasise to students is the simple principle that the law is made of words. If you
want to be a lawyer, that means you must be an expert in the use of language. Well
written assignments, employing an expert (but not grandiose) vocabulary, competent
punctuation, and good proofreading all make a massive difference. Trust me on this.
Question #5: Is the student right?
Isn’t it funny that I’ve left this until last? Quite deliberate on my part, let me assure
you. Certainly a student who comes up with the right answer is going to do well; but
often there is no absolutely right answer; and a student who comes up with the right
answer, but is unable to explain the reasoning and legal principles which got them
there, will do very poorly.
This means you should never be afraid to make an actual conclusion. If the question
requires you to advise the client, give them some actual advice. “There might be a
contract, but then again there might not” is not advice. Even if you are wrong, a
logically-argued answer based on sound legal reasoning will still score great marks.
Being “right” is a consideration, but it’s well down the order of priority.
10. Summary
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For so long as you are a law student, you’re going to be facing problem questions. No
matter how well you learn the law, you won’t get the marks you deserve unless and
until you can write a great answer to a problem question. That’s the simple, plain
truth.
Problem questions have emerged as one of our preferred assessment tools because,
from an examiner’s perspective, they show us whether you understand the law,
whether you have undertaken any research, but most importantly they show us
whether you can take legal principles and incorporate them into your legal reasoning,
with respect to a specific set of facts. This is not just a skill you will need as a student
- this is a skill you will need every time you utilise your legal knowledge, whether
you end up as a High Court Judge, or whether you end up as a legally-trained
professional in a completely different field.
Hopefully this week’s materials have helped you to understand how you can do these
problems well! All that remains now is to practice, practice and practice. Like
anything else, handling problem questions becomes easier with time, as you become
more familiar with the process, and as you become more knowledgeable about the
law. Some people are just able to write these questions well - for you, this week has
probably been pretty tedious. However for many people (including myself, when
started studying law) it takes some time and effort to learn and practice these skills.
Trust me, it’s a skill worth mastering.
11. Sample problem question
This problem question is not part of your formal assessment. However I would like
to give you a chance to practice these skills in an environment where you are not
stressing over the assessment outcome. If you prepare and email me an answer to this
problem question, I will mark it as though it was an assessment item, and provide you
with a grade and feedback. You can do this at any time during the term, and I will
turn them around as rapidly as circumstances permit. I would also be happy to look at
your preliminary planning at any stage, if you are following the process I have set out
above.
Question
Vijay is a young, ambitious tattoo designer and tattoo artist, who has opened a small
tattoo studio off an inner-city laneway. He lives in the studio and tends to open his
studio for work in the evenings, often working until the early hours of the morning if
there were clients (or designing new tattoos). His inner city location and growing
reputation for excellent “freehand” tattooing, combined with his accessibility in the
evening, has meant that he often has clients arrive spontaneously, without
appointments - although business is beginning to boom, so he has begun to keep an
appointment book during busy times.
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One Friday night, shortly before midnight, a young man came into the store. He was
somewhat intoxicated, but was walking under his own steam, and talking
comprehensibly. He explained that he was drunk because he had spent the evening
conducting a wake for a friend who had just died in a motorcycling accident. He
stated that he wanted to get a tattoo to remember his friend by. The tattoo was to be
Chinese characters translating as “Mates forever”.
Vijay said “Listen, mate, you are drunk and I don’t know the Chinese characters for
Mates forever.” I would be happy to do the tattoo, but I want you to come back when
you are sober, and when you can show me what the characters look like.”
The young man was insistent, and produced from his pocket a piece of paper bearing
two Chinese characters in biro. He stated that “a Chinese chick” he had met earlier in
the evening in a nightclub has drawn the characters for him, and he wanted the tattoo
done now, so he could always say he got it done on the day of mate’s funeral and
wake.
Vijay was still not convinced, so he quoted the young man an outrageous price for the
job, hoping he would refuse and go someplace else. The tattoo was quite small and
simple, and probably would normally only cost about $80. Vijay said “I will tattoo
these characters on your shoulder blade for $250 cash.” Much to his surprise, the
client agreed. Vijay was not going to look a gift horse in the mouth, so he performed
the tattooing, freehand (meaning that he tattooed immediately onto the client, without
first drawing the design on paper).
Because Vijay is computer savvy, he had an arrangement where a webcam was
directed into his work area and focussed on the actual tattooing, then displayed on a
screen where the client could see it. This way, clients can watch the progress of their
tattoo, even when they are being tattooed in places like their back, which they cannot
normally see. The tattooing process was therefore visible to this client, but he didn’t
seem to take a lot of notice.
The following morning, Vijay was online and saw a tattoo gun being offered for sale
on EBay. He decided this would be a useful addition to his kit, and the bidding was
quite low at that point, so he put in a bid. He then left the shop and went down to his
local electronics store, to purchase a new monitor to display tattoo designs in the
waiting area of his studio. He did not need the help of a staff member; the monitors
were on display, and then were also available in boxes under the display counter. He
picked up one of the boxes and then went to the counter. He must have misread the
price label, however, because the monitor scanned at $600, whereas he had thought
the price was $400. He still paid for the monitor, and took it back to his studio.
Waiting for him at the studio was the (by now very hung over) young man from the
previous night. He was very angry, and argued that the tattoo which Vijay had
performed was “All wrong, and actually the characters meant Shake well before
opening.” The client wanted a free “cover up” tattoo. The design the client wanted
27
was large and expensive, and would normally have cost $750 for Vijay to design and
complete. Vijay refused the client’s demand, and after some further arguing the client
left.
By this time, the EBay auction had closed, and Vijay was the winner. He suddenly
realised, however, that because the monitor had been more expensive than he
expected, he would be unable to pay for the tattoo gun. In a panic, he opened his
emails, and saw (much to his relief) that he had not yet received an email from the
seller to confirm payment arrangements. He immediately emailed the seller to
withdraw his offer. The seller responded, arguing that it was too late for Vijay to pull
out of the deal now. Vijay, in turn, sent back an email proposing that he purchase the
gun, for $200 less than his winning bid. The seller reluctantly agreed.
Issues
Assume Vijay has asked for a legal appreciation of these circumstances and advise:
(1)
whether there was a valid contract formed between himself and the young man
prior to the start of the tattooing process; and
(2)
whether the arguments about the Chinese characters places him in any danger
from a legal perspective; and
(3)
whether he was the offeror or the offeree in relation to the computer monitor,
and who set the price for the transaction; and
(4)
whether he was able to withdraw his offer during the online auction; and
(5)
whether any legal issues arise from his final payment deal with the seller of
the tattoo gun.
In answering these questions you are only to consider issues of contract formation, not
performance or breach. You are also to assume that the performance of the tattoo
work was undertaken in compliance with relevant legislation regulating the tattoo
industry.
Now, over to you! I’m looking forward to seeing what you come up with.
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