AGREEMENT
If you are told on the facts of the problem that there has been an agreement then
just state there is one and move on.
Only explore if there is some uncertainty
OFFER
“a clear statement of the terms by which the person making the offer is prepared to be
bound’
A mere puff: a non-promissory statement which may be used as advertisement to
induce another to enter into contract. Exaggerated statements a reasonable wouldn’t
hold to be true
An invitation to treat: not an offer but an invitation to other parties to make an offer.
A person who responds to an invitation to treat is in fact making the offer which may
then be accepted or rejected, eg goods in catalogue, auctioneers request for bids,
announcements inviting tenders etc Grainger v Gough
Standing Offers:
Offers to provide goods or services when required. These offers are accepted each
time an order is placed. Can be revoked at any time prior to acceptance Great
Northern Railway Co v Witham; Colonial Ammunition Co v Reid
Communication:
An offer becomes effective once it is communicated to the offeree or his or her agent
Cole v Cottingham eg if a reward is offered but unaware of reward cannot claim later
when hearing of the reward R v Clarke
TERMINATION OF AN OFFER:
An offer may be terminated at any time before it has been accepted, but once an offer
has been accepted then it cannot be revoked Great Northern Railway Co v Witham
Revocation: the formal withdrawal of an offer by the offeror, can only occur prior to
acceptance.
 Revocation will only be effective once it is communicated to, and received
by, the offeree Byrne v Tienhoven
 Revocation by a reliable third party may be sufficient Dickingson v Dodds
 If consideration has been given to keep the offer open for a period of time
offer may be revoked until the expiration of that time Goldsborough Mort v
Quinn.
 If acceptance if the performance of an act then once that act has begun the
offer cannot be revoked Abbott v Lance
Rejection: Once an offer is rejected by an offeree it cannot later be accepted
 Where a person purports to accept an offer but introduces new terms the offer
is rejected and a new offer is made which can then be accepted or rejected by
the other party (counter offer) Hyde v Wrench unless the new condition is
minor or of a trivial nature Turner Kempson and Co Pty Ltd v Camm
 The rejection is effective once communicated to the offeror. If a party intends
to accept the offer but changes their mind they may be able to reject the offer
if it is prior to the communication of the acceptance
Lapse of Time: An offeror may stipulate their offer must be accepted within a period
of time, and of the offeree fails to accept the offer is said to lapse
 If there is no time prescribed, the offer may be accepted in a reasonable
amount of time Ramsgate Victoria Hotel v Montefiore
Conditional Offers: An offer may be made conditional on the happening of a certain
event. If a condition on which the offer is made is not fulfilled then the offer lapses
McCaul (Aust) Pty Ltd v Pitt Club Ltd
Death: If an offeror dies then it is still possible for the offeree to accept the ofer thus
binding the deceased’s estate. An offeree cannot accept an offer after hearing of the
death of the offeror Coultart v Clementson
If Offeree dies then the offer more than likely lapses Reynolds v Atherton assistant
ACCEPTANCE
Acceptance is the expression, either in words or conduct, of assent to the terms of the
offer. In a unilateral agreement the acceptance is taken as the first person who accepts
or performs the act Robinson v M’Ewan
Communication: An acceptance has no effect until it is communicated to the offeror
Byrne and Co v Leon Van Tienhoven and Co Acceptance must be communicated by
the offeree or their agent Dickinson v Dodds. Silence does not constitute an
acceptance Felthouse v Bently
Postal Acceptance Rule: Must be in comtemplation of parties that the post will be
used as the form of response. Acceptance is effective at the time of posting not at the
time of receiving Adams v Lindsell
Revocation: It is possible to revoke acceptance as long as the revocation is
communicated to the offeror before the acceptance is communicated Entores Ltd v
Miles Far East Corporation
CERTAINTY
If a contract is to vague or uses uncertain terms then the contract may be deemed void
Whitock v Brew. However the courts endeavour to make contracts valid where they
can Hilas and Co v Arcos Ltd
Meningless terms: A contract which contains meaningless term may be
unenforceable unless the contract could stand on it own Fitsgerald v Masters
WHERE A CONTRACT IS ‘SUBJECT TO’
Subject to finance
See terms
Subject to Formal Agreement
Where a contract is made ‘subject to contract’ there are three categories of
interpretation as set out in Masters v Cameron
1. Where the parties have reached finality in their negotiations and intend to be
bound immediately but propose to restate the terms in a more formalised
manner
2. Where parties have completely agreed but have made performance of one of
the terms conditional upon execution of a formal document
3. where the parties do not intend to be bound unless and until a formal
document is entered into
Only in the first and second categories will the parties be immediately bound by their
agreement whether the formal document comes into existence or not Masters v
Cameron
In the third case the terms of the agreement are not intended to be binding and
therefore are not
Go off the facts of the case to determine their intentions as evidenced by their actions.
Next explore whether or not the contract is enforceable eg if it is a contract for the
sale of land
CONSIDERTAION
Past Considertaion: Past consideration is not good consideration. Consideration is
past when the promise is made after the act or performance and is usually independent
of it Roscorla v Thomas
Exception – When services are performed at another’s request and a subsequent
promise is made for payment, that promise will be enforceable if, when it was made,
both parties were under the assumption that services were to be paid for Lampleigh v
Braithwait
Consideration must move from the promisee but does not need to move to the
promisor Dunlop Pneumatic Tyre v Selfridge & Co
 In the case of joint promisees it is sufficient if the consideration is given by
one party on behalf of all parties Coulls v Bagot’s Excecutor & Trustee Co Ltd
Consideration must be something of value in the eyes of the law
 A moral obligation to perform a promise does not constitute good
consideration Eastwood v Kenyon
 The act or forebearance constituting consideration must be done in reliance of
the promise, and not done for other reasons Combe v Combe
Consideration must be sufficient but need not be adequate Chappell & Co v Nestle
 Where a public duty is imposed on the plt, performance of the duty is
insufficient consideration for the def promise of payment for the performance
of that duty Collins v Godefroy But if they act in access of that duty that
performance will be sufficient consideration to support the promise of
payment Glasbrook Bros v Glamorgan County Council
 Where the plt is bound by a contractual duty to the def, performance of that
duty will not amount to sufficient consideration to support a further promise of
payment by the def Musumeci v Winadell Pty Ltd; Williams v Roffery Bros
 Where the plt is bound by an existing contract to a 3rd party, performance of
the duty is sufficient consideration for the def promise Shadwell v Shadwell
 In certain circumstances, giving up the right to sue in return for a settlement
may be good consideration Callisher v Bischoffsheim
 Part payment of a debt is not good consideration for the promise to forgo the
balance Pinnels Case However, equitable estoppel may in some circumstances
be used to evade the rule in Pinnels Case
A forebearance to sue may constitute goo consideration even if there is a chance that
the proposed action would not have succeeded.
The promisee must show
 The action must not be frivolous or vexatious
 The plt in the action must believe that he or she has a reasonable chance of
success
 The plt must not knowingly conceal from the def any fact that could affect the
validity of the claim
Callisher v Bischoffsheim
INTENTION TO CREATE LEGAL RELATIONS
Domestic and Social Agreements
In domestic and social agreements the courts presume that the parties did not intend
for their agreement to be binding Balfour v Balfour. The domestic presumption will
not arrise where a married couple have separated Merritt v Merritt
Factors the courts will take into consideration in determining intention
 How close was the relationship
 What did the parties say to one another
 What were the surrounding circumstances when the statements were made
 Whether the parties have commercial interest involved
 How serious are the consequences of one party acting on the promise
Business and Commercial Agreements
There is a strong presumption that a commercial contract is intended to create legal
relations Carlill’s Case
Rebuttal of the presumption
Where parties expressly state that their agreement is not intended to have any legal
effect this will be upheld by the court Rose and Frank v Crompton Ltd
Government Agreements
Where a government enters into an agreement pursuant to some policy proposal or in
carrying out some government function, it is generally not contractually bound
Australian Woollen Mills v The Commonwealth
Where a government departments contracts with an individual or a corporation, the
agreement will be binding unless the purpose of the agreement was to provide some
kind of assistance to the other party or the community in general.
ORAL STATEMENTS
If the document is signed then state the general rule with respect to signed documents
is that where a party signs a document, he or she is generally bound by its terms
L’Estrange v Graucob
Is the term a mere representation?
Objective test based on the intention of the parties Oscar Chess v Williams
Five subsidiary tests
1. Words and conduct of the parties
The importance of the term in the minds of the parties as indicated by words
and conduct Harling v Eddy; Couchman v Hill
2. Knowledge or expertise of the statement maker
If the party who made the statement is in a better position than the other party
to ascertain the accuracy of the statement, it is probably a term Oscar Chess
Ltd v Williams
3. Statement maker has control in relation to information
Hospital Products Ltd v United States Surgical Corporation
4. Oral Statement not reduced to writing
If the statement is made orally and it is not included when the contract is
reduced to writing, it is probably not a tem. This does not really help as it will
never satisfy pro making it a condition. However, if a pre-printed standard
form contract is used then it may be argued that this signifies the written
contract was not intended to contain all the terms.
5. Interval of time
If there is a long interval between the making of a statement and the
conclusion of the contract, it is probably not a term of the contract Routledge v
McKay
The parole evidence rule does apply where the parties contract partly in writing and
partly orally Couchman v Hill
If it is a term is it a condition, warranty or intermediate term (state everything below)
 condition – is a term which is essential or so important to the contract that is it
is breached the innocent party has the right to terminate the contract and sue
for damages Tramways Advertising Ltd v Luna Park
 Warranty – a term that is subsidiary to the main purpose of the contract. If
breached the innocent party is entitled only to damages Bettini v Gye
 Intermediate term – is a term which is not able to be categorised as either a
condition or a warranty. Remedy for breach depends on the seriousness of the
breach Hong Kong Fir Shipping
Identify which type of term you feel it is
If it is a mere representation then list below
There are three different types of misrepresentations
 Innocent misrep – damages only
 Negligence misrep – termination of contract and damages in tort
 Fraudulent misrep – termination and damages in tort
Is it a collateral contract (see above)
Define and apply three elements
Remedy is damages only
RREPRESENTATION OR TERM
The general test is the intention of the parties, that its, did the maker of the statement
intend to guarantee the truth of the statement.
Objective test – what would a reasonable third person have understood the statement
to be Oscar Chess Ltd v Williams
 Time – Where there is a long interval between the maing of a statement nd the
conclusion of the contract, it is probably not a term of the contract but merely
a representation Routledge v McKay
 Reduction of the statement into writing – where a statement is made orally
and is not included when the contract is reduced to writing, it is probably not a
term Routledge v McKay; If the contract is not reduced to writing the oral
statement would more than likely be viewed as a term United Hospital
Surgical Corporation v Hospital Products International Pty Ltd
 Importance in the minds of the parties – where a statement is important in
the minds of both parties it is probably a term Couchman v Hill
 Special Skill and knowledge – where the statement maker is in a better
position than the other party to ascertain the accuracy of the statement, it is
probably a term Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd
If the test indicates the statement was a representation which is shown to later be false
(misrepresentation) the innocent parties will not have remedies under the contract but
may have an equitable right to bring the contract to an end. If the misrepresentation is
fraudulent or negligent the innocent party may also have the right to sue for damages
in the deceit or negligence
COLLATERAL CONTRACTS
Where you have a promissory statement made which does not become part of the
main contract may have formed the basis of a collateral contract.
The consideration for the promise is usually the making of the main contract Heilbut
Symons v Buckleton
Bipartite – are made between the same parties who enter into the main contract
Shepperd v The Council of the Municipality of Ryde
Tripartite – where the promissory statements which induces the innocent party to
enter into the main contract may have been made by a third party eg manufacturer
makes statement and plt buy goods from def Wells (Merstham) Ltd v Buckland Sand
and Silic Co Ltd
Three elements must be established:
1. an intention by the statement maker that the statement be relied upon
2. reliance by the other party on the statement that has been made
3. an intention by the statement maker to guarantee the truth of the statement
Savage v Blakney
The terms of the collateral contract must be consistent with the terms of the main
contract Hoyts v Spencer
Only remedy for breach of collateral contract is damages cannot terminate or enforce
the main contract
EXEMPTION CLAUSES
First determine as per below whether or not the exemption clause is part of the
contract and binds the def and plt
Signed Document
The general rule with respect to signed documents is that where a party signs a
document, he or she is generally bound by its terms L’Estrange v Graucob
Exceptions:
1. If the document signed is thought to have no contractual effect DJ Hill and Co
Pty Ltd v Walter H Wright Pty Ltd (delivery docket)
2. If the person seeking to rely upon the clause has misrepresented its effect
Curtis v Chemical Cleaning Co
3. ‘Non est factum’ a person who signs a document may be able to plead non est
factum, that is, they did not know what was being signed. To succeed, plts
must show that there is a radical difference between what was signed and what
they thought they were signing and that they were not just careless in signing
Petelin v Cullen, hard to succeed but if plt is successful the document is
rendered void
Notice
A term may be incorporated into a contract is sufficient notice of the term of the
contract is given by the party who later may wish to rely upon it.
The party seeking to rely upon the exclusion clause must show that he or she did all
that was reasonable, in the circumstances of the case, to bring the term to the attention
of the other party Balmain New Ferry Co Ltd v Robertson
The notice must be given prior to or at the time of entry into to contract Olley v
Marlborough Court Ltd
Unsigned Documents
In the case of unsigned documents which contain an exemption clause, a party who
does not know of the exemption clause will only be bound by it if the following id
shown:
1. It would be assumed by a reasonable person to be a contractual document
Causer v Browne (nowadays less likely to prove as most consumers expect
recipts etc to include contractual terms)
2. Reasonable steps were taken to give the class of person, to which the recipient
belonged, notice of the existence of the term Parker v South Eastern Railway
Co
3. These steps were taken before the contract was made Thornton v Shoe Lane
Parking Ltd
4. It appears not to matter that the recipient did not read the terms or that they
were unable to read Thompson v LM and S Railway
Consistent Course of Prior Dealings
If there is no document signed the def wishes to rely on an exemption clause in
contracts signed during previous course of dealings Henry Kendall & Sons v William
Lillico & Sons
It is not necessary to show the plt had actual knowledge of the term, it is enough if it
can be shown they ought to have known about the clause Henry Kendall v Lillico
What constitutes consistent course of prior dealings depends on the facts of the case.
In Henry Kendall it was held three or four occasions over three years was sufficient.
However, in Hallier v Ramblin Motors three or four dealings over five years was held
to be not sufficient.
Once it is determined the exemption clause forms part of the contract it is necessary to
determine whether or not it covers the breach
The courts generally construe an exemption clause according to its natural and
ordinary meaning in light of the contract as a whole Darlington Futures
There are a number of rules on construction the courts use to assist in interpreting an
exemption clause
1. The party inserting the clause cannot be protected by it if they misrepresent the
meaning of it Curtis’s Case
2. The clause will be construed strictly Wallis v Pratt & Hayes
3. Clause is read contra proferentem (against the def) in case of ambiguity
Darlington Futures
4. In the case of negligence:
 Express exclusion is effective
 Where the only possible cause of action is an action in negligence, the court
will interpret a ‘wide’ clause to cover the def’s liability for negligence
Alderslade v Hendon Laundry Ltd
 Where a cause of action may be based on some other ground other than
negligence (such as breach of contract) a ‘wide’ clause must be confined to
the heads other than negligence White v John Warwick
5. Corners Rule Sydney City Council v West – relates only to the person relying
on the exemption clause
IMPLIED TERMS
Terms implied by custom or usage
The parties to a contract are presumed to contract with reference to whatever customs
that prevail in the trade or locality in question Con-Stan Industries of AustraliaPty Ltd
v Norwich Winterthur Insurance set out a number of rules that must be satisfied
before a term will be implied
1. the existence of a custom or usage that will justify the implication of a term
into a contract is a question of fact
2. there must be evidence that custom or usage relied upon is so well known and
acquiesced in that everyone making a contract in that situation can reasonably
be presumed to have imported that term into the contract; however, the custom
need not be universally accepted
3. a term will not implied on the basis of custom or usage where it is contrary to
the express terms of the agreement
4. a person may be bound by a custom notwithstanding the fact that they had no
knowledge of ti
Terms implied by statue
Sale of goods and provision of services contracts have a number of terms impliedly
incorporated into them.
 Implied warranties that the seller is to have quiet possession of the goods and
that the goods are free of encumbrances s15(b), (c) Sale of Goods Act (Qld)
 Implied conditions that in a sale by description, the goods will correspond with
that description s16 SoGA
 Implied conditions that goods are reasonable fit for the purpose s17 SoGA
 Implied conditions that goods are of merchantable quality s17(c)SoGA
S74 Trade Practices Act applies to the provision of services
S68 TPA parties cannot contract out of these terms implied under the TPA
Terms implied by custom or usage in the market
Con-Stan Industries of Aust Pty Ltd v Norwich Winterthur Insurance
1. the existence of a custom or usage that will justify the implication of a term
into a contract is a question of fact
2. there must be evidence that the custom or usage relied upon is so well known
and acquiesced in that everyone making a contract in that situation can
reasonably be presumed to have imported that term into the contract; however,
the custom need not be universally excepted
3. A term will not be implied on the basis of custom or usage where it is contrary
to the express terms of the agreement
4. A person may be bound by a custom notwithstanding that they had no
knowledge of it
Terms implied as a matter of fact for the purpose of business efficacy
When a term is said to be implied for the purpose of business efficacy, it generally
means that the partied require that term in order for the contract to work. Rules for
implying a term on the basis of business efficacy set out in BP Refinery (Westernport)
Pty Ltd v Shire of Hastings; Codelfa v State Rail Authority
1. it must be reasonable and equitable to imply the term
2. it must be necessary to give business efficacy – that is the contract will be
ineffective unless the term is implied
3. it must be so obvious that it goes without saying
4. it must be capable of clear expression
5. it must not contradict any express terms of the contract
Terms implied from a previous course of dealings
The courts will often look into past dealings between parties to assist in determining
the terms of their present arrangements.
There must be a previous consistent course of dealings of a sufficient length of time
Henry Kendell and Sons v William Lillyco and Sons – three or four times a month
over three years held sufficient
McCutcheon v David MacBayne Ltd – risk note everytime previous to this one but
this time not required – court held nothing to indicate an intention that the terms of the
risk note would be incorporated into the present contract
Hollier v Rambler Motors (AMC) Ltd – three or four dealing in the course of five
years held not sufficient
FORMALITIES
Contracts for the Sale and Disposition of Land
s59 Property Law Act 1974 (Qld) provides that contracts for the sale or disposition of
land must be in writing for them to be valid.
Some memorandum or note thereof
It is not necessary for the contract to be in writing, it is sufficient if it is witness in
writing s59 Property Law Act 1974 (Qld)
1. There must be and acknowledgement by the party to be charged that the contract is
concluded Tiverton Estates v Wearwell Ltd
 If the document say ‘subject to contract’ or similar then it is not concluded
Masters v Cameron
2. Must contain all the material terms of the agreements Harvey v Edwards Dunlop
and Co Ltd
 Sufficient description of the parties Williams v Burns
 Sufficient description of the subject matter Pirie v Saunders
 The consideration for the promise Burgess v Cox (unless guarantee)
 A statement of any special conditions
If a term is missing but it is deemed not to be essential then contract may still be
enforceable
3. Must be started from a document signed by the party to be charged.
 A full signature is not required, so long as the name of the party to be charged
appears on the document that will be sufficient. A printed or written name
appearing on the document will suffice so long as it was intended to
authenticate the whole of the document Durrell v Evans
4. Joinder
If document signed does not satisfy 2 then documents may be joined together if
 There is some reference, wither express or implied, in the document signed by
the party to be charged to some other document/s
 If there is reference in document signed by the party to be charged that refers
to the transaction (eg ‘our deal’ or ‘out arrangement’) then parole evidence can
be introduced to explain the transaction and bring in any documents relating to
the transaction. Can include documents that come into existence after the
transaction Popiw v Popiw
 If contemporaneous (eg receipt immediately follows cheque) then they
may be joined. If there is a delay then this principle will not apply
 Things that are physically joined may joined together eg. A letter and
its envelope may be joined Pearce v Gardiner
State Below
A contract that does not fulfil the statutory requirement is still valid but is
unenforceable should the contract be breached. However there are still some
situations in which a court will enforce the contract.
Where an agreement is partly written and partly oral, the courts may enforce the
agreement despite the fact it does not satisfy the requirements of writing.
5. Doctrine of Part Performance
Acts of part performance must be unequivocally referable to some such contract as
that alleged McBride v Sandland; Regent v Millet
There has to be no deposit whatsoever. Payment of deposit and taking of possession
is not enough; but making repairs, alterations, mortgage repayments are good
established examples
Acts must be done by plaintiff in reliance on the agreement with the knowledge of the
other party
If Doctrine of Part Performance is applied then the equitable remedy is the specific
performance of the contract.
GUARENTEES
s56 Property Law Act 1974
It is important to distinguish between guarantees and indemnities
An indemnity is a primary liability ie I will see you paid
A guarantee is a secondary liability ie If X defaults then I will pay
If a guarantee then the same requirements stand as for a contract for the sale of land.
The note must contain the same material facts as mentioned above for the sale of land
However, consideration is not considered an essential term s56(2) Property Law Act
The writing requirement of the statute will not operate in certain situations:
1. a promise by a guarantor made to the debtor to pay the debt is not a guarantee
Eastwood v Kenyon
2. where one agrees to take over the debt of another, it is not a guarantee Gray v
Pearson
3. where the guarantee forms part of a larger transaction, for example a sale or
lease agreement Anthoness v Melbourne Malting and Brewing Company;
Harburg India Rubber Comb Co v Martin
4. where the guarantee imposes no personal liability, such as where the debt is
secured on the property of the promisor Harvey v Edwards Dunlop
PRIVITY
 General rule of Privity
Only a party to a contract may sue on it or be subject to obligations created by it
Wilson v Darling Island Stevedoring Co
 Argue whether or not they are third party or they are joint promisees. State that a
third party beneficiary not a joint promisee and that they have not provided
consideration Coulls v Bagot
 Statutory Exceptions
 If Insurance then:
If in the contract of insurance the person is named, either specifically or
otherwise, as a person whom the insurance will cover then that person has the
right to recover losses from the insurer under the contract
S48 Insurance Contract Act 1984 (Qld)
Applies Trident v McNiece
 If Other then:
3rd party may sue if they are specified in the contract and they accept the
benefit of the promise within the specified/a reasonable time of ti coming to
their attention. Acceptance can be by words or conduct.
S55 & 6 Property Law Act (Qld)
Prior to acceptance of the benefit, the promisor and promisee may without the
consent of the beneficiary vary or discharge the promise s55(2) Property Law
Act
 Common Law Exceptions
 Agency – legal relationship between the 3rd party and the promisee whereby
the principal gives the agent the authority the act on their behalf Trident v
McNiece
 Trust – A promisee in a contract holds the promise on behalf of the 3rd party.
3rd party still cant sue but can legally compel the trustee to enforce the contract
Deane j Trident v McNiece
 Unjust Enrichment – where the promisor receive an unjust benefit to the
detriment of the 3rd party Gauldron J Trident v McNiece. Note that there is
difficulty association with the interpretation applied by Guadron
 Estoppel (see below)
Remedies – common law damages Trident
EQUITABLE ESTOPPEL
For equitable estoppel to apply there must be unconscionable conduct by one party
Walton Stores Ltd v Maher
 Clear and unambiguous assumption or expectation by Party A Legione v
Hateley
 Encouraged or induced by Party B Waltons Stores Ltd v Maher
 Party A acts or abstains from acting in reliance on the assumption (the
reliance must be reasonable) Waltons Stores Ltd v Maher
 Party B knew or intended Party A to do so Waltons Stores Ltd v Maher


Party A will suffer detriment if expectation is not fulfilled Thompson v
Palmer
Party B fails to avoid the detriment by fulfilling the assumption or
expectation otherwise Waltons Stores Ltd v Maher
Remedies for Estoppel
Minimum equity to do justice between the parties Waltons Stores Ltd v Maher
The remedy will be proportionate to the unconscionability.
The amount compensated for be the loss incurred in reliance on the assumption rather
than making good the expectation Commonwealth v Verwayen
THIRD PARTY RELYING ON EXEMPTION CLAUSE
 General Rule of Privity
Only a party to a contract may sue on it or be subject to obligations created by it
Wilson v Darling Island Stevedoring Co
 May be able to rely on exemption clause if satisfy the following four conditions
1. the clause makes it clear that the def is intended to be protected by the
provisions in it which limit liability
2. the contract makes it clear that the carrier in addition to contracting for these
provisions on his own behalf, is also contracting as an agent for the stevedore
that these provisions should apply to the stevedore
3. the carrier has authority from the stevedore to do that
4. that any difficulties about consideration moving from the stevedore were
overcome
5. Scruttons Ltd v Midland Silicones Ltd; New Zealand Shipping Co Ltd v AM
Satterwaite & Co Ltd
Where these four conditions are met, the courts are prepared to hold, through
application of agency principles, that a contract comes into existence between the
original promisor and the third party.
If the def performs it duty of unloading and storing the goods, good consideration is
given to the plt. Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia)
Pty Ltd
If the above are fulfilled then through the application of agency principles a contract
comes into existence between the original promisor and the third party.
In this way, the third party will receive the benefit of the terms of the contract without
the privity doctrine being offended
Then explore the conditions as to whether the exemption clause can be extended to
cover act in ‘terms’ section.