Monash University
Law Student Society
Student Tutorial Program
Contract A Revision Lecture
17 May 2011
Duncan Wallace
Joel Gory
DISCLOSURE STATEMENT
The following presentations have been prepared
and provided by a student. They have not
been viewed or endorsed by the faculty. These
notes/corrections should not be solely relied
upon – it is up to the student to ensure their
work complies with faculty expectations and
course requirements.
The presentation was intended to generate
discussion and query, so they should be
referred to with this kept in mind.
What is an essay question?
• An essay question answers the WHY of the
law.
• Why is the law the way it is?
• What are the limitations to the law?
• What are the advantages of the law?
• How can we improve on the law?
Examples from past exams
• Discuss the issues raised in the your answer to
Question One using insights derived from two of
the theories studied this semester. (Sem 1 2006)
• When the traditional rules of offer and
acceptance cannot be applied, courts will be
unable to determine whether an enforceable
contract has been formed between the parties.
Discuss. (Sem 1 2005)
• A party can unilaterally incorporate terms into an
agreement at any time before the contract is
formed. Discuss. (Sem 1 2005)
What makes an essay answer good?
• A response to the question asked (and not
some other question)
• a developed argument based on this response
(with a heading and sub-headings)
• appropriate and relevant evidence (from case
law and articles)
• A conclusion
Essay question compared to a
problem-style question
Both should be:
• organised and structured
• Planned (ie, write a plan)
• good presentation (referencing, subheadings and (mini)conclusions )
In theory/essay questions
• show some wider reading (but use of main cases still
fundamental)
• a well structured argument (need a contention)
• more room for conjecture
Wide Reading, Journal Articles,
Evidence???
• Cases mostly OK
• For D or HD answer, try to incorporate something from one
of the articles on your RG
• Read a selection of the articles and make very brief
summaries (with main contention of article), so you can
draw upon.
Where are the marks?
• Answer the question asked (easy!)
• Knowledge of the state of the law (easy!)
• Develop an argument and keep it in mind and
on paper throughout
• Include counter arguments
• Give support for claims you make using
authority
KEY POINT!!!
A law theory essay develops an
argument.
• A policy essay is a thoughtful, researched
response to a topic or question.
• It outlines YOUR position (opinion) on the
topic or question
• Logically develops this position: reasons
and evidence needed to back you up!
Essay Structure
• Introduction (small)
– Significance of the issue
– Definition/explanation of area being discussed
– Main contention/claim and a road map!
• Body
1. State the Current Law
2. Advantages/Disadvantages/Limitations of the current law
3. Reform/YOUR recommendations to remedy the problems
• Conclusion (small)
– Claim restated
– Main elements of argument reviewed
– Reasons emphasised
– Significance asserted
Let’s give it a go
• When the traditional rules of offer and acceptance cannot be
applied, courts will be unable to determine whether an
enforceable contract has been formed between the parties.
Discuss. (Sem 1 2005)
• Pick apart the Key Terms:
• “the traditional rules of offer and acceptance”
Introduction
• Define key terms:
– traditional offer and acceptance: Gibson v Manchester
CC
– Cf ‘global approach’ by Denning LJ
• State the issue: ?
• Take a (and state your) position:
• -traditional rules always work to find an
enforceable contract; OR
• -traditional rules are not sufficient for all
circumstances
Body 1: state the current law
• Outline the current the law
– Gibson v Manchester CC
• Compare the approaches of Diplock L versus Denning LJ
– MacRobertson Miller Airlines (Barwick CJ)
– Mobil Oil
– Butler Machine Tool v Ex-Cell-O Corp (battle of the
forms)
Body 2: limitations and advantages
(analysis)
Conventional approach good because:
• Certainty - easier to identity offer/counter offer and reach an
objective ‘ad idem’.
• Estoppel ‘takes up the slack’ with the problems with strict analysis
eg Mobil Oil
Limitations of conventional approach: (looking at specific examples)
• Simple ‘offer and acceptance’ not always appropriate
–
–
–
–
ticket cases – (MacRob)
ebay and e-contracting (eBay v Creative)
Standard form contracting
Battle of the forms
• (Really theoretical…) ‘ad idem’ should be a broad, inclusive principle
-- “global” rather than mechanical? (but Common Law should
remain strict to rules?)
Body 3: Reform/improvement
• Should adopt the traditional approach as a starting
point.
• Then, if not appropriate, or a strange or absurd
result, should move onto the global approach.
• Importance of identifying a reasonable meeting of
the minds – are there other ways that parties can
come to a binding agreement?
– E.g. Postal Rule scenario – two letters implicitly respond to
each other without the knowledge that the other has been
sent
Conclusion
• Restate your claim and show how you proved
it
How to prepare for essay questions?
• Review past exam papers to see previous
questions
• Is essay theory question compulsory?
• Read some of the additional sources in RG
• Write as many plans to essay questions as
possible
• Try and get feedback (library learning skills,
lecturers, Monash tutors)
Another Question
• A party can unilaterally incorporate terms
into an agreement at any time before the
contract is formed. Discuss.
– Emphasis of the question is unilateral and before
the contract is formed
– Is there a unilateral ability?
– If so, are there are limitations on that ability?
– To what extent is there a bilateral relationship?
– Distinguish from a collateral contract?
• Policy observation: both parties should be able to decide
what terms are involved in a contract and should be aware of
those terms.
– Unilateral ability is ok…
– Provided both parties are aware and accepting of unilateral activities?
NOTICE
COURSE OF DEALINGS
TIMING
REGULAR + UNIFORM
Oceanic Sun Line
KNOWLEDGE OR NOTICE
Parker v South Eastern
Causer v Brown
Thornton
Interfoto
Balmain
DJ Hill
Rinaldi – unilateral behaviour
REVISION