Subject notes for UNSW LAWS1150
LAWS1150: CONTRACT LAW
Differences between the common law and equity
Criticism of the courts of equity
Contemporary Distinction between contract law & tort law
Executory contract (nothing actually done): legally binding as a higher level obligation
Classical Distinction between Contract Law from Tort Law
Circumstances where classical analysis of contracts may fail
The elements of a contract
Cases for formation of offer
Overview of acceptance
Determining offer and acceptance: external (objective) manifestations of intention
Communication of acceptance (generally required)
Methods of Communication
The Postal Rule (exception to general rule)
Who wins in a ‘battle’ of terms and conditions
What is a battle of forms?
Deed (safeguard of consideration is not required)
The benefit or detriment requirement
Bargain requirements (‘quid pro quo’) and conditional gifts
The sufficiency / adequacy distinction
Past consideration (generally not good consideration) – the rule and an exception
A promise to perform an existing legal duty is generally not good consideration
Part payment of a debt is NOT good consideration
Intention to Create Legal Relations
What may be used as evidence of intention?
The Role and Nature of Presumptions
Overview of Certainty: agreement must be sufficiently complete & sufficiently certain
Completeness: there are certain essential terms which must be included in a contract
Uncertainty (or lack of clarity)
Severance and Waiver
The use of an Objective Standard
Agreements to Negotiate
B Illusory Promises (unenforceable)
How Discretion affects the enforceability of a contract
An illustory promise will not itself be enforceable.
An overview of discretion
There are two requirements to enforce a promise
B When the privity rule does not pose an obstruction
Ways around the privity rule (enforcing a contract outside the tent)
What is property?
Property Rights and Contractual Rights
Definitions - What is property?
Property in Philosophy and history
Under common law, everyone has right to fish/navigate the sea. Is it a property right?
Public vs. property rights
When do these questions matter? In what sort of circumstances?
Is property only about property rights?
What sort of things can be the object of property?
Rights In Rem and Rights In Personam
What is a licence? What is a difference between a licence and an interest in land?
Does an irrevocable contractual right may confer property rights?
Numerus Clausus Principle – landowners cannot create new types of property rights
Property Rights and the Rights of Persons
Are persons property? (policy qs?)
Judgment - Lord Buckmaster LC
What to take from this case?
Differences between property and licences
Property rights and the rights of persons (M Davies and N Naffine)
Property and body parts are not property but can be stolen; should not be sold
Holding and Rule (Panelli)
Rule for Conversion
What could the racecourse have done, and what could they do today, to protect themselves?
Human rights law regard property as a human right
Boundaries of land ( above and below your land)
What constitutes a fixture? Must be attached to the land
When does a chattel become a fixture:
Accidental fixtures: General rule: If you accidently affix an object onto your land -> it’s the land owner’s property. Brand v Chris Building Co. Ltd. (1957)
Facts: Built building on wrong land. Held: If the builder went to go destroy the building it would be considered trespass. Issue: Brand did not know that the building was being built on his land -> unjust enrichment. How far does ownership of land extend upwards: to the use and enjoyment of the land. (below a certain height it will be considered trespass). Problem
Split it and find the factors for fixture/ chattel -> under property law if it is a fixture and part of the land it overrides contract law. Kaye J: the relevant intention cant take into account of agreement
Types of possession
Bailments (lending an item to someone else)
The plea of jus tertii (cannot be pleaded in Australian jurisdictions: Perry v Clissold)
Actions in property
Negligence – breach of duty of care – actual and immediate possession
Eg. A owns and lends truck to her brother B. Without permission, C takes truck from B. A= Bailor, B= Bailee
Eg. A leases truck to B for 6 months. . Without permission, C takes truck from B. A= Bailor, B= Bailee B has actual possession. -> can sue for trespass.
Eg. A leases truck to B for 6 months. . Without permission, C takes truck from B. Six months passed.
Cases relevant to the Just Tertii Defence (no longer applicable in Australia)
Claims by a bailee against a third party
Claims by a bailor against a bailee
The amount of the damages (see Winkfield)
The rights of a finder – Finders keepers (except for the rightful owners)!
Overview of possession
Obtaining or recovering possession
Suspended orders (giving you time to move out) for squatters as opposed to lessors
Self Help (forcible re-entry)
A. Title in action to recover possession of land
Relativity of titles under the Torrens system
Assignment of the interest of a person dispossessed by a squatter
Nature of possessory title
Arguments for and against adverse possession – Policy question?
Adverse possession and good faith
Commencement of the limitation period
Persons presently entitled to possession
The elements of adverse possession
NSW law generally only allows adverse possession for whole parcels of land
Does possession of part-parcel of a lot amount to possession of the whole?
Adverse possession by a co-owner
Successive adverse possessors
Stopping time running
Extension of time
The effect of effluxion of time
• It is not possible to determine questions of priority until the nature of the acquisition and transfer of those rights are resolved.
Consensual transfer through sale
There are two stages
Equitable interests arising out of enforceable contracts
Insurance and risk during the settlement period
The difference between a legal interest and an equitable interest
A Part Performance (relies on there being a finalised contract)
Always refer to acts of parties to investigate implied contract (Mcbride v Sandland 18)
Start with the
Profit a prendre (cases on S&N 296)
A Promissory estoppel: promise not to enforce existing right
Varieties of Estoppel
Why were courts reluctant to apply estoppel to promises as to the grant of rights? – Policy Question
What is the state of the law after Walton Stores?
B2 Inducement: activates the wrong
- This was a commercial transaction, where the two parties failed to agree on a crucial element.
- They deliberately refused to commit themselves, which means it was not unconscionable for a party to withdraw
B3 Detrimental Reliance
B4 Reasonableness and B5 Unconscionability
Sources of an Agent’s Authority
Formation of Common Types of Agency
Representation by the principal
The manner in which the representation can be made (by words or by conduct)
What conduct can constitute a representation of authority
Term 1, 2020