Comprehensive-Private-Law-Notes

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LAWS1150: CONTRACT LAW Contents 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) Electronic Communications 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 Preliminary Agreement 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 A Overview: 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 Licences Definitions - What is property? Property in Philosophy and history Public Rights Under common law, everyone has right to fish/navigate the sea. Is it a property right? Public vs. property rights 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 Public Policy 3:2 decision. 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: Tenant's fixtures 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 Historical evolution 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 General principles 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? Future interests Equitable estates Adverse possession by a co-owner Successive adverse possessors Stopping time running Extension of time The effect of effluxion of time Tenancies • 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? B1 Assumption B2 Inducement: activates the wrong Kirby P: - 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 Remedy 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 Theoretical Readings