Words: 1401
There was a breach of collateral contract in respect to the conditions of the drains Criteria for enforceability: Statement relied on is promissory, not supported by past consideration, consistent with main contract 45. Hoots v Spencer [1919]: P sublease premises to D for 4 hours, to terminate need give 4 week notice. Gave similar notice to head lesser instead. De: Verbal agreement and written agreement inconsistent 46. Mendelssohn v Normandy [1970]: P requested D to lock car. D said car needs to remain unlock and would lock it immediately after parked.
P valuable goods stolen. De: Exclusion clause did not apply, Ad’s oral statement overrode the contract- which was also a cause for P to enter into a contract 47. Associated Newspapers v Banc’s [1951]: Parties enter into contract to print As cartoon on Pl newspaper, 2 years into contract, D print on UP. De: Publishing on Pl was a condition of the contract, also why P enter into contract. Implied terms: 5 conditions must be satisfied- 1) Reasonable, Necessary, Obvious, Clear expression, doesn’t contradict express term Terms implied by custom or usage: 51 .
Belly v Royal Exchange Assurance [1757]: P insured his ship and tackle during a voyage. Tackle removed and put in warehouse, fire. Insurance say not within scope of voyage. De: It was normal practice to put voyage in warehouse, implied by custom Terms implied by the courts: 52. The Morocco [1889]: D contract P to unload cargo at D wharf. Both As aware ship go aground if moor at low tide. Ship deemed. De: Ad’s duty to exert reasonable care to P Exclusion clause: A contractual term that attempts to limit or exclude the liability of the person inserting it into a contract. 54.
Chaperon v Barry Urban District Council [1940]: P hire chair from council, notice on back of ticket stating not liable for injury. Chair broke P injured. De: Exclusion clause not granted because reasonable steps are taken to bring notice to P Signed documents: 55. Curtis v Chemical Cleaning & Dyeing Co [1951]: P deliver dress to D and ask to sign document to exempt D from liability if beads and sequins deemed. De: D misrepresented the effect of the document to P in which she relied on what D said. Unsigned documents- Would the reasonable person have regarded the document as one that would contain contractual terms? 7. Causer v Browne [1952]: P left dress for D to dry clean, stained. De: Reasonable to assume docket is for exempting D from liability for negligence. Have reasonable steps been taken to give sufficient notice of the term? 58. Thornton v Shoe Lane Parking [1971]: P injured when collecting car in D carpal, D admit their wrong but exemption clause due to conditions on the pillar which formed a contract. De: Contract made when money deposited, exemption clause granted only if D can show they brought clause to As notice. Are special notice given to onerous or unusual terms formed part of the contract? 9. Interferon Picture Library Ltd v Stillest [1988] : P surcharged holding fee for photos at an unreasonable rate. De: Conditions were unreasonable and had not en brought to the attention of D, therefore no contract Can terms be introduced after the making of the contract? 60. Alley v Marlborough Court Ltd [1949]: P (wife *husband) guest of hotel, paid 1 week in advance, notice in hotel room: not liable for loss. De: Notice not in contract before hand, exemption clause didn’t apply Can terms be implied by custom or trade? 61 .
Bellman New Ferry v Robertson [1906]: D missed ferry and refuse to pay for turnstile. De: Traveled numerous times before, aware of conditions therefore bounded. Interpretation of exclusion clause (according to express agreement): 62. Council of the City of Sydney v West [1965]: P parked car at Ad’s carpal, back of ticket say not liable for loss and need ticket to collect car. Car park attendant gave the car to the thief. De: Car Park attendant releasing car to thief is outside terms of contract. This was a delivery not permitted under the contract rather than negligent.
Chapter 21: Remedies for breach of contract Rescission: allow innocent party to cancel contract, reverse contract and restore the parties. Restitution: restoration of the plaintiffs loss. D must have obtained benefit or enrichment from P expense, and would be unjust for D to keep that benefit or enrichment. Quantum merit: arises only in cases of part performance and requires the party taking the benefit to pay a reasonable amount for the portion given. 63. Pave & Matthews v Paul [1987]: Builder did some work, legislation require written contract. D refuse to pay.
De: D acceptance of contract (oral) was to take benefit from P knowing it was unenforceable. Need to pay (Quantum merit apply) 65. Sumter v Hedges [1898]: Builder contracted build 2 house, complete half work then tell D no money to continue. Sue for part performance pay. De: Contract not divisible, not Ad’s fault he couldn’t complete Job. Quantum merit not apply, not entitled to recover part performance pay Specific performance: Court directs D to carryout their obligation under terms of contract Injunction: Court restrains a party from breaking their contract or from committing a wrongful act.
Aims to enforce a negative promise… Anton filler order: Used when D appears to have evidence crucial to court decision but may destroy before a court order can be obtained… DMS: common law remedy, compensate As loss and require D original contract duty to proceed Step 1: Was there a breach (condition, warranty, intermediate term) Step 2: Causation- Loss or injury occurred as a result of the breach? Step 3: Remoteness of damage Step 4: Amount of damages- general principle is that an injured party should be put in a position they would have been in had the breach never occurred.
Reliance losses or wasted expenditure damages: 66. Commonwealth of Us. V Amman Aviation [1991]: D and P enter contract to provide aerial surveillance. P need purchase and modify plans for project. D terminated contract without 6 month prior notice. De: D need pay [1972]: J Join tour due to info provided on brochure, real tour unlike brochure described- few statements were inaccurate. De: J gets money back due to disappointment and distress exerted by the false statements. 69. Baltic Shipping v Dillon [1993]: P Join 14 day cruise, on 10th day cruise struck rock and sank.
P injured, sue for full refund. De: Get refund because objective (relaxation+comfort) was not provided. 70. Howe v Theft [1927]: D lease horse to P for horse race 3 yr contract. 6 month later, D take horse back. P sue for potential prize and profit. De: Although it was difficult to measure potential prize and profit, D was entitled to compensate P. Step 5: Mitigation of damages- duty upon the person claiming dams (injured party) to aka all reasonable steps to reduce or minimize (mitigate) their loss.
This is the duty of mitigation Type of DMS: Nominal DMS (innocent party’s legal rights have been infringed, no actual loss suffered) Ordinal DMS (amount awarded by the court on its assessment of the loss suffered by the innocent party as a result of the breach) 1) General DMS: general consequence from the breach. 2) Special DMS: if they are to be claimed, have to be specially proved in court Liquidated DMS: fixed amount- must be a genuine pre-estimate of actual loss Unlimited- Left to the court to determine Penalty- Threat to ensure performance by contract
Chapter 24: Consumer Protection- CAL Unconscionable conduct- SIS – -False representation as to goods- SIS—False representation as to land- SIS—Bait advertising- SIS Unconscionable conduct in business transaction SIS- 71 . Miller v Gunter and Others [2005]: Gunter (real estate agent) took advantage of new arrivals to Us, exploiting their commercial inexperience and simplicity and their comparative lack of education and English language skills to induce them to enter disadvantageous mortgage contracts. De: Unconscionable conduct in regard to transactions Misleading and deceptive conduct
SIS- 75. Eveready Australia pin’ LTD v Gillette Australia Pity LTD [2000]: G advertised their battery to be 4 times more durable than other batteries in the market. De: It was a misleading comparison to consumers, no prove to support claim. What is meant by conduct? Statement of opinion, puffs, broken promises and false predictions, statements that are literally true but that create a false impression. Preoccupation statements- leading u to the entering into a contract, which were false Silence(if it likely to mislead or deceive) 72.