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Uncertainty
| Question | Answer |
|---|---|
| What is meant by a vague contract? | It contains vague or unclear terms or an illusory clause |
| Give examples of cases with vague terms? | ESB and Newman - indemnify loss sustained as a result of a customer's electricity "accounts" wasn't clear now far indemnity would stretch as 4 ac. Gould v Gould as long as the promisor could "manage it" |
| When does incompleteness in a contract lead to its unenforceability on the ground of uncertainty? | When parties fail to reach agreement on important matters or they have yet to be decided. |
| Give examples of cases dealing with incomplete agreements? | Central Meats v Carney - agreed to supply cattle but no price/number |
| What was the test in Supermacs Ireland and McDonagh v Katesan and Sweeney | Whether everything intended to be covered by the agreement has either been expressly or impliedly agreed |
| What do the courts do with uncertain agreements? | Fill in gaps in order to effect intention of the parties. Sever meaningless clauses if the remainder is capable of standing independently. Decide if terms are omitted that the parties intended on avoiding contractual effect until resolved. |
| Name a case in which the court filled in gaps? | Hillas v Arcos - agreement to purchase quantity of timber "of fair specification". Courts used context and intention (business men make agreements in crude and summary fashion) |
| Name a case in which the court severed a meaningless clause of the remainder is capable of standing independently? | Nicolene v Simmonds - def. stated "usual conditions of acceptance apply" although they had never done business before. Court held a clause which is meaningless can often be ignored while still leaving the contract good. |
| Name a case in which the court held that as terms were omitted the parties intended to avoid contractual effect? | Dore v Stevenson - sale of first floor cafe incomplete as it failed to provide for parties' rights of access through ground floor foyer |
| Name cases in which an agreement to negotiate may be binding? | Hillas v Arcos, Rooney v Byrne (use reasonable endeavours) |
| Name a case in which an agreement to 'enter into honest negotiations' was not binding? | Cadbury Ireland v Kerry Co-op Creameries |
| What is a term? | An expression of willingness by the parties to agree to abide by that obligation |
| What is a mere representation? | Only an inducement to persuade the other party to enter the contract but it is not a term of the agreement. |
| What is the basic test to differentiate if something is a term or a mere representation? | The intention of the parties (what a reasonable bystander reasonably infer) in relation to a particular statement given the circumstances present. This depends on the conduct of the parties, their words and behaviour rather than their thoughts.' |
| What case establishes the objective nature of the basic test? | Thalke v Maurice |
| What are the considerations when establishing is something is a term or a mere representation? | Timing, if a verbal agreement is reduced in writing without indicating a particular statement, the importance of the statement in the mind of the parties, reliance, a special knowledge or skill |
| "The longer the interval the greater the presumption that the parties did not intend the statement to have contractual effect in relation to a subsequent deal" | Inntrepreneur Pub v East Crown |
| "If a verbal agreement is reduced to writing without including a particular statement, the Courts may assume the statement was intended to be a mere representation" | Inntrepreneur Pub v East Crown - Prima facie, the assumption is that the written contract includes all the terms the parties wanted to be binding on them |
| The importance of the statement in the minds of the parties | Bannerman v White - during negotiations said he would not enter contract if hops sprayed with sulfur. Was assured. Entered into a contract. Sulfur issue was not a rep. in preliminary negotiations but a term. |
| A statement is a term if a the maker of the statement indicates to the other party he can rely on the statement | Schawel v Reade - pl interrupted from examining horse and told horse is perfectly sound. Later found unfit for purpose. If maker tells you to verify independently = not term |
| Special knowledge or skill | Oscar Chess v Williams - different car model as log book. Seller of car no better position to assess age as no knowledge. Plaintiff was a car dealer. BOI v Smith - representation made in course of sale = term unless maker can show innocent of fault toit |
Created by:
sineadgriffin
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