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69 Pages Complete Study Notes Year: Pre-2021

1. What is the contract? 7 2. Who can enforce the contract? 7 3. What are the terms of the contract? 8 3.1. Courts assess the objective intentions of the parties 8 3.2. Identifying express terms 8 3.2.1. Pre-contractual statements 8 3.2.2. Incorporation of express terms into a contract 9 A Signature cases 9 B By notice and ticket cases 10 C By a course of dealings 11 D By reference 12 Collateral contracts 12 Extrinsic evidence – parol evidence rule 12 1. Identifying terms of written contracts 13 2. Extrinsic evidence in construing a contract 13 4. Construction 14 4.1. Exclusion Clauses 14 Primary Rule 14 Secondary Rules 14 4.2. Arbitration clauses 15 5. Implied Terms 15 A Terms implied in law 15 B Terms implied in fact 16 C Terms implied by custom 17 D Terms implied by statute 17 6. Frustration 17 Limits 18 Illustrations 19 a) Performance of the contract is literally impossible 19 b) Future performance is rendered commercially unfeasible / state of affairs essential to performance disappears so that performance in manner contemplated is impossible 19 c) A specific purpose or objective of the contract becomes substantially unobtainable / disappearance of the basis of the contract 20 d) What was legal becomes illegal, prohibiting performance 20 e) Delay so great that contract is frustrated 20 Consequences 20 6. Termination (CL) 21 1. Contractual right to terminate 22 a) Express right to terminate 22 b) Implied right to terminate a contract silent as to its duration 22 c) Termination by separate agreement 22 d) Termination implied from subsequent agreement 23 2. Failure of a (contractual) contingency 23 Types of contingent conditions 23 Duty to cooperate in performing a contract 23 Time and fulfilment of the condition 24 Objective or subjective test? 24 Consequences of non-fulfilment 24 Restrictions on the right to terminate for non-fulfilment 24 3. Breach of a term 25 The tripartite classification of terms 25 Conditions 25 Innominate terms 26 Warranties 27 4. Repudiation 27 Anticipatory breach 27 Instalment contracts 28 Repudiation and an erroneous interpretation of the contract 28 5. Termination for delay 29 6. Restrictions on Termination 29 6.1. The parties may impose restrictions 29 6.2. Statutory restrictions 29 6.3. Election 30 6.4. Affirmation 30 6.5. Ready and Willing 30 6.6. Restrictions in equity on termination 31 Estoppel 31 Waiver 31 Relief against forfeiture – sale of land and leases 32 7. Damages 32 The compensation principle 32 Expectation damages 33 Reliance damages 34 Loss of chance 34 Restitutionary Damages 35 Statutory damages 35 9. Limitations on the award of damages 35 1. Causation 35 2. Remoteness of damage 36 Limb 1 - natural 36 Limb 2 - contemplation 36 3. Mitigation 37 A. Plaintiff cannot recover for avoidable loss. 37 B. P can recover for loss incurred in reasonable attempts to avoid loss. 37 C. P cannot recover for avoided loss. 38 4. Limitations on specific types of claims 38 Disappointment/distress 38 Contributory negligence 38 Loss of bargain damages and termination under a term 39 5. Date for assessing damages 39 6. Liquidated damages and rule against penalties 39 Distinguishing between penalty and liquidated damages clauses 39 Actions for debt 40 Requirements 40 Was there sufficient performance to entitle a party to claim payment under the contract as a debt? 40 Was performance sufficiently ‘substantial’? 41 Payment independent of performance: land sales and deposits 41 8. Vitiating Circumstances 42 1. Misrepresentation 42 General Rule 43 Potential limitations 43 1. It must be a statement of existing or past fact. 43 2. It must be a positive misrepresentation. 44 3. Misrep may be innocent or culpable (but land = special case) 45 4. Opportunity to ascertain the truth 46 5. The representation need not be material 46 2. Statute: Misleading and Deceptive Conduct 46 “Corporation” / “Person” 46 “Trade or commerce” 47 Relevant conduct 47 Conduct directed to the public or sections of the public 47 Conduct directed to specific individuals (+ disclaimers) 48 Causation 49 2. Mistake 49 1. Common mistake (both parties make the same mistake) 49 Res extincta – subject matter not in existence 49 Res sua – buying what’s yours already 50 Quality of subject matter / all other common mistakes 50 2. Mutual mistake where parties are at cross-purposes 50 3. Unilateral mistakes 50 4. Mistake as to identity (a form of unilateral mistake) 51 Where the parties are not face to face - void 51 Where the parties are face to face (inter praesentes) - voidable 51 5. Mistake in recording the agreement and rectification 51 6. Mistakenly signed documents: non est factum 52 7. Mistake in equity 52 3. Duress 52 Elements 53 Tort of intimidation 54 Statutory provisions re duress 54 4. Undue Influence 54 5. Unconscionable dealing 55 Elements 55 Drunkenness and mental disorder 56 Lack of knowledge and education 56 Emotional dependence 56 Statutory Unconscionable Conduct 56 Unconscionable conduct: TPA Part IVA 56 S 51AA The unwritten law 56 S 51AB Consumer transactions 57 S 51AC Small business transactions with corps 58 Unconscionable Conduct under the FTA s 43 60 Unjust and unfair terms 61 Contracts Review Act 1980 (NSW) – where not a consumer 61 Deciding whether a contract is “unjust” 63 Illustrations of CRA – where it is useful 64 Impropriety by third parties 64 5 bases for liability 64 Remedies 64 Rescission under the general law (CL and equity) 65 Common law rescission 65 Equity - rescission 65 Bars to rescission 65 1. Rescission, SOG and innocent misrep? 65 2. Can an executed contract be rescinded for innocent misrep? 66 3. Affirmation 66 4. Lapse of time 66 5. Communication 66 Statutory Remedies 66 Actions for damages – TPA s 82, FTA s 68 66 TPA s 87, FTA s 72 – Other Orders 67 TPA s 75A, FTA s 40N – Rescission of contracts 68 Injunctions – TPA s 80, FTA s 65 69


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