<Contractual – Common law rights>
Term of contract
Parol evidence rule # Mercantile Bank of Sydney v Taylor If contract appears to be entire in writing,
it presumed that all terms and evidence
Whether it apply? will not be admitted of any previous or
Yes – singed written contract contemporaneous agreement, which
would have the effect of adding or varying
And, what important of the term? it in any way
Exceptions
Condition* – essential term - Partly written + partly oral
One party won’t enter into the contract if # Van den Esschert v Chappell
the promise was not made
- Written + Collateral contract
Breach -> recession & damages ## De Lassalle v Guildford
# Associated Newspapers v Bancks
If a court determines that the contract is partly
written and partly oral, then that oral statement
Warranty* – non-essential term is considered to be a term of the contract
A party still enters into the contract although
promise wasn’t made out Breach of condition/ warranty occurs
when one party is working within the
Breach -> damages only contract – trying to perform it, but doing
# Bettini v Gye so, badly! (entitles aggrieved party to…)
Verbal promise constitute collateral contract?
Collateral contract The statement was intended to have 3 prerequisites:
(separated) contractual significance and one of the - There must be no inconsistency
parties would not have entered into the (conflict) with the main contract
main contract without it # Hoyt’s Ltd v Spencer
# De Lassalle v Guildford
- The statement made must be
promissory in nature
If (P)……. can establish that he/she would not have # JJ Savage & Sons v Blakney
signed the write contract in the absence of (D)’s
promise……, an argument can be made that (P) - There must be consideration given
and (D) have created a collateral contract. for the collateral promise made
Breach -> only damages If the party was tricked or deceived into contract
-> statutory provisions in ACL (s18 & s29) can
also be implemented!
Representation
Mere/ misrepresentation* “A false statement of fact”, that doers Elements (of representation):
induce the party entering into the contract - Language used # JJ Savage & Sons Pty
Ltd v Blakney
# Edgington v Fitzmaurice - The relative knowledge and expertise
# Oscar Chess v Williams.
Also, alternative to s18 (misleading/ deceptive # Handbury v Nolan.
conduct) - The important of the statement ##
Van den Esschert v Chappell
- The length of time between making
the statement concluding the
contract # Harling v Eddy
- The failure to include a statement in
the written contract
Fraudulent # Derry v Peek (D) make a claim that it’s real
The innocent party can terminate the contract
and recover damages under the tort of deceit
Negligent # Esso Petroleum v Mardon (D) truly believe that it’s real, but not
getting an expert to check (trust the seller)
# Shaddock v Parramatta City Council Rescission is available under common law and
damages are available in the tort of negligent
misstatement Referring to (DOC) #
, Innocent # Whittington v Seale Hayne (D) get the expert, but they made mistake
and assumed it’s real
The innocent party can terminate the contract
(recession) only
General rule:
The aggrieved party must show,
- there was a statement of fact, which
is not true,
- was addressed to the person misled,
- was intended to induce and did
actually induce the contract
Other claims
Vitiating factors* A contract will only be enforceable if both (Affect -> validity/ enforceability of the contract)
– real consent is missing – parties have entered into the contract
willingly, however… Courts are reluctant to grant relief on the
basis, as never existed!
Mistake If the doctrine of mistake applies – the effect Generally, monies may be reclaimed as no
is that the contract is void from beginning, longer belong to the person whom they were
“void ab initio” previously paid
Unilateral One of the parties make a serious mistake The other either know or should know of
about a fundamental aspect of the contract the mistake and seek to take advantage of
that mistake unfairly
# Phillips v Brooks Ltd
# Cundy v Lindsay (D trick Lindsay to receive goods -> sell to Cundy,
third party) – Yes, D never has ownership, but P
# Hartog v Colin and Shields does
# Tayler v Johnson (J offer wrong amount, T knew and enforce the
sale) – Yes, D taking adv over fundamental
aspect -> contract will be void
Common Both parties are mistaken as to a They make the same mistake as to the
fundamental aspect of the contract existence of the subject matter prior to
the completion of the contract
# Scott v Coulson
Elements that contract will be voided:
Exception
- the agreement between the parties is
- The contract was not void since the conditionally upon the truth/ or
subject matter was understand and belief held by both parties,
therefore settled on by both parties - that belief is false
# Leaf v International Galleries
Mutual The parties believe they have reached an The lack of consensus made the resulting
agreement but in fact there has been no contract void
meeting of minds -> no contract
# Raffles v Wichelhaus
(same name of 2 ships -> thought there’s
one while party talking about another)
Duress One party compels the other party to enter The contract is voidable (by the innocent
the contract by threating negative party)
consequences
Physical threat # Barton v Armstrong To the personal safety of the other party
(caused physical harm)
# Hawker Pacific v Helicopter Charter Pty Ltd To the safety of goods or property
Additional: Promissory Case
Term of contract
Parol evidence rule # Mercantile Bank of Sydney v Taylor If contract appears to be entire in writing,
it presumed that all terms and evidence
Whether it apply? will not be admitted of any previous or
Yes – singed written contract contemporaneous agreement, which
would have the effect of adding or varying
And, what important of the term? it in any way
Exceptions
Condition* – essential term - Partly written + partly oral
One party won’t enter into the contract if # Van den Esschert v Chappell
the promise was not made
- Written + Collateral contract
Breach -> recession & damages ## De Lassalle v Guildford
# Associated Newspapers v Bancks
If a court determines that the contract is partly
written and partly oral, then that oral statement
Warranty* – non-essential term is considered to be a term of the contract
A party still enters into the contract although
promise wasn’t made out Breach of condition/ warranty occurs
when one party is working within the
Breach -> damages only contract – trying to perform it, but doing
# Bettini v Gye so, badly! (entitles aggrieved party to…)
Verbal promise constitute collateral contract?
Collateral contract The statement was intended to have 3 prerequisites:
(separated) contractual significance and one of the - There must be no inconsistency
parties would not have entered into the (conflict) with the main contract
main contract without it # Hoyt’s Ltd v Spencer
# De Lassalle v Guildford
- The statement made must be
promissory in nature
If (P)……. can establish that he/she would not have # JJ Savage & Sons v Blakney
signed the write contract in the absence of (D)’s
promise……, an argument can be made that (P) - There must be consideration given
and (D) have created a collateral contract. for the collateral promise made
Breach -> only damages If the party was tricked or deceived into contract
-> statutory provisions in ACL (s18 & s29) can
also be implemented!
Representation
Mere/ misrepresentation* “A false statement of fact”, that doers Elements (of representation):
induce the party entering into the contract - Language used # JJ Savage & Sons Pty
Ltd v Blakney
# Edgington v Fitzmaurice - The relative knowledge and expertise
# Oscar Chess v Williams.
Also, alternative to s18 (misleading/ deceptive # Handbury v Nolan.
conduct) - The important of the statement ##
Van den Esschert v Chappell
- The length of time between making
the statement concluding the
contract # Harling v Eddy
- The failure to include a statement in
the written contract
Fraudulent # Derry v Peek (D) make a claim that it’s real
The innocent party can terminate the contract
and recover damages under the tort of deceit
Negligent # Esso Petroleum v Mardon (D) truly believe that it’s real, but not
getting an expert to check (trust the seller)
# Shaddock v Parramatta City Council Rescission is available under common law and
damages are available in the tort of negligent
misstatement Referring to (DOC) #
, Innocent # Whittington v Seale Hayne (D) get the expert, but they made mistake
and assumed it’s real
The innocent party can terminate the contract
(recession) only
General rule:
The aggrieved party must show,
- there was a statement of fact, which
is not true,
- was addressed to the person misled,
- was intended to induce and did
actually induce the contract
Other claims
Vitiating factors* A contract will only be enforceable if both (Affect -> validity/ enforceability of the contract)
– real consent is missing – parties have entered into the contract
willingly, however… Courts are reluctant to grant relief on the
basis, as never existed!
Mistake If the doctrine of mistake applies – the effect Generally, monies may be reclaimed as no
is that the contract is void from beginning, longer belong to the person whom they were
“void ab initio” previously paid
Unilateral One of the parties make a serious mistake The other either know or should know of
about a fundamental aspect of the contract the mistake and seek to take advantage of
that mistake unfairly
# Phillips v Brooks Ltd
# Cundy v Lindsay (D trick Lindsay to receive goods -> sell to Cundy,
third party) – Yes, D never has ownership, but P
# Hartog v Colin and Shields does
# Tayler v Johnson (J offer wrong amount, T knew and enforce the
sale) – Yes, D taking adv over fundamental
aspect -> contract will be void
Common Both parties are mistaken as to a They make the same mistake as to the
fundamental aspect of the contract existence of the subject matter prior to
the completion of the contract
# Scott v Coulson
Elements that contract will be voided:
Exception
- the agreement between the parties is
- The contract was not void since the conditionally upon the truth/ or
subject matter was understand and belief held by both parties,
therefore settled on by both parties - that belief is false
# Leaf v International Galleries
Mutual The parties believe they have reached an The lack of consensus made the resulting
agreement but in fact there has been no contract void
meeting of minds -> no contract
# Raffles v Wichelhaus
(same name of 2 ships -> thought there’s
one while party talking about another)
Duress One party compels the other party to enter The contract is voidable (by the innocent
the contract by threating negative party)
consequences
Physical threat # Barton v Armstrong To the personal safety of the other party
(caused physical harm)
# Hawker Pacific v Helicopter Charter Pty Ltd To the safety of goods or property
Additional: Promissory Case
