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Chapter

Cover JC Smith's The Law of Contract

1. Introduction and fundamental themes  

This introductory chapter provides a brief overview of the fundamental elements of what constitutes a contract. It discusses undertakings or promises, deeds, written and oral promises, bargains, and bilateral and unilateral contracts. It concludes by examining some general themes in contract law to which reference will be made throughout the present title. These include freedom of contract, will theory, economic efficiency, objectivity in contract law, common law and equity, contract law within private law, and international influences on contract law. The outline provided in this chapter is necessarily brief; although some of the themes may seem a little difficult in the abstract, students approaching this subject for the first time should not be troubled. The concepts will become familiar and more easily understood through concrete examples provided in later chapters.

Chapter

Cover JC Smith's The Law of Contract

4. Offer and acceptance: unilateral contracts  

This chapter analyses the formation of unilateral contracts. A unilateral contract arises where O promises A something if A does a particular act which is not the making of a promise to O. A unilateral contract only imposes obligations on O. A is not obliged to do anything. A unilateral offer can be accepted by A regardless of A’s motive for doing the required act. However, A must know of the offer in order for a contract to be formed. O may not be able to revoke the offer if A has embarked upon performance. This will depend upon whether or not O has made an implied promise not to revoke the offer.

Chapter

Cover Cheshire, Fifoot, and Furmston's Law of Contract

19. Discharge by Agreement  

M P Furmston

This chapter discusses the law on discharge by agreement. An agreement by the parties to an existing contract to extinguish the rights and obligations which have been created is itself a binding contract, provided that it is either made under seal or supported by consideration. Consideration raises no difficulty if the contract to be extinguished is still executory, for in such a case each party agrees to release his rights under the contract in consideration of a similar release by the other. The discharge in such a case is bilateral, for each party surrenders something of value. Unilateral discharge occurs when the contract to be extinguished is wholly executed only on one side – as for instance where a seller has delivered the goods but the buyer has not paid the price. A unilateral discharge is usually ineffective unless it is made under seal or unless some valuable consideration is given by the buyer. Difficult problems arise where the agreement is designed to vary the contract.

Chapter

Cover JC Smith's The Law of Contract

14. Rectification  

Rectification is an equitable remedy through which the court can rectify, or correct, a mistake in a written contract. This chapter examines two principal forms of rectification: common mistake rectification and unilateral mistake rectification. Rectification for common mistake arises where both parties make the same mistake. This is the better-established form of rectification. However, in some circumstances rectification for unilateral mistake will be granted in situations where only one party is mistaken but the other party has acted unconscionably or dishonestly. A party seeking rectification will need convincing proof that a mistake has been made before the court will contemplate altering the language chosen in a formal, written document.

Chapter

Cover Concentrate Questions and Answers Contract Law

8. Mistake  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, answer plans and suggested answers, author commentary, and other features. This chapter discusses the three broad classifications of mistake: common, mutual and unilateral. In common mistake (sometimes confusingly referred to as mutual mistake) both parties share the same mistake about a fundamental fact of the contract. With mutual mistake the parties are at cross-purposes but neither realizes it. In unilateral mistake only one of the parties is mistaken and the other party either knows of the mistake or possibly is deemed to know.

Chapter

Cover Contract Law

3. Offer and Acceptance  

This chapter discusses the rules of offer and acceptance that have been laid down by the courts over the years. It states that the rules claim to be of general application and that they purport to give effect to the intention of the parties, albeit their intention objectively ascertained. The chapter also establishes that the rules in practice are often inter-linked. For example, the question whether or not an offer has been accepted may depend in a particular case on whether or not the offer was revoked before it was accepted; a court deciding such a case must decide when both the acceptance and the revocation took effect. The chapter examines the difference between an offer and an invitation to negotiate (or an invitation to treat), particularly in its application to contracts concluded in shops, tenders and contracts concluded at an auction, the battle of the forms, the time at which acceptance takes place when a contract is concluded by post, and acceptance in the case of unilateral contracts.

Chapter

Cover Contract Law Directions

2. Agreement  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. A contract requires that the parties reach an agreement which normally consists of a matching offer and acceptance. This chapter discusses the following: the objective test of agreement; identifying an offer and acceptance; rejection, counter-offers and inquiries; communication of acceptance including the postal rule and the contrasting rule for revocation; mode of acceptance; the death of an offer; and unilateral contracts.

Chapter

Cover Contract Law Directions

2. Agreement  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. A contract requires that the parties reach an agreement which normally consists of a matching offer and acceptance. This chapter discusses the following: the objective test of agreement; identifying an offer and acceptance; rejection, counter-offers and inquiries; communication of acceptance including the postal rule and the contrasting rule for revocation; mode of acceptance; the death of an offer; and unilateral contracts.

Chapter

Cover Concentrate Questions and Answers Contract Law

2. Offer and Acceptance  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, answer plans and suggested answers, author commentary, and other features. This chapter outlines a number of questions that need to be posed in answering exam questions about the rules of offer and acceptance and certainty of terms. First, has an offer been made? Secondly, if an offer has been made, has the offeree unequivocally accepted this offer? Thirdly, has the acceptance been communicated effectively? Fourthly, at the moment when the acceptance is deemed to have been effective, is the offer still open? Fifthly, are there any exceptions to the aforesaid rules of offer and acceptance? Finally, is an agreement sufficiently certain?

Chapter

Cover Introduction to Business Law

4. The Nature of the Agreement  

Offer and Acceptance

This chapter discusses the nature of contracts, the essential elements of a valid contract, and issues in contract law. A contract is a bargain, made between two or more persons, which is legally binding. The essential elements of a valid contract are the following: agreement (offer and acceptance of definite terms); consideration (a promise to give, do, or refrain from doing something in return for a similar promise); an intention to create legal relations (usually presumed in a business transaction); compliance with required formalities where applicable; and capacity to contract. This chapter discusses in detail the principal rules relating to offer and acceptance. It considers the making and termination of offers in unilateral and bilateral contracts. It explains the rules relating to communication and methods of acceptance of offers and discusses the making of contracts via the internet.

Chapter

Cover Contract Law Concentrate

2. Agreement problems  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on issues which may prevent the parties from reaching agreement. Agreement problems generally affect the agreement by rendering it void. It is necessary, however, to distinguish a void contract from one which is merely voidable. If an apparent agreement is too uncertain in its terms (e.g. because it is vague or essential terms are missing), the courts will not enforce it because they will not construct a binding contract for the parties. An apparent agreement may be void where the parties entered into the agreement under a ‘fundamental’ mistake which the law recognizes as preventing the parties from ever reaching agreement.

Chapter

Cover Complete Contract Law

17. Mistake  

This chapter assesses situations in which one or both parties enter into a contract on the basis of a mistake that is so serious that it negates their consent to a contract; or, it means they did not consent to the agreement in the first place. Following such an ‘operative’ mistake, the contract will be void from the start and therefore treated as though a valid contract never existed. The chapter then considers the law on mistake. It starts with mistakes that prevent the formation of an agreement. The most significant mistake of this type is known as a ‘unilateral mistake’, which is where one party appears to have entered the contract on the basis of a mistake. The next significant issue is known as ‘common mistake’, which is where, at the time of creating the contract, both parties appear to be making the same mistake about the existence of an essential state of affairs. Finally, the chapter addresses the related remedy of equitable rectification before finally turning to the highly exceptional defence of non est factum.

Chapter

Cover Complete Contract Law

2. Agreement Part I: Offer  

This chapter discusses the principles relating to offers. For an offer to be made there must be an apparent intention to make one. Ordinary displays of priced goods are regarded as invitations to treat, which customers make an offer to buy. Ordinary adverts are regarded as invitations to treat, but one can be an offer if there is an apparent intention to make one. Meanwhile, an auction ‘without reserve’ will ordinarily amount to an offer for a unilateral contract to sell to the highest bidder. Ordinarily, an invitation for tenders is an invitation to treat and each tender is an offer. When an invitation for tenders says that the most competitive tender will result in a contract, it will be treated as an offer for a unilateral contract under which the best tender will be accepted. Offers can be ended by lapse, revocation, rejection, and (possibly) death.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

3. Offer and acceptance II: two related principles  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the applications of the general principles of the offer and the acceptance requirement in the law of contract in two specific problem areas which raise offer and acceptance principles. These issues concern intention to create legal relations and unilateral (or ‘offer and acceptance’) mistake, including the doctrine of non est factum.

Chapter

Cover Essential Cases: Contract Law

Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Contract Law 5e

Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Contract Law

11. Untrue statements  

Misrepresentation and unilateral mistake

This chapter examines how English law deals with the problem of untrue statements through the doctrines of misrepresentation and unilateral mistake. It begins with an overview of contractual transactions involving at least some measure of information asymmetry and proceeds by considering the basic principles of the law of misrepresentation. It then considers the three elements of false statements: the absence of general duties to disclose relevant facts, an objective approach to construing ambiguous statements, and a distinction between statements of fact and statements of opinion. It also discusses the remedies available to the representee in the case of misrepresentation, along with two types of unilateral mistakes recognized in law: unilateral mistakes as to identity and unilateral mistakes as to terms. The chapter concludes with an analysis of misleading selling practices and statutory remedies which are available to victims of misleading selling practices under the law of unfair commercial practices.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

2. Offer and acceptance I: general principles  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the general principles of the offer and acceptance requirement in the law of contract. It explains that an offer is an indication of one party’s willingness to enter into a contract with the party to whom it is addressed as soon as the latter accepts its terms while an acceptance is an agreement to the terms of the offer. It discusses the distinction between unilateral and bilateral contracts and introduces the principle of objectivity in contractual formation. This chapter also considers the communication of the acceptance, the prescribed modes of acceptance, and the termination of an offer.

Chapter

Cover Contract Law Concentrate

1. Agreement  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the components of agreement; an essential ingredient of a contract. Traditionally, an agreement is comprised of an offer and a corresponding acceptance. There are two types of agreement: bilateral and unilateral. Bilateral agreements are by far the most common in practice and consist of a promise in exchange for a promise. Unilateral agreements consist of a promise in exchange for an act. This chapter analyses the agreement process in terms of offer, acceptance, and revocation of offers in bilateral and unilateral scenarios in order to provide structures and scenarios for future use. It also explains the two-contract analysis which is used to impose pre-contractual liability in English law.

Chapter

Cover Poole's Casebook on Contract Law

2. Agreement  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract is a legally enforceable agreement. This chapter explains how the existence of an agreement is determined. After considering how the courts assess whether an agreement has been, using subjective and objective methods, it discusses the precise criteria used to determine agreement, namely offer and acceptance. The chapter defines offers and distinguishes them from invitations to treat. It focuses on identifying acceptances and distinguishing acceptances from responses which are not a mirror image of the offer, such as counter-offers. Much emphasis is placed on explaining the communication principles applicable to acceptances—postal and instantaneous communications, including email. The chapter explains revocations of offers and the communication principles applicable to revocations. The courts will enforce an agreement only if it is sufficiently certain in its terms. This chapter therefore considers how the courts deal with vagueness and incompleteness, including agreements to agree and whether there can ever be a duty to negotiate in good faith. It also examines the position where there is no contract due to uncertainty, but there has been performance. Finally, the chapter distinguishes bilateral and unilateral contracts and the special principles applicable to unilateral contracts.