"Intention to create legal relations could be used to replace the doctrine of consideration. There is no reason in principle why a gratuitous promise seriously meant should not be enforced."

"Intention to create legal relations could be used to replace the doctrine of consideration. There is no reason in principle why a gratuitous promise seriously meant should not be enforced." Critically evaluate this statement. Before looking at if the intention to create legal relations should be used to replace consideration, it is important to look at how these doctrines fit into the essential elements in a contract. Their use will then be discussed, together with the doctrine of promissory estoppel. In evaluating these principles reference will be made to case law, judicial comment and of leading contract academics work. Finally, thought will be given to the future of consideration, and if it is still necessary today, when so many other countries have adopted alternative approaches to ensuring that contracts are binding. In the formation of contracts two elements are vital. Firstly, the "offer," an indication by one person prepared to contract with another, on certain terms, which are fixed, or capable of being fixed at the time the offer is made.1 Secondly, there must be an "acceptance", an unconditional assent to a definite offer.2 These two combine to create certainty that a contract has been formed, for, as in Scammell v Ouston (1941),3 "if an agreement is uncertain on some important issue...the courts will hold there is no contract."4 Following this, the elements

  • Word count: 2951
  • Level: University Degree
  • Subject: Law
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"Given the House of Lords' strict interpretation of the doctrine of offer and acceptance in Gibson v Manchester City Council [1979] 1 All ER 972, would The Satanita [1895] P 248 be decided the same way today?"

Law of Obligations 1: The Law of Contract Question: "Given the House of Lords' strict interpretation of the doctrine of offer and acceptance in Gibson v Manchester City Council [1979] 1 All ER 972, would The Satanita [1895] P 248 be decided the same way today?" 9 January 2007 In order to answer this question, it is essential to outline the basics of the formation of a contract and the doctrine of offer and acceptance. A contract is a legally enforceable agreement between two or more parties. It is formed when one party (the "offeror") makes an offer which is accepted by the other party (the "offeree"). Offer and acceptance are two components of a valid contract which result in a "meeting of the minds".1 Offer is a specific proposal to enter into an agreement with another. Acceptance validates the contract and it must be clear, unequivocal, unconditional and made by the person to whom the offer is intended. It is necessary to differentiate an offer from an invitation to treat. An invitation to treat is simply an indication of a person's willingness to negotiate a contract. In Gibson v Manchester City Council 2 the courts had to decide whether something said, written or done in the negotiation process was actually a contractual offer capable of acceptance or a mere invitation to treat. In November 1970, Manchester City Council (then led by the Conservatives) sent out

  • Word count: 1757
  • Level: University Degree
  • Subject: Law
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The Law of E-Commerce

The Law of E-Commerce English law has long been recognized as respecting freedom of contract. In other words, the state has not, generally, laid down legislation which has interfered with the freedom of parties to agree the terms of their contracts. In more recent years, there have been a number of inroads into the principle of freedom of contract, particularly with respect to consumer protection. It very much remains the case that English law does provide parties with considerable flexibility both as how they conclude contracts and the terms that they include. Offer and acceptance In order for a contract to be binding under English law it requires an offer, acceptance, intention to create legal relations, consideration and capacity. With regard to electronic commerce, the contractual requirements need careful consideration. Offer A supplier offers an unconditional offer which could be accepted by any potential customer. If the customer informs the supplier that he or she accepts the offer ,there will be a binding contract. On the other hand, the supplier could provide to the customer what is known in legal terms as an "invitation to treat". This is not a binding offer, but an "invitation" for the customer to make an offer, which the supplier can then accept. It is very important for suppliers wanting to sell goods through on line to ensure that their websites

  • Word count: 3752
  • Level: University Degree
  • Subject: Law
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"Everyday Use" by Alice Walker and "A&P" by John Updike, both exhibit a comparable problem concerning acceptance.

Rachel Ince Mrs. Hudler English 1302-14 3 March 2003 Acceptance shown in "Everyday Use" and "A&P" "Everyday Use" by Alice Walker and "A&P" by John Updike, both exhibit a comparable problem concerning acceptance. Acceptance is a universal idea experienced in everyday life and in many social situations. For instance, when two or more people come together, ideas and opinions can clash and acceptance can become a problem. The situations presented in these stories portray the idea of acceptance while revealing an aspect of the human condition. To begin, in Alice Walker's story "Everyday Use", acceptance is a problem between Dee and her mother. The mother first describes a dream of hers in which she and Dee are reunited on a TV show. She describes a situation in which Dee would want the mother's appearance to be different. For example, the mother states: "I am the way my daughter would want me to be: a hundred pounds lighter, my skin like an uncooked barley pancake" (89). Therefore, the mother feels as though Dee does not accept her the way she is. Another example takes place when Dee demonstrates her dislike for their home. The mother talks about the new house, she declares, "no doubt when Dee sees it she will want to tear it down" (90). Not only does Dee disrespect the way her mother looks, she disregards her way of life and home. As Dee escapes to college to find a

  • Word count: 919
  • Level: University Degree
  • Subject: Law
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Contract - Business & Company Law

A contract is legally binding agreement between two or more competent parties in which an offer is made and accepted, and each party benefits. Each party are free to accept or reject the terms of the other. The distinguishing characteristic of a contract is that of an exchange made between the parties. Contract although a legally term occurs in our day to day activities. For example grocery shopping, when a person pay for the item, the person is accepting the offer hence a contact has taken place and the person is allowed to return some item if not pleased and money back for a specific period, Lawyers are not consulted, formal agreements are not prepared, In practice this usually works quite well. The object of a contract is the thing which it is agreed upon, the object of the contract must be lawful when the contract is made and possible and ascertainable by the time the contract is to be performed. Most business owners enter variety of contracts in the ordinary conduct of their day-to-day business sometimes people do not even recognize that they are entering into a contractual relationship. A contract can be Expressed and Implied - Express contracts are contracts that are in writing form . Implied contracts are formed through the conduct of the parties, it can be "implied in fact" or "implied in law" . A contract can be Oral and Written - a contract need not be

  • Word count: 1350
  • Level: University Degree
  • Subject: Law
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The offer and acceptance rule in contractual formations.

The offer and acceptance rule in contractual formations is where there is a clear and 'unequivocal offer' that is matched by a clear and 'unequivocal acceptance'. Courts and legal advisors use this general rule as it provides some degree of certainty. The rules of offer and acceptance that govern the formation of contracts are correspondence, nexus and communication. All three rules can be applied to new forms of communication as they are much quicker and easier to correspond with than post. However, even though the rules can be applied to quicker forms of communication, problems and confusions inevitably arise depending on the nature of the contract. Therefore in some cases, the rules of offer and acceptance may not be as clear and straightforward as it may first appear to be. One rule of offer and acceptance that determines when a contract is formed is that the offeror has to correspond to the offeree. According to Hugh Collins in his book Law of Contract, an 'acceptance must correspond exactly to the terms of the offer' and if the acceptance contains terms that are different to from the original offer then it 'fails to create contractual responsibility'1. This can be seen in the case of Gibson v. Manchester City Council [1978]2, where the City Council wrote to the tenant that they 'may' be prepared to sell the house at £2,180. However, the claimant wrote back asking for

  • Word count: 1570
  • Level: University Degree
  • Subject: Law
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Built Environment Law

Built Environment Law BN1104 December 2002 Assessment Tutor Julie Cross Written by Paul Angus Replying to a newspaper advertisement to order specific goods by post can be compared with stepping into the unknown. Not only is the customer required to pay for the goods advertised up front, but also an element of good faith is required in order to receive the correct goods ordered. Compared to anyone entering a shop who has the opportunity to inspect & review the goods on show before happily handing over the money to purchase them. This essay will concentrate on a particular purchase of goods between Lisa and M.J. Electrical. Having advertised a top of the range video recorder in a newspaper, Lisa took up the offer and duly sent a cheque for the money stated in exchange for the video advertised. However, instead of receiving the model advertised, she actually received a model that was not up to the same specification. To advise Lisa as to the best course of action to take it is necessary to examine the Law of Contract. This essay will attempt to examine the various options available, although in doing so the legal implications over the dispute between Lisa and M.J. Electrical require the relevant rules on formation of contract to be explained to fully assess the situation. Also relevant information on past law cases will be quoted if seen to be relevant to give examples

  • Word count: 2692
  • Level: University Degree
  • Subject: Law
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'The club will not accept responsibility for any loss suffered by customers', would appear to be, what the dance club would define as, an exclusion clause - Discuss.

Contract Law LW1021 Non-Assessed Coursework Question 1 The notice: 'The club will not accept responsibility for any loss suffered by customers', would appear to be, what the dance club would define as, an exclusion clause. However, a number of factors need to be taken into account before we can determine whether this exclusion clause is, in fact, legitimate. In terms of the common law (combined with statutes) we need to take into account three areas: 'incorporation' and 'construction', and more recently, legislation such as the Unfair Contract Terms Act 1977. 'Incorporation' refers to whether the exclusion clause is actually part of the contract witnessed and signed by both parties. There are no problems with incorporation as long as both parties know all of the terms contained in the contract. In this case, I would advise Robert and Lucy that the 'exclusion clause' is in fact, not part of the contract they agreed on with the dance club as they viewed the notice in the club after they had paid (their consideration). I justify my decision based upon the ratio decidendi of Olley v Marlborough Court, Ltd, 1949 where the exclusion clause was not considered to be a part of the relevant contract as 'the plaintiff had not seen it until after she had been accepted as a guest'1. Legislation also supports this. For example, the Unfair Terms in Consumer Contracts 1999 has a list of

  • Word count: 1558
  • Level: University Degree
  • Subject: Law
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Critical Analysis of Butler Machines V Ex-Cell-O Corporation.

Critical Analysis of BUTLER MACHINES V EX-CELL-O CORPORATION The facts of the case were as follows; on May 23 1969, the claimant sellers offered to deliver a machine tool for the price of £75 535 on their terms of business set out in the quotation, which were to prevail over any terms in the buyers' order. The sellers' terms included a price variation clause whereby it was a condition of acceptance that goods would be charged at prices ruling at date of delivery. The defendant buyers replied on May 27 1969, giving an order with differences from the sellers' quotation and with their own terms and conditions containing no price variation clause. The order had a tear off acknowledgment for signature and return which accepted the order "on the terms and conditions thereon." On June 5, 1969, the sellers, after acknowledging receipt of the order on June 4, returned the acknowledgment form duly completed with a covering letter stating that delivery was to be "in accordance with our revised quotation of May 23 for delivery in March/April 1970." Before delivery, the sellers invoked the price variation clause and claimed £2,892 for the increase due to the rise in costs which had ensued. The buyers refused to pay this additional sum claiming they were not contractually bound to do so. The sellers accordingly sued the buyers for damages. The trial judge upheld the sellers claim on the

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  • Level: University Degree
  • Subject: Law
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A pre-incorporation contract is a contract purported to made by or on behalf of a company which has not been formed.

INTRODUCTION A pre-incorporation contract is a contract purported to made by or on behalf of a company which has not been formed. It is the intention of this essay to examine how the courts have decided on promoter's liability in relation to pre-incorporation contract. As stated above, a pre-incorporation contract is one which is attempted to be made on behalf of a company which is not yet formed. The problem with these contracts is who exactly is liable under them. The question to be asked is, is the company liable or is it the promoter who incurs liability. At common law, a number of rules were established. The first one is that until the company is formed it has no legal existence. A company comes into being from the date on its certificate of incorporation (s13 Companies' Act 1985 and Re Jubilee Cotton Mills1). Prior to this a pre-incorporation contract cannot be enforce by or against the company, for it is not possible to contract with a non-existent person. This is illustrated by the leading case of Kelner v Baxter2. In this case Baxter and two other promoters agreed to buy some wines and spirits from Kelner and signed the order on behalf of a hotel company which they had not yet formed. When the company was formed, the wines and spirits were consumed but the company failed before Kelner was paid. It was held that the company was not liable for the wines and spirits.

  • Word count: 1889
  • Level: University Degree
  • Subject: Law
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