Commercial Law Summary

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  • Topic: Contract, Contract law, Contractual term
  • Pages : 15 (2557 words )
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  • Published : April 10, 2011
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Interpreting legislation:

• Commonsense rules – read as a whole and a word interpreted in its context

• Literal rules – intention, ordinary meaning, not concerned with the consequences – Fisher v Bell (1961) – not an offer for sales, invitation to make an offer.

• Golden rules – consequences of a interpretation, mistake in the wording of the Act

• Mischief rules – determines the purpose for passing an Act, advances the purpose of the Act, must be ambiguity – Smith V Hughes 1960 – mischief rule applied – solicited in a street

• Purposive interpretation required s9A(1) interpretation Act (Cap 1, 2002 Rev) – promote the purpose of the Act

• Extrinsic material – discretion under s9A(2) of the interpretation Act, may consider under s9A(3)©. However, should not be considered un s9A(4)

• Maxims – meaning of a word or phrase is to be derived from its context – (Third) and (First)

• Precedent – doctrine – similar cases elsewhere in other court


• Agreement – offer and acceptance

o Offer – intention

▪ Supply of information – case Harvey v Facey (no contract)

▪ Invitation to treat – need to negotiate – Shop display Fisher V Bell, Advertisement : Partridge v Crittenden – put an ad selling live wild bird which is an offence but court held not guilty

▪ Must be communicated with terms – Carlill v Carbolic Smokeball Co (1893) – money already deposited shows the intention

o Acceptance

▪ Revoked/withdrawn before acceptance – Routledge v Grant – offer to buy the house but keep the offer for 6 weeks. Before 6 weeks, offer was withdrawn.

▪ Rejected Hyde v Wrench 1840 – offer to sell at 1000 but there was counter-offer at 950. Counter-offer was rejected. Then agreed to accept 1000 but was rejected. There was a rejection of the earlier offer of 1000.

o Other cases

▪ Goldsborough Mort & Co v Quinn 1910 – option given with time limit of acceptance. Offer with option was withdrawn – cannot be withdrawn as there was 7 days options given.

▪ Byrne & Co v Van Tienhoven & Co 1880 – revocation is effective only when received. Even though the revocation has been sent. Accepted before receiving the revocation letter.

▪ Hyde v Wrench 1840 – as above

▪ Turner Kempson & Co v Camm 1922 – acceptance with change of the terms by the buyer on the delivery but such change was rejected – court held no contract

▪ Stevenson Jacques & Co v McLean 1880 – ask to change the term with the offer but no reply and buyer accepted the original term – original offer was still open to be accepted.

▪ Maters v Cameron 1954 – acceptance with condition on the statement – subject to preparation of a formal contract although deposit has been accepted.

o Intention to create legal relations

▪ Social and domestic – Balfour v Balfour – no legal binding – domestic, Merritt v Merritt – easy to rebut presumption as they are divorce

▪ Business and commercial agreements – Carlill v Carbolic Smokeball Co – ads stating would pay $ who caught flu after using. Seriously when $ was deposited, showing sincerity – legal binding. Presumption not rebutted because of the commercial context to the offer.

▪ Edwards v Skyways Ltd – legal binding - was an intention to create legal relations. Agreement was a business one – legally binding and was not rebutted. The onus to rebut the presumption is a heavy one and the use of words ex-gratia was totally inadequate to rebut it.

▪ Rose & Rank Co v JR Crompton 1923 – no intention to create legal relation – presumption was rebutted by express cleaer words. Honour only and was not enforceable by law

▪ Todd v Nicol 1957 – Although domestic agreement but presumption against it being legally binding was rebutted

o Consideration (unless exceptions apply) – some value, not previously given, not just performing an...
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