商业法律

Topics: Contract, Tort, Reasonable person Pages: 10 (3790 words) Published: August 11, 2013
Intention: Non-commercial agreements:1.Where the agreement between the parties is of a non-commercial nature, it is presumed that the parties do not intend to create legal relations (Balfour v Balfour). Where the agreement between the parties is of a commercial nature, it is presumed that the parties do intend to create legal relations(Balfour v Balfour). The presumption in social arrangements is that there is no intention to create legal relations(Edwards v Skyways Ltd)..(Social agreements in friends/acquaintances, Family, domestic,Voluntary) a)social arrangements:The presumption in social arrangements is that there is no intention to create legal relations (Balfour v Balfour). b) Family or domestic agreements,In the case of domestic agreement made while the husband and wife are still living together or in a de facto relationship, it is presumed that the parties do not intend to create legal relations in relation to promises made to each other (Balfour v Balfour). This presumption can be rebutted. (brothers and sisters, aunts and uncles, nephews and inlaws).Domestic arrangements between other family members are also presumed not to be legally binding (Balfour v Balfour).But Courts may rebut the presumption if the consequences of the promise are serious for one of the parties and they have changed their position in reliance on the promise that has been made to them (Wakeling v Ripley). c) voluntary agreements In voluntary agreements such as participation in charitable or other voluntary organisations, the presumption is that the parties do not intend that agreement to be legally binding (Teen Ranch Pty Ltd v Brown). This presumption may be rebutted by evidence to the contrary evidence (Popiw v Popiw). Commercial agreements The presumption in commercial agreements is that the parties have an intention to be legally (Edwards v Skywards Ltd). This presumption can be rebutted, if the parties use clear wording to that effect. Letters of comfort (Kleinwort Benson Ltd v Malaysian Mining Corporation Bhd) this agreement is subject to contract (Masters v Cameron) binding in honour only (Rose & Frank Company v JR Crompton & Bros Ltd) Shall not be attended by or give rise to any legal relationships (Jones v Vernon’s Pools Ltd) (By honour clause, parties agreed that their deal was binding in honour only. Letters of comfort are meant to provide comfort, not assurance. They are not promissory in nature, the parties did not intend to create legal relations) Commercial Nature (cont)Anyone wishing to rebut the commercial presumption bears a heavy onus of proof (Edwards v Skyways Ltd). Agreement Goods displayed on shelves or shop windows are considered to be an invitation to treat (Pharmaceutical Society v Boots Cash Chemists). Advertising of goods or services in newspapers or on radio, television or Internet are generally considered to be an invitation to treat (Partridge v Crittenden), but sometimes can be held to be an offer (Carlill v Carbolic Smoke Ball). Price lists, circulars and catalogues – these are considered as a general rule to be invitations to treat (Grainger & Sons v Gough). Responding to a question does not itself create an offer (Harvey v Facey). R3The offer must be communicated to the offeree for them to be able to accept it. An offer may be made to a particular person, to a class of persons or to the whole world (Carlill v Carbolic Smoke Ball Co) R4Offers may be terminated before acceptance takes place (or else an agreement has been reached) Offers can be terminated by: Revocation (ie the offer is withdrawn by giving notice to offerees). (revoked) Rejection or counter offer (Hyde v Wrench) Lapse of time: this can either be at a time specified by the offeror, or else a ‘reasonable’ time (Ramsgate Victoria Hotel Co Ltd v Montefiore). Rule 1: Acceptance must be in reliance on the offer (R v Clarke) A person cannot accept something that they don’t know about. Rule 2:General rule is that acceptance must be...
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