Contracts1
Contracts 1 Assignment
Question 1.
The issue in this case is whether Widescope Pty Ltd (Widescope) have breached the advertising contract with Fun Park Pty Ltd (Funpark) by not being willing to place the posters in all bus stops in the Geelong CBD and failing to maintain the condition of the posters or where necessary replace them.
1.1 Widescope’s pre-contractual statement
The first issue to address is whether the suggestion made by Mark (representing Widescope) to Lucy (representing Fun Park) during the pre-contractual discussions that the posters would be placed “in all bus stops in the Geelong CBD area” was promissory in nature.
The question of whether the statement was promissory in nature needs to be determined objectively based on the entire facts of the case. As demonstrated in Hospital Products v United States Surgical Corp a term is considered to be incorporated into the contract if a reasonable person, in the position of the parties, would consider it a promise. Furthermore, Oscar Chess Ltd v Williams advanced that statements may be construed as promissory if made by a person with expertise and experience. Additionally, the more importance the statement is to the contract the more likely to be considered a promise. Another factor considered in law (as to whether a statement is promissory) is whether the statement induced or intended to induce the party to contract.
The statement made by Mark, in a position of expertise and with the intention of inducing Lucy to contract could be construed as promissory in nature. The statement of fact was made; the intention to guarantee the statement can be viewed through Clause 4 of the contract. The contract stated that “posters will be placed, as far as practicable, in all bus stops in the Geelong CBD.” The onus is on Widescope to produce relevant information to Funpark to indicate which bus stops were not ‘practicable’ and why. The statement was of significant importance to Fun Park, this can
Question 1.
The issue in this case is whether Widescope Pty Ltd (Widescope) have breached the advertising contract with Fun Park Pty Ltd (Funpark) by not being willing to place the posters in all bus stops in the Geelong CBD and failing to maintain the condition of the posters or where necessary replace them.
1.1 Widescope’s pre-contractual statement
The first issue to address is whether the suggestion made by Mark (representing Widescope) to Lucy (representing Fun Park) during the pre-contractual discussions that the posters would be placed “in all bus stops in the Geelong CBD area” was promissory in nature.
The question of whether the statement was promissory in nature needs to be determined objectively based on the entire facts of the case. As demonstrated in Hospital Products v United States Surgical Corp a term is considered to be incorporated into the contract if a reasonable person, in the position of the parties, would consider it a promise. Furthermore, Oscar Chess Ltd v Williams advanced that statements may be construed as promissory if made by a person with expertise and experience. Additionally, the more importance the statement is to the contract the more likely to be considered a promise. Another factor considered in law (as to whether a statement is promissory) is whether the statement induced or intended to induce the party to contract.
The statement made by Mark, in a position of expertise and with the intention of inducing Lucy to contract could be construed as promissory in nature. The statement of fact was made; the intention to guarantee the statement can be viewed through Clause 4 of the contract. The contract stated that “posters will be placed, as far as practicable, in all bus stops in the Geelong CBD.” The onus is on Widescope to produce relevant information to Funpark to indicate which bus stops were not ‘practicable’ and why. The statement was of significant importance to Fun Park, this can
Bibliography: Seddon, N et al, Cheshire and Fifoot Law of Contract (LexisNexis, 10th ed. 2012) Thampapillai, D et al, Contract Law: Text and Cases (Oxford University Press, 2012) B. Cases Balog v Crestani (1975) 132 CLR 289 at 296; 6 ALR 29 BP Refinery Western Port v Shire of Hastings [1977] HCA 225 Carr v Berriman Pty Ltd (1953) 89 CLR 327 at 348-9 Codelfa Construction Pty. Ltd. V State Rail Authority of N.S.W [1982] HCA24; (1982) 149 CLR 337 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510; 68 ALR 385 Ellul v Oakes (1972) 3 SASR 377 Equascorp pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 Falconer v Wilson (1973) 2 NSWLR 131 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Louinder v Leis (1982) 149 CLR 509 Newspapers Ltd v Bancks (1951)83 CLR 322 Oscar Chess Ltd v Williams [1957] 1 WLR 370 OzEcom v Hudson Investment Group [2007] NSWSC 719 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR Sanpine Pty Ltd v Koompahtoo Local Aboriginal Council [2006] NSWCA 291 Shepperd v Council of Ryde (1985) 85 CLR 1 Smith v Hamilton [1951] Ch 174 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 Van den Esschert v Chappell [1960] WAR 114 [ 1 ]. (1984) 55 ALR 17. [ 4 ]. Ellul v Oakes (1972) 3 SASR 377; see also Hospital Products v United States Surgical Corp (1984) 55 ALR 417, 427 per Gibbs CJ. [ 5 ]. Shepperd v Council of Ryde (1985) 85 CLR 1. [ 8 ]. (1951)83 CLR 322. [ 10 ]. (1938) 38 SR (NSW) 632. [ 12 ]. [1982] HCA24; (1982) 149 CLR 337. [ 14 ]. (2004) 219 CLR 165. [ 15 ]. Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537,533 per Mason J. [ 16 ]. [1984] HCA 64; (1984) 156 CLR 41. [ 22 ]. [1984] HCA 64; (1984) 156 CLR 41. [ 26 ]. (1982) 149 CLR 509. [ 27 ]. (1989) 166 CLR 623. [ 28 ]. (1973) 2 NSWLR 131. [ 29 ]. (1953) 89 CLR 327 at 348-9. [ 30 ]. (1975) 132 CLR 289 at 296; 6 ALR 29. [ 32 ]. (1973) 2 NSWLR 131. [ 33 ]. (1989) 166 CLR 623.