CONTRACT LAW EXAM. JOANA FARRAJOTA | CLAIRE BRIGHT 20 January 2020 (9h00) Total Duration: 3 hours Parte I. Direito dos Contratos (10 valores) A. (A resposta a presente secciio nio deverd exceder 3 piiginas) (7 valores) A Sociedade Agua Mineral Del Cano é Que f, Lda. (“Sociedade”), startup constituida em finais de 2005 para promover o consumo de égua da torneira, celebrou um contrato de mrituo com o Banco Maravilha, no valor de 50.000 euros, em julho de 2006. Nos termos do contrato, a Sociedade deveria proceder ao pagamento mensal das prestacdes de restituicao de capital, acrescidas de juros, até ao dia 8 de cada més. Em junho de 2009, a Sociedade nao pagou a prestacéo devida ao Banco Maravilha. Em julho, agosto e setembro, do mesmo ano, continuou sem o fazer. Em meados de Setembro, 0 Banco Maravilha enviou a seguinte carta a Sociedade: “Face ao incumprimento reiterado, por V. Exas., da obrigagio de restituicao do capital e de pagamento de juros, vimos, pelo presente, resolver 0 contrato com efeitos imediatos, exigindo a restituicéo imediata do capital em divida” 1. Qualifique o contrato de miituo e as prestagées emergentes do mesino (2 valores).2. Imagine que, tendo recebido a carta do Banco Maravilha e muito preocupada com a possibilidade de ter de devolver ao Banco os 45.000 euros ainda em divida, a Sociedade o contacta, advogado conhecido na praca, pedindo-the ajuda na resposta A mesma. Que Ihe diria? Na resposta deve analisar 0 acto do Banco, bem como as possiveis reacdes da Sociedade (6 pontos) B. Comente a seguinte afirmagao (A resposta nao deverd exceder uma pagina) (3 valores) “Ao contrario do que parece sugerir a letra do art. 428.°, a estipulagao de prazos diversos para o cumprimento nao ¢ obstaculo ao exercicio da excepcao de nao cumprimento”.Exam number: Part IJ. Comparative Contract Law Section 1. Multiple Choice Questions (10 Questions) - For each of the following questions, check only one box. (0.4 points per question - no penalty for an incorrect answer) Question 1: In the English case of Gibson v Manchester City Council (1979), how did the House of Lord construe the letter from the City Council stating that it “may be prepared to sell the house’ to Mr Gibson for £1,180? © a)asan offer CD b)asan invitation to treat C0 c)asacounter-offer D d)asconsideration Question 2: Consider the following scenario. On 29 November 2019, A posted an advertisement in the local newspaper offering a second-hand MacBook Air computer for sale for £500. The next day, B went to the address mentioned in the advertisement and presented A with £500. However, A informed him that he had changed his mind and no longer wished to sell his computer. Which of the following statements most accurately summarise the position in English contract law? 1 a) The advertisement posted by A in the local newspaper constituted a mere invitation to treat. 1 b) B made an offer to A when he handed the £500 to him. Cc) Awas entitled to change his mind about selling his computer. 1 d)all of the above. Question 3: In the French case of the Exploding lemonade bottle (1964), a customer claimed damages in contract for the injury that he had suffered when a bottle of Vittel Lemonade exploded as he took it out of his basket at the checkout, butbefore it had been paid for. Which of the following, statements accurately reflects the decision of the court? Ca) the customer was not able to claim damages in contract as the display of the bottle of Vittel Lemonade in the shop constituted a mere invitation to treat. 1 1b) the display of the bottle of Vittel Lemonade in the shop constituted an offer which had not yet been accepted by the customer as he had not paid for ityet, and the customer was therefore not able to claim damages in contract. 1) the customer was able to claim damages in contract as the display of the bottle of Vittel Lemonade in the shop constituted an offer which had been accepted the moment the customer placed the bottle in his basket. 1 d) the customer was only able to claim damages in tort. Question 4: In the English case of Carlill vs. Carbolic ‘Smoke Ball Co (1893), which test did Bowen L] use to decide whether the advertisement constituted an offer or an invitation to treat? 1 a) What the intentions of the offeror were. Db) What the intention of the offeree was. 1 ¢) How the advertisement would be construed by an ordinary person. C1 d) None of the above Question 5: In the French case of Chastan vs. Isler (1958), the offeror sent a letter to the offeree offering to sell his chalet to the offeree for 2.5 million Francs. The offeree responded that he planned to visit the chalet on 15th or 16th of August that year, and the offeror agreed. In the meantime, the offeror sold the chalet to someone else. Which of the following statements accurately reflects what the court held? 1 a) the offeror's response constituted a counter-offer and therefore no contract had been formed © b) the offeror was free to revoke his offer at any time prior to acceptance. 1 6) the offeror had implicitly undertaken not to revoke his offer before the offeree's visit of the chalet. CO d)all of the aboveQuestion 6: How does French Jaw approach the battle of forms which occurs when two businesses are negotiating the terms of a contract, and each party seeks to impose its own standard terms upon the other? C0 a) it uses the 'first shot rule’ whereby the first terms which have been offered by the offeror prevail 1b) it uses the ‘last shot’ approach which considers that the latest terms referred to prior to performance prevail 1 o) it uses the ‘knock-out rule whereby the terms which contradict each other will cancel each other out 1 d)none of the above Question 7: In English law, at which moment in time is acceptance effective? Ci a) when the ‘meeting of the minds’ takes place Ob) where the mode of communication is instantaneous, acceptance takes effect when and where the acceptance reaches the offeror © c) where the mode of communication is non-instantaneous, the postal rule applies and acceptance takes effect as soon as the letter is posted CO d)all of the above Question 8: Consider the following scenario. A husband and wife were separating and the husband promised to maintain his wife, provided that she took good care of their child. Later, the husband changed his mind and refused to provide any maintenance to the wife. The wife then sought to enforce the promise. Which one of the following statements most accurately summarises the position in English contract law? (a) The promise is unenforceable because it is not supported by valid consideration, since the wife has a legal duty to take care of their child. Cb) The promise is enforceable because it is supported by valid consideration and the husband clearly intends to be boundGc) The promise is unenforceable because the wife has not given consideration and the doctrine of promissory estoppel does not create new causes of action. Cd) none of the above Question 9: What is meant by the following statement: ‘in English law, the doctrine of promissory estoppel can only be used as a shield but not as a sword’? Oa) The doctrine of promissory estoppel does not give rise to a new cause of action. Ob) The doctrine of estoppel can only be used as a defence. C ¢) the doctrine of promissory estoppel is based on a promise not to enforce some pre-existing rights. Ci d)all of the above, Question 10: In the English case of Shirlazw vs. Southern foundries Ltd (1939), MacKinnon LJ stated that ‘Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain an officious bystander were to suggest some express provision for it in the agreement, they would testily suppress him with a common “Oh, of course!” Which of the following statements accurately reflects the meaning of this statement? G a) It provides that certain terms can be implied because they form part of a custom. Cb) Itapplies the 'business efficacy’ test whereby the courts will imply aterm into a contract that is necessary and obvious to give it business sense CO ) It applies the 'officious bystander’ test! whereby the courts will apply a term into a contract which would be obvious to an officious bystander. C d) none of the above Section 2. Please answer only 3 out of the following 5 questions. (2 points per question)Question 11: In the French case of Chastan vs. Isler (1958), the court stated that: ‘whilst an offer may in principle be revoked at any time prior to its acceptance, that is not the position where the person making it has expressly or impliedly undertaken not to revoke it before a certain date’. Comment on this quote. Compare and contrast the solutions in English and French contract laws, and illustrate your answer with case law. Question 12: Consider the following scenario, On Monday 6 January 2020, A put an advertisement in the local newspaper which stated 'Black Brompton bicycle for sale, very good state, only 2 years old, £150! followed by her telephone number. On Tuesday 7 January 2020, B went to see the bicycle and said he would pay £100 but that he must have a written answer from A by Thursday 9 January 2020, 8pm. On Wednesday 8 January 2020, A decided to sell her bicycle to B for the proposed £100 and sent a letter to B's home address but the letter was delayed and did not arrive until Friday 10 January 2020. In the meantime, on Thursday afternoon, as B had not heard back from A, he bought another bicycle and went to A's house to inform her. A now claims that B is in breach of contract under the principles of English Law. Advise A. Illustrate your answer with case law. Would your answer be different under the principles of French contract law? Question 13: In the English case of Merrit os. Merritt (1970), Lord Denning MLR. stated that: '[in cases where] the parties were living together in amity [...] their domestic arrangements are ordinarily not intended to create legal relations. It is altogether different when the parties are not living in amity but are separated, or about to separate, They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations’. Explain this statement and illustrate your answer with case law. Question 14: In the English case of Central London Property Trusts Ltd v. High Trees House Ltd (1947), Denning J defined the doctrine of promissory estoppel as: 'A promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on.' Comment on this quote, and illustrate your answer with case law. Question 15: Article 1:102(1) of the Principles of European Contract Law (PECL) states that: 'Parties are free to enter into a contract and to determine its content, subject to the requirements of good faith and fair dealing, and the mandatory rules established by these Principles.’ Comment on this article.Does the principle of good faith play an equally important role in both French and English Contract Laws? Illustrate your answer with case law.