Contract Law – Notes Breakdown List :

Section 2 : Offer and Acceptance

- Formation and Enforceability of Contracts
- Breakdown of :
o Agreement
o The Offer
 Distinction between offer and invitation to treat
 Bilateral and Unilateral Contracts
 Analysis of Particular Transactions (e.g. auction)
o Termination of an Offer
 Revocation (withdrawal) of offer
 Rejection of offer
 Occurrence of a specified event
 Death of an Offeror
 Lapse of Time
o Acceptance
 In Bilateral and Unilateral Contracts
 Communication of acceptance
 Postal acceptance rule
- Debate around problems with Rules of Offer and Acceptance
o Formalism v Realism
o Battle of the Forms
o Legal solutions in absence of a concluded agreement (restitution)

Section 3 : Creating a Contract – Ensuring Enforceability

- Formalities
- Certainty of Terms
o Requirement of certainty
o Dealing with contractual uncertainty
- Intention to Create Legal Relations
o Social, domestic and family agreements
o Commercial agreements
- Consideration
o Basic idea of consideration
o When consideration is required
o Why consideration is required
o What constitutes good consideration
o Problematic consideration
 Past consideration
 Agreements to perform existing public duties
 Agreements with a 3rd party to perform an existing
contract
  Pre-existing contractual duties owed to the other
contracting party
 Agreements concerned with part-payment of an existing
debt
o Consideration Debate
 Difficulties posed by requirement of consideration
 Proposals of Law Reform Committee
- Promissory Estoppel
o Emergence of PE
o Requirements of PE
o Operation of PE
- Privity of Contract
o Statutory exception to privity doctrine
o Crystallisation of 3rd party rights
o Remedies available to third parties
o Assessment of privity of contract

Section 4 : Contract contents – interpretation and implied terms

- Interpretation of contract terms
o Preliminaries and traditional approach
o Rise of the contextual approach and ‘commercial construction’
o Resurgence of formalist approach to interpretation
o Problems with the formalist approach
o Exclusions from interpretation exercise: prior negotiations,
subsequent conduct, evidence of subjective intent
- Implied terms in the contract
o General issues raised by implied terms
o Terms implied under statute
o Terms implied in fact
o Terms implied in law
o Terms implied by custom
o Controversy over implied terms

Section 5 : Duress and Undue Influence

- Duress
o Duress to the Person
o Duress to Goods
o Economic Duress
 When is pressure illegitimate?
 Lawful Act Duress
o SC Decision on LAD
 Causation
 Availability of alternative courses of action
 Overlap between economic duress and consideration
- Undue Influence
o Introduction
 o Actual Undue Influence
o Presumed Undue Influence
 Stage 1 : Relationship of trust and confidence
 Stage 2 : the transaction ‘calls or explanation’
 Stage 3 : Rebutting the presumption of undue influence
o Remedies
 Rescission
o Undue Influence and 3rd Parties
o Relationship between duress and undue influence

Section 6 : Exclusion clauses & unfair contract terms

- Functions of exclusion, limitations, exemptions of liability clause and
problems raised
- Forms of control of exclusion clauses
o Common Law
 Incorporation
 By signature
 By notice
 From previous course of dealing between parties
 Does the exemption cover the liability that has arisen on its
true construction?
 How the term is worded
 The contra proferentum rule
 Exemption clauses and Third Parties
 Seriousness of Breach/Fundamental breach
o Statute
 Unfair Contract Terms Act 1997 (UCTA)
 General scope of act
 Examples of contract terms rendered invalid by the
Act
 Examples of contract terms subject to
reasonableness test under the Act
o Terms excluding negligence liability
o Terms excluding liability arising in contract
o Terms excluding liability for
misrepresentation
 Application of ‘reasonable’ test
o Importance of first instance decision
o Contractual terms
o Schedule 2 UCTA and reasonableness
generally
 Consumer Rights Act 2015 (CRA)

Section 7 : Misrepresentation
- Overview of Misrepresentation
- Function of misrepresentation
- Representations ≠ Incorporated Terms
 - The requirements of misrepresentation
o False statement of law
o False statement of fact
o Inducement
- Remedies for misrepresentation
o Case law remedies
 Rescission
 Common law damages
 Damages for tort of deceit
 Damages of tort of negligence
o Misrepresentation Act 1967
 Statutory text
 Damages under Misrepresentation Act 1967
 Damages instead of rescission under Section 2(2)

Section 8 : Frustration
- Introduction to frustration
- Development of frustration doctrine
o Early approach of absolute liability
o Development of the frustration doctrine as a reaction to historical
events
- Categories of frustrating
o Destruction of the subject-matter of the contract
o Frustration of purpose
o A change in law makes the contract illegal or legally impossible
o No frustration merely because performance has become more
expensive
- Factors excluding frustration
o Self-induced frustration
o Express provision
o Foreseeable events
- The effects of frustration
- Law in context: Frustration doctrine and Brexit
- Economic analysis of the frustration doctrine

Section 9 : Termination – Conditions, warranties and innominate terms

- Introductory definitions
- Termination as a remedy for breach
- Condition/Warranty distinction
- New approach to breach : the innominate term

Section 10 : Problems with the performance of the contract – Damages

- Introductory definitions
- Compensatory damages
o Calculating damages for loss of expectation
 Non-performance/defective performance
 Calculating difference in value
  Calculating cost of repair or cure
 Damages for mental distress/loss of reputation
 Speculative losses
- Reliance damages (claims for wasted expenditure)
- Establishing a claim for compensatory damages
o The date for the assessment of damages
o Causation and remoteness
o Mitigation
- Restitutionary Damages

Section 11 : Other Remedies

- Liquidated Damages and Penalties
o Definition
o Leading authority
- Equitable remedies
o Specific performance
 List of restrictions
o Prohibitory injunction
- Critical discussion: Should the remedy of specific performance be more
readily available?