Contracts Cat 1 - THE LAW OF CONTRACTS CAT 1 MAY AUGUST...

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THE LAW OF CONTRACTS CAT 1 MAY – AUGUST, 2015. COUNSELS A.) JOSIAH MFM NJOROGE WAMWERE B.) MERCY KIHARA C.) JOEL KIPLIMO CHEBII D.) JOY NJENGA E.) RICHARD MURO TABLE OF CASES
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Amicable Insurance Society v Bolland Assignees, [1824 - 34] All E.R. Rep. 570 (1830). Bigg v Boyd-Gibbins Ltd, [1971] 2 All ER 183. Clifton v Palumbo, [1944] 2 All ER 497. G Scammell and Nephew Ltd v HC&JG Ouston, [1941] 1 AC 251. Hardwick v Johnson, [1978] 1 WLR 683. Jones v Padavatton, [1969] 1 WLR 328. MRS. SIMANI
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In Mrs Simani’s case, the issue arises as to whether there was a legally binding contract between Mr.Otiende and herself. Mrs. Simani’s case requires an assessment of whether Mr. Otiende’s statement ‘offering’ to sell the wine glasses to Mrs. Simani did amount to an offer (in the legal sense) or it was just a mere invitation to treat. This distinction is important because accepting an offer creates a binding contract while "accepting" an invitation to treat is actually making an offer. A contract comes into existence when an offer by one party is unequivocally accepted by another and both parties have the requisite capacity. 1 Some consideration must pass and the parties must have intended their dealings to give rise to a legally binding agreement. 2 The purpose of the agreement must be legal and any necessary formalities must have been complied with. 3 An offer is a clear unambiguous statement of the terms upon which the offeror is willing to contract, should the person or persons to whom the offer is directed decide to accept. 4 For an offer to become binding on acceptance, it must be clear and definite and final i.e. it must be certain and free from vagueness and ambiguity. 5 1 Florence Shako, Powerpoint Slides, Introduction to the Law of Contracts. 2 ibid. 3 ibid. 4 Robert Clark, Contract Law in Ireland, (Round Hall Ltd; 6th edition 30 Sept. 2008. ISBN-10: 1858005205. 5 Peter A. Barnes, Matthew Davies, Subcontracting Under the JCT 2005 Forms (John Wiley & Sons, 2009) 10. ISBN 1444301179.
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If it is a mere preliminary move into negotiation which may lead to a contract, it is not an offer but an invitation to treat. 6 The offeror must have been initiating negotiations from which an agreement may or may not in time result. 7 When making an offer the offeror must have an intention that if accepted the agreement shall become a binding contract. 8 In G Scammell and Nephew Ltd v HC&JG Ouston 9 , it was held that words used were too vague and uncertain to amount to an offer. Invitation to treat is; An expression of willingness to negotiate. A person making an invitation to treat does not intend to be bound as soon as it is accepted by the person to whom the statement is addressed. 10 The key test that distinguishes an offer from an invitation to treat is whether it is capable of immediate acceptance without any further enquiry or negotiation. 11 6 Aaron Larson, Contract Law - An Introduction
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