Acceptance must be unqualified absolute and

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Unformatted text preview: Ltd (Acceptance inferred by conduct: see Latimer at ¶5-310) Brogden v Metropolitan Railway Company (Acceptance inferred by conduct: see Latimer at ¶5-270) 3. Acceptance must be unqualified, absolute and unconditional or it may amount to a counter-offer See Latimer – ¶5-240 4. Conditional assent is NOT acceptance Case: Masters v Cameron, Latimer at ¶5-250 5. Acceptance must be clear and certain Case: Scammell and Nephew Ltd v Ouston, Latimer at ¶5-260 31 31 The postal rule 32 Instantaneous communications • Where the parties contemplate the use of the post as a medium of exchange of promises, the rules as to the time of acceptance change as follows: An offer by letter is not effective until received by the offeree Acceptance is effective as soon as it is posted If the offer is to be cancelled/revoked, notice of the cancellation must be received by the offeree before their letter of acceptance is posted • See Latimer ¶5-330 • In cases of agreements communicated by means of telephone, fax or email, the contract is formed when and where the offeror hears or receives the offeree’s acceptance • The Electronic Transactions Act 1999 (Cth) provides guidance on times for receipt and dispatch • See Latimer at ¶5-335 33 Consideration: what is it? 34 Consideration: what is it? • It is what the promisor gives in exchange for the return promise or the return action from the promisee • See Latimer ¶5-400 - ¶5-485 • “Something for something” • Consideration turns an agreement into a contract • Concept of VALUE • Failure of consideration can make an agreement unenforceable • BUT can be broader than just ‘price’ Can include acts, promises etc 35 36 Rules for Consideration Rules for Consideration 1. Consideration is essential to the validity of every simple contract • It may be: something the promisee gives the promisor the carrying out of some act or the refraining from doing something that the promisee had a legal right to do • Cases: Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd; Coulls v Bagot’s Executor and Trustee Co Ltd • See Latimer ¶5-405 2. Consideration must not be past • Past Consideration occurs where a promise is given after an act has been performed This is generally not enforceable If consideration is given BEFORE the contract is created, it is not good consideration • Cases: Roscorla v Thomas, Latimer ¶5-410 37 37 38 Rules for Consideration Rules for Consideration • BUT: past consideration can be good consideration Therefore: Consideration must be • If it was provided at the request of the promisor and it can be shown that: Present (executed) consideration which is an act done ‘now’ in return for a promise when the act is completed: see Latimer at ¶5-430 the act was done at the promisor’s request the parties understood that the act would be re...
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This note was uploaded on 03/11/2014 for the course LEGT 2741 taught by Professor Leena during the Three '11 term at University of New South Wales.

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