The executor or trustee can then deal with those

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contract to the party’s executor or trustee. The executor or trustee can then deal with those rights and obligations as if he or she were an original party to the contract. Statute. Some jurisdictions (which, in Australia, include the states of Queensland and Western Australia and the Northern Territory) have abolished the doctrine of privity by legislation. Under their statutes, third party beneficiaries can sue and be sued provided they have accepted the rights and responsibilities conferred by the contract. There are also a number of other more specific statutory departures from the doctrine. Provisions of insurance law allow beneficiaries to enforce policies to which they were not parties. The law relating to bills of lading (contracts under which cargo is shipped) gives rights to whoever owns the bill of lading at a particular time. The law relating to cheques, bills of exchange and promissory notes provides for negotiation and transfer of rights including rights to sue on any unpaid cheques, bills or notes. Similar provisions also exist in many other areas of commercial life. 5.1.2 Factors affecting genuine consent Contracts assume that the parties have truly agreed with one another. If the agreement was reached in a way that means that one party did not truly consent to it, the contract is said to have been subject to some vitiating factor and the affected party may be able to have the contract set aside — in the sense that it will not be enforced against him or her. A vitiating factor is any influence on or aspect of the parties’ agreement that makes that agreement invalid or ineffectual as a contract. Therefore, even if an agreement appears to be contractual (because all the required elements seem to be present) it can be invalid and the obligations under it may not be legally enforceable. These possible flaws or ‘vitiating factors’ in the contract’s formation include: misrepresentation; mistake; duress;
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© Stephen Graw 2012 undue influence; unconscionability; and illegality and voidness. Misrepresentation The basis of misrepresentation Many things are said when a contract is being negotiated. Some of them are seriously intended to have contractual consequences — others are not. Some (those that were intended and understood to be promissory) will become terms; the others will not. Despite this, some of the ‘non-term’ statements may still have been important in inducing the parties to enter into the contract. If they were and if they were false or unfounded the party to whom they were made may feel aggrieved — particularly if he or she entered into the contract largely because of those statements or assurances. In such cases the innocent party may be able to have the contract set aside by pleading misrepresentation.
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