1. (Part One): The Elements4
The Contract
(Part One): The Elements

2. Definition of a Legal Contract
A legal contract is an agreement between two or more parties in which legal rights and obligations are created, and are enforced by a court.

3. Elements of a Valid Legal Contract
For a contract to be legally enforceable the contract must contain the following elements:
(1) AN OFFER
(2) ACCEPTANCE OF THE OFFER
(3) CONSIDERATION
(4) INTENTION TO CREATE LEGAL RELATIONS
(5) CERTAINTY OF TERMS
(6) CAPACITY TO CONTRACT
All of these elements must be present before there is a valid and legally enforceable contract.

4. The Elements of a Valid Contract cont…

5. Elements of a Contract: 1) Offer
What is an offer?
Does not have to be in writing
Promissory: Promise to do something or to refrain from doing a certain act
Intention: To be legally binding
Communication: To Promisee
Certainty: Terms must be clear & certain
Finality: Must be a degree of finality with the terms

6. Elements of a Contract: 1) Offer cont…
Objective Test:
Reasonable person test
Standard applied by courts
Contract Law v Criminal Law
Contract law applies objective test to determine liability
Criminal law applies subjective test to determine guilt

7. Elements of a Contract: 1) Offer cont…
Offers v. Invitations to Treat
Shop Displays
Advertisements
Catalogues
Sales Puffery
Vending Machines
Delicatessens

8. Elements of a Contract: 1) Offer cont…
An offer must be made to another person
Offeror: party that makes the offer
Offeree: party that receives the offer
Offer made to the whole world
Carlill v Carbolic Smoke Ball Company

9. Elements of a Contract: 1) Offer cont…
Offer must be communicated
Offeror to Offeree
Mode of Communication
Verbal/ Writing/Post
Contemplation of the Parties

10. Elements of a Contract: 1) Offer cont…
Termination of an offer
An offer can be terminated through the following ways:
(1) Revocation
(2) Lapse
(3) Rejection By Offeree
(4) Implied rejection : counter offer
Eg - A offers to sell his car to B for $ B says to A, “I will give you $750". B statement amounts to a counter offer which terminates the original offer by A

11. Do you have a valid offer?

12. Elements of a Contract: 2) Acceptance
An acceptance is a final and unqualified assent to all the terms of the offer.
Rules of acceptance :
(1) Offer still in force
(2) Offer to made by the offeree
(3) Unqualified an absolute
(4) Acceptance can be in writing, oral or by conduct
(5) Silence does not constitute an acceptance
(5) Communication

13. Elements of a Contract: 2) Acceptance cont…
Communication of acceptance
Completed acceptance
Reasonable time

14. Elements of a Contract: 2) Acceptance cont…
Postal acceptance rule
Limitations to the rule
letters and telegrams
instantaneous methods of communication
addressed and stamped
actual communication contemplated

15. Do you have a Valid Acceptance?

16. Elements of a Contract: 3) Consideration
Applies to all contracts other than contracts made under seal/ deed. Contracts made under deed form do not require consideration.
Definition
Consideration is an essential element in every simple contract. The doctrine of consideration requires that:
(1) there must be an exchange between the parties, involving either a promise for promise, or promise for performance; and
(2) the promise or performance given in exchange must have value.

17. Elements of a Contract: 3) Consideration cont…
Rules of Consideration
Consideration does not have to be adequate
Consideration must be sufficient
Consideration must not be illegal
Consideration must move from the promisee
Past consideration is not good consideration

18. Rules of Consideration

19. Elements of a Contract: 3) Consideration cont…
Renegotiating Debts
Performing existing contractual obligations does not amount to good consideration to enforce a promise : Foakes v Beer
Example (1) : A owes B $100. A decides to pay B $90 in full satisfaction of the debt. B then sues A for the balance ($10). B will succeed because there is no consideration for his promise to accept $90 for full payment : Foakes v Beer
Example (2) : A owes B $ A decides to pay B $90 earlier for full payment. B will not succeed for the further $10 because A has done something extra, he has paid earlier : Pinnels case.

20. Elements of a Contract: 3) Consideration cont…
Promissory Estoppel
The strict application of the doctrine of consideration is modified with the doctrine of promissory estoppel. The doctrine of estoppel operates to enforce certain promises which have not been supported by valuable consideration.
Elements of the doctrine of estoppel:
There must be a promise by the promisor to the promisee
The promisee must have relied on the promise
The promisee will suffer detriment if the promisor is allowed to go back on his promise
It would be unconscionable (unfair) to allow the promisor to break his promise

21. Elements of Promissory Estoppel

22. Promissory Estoppel cont…
Walton Stores v Maher
Walton’s case was seen as important in the development of the doctrine, because it extended the operation of the doctrine to create a new right of action.
Promissory estoppel only operates when all the above elements have been satisfied. Promissory estoppel has its origins in the High Trees Case. The doctrine has been extended in the High Courts decision in Walton Stores.
The principle of promissory estoppel only applies when it would be inequitable/unconscionable (unfair) to allow the promisor to go back on his promise.

23. Promissory Estoppel cont…
Example:
A enters into a lease agreement with B. The lease provides that A pays B $500 weekly rent. A then falls into financial difficulty and asks B if he could reduce the rent for 12 months to $300. B agrees. A relies on B’s promise to accept $300 rent, and pays him that amount. 12 months later B sues A for the difference in rent ($200 week).
Advise A.

24. Elements of a Contract: 4) Intention to Create Legal Relations
Commercial agreements
For a contract to be legally enforceable there must be an intention by the parties to be legally bound. In Commercial and Business Agreements there is a presumption that the parties intend to create legal relations: Edwards v Skyways.
Exclusions:
1) Express
This presumption can be rebutted but the onus is on the party seeking to exclude legal relations. An express exclusion of intention by the parties will be given effect by the courts.
2) Social & Domestic Agreements.
There is a presumption that social and domestic agreements are not intended to create legal relations. However this can be rebutted by evidence to the contrary.

25. Elements of a Contract: 4) Intention to Create Legal Relations cont…
Husband & Wife Agreements
The courts consider domestic arrangements between husband and wife to be social agreements and not legally enforceable: Balfour v Balfour.
Exceptions:
If the agreement between husband and wife involves essentially a commercial matter then the agreement will be enforceable : Milliner v Milliner.

26. Do you have an intention to create legal relations?

27. Elements of a Contract: 5) Certainty of Terms
As a general rule the courts will not enforce vague or incomplete agreements.
However the courts will strive to fund a valid contract. If terms are uncertain, the courts may clear the uncertainty by the ff means:
- Trade customs & Usage
- Previous dealings between the parties to determine the
essential terms of the agreement.

28. Elements of a Contract: 6) Capacity to Contract
The capacity of certain persons to enter into legal contracts may be affected.
Especially minors, drunkards and bankrupts.

29. 6) Capacity to Contract – Minors
Minors are any persons below the age of 18.
Contracts with minors fall within three categories:
- Valid
- Voidable; and
- Void
Valid Contracts - 2 types: Contracts for Necessaries and Contracts for Beneficial Service.

30. 6) Capacity to Contract – Minors cont…
Contract for Necessaries
Necessaries are defined as goods suitable to the condition in life of such a minor and to his actual requirements at the time of such sale and delivery.
Two important questions arise:
(1) Can the goods/services be classed as necessaries for a person in the circumstances of the minor in question?
(2) Were the goods/services in fact necessary to the minor at the time?
If the answer is yes to both these questions then there will be a valid contract and the minor will have to pay.
Examples of goods/services which are necessaries include: food, housing, education, medical and legal expenses.

31. 6) Capacity to Contract – Minors cont…
Contracts for beneficial services
The key question here is to ask:
Does the contract of service provide a benefit to the minor?: Hamilton v Lethbridge.

32. 6) Capacity to Contract – Minors cont…
Voidable Contracts
These are contracts which can be avoided by the minor before he/she turns 18 or within a reasonable time after he/she turns 18.
They apply to contracts which are of a permanent nature/continuing obligation. Eg: shares, leases and partnerships.
With voidable contracts the minor can free himself from future obligations, but will have to pay for benefits already received.

33. 6) Capacity to Contract – Minors cont…
Void Contracts
Contracts other than for necessaries or beneficial contract of service are void against the minor.
Contracts involving loan repayments are also void against the minor.