How to Make an Agreement Legally Enforceable
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The document discusses the differences between agreements and contracts. Agreements are generally not legally enforceable, while contracts are. It outlines elements that distinguish contracts from agreements, such as offer, acceptance, consideration and intent to be legally bound. The document also discusses types of contracts, negotiating contracts, and statutory factors like unconscionable conduct that can impact contract law.
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How to Make an Agreement Legally Enforceable
- 1. HOW TO MAKE AN AGREEMENT A CONTRACT! Steve Brown, Partner [email_address] www.etiennelaw.com
- 5. Non Enforceable Agreement Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com If you wash my car I’ll give you $10
- 6. Non Enforceable Agreement Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com I’ll pick you up for dinner at 8 o’clock
- 10. Why have a Contract instead of an Agreement Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com least formal to most formal form form of Agreement oral contract of written contract Risk Formality & Legality
- 16. Is This an Offer? Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com Are you interested in buying Tanalith?
- 17. Is This an Offer? Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com I will sell you 2 tonne of Tanalith for $5,000.
- 25. Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com Central London Property Trust v High Tree House Limited (1947)
- 26. Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com Waltons Stores v Maher (1988)
- 27. Negotiating What to Look Out For…Statutory Impact on Contract Law Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com
- 30. Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com Four principles were established in the case of Taco Co of Australia v Taco Bell Pty Ltd (1982) ATPR 40-303 as assisting to determine whether conduct is misleading or deceptive. 1. The relevant section of the public must be identified. 2. All people within that section must be considered including the intelligent and not so intelligent, the educated and uneducated. 3. Evidence that someone was misled is helpful, but is neither conclusive nor essential. 4. When a misconception has arisen it is important to determine why, in order to see if it was the business' conduct that caused it. Misleading conduct - s 52 Example
- 37. Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com * Pic for illustration purposes only
- 38. Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com Whooping Savings!
- 41. Unconscionable Conduct - Example Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com Pritchard v Race Cage Productions Pty Ltd
- 43. Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com High Risk Situations - Continued I will give ’em two seconds to say Yes Well we have a deal! I am not sure I have read everything Yes. Of course. Got you.. 1. Where the stronger party knows, or ought to know, that the weaker party did not fully understand the transaction
- 49. Open Forum Steve Brown, Partner sbrown@etiennelaw.com www.etiennelaw.com
- 50. Steve Brown, Sbrown@etiennelaw.com. www.etiennelaw.com
Hinweis der Redaktion
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com) Clarke Equipment Australia Ltd v Covcat Pty Ltd (1987) ATPR 40-768 Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 40-782 See also Steinwall, R, Exclusion Clauses and the Trade Practices Act, Australian Construction Law Newsletter, Issue 12, 39-44.
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com) O ’Connor & Sons Pty Ltd v Entact Clough Pty Ltd (1996) WA S Ct LBC Unreported Judgments
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com) Phillip and Anton Homes Pty Ltd v Cth (1988) ATPR 49-040 Beneficial Finance Corporation Ltd v ABW Nominees (1992)(unrep QG182/92 Fed No. 408/96) Emmanuele v Chamber of Commerce & Industry SA Inc (1988) (unrep. SAG88/88, Fed No 70/94)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com) JS McMillan Pty Ltd v Cth (1997) 147 ALR 419 Emmett J McMillan responded to a RFT to purchase assets of the AGPS. The RFT did no warn tenderers that a failure to accept the clauses unreservedly would result to automatic disqualification. McMillan submitted a non-conforming tender and was automatically disqualified. Relying upon s. 52 McMillan obtained an injunction under s. 80 to stop the tender. Emmett J held that the Cth who has called for tenders had engaged in misleading and deceptive conduct. BUT the Cth did so not in its capacity of operating a business and as such was not at the time engaging in trade or commerce for the TPA to apply to it. Hughes Aircraft v Airservices Australia (1998) 146 ALR 1 RFT representation that CAA would conduct its tender evaluation fairly and would deal fairly with a tenderer. CAA breached s 52 by failing, amongst other things: to evaluate tenders in accordance with the priorities and methodology in the RFT; to ensure that measures designed to achieve strict confidentiality of information contained in tenderers proposals was maintained; to reject an out of time change to a tenderer ’s tender
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com) In this case Olex Focas (a subsidiary of Pacific Dunlop) agreed to undertake certain work for Skoda on a pipeline that was being built in India. To ensure Skoda's position in relation to the contract OF provided bank guarantees which were essentially two types: the first type was given to secure mobilisation advances/securement advances; the second type was given to secure the performance of OF's work. A dispute arose about whether the work done by OF fulfilled the obligations despite certain delays. Skoda, in denying that it did, demanded that unless OF agreed to reduce its claim for work done it would make a demand on the bank to pay amounts due under the guarantees. OF alleged that the threats amounted to a breach of the unconscionable conduct provisions of the Trade Practices Act. The judge held that while the calling up of the performance bonds for the full amount was not unconscionable, the conduct relating to the mobilisation or procurement of advance guarantees was unconscionable. In the course of his judgment the judge referred to a number of other judgments in which the term 'unconscionable' was discussed. In particular he was influenced by the comments of Justices Deane and Dawson in Stern v McArthur (1988) 165 CLR 489 at page 527 that: [A] person should not be permitted to use or insist upon his legal rights to take advantage of another's special vulnerability or misadventure for the unjust enrichment of himself. The judge felt that by calling on more than the money that was needed to protect itself Skoda was not acting appropriately. Although within its legal rights in the conpenalties of the terms of the guarantee, this was unconscionable and as such contravened s. 51AA of the TPA. (Olex Focas Fty Ltd v Skodaexport Co Ltd 1997 (ATPR Digest) 46-631.)
- How to make a contract or not! Steve Brown (sbrown@etiennelaw.com www.etiennelaw.com)