...Consideration is considered to be the third element of contract law that needs to exist to form a contract. There is an exchange of promises between two parties a promisor and a promisee where each party either have a benefit or suffer a detriment, which is referred to be a consideration. Sir Frederick Pollock defined consideration as "An act or forebearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable" authorized by Lord Dunedin in Dunlop v Selfridge Ltd [1915] AC 847. In the sense of law, consideration should value something (Thomas v Thomas) (1842)and doesn’t include any promises of affection or feelings or other moral/gratuitous promises. Consideration can also be any type of advantage to the promisor while it often is an amount of money paid. Even though, there is an advantage or a disadvantage to either a promisor or the promisee, there are no exact amount or value. Until and unless there are some, courts aren’t bothered about the adequacy of the consideration as both parties are allowed to bargain their liberty of contract that’s good for themselves with no obstacles from courts. (Harvey, 2013). Consideration is a significant part of a lawfully enforceable contract, as the absence of it would restrict the law from enforcing the promises made by the promisor during an agreement made or contract formed. However, the existence of consideration doesn’t itself solve all...
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...Consideration and Promissory Estoppel The Formation of a Contract 3 Consideration and Promissory Estoppel 1. CONSIDERATION In general, agreements or promises are contractually binding in English law only if supported by consideration. The requirement of consideration means that each party must receive or be promised something in return for giving or promising something. Consideration is, therefore, the legal description of the element of exchange and its practical effect is to ensure that gratuitous promises are not binding whereas bargains are. So if A promises B £1000, B cannot enforce that promise because B has provided no consideration (nothing in exchange) for it. It is traditional to define consideration as a benefit to the promisor or a detriment to the promisee. So in Currie v Misa (1875) LR 10 Ex 153, 162 Lush J stated, ‘A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.’ This definition can be misleading unless one emphasises, in line with the need for an exchange, that the detriment to the promisee must be requested by the promisor. So if A promises B £1000 and B, in reliance on receiving that money, buys a car, that may constitute detrimental reliance by B but B has not thereby provided any consideration for A’s promise. In contrast, if A promises B £1000 in return for B’s car (ie...
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...three express the thought of the evenhanded and impartial application (mishpat) of a righteous moral standard (tseden) producing an evenness or equality (meshar) in outcomes in like cases." ------------------------------------------------- God has jurisdiction over all as creator. ------------------------------------------------- Man is made in the image of God and can contract based on language and promise ability. ------------------------------------------------- A person has reason to expect that a person made in the image of God should keep his promises. I. Bases for Enforcing Promises-Theories of Recovery * Unilateral contract: one party makes a promise in exchange for performance * Bilateral contract: both parties make a promise A. Consideration * Consideration: something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promise; that which motivates a person to do something, esp/ to engage in a...
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...& the CISG- applies mainly to international contract issues Consideration * Consideration as Benefit or Detriment 21–32 * Appeal of Clark * Court defines consideration via benefit-detriment analysis * Court allows individuals to place a value on services, the court has no right to limit the values a contracting individual puts on the services they receive * Dougherty v. Salt * In order for there to be consideration, both parties must understand that a bargain has happened (a child cannot understand a bargain) * Why is consideration required * Hamer v. Sidway I * Gratuitous transfer (i.e. to give someone something) is not consideration * Consideration must be something of value (a benefit for a detriment trade-off) * Hamer v. Sidway II * Forbearance from a legal right (drinking, smoking, pressing charges) can be consideration because it counts as the detriment element of consideration * Consideration to enforce a K “consists of a right/profit/benefit accursing to the one party, or some forbearance/detriment/cost by the other party” * The benefit elements does not have to be pecuniary * Consideration as Bargain 33–48 * Baehr v. Penn-O-Tex Oil Corporation * Consideration must be the product of a bargain * Forbearance from a legal right is not consideration...
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...Contract Law Notes Contracts ‘A’ Offer - Bilateral contracts - Unilateral contracts - Offers to the public at large What is an offer? - Mere puff - Supply of information - Invitation to treat Categorizing transactions - Advertisements a) Advertisements in a catalogue or a curricular b) Advertisements in newspapers or magazines c) Advertisements appearing on the internet d) Display of goods - Auctions a) Advertisement of auction b) Auctions with reserves c) Auctions without a reserve - Tendering - Standing offers ➢ Options Communication of an offer Termination of an offer - An offer may be terminated by a) Revocation by the offeror b) Rejected by the offeree c) Lapse of time d) Failure of a condition subject to which the offer was made e) Death Acceptance Requirements of acceptance Acceptance must correspond to offer - Offeree must have knowledge of and act in reliance to an offer Page 9 Page 9 Page 10 Page 12 Page 13 Page 14 Page14 Page14 - A counter offer is not acceptance - Acceptance must be unqualified - Mere enquiry does not constitute acceptance Notification to the offerer of the fact of acceptance - Method of acceptance a) Method of acceptance stipulated by offer b) Acceptance by silence c) Acceptance by conduct - Instantaneous communication: Acceptance must be communicated a) General rule b) Meaning of instantaneous...
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...Contract Law Notes Contracts ‘A’ Offer - Bilateral contracts - Unilateral contracts - Offers to the public at large What is an offer? - Mere puff - Supply of information - Invitation to treat Categorizing transactions - Advertisements a) Advertisements in a catalogue or a curricular b) Advertisements in newspapers or magazines c) Advertisements appearing on the internet d) Display of goods - Auctions a) Advertisement of auction b) Auctions with reserves c) Auctions without a reserve - Tendering - Standing offers ➢ Options Communication of an offer Termination of an offer - An offer may be terminated by a) Revocation by the offeror b) Rejected by the offeree c) Lapse of time d) Failure of a condition subject to which the offer was made e) Death Acceptance Requirements of acceptance Acceptance must correspond to offer - Offeree must have knowledge of and act in reliance to an offer Page 9 Page 9 Page 10 Page 12 Page 13 Page 14 Page14 Page14 - A counter offer is not acceptance - Acceptance must be unqualified - Mere enquiry does not constitute acceptance Notification to the offerer of the fact of acceptance - Method of acceptance a) Method of acceptance stipulated by offer ...
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...been entered with a free consent and for a lawful consideration between two adults. Electronic contracts are not paper based but rather in electronic form and are born out of the need for speed of execution, convenience and efficiency. Due to growing competition, organizations are focusing more on their core business activities and moving towards outsourcing of other activities and services. This business model necessitates companies to work with different vendors and partners by mutually arriving at contractual agreements in order to identify roles, responsibilities, obligations and deliverables of specific organizations and individuals. Typically, a legal contract forms the basis to regulate interactions between different parties in businesses and governs legal aspects when there is a breach of contract. The Indian Contract Act, 1872 governs the manner in which contracts are developed and executed in India. The Act governs the method in which the provisions in a contract are implemented and classifies the effect of a breach of contractual provisions. Within the framework of the Act, parties are free to choose the terms of the contract. The Act itself consists of limiting factors subject to which contract may be entered into, executed and enforced. It only provides a framework of rules and regulations which govern formation and performance of a contract. The contracting parties continue to decide by themselves on the rights, duties and terms of agreement between them. The court...
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...Liability of the School for Students Injury Arising Out of Acts or Omissions of Teacher, Instruction, Professor, and School Officials : Some Legal Bases 2. Duties and Obligations of Teachers, students, School Officials and Personnel and the School Personnel : Some Legal Bases 3. Rights and Privileges of Parents, Students in School, Teachers and Academic Staff, and School Officials and Personnel and the School itself: Some Legal Bases ________________________________________________________________________ School Liability for Torts * En loco parentis- teachers become the surrogate parents of the students or pupils in schools (no limit of age) * It is based on Article 2180 and Article 2176 of the Civil Code of the Philippines. Art. 2180 (Civil Code) * The obligation imposed by article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. * Teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. Article 2176 (Philippine Civil Code) * “Whoever, by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relations between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.” En Loco Parentis provides for ...
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...UCC 2-104 (definition of “merchant”) 1 A person who (1) deals in goods of the kind or (2) otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or (3) to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. 2 Common Law/Restatement 1 Applies to all other (non-UCC) types of contracts (e.g., services). 2 Restatement is not enacted law itself, but “common law ‘persuasive authority’ with a high degree of persuasion.” CONTRACT FORMATION 1 Definition of a Contract 1 A contract is a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. 2 It requires an offer, acceptance, and consideration. 2 Offer 1 Common Law Definition: 1 A promise, undertaking, or commitment to enter into a contract, definite in its terms, and communicated to the offeree. 1 The manifestation of a present contractual intent that is certain as to time, price, subject matter, and parties and communicated to the offeree. 2 UCC 2-204 (Formation in General) 1 Requirements for a contract are relaxed under UCC 2 Court will imply reasonable terms if terms are missing. 1...
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...MEMORANDUM TO: SENIOR VP OF OPERATIONS FROM: DIRECTOR OF HUMAN RESOURCES SUBJECT: SITUATIONAL REVIEW DATE: 9/18/2012 Having reviewed the three cases that were brought to my attention to be analyzed I am, hereby, submitting my formal review of each independent situation. Situation A In the case of Employee A, we must take into consideration the regulations of the Family and Medical Leave Act. The FMLA regulations protect employees by allowing for 12 weeks of unpaid leave during a 12 month work period. The employee is further protected by being allowed to return to their former position, with the same pay rate and benefits they had before taking leave. However, there are restrictions such as company size and how long the employee has worked for the company. For starters, our company has more than 50 employees and therefore, we are required to provide FMLA leave. Furthermore, Employee A has worked for the company for two years and the FMLA stipulates that an employee must be employed for at least 12 months. The facts of the case are that Employee A requested leave for the birth of his twins which was granted to him by the previous manager of his department. Our current department manager has allowed for Employee A to return to work and is continuing his pay at the rate prior to his leave. The cause for concern lies in the denial of recuperation of Employee A’s withheld salary during the 11 weeks he was on leave. When choosing to deny Employee A’s request to...
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...EGLIGENCE: P can successfully sue D for common-law negligence if she can prove four elements: (1) duty of care; (2) breach of the duty of care; (3) causation; and (4) her damages, injuries or losses are not too remote. (1) Duty of care (DOC):Did D owe P a DOC? (consider RF type of person) PHYSICAL INJURY:P suffered physical injury, so we apply the Lord Atkin’s ‘Neighbour Test’: : which is we owe a duty of care to people who are so closely and directly affected by my act or omission that, as a reasonable person, I should think about those people when I am about to act or to not act . The law applicable is stated in the case of Donoghue v. Stevenson which states a defendant owed a duty of care if it was reasonably foreseeable (RF), prior to the accident, that its actions could cause harm to the type of person as the plaintiff. (write down the logic of actions, from the careless act to what and to what… then conclude it is FR…) When A carelessly drove 150km/hour on his motorcycle at noon through Phu My Hung, it was RF that pedestrians such as B could be injured, because…) the human brain's reaction and response time to visual images is not fast enough to safely control a heavy, hard steel motorcycle at such high speed, and when it goes out of control, the laws of motion and inertia will cause it to veer off the road and hit anything including people near the road, whose bodies are soft and will sustain injury upon impact. Also, at noon in Phu My Hung there are many pedestrians...
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...to the exchange and consideration. a. When charitable promises are made without consideration or reliance there must be formality (evidence that the parties intended to be legally bound). (Deleo) i. Oral vs. Written ii. On death bed vs. more lucid with witnesses 2. BARGAINa. Consideration Elements (§71) i. To constitute consideration, a performance or a return promise must be bargained for. (§ 71(1)) Bargained for: sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. (§71(2))(Whitten v. Greeley-Shaw: mistress; husband did not bargain) Performance may consist of: (§71(3)) a) an act other than a promise; b) a forbearance (Hamer v. Sidway: no drinking deal w/ uncle) (Duncan v. Black: empty cotton suit); c) the creation, modification, or destruction of a legal relation ii. Warnings for a lack of bargaining (from Whitten): The party proposing the contract also receives material benefit One party is vulnerable and the other takes advantage of a duress-like situation b. Consideration as Motive (§ 81) i. The fact that what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise. A offers B a book for a promise of $10. Still valid consideration even if A intends to give B $10 whether or not he gets the book. ii. The fact that a promise does not of itself induce a performance or return promise does not prevent the performance or return promise from...
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...UNIT 05 ASPECTS OF CONTRACT AND NEGLIGENCE FOR BUSINESS ASPECTSA Table of Contents P1.1 THE ESSENTIAL ELEMENTS REQUIRED FOR THE FORMATION OF A VALID CONTRACT 2 Offer 3 Acceptance 4 Consideration 4 Capacity- Concept of Minor& Privity 5 Intent to create legal relation 6 P 1.2 DIFFERENT TYPES OF CONTRACT 7 P 1.3 DIFFERENCE BETWEEN CONDITIONS AND WARRANTIES 8 P 2.1ELEMENTS OF CONTRACT APPLIED FOR THE BELOW SCENARIOS 8 P 2.2 TERMS IN DIFFERENT CONTRACTS 9 P 2.3 THE EFFECTS OF DIFFERENT TERMS IN GIVEN CONTRACT 10 P 3.1 CONTRAST LIABILITY IN TORT WITH CONTRACTUAL LIABILITY 11 P 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE 12 P 3.3HOW A BUSINESS CAN BE VICARIOUSLY LIABLE 14 P 4.1 ELEMENTS OF THE TORT OF NEGLIGENCE AND DEFENSES IN DIFFERENT BUSINESS SITUATION 15 P 4.2 ELEMENTS OF VICARIOUS LIABILITY IN GIVEN BUSINESS SITUATIONS 16 Bibliography 17 P1.1 THE ESSENTIAL ELEMENTS REQUIRED FOR THE FORMATION OF A VALID CONTRACT A contract is an agreement which legally binds the parties to it. There are five essentials which must first exist in order to create a valid and legally enforceable simple contract; (i) Offer (ii) Acceptance (iii) Consideration (iv) Capacity (v) Privity (vi) Intent to create legal relation Offer Anoffer is a definite undertaking or promise made with the intention that it shall become binding on the person making it as soon as it is accepted by the person to whom it is addressed. Offers can be expressed...
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...Question: Ian is the finance director at Silver Sachs, a banking ………within a company. What is the likelihood of Ian keeping his job? The position of Ian as a director of the company is one of utmost importance. Directors are tasked with managing the company in such a way as to maximise the benefits to shareholders and other stakeholders, whilst ensuring that the company complies with all applicable laws and regulations. It is, therefore, a serious matter for the company if a director is underperforming or if he or she is at odds with the strategies which the majority of the company’s management have adopted. In such circumstances, there may be no option for the company other than to seek the removal of such a director from office. In many companies, the power to remove a director from office is granted to the board of directors or to a majority shareholder under the company’s Articles of Association. For these companies, removing a director will be a relatively straightforward matter, usually requiring the board or majority shareholder to simply serve written notice on the director in question. For companies which do not have these powers enshrined in their Articles, company law provides a statutory procedure to allow shareholders to remove a director by passing an ordinary resolution at a general meeting of the company. Statutory Procedure The procedure for removing Ian by ordinary resolution is set out in sections 168 and 169 of the Companies Act 2006. A shareholder...
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...industries, there has been numerous cases of unethical conducts which have led to the collapse of great companies in the past such as Enron and Worldcom. In recent times however, many organisations have been taking practical steps to incorporate ethical principles in the daily operations of the business in. The importance of business ethics cannot be overemphasized in the role it plays for any organisations whose objective is to continue in business for the foreseeable future. In the bid to maximize profitability, several managers have failed in their responsibility to act ethically in the conduct of their business because they have given less consideration to the ethical issues, which will have long term impact on the organisations, while focusing on short term financial considerations. Unethical behaviours do not just affect the organisation itself but also negatively affects all stakeholders of the organization – for example, giving bribe to a customer representative does not only affects the company’s reputation but also promotes the societal ill of dishonesty and lack of integrity; when a company is declared insolvent as a result of a fraud perpetrated by senior management, there is a threat to the source of livelihood of the employees of the organisation. Therefore, in order for a business to remain sustainable and relevant in the society, the role of ethics in the business conduct must not be downplayed. So What is Ethics? Ethics is a concept of human behavior which promotes...
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