Clarke v. Dunraven [1897] A.C: clubs & competitions. Yatch race rules: contract for damage w/ each other
Simpkins v. Pays [1955]: binding lotteries, consider mutuality, seriousness of statements and repetition
Trevey v. Grubb (1982) ALR: Enforceable agreement in proportion of pay
3. Commercial Agreements
Presumption commercial agreements intended to be binding. Rarely rebutted Helmos enterprises v Jaylor
Edwards v. Skyways [1964] ER: Ex gratia payments. pilot made redundant, promised without liability redundancy pay-out. Does not imply agreement of no legal effect
3.1 Excluding ‘Intention’ in Commercial Context (beware of label and examine content)
Rose & Frank v. Compton [1925] AC: 'honour' clauses and 'gentleman's agreements‘. Burden of proof on person saying there is no contract. no reason why parties may not decide to ‘rely on each others good faith and honour’ and exclude outside intervention in dispute settlement’
Factory 5 Pty Ltd v State of Victoria [2010]: “Heads of Agreement”. Type 4 masters v Cameron, heads where comprehensive and contained details about future negotiation. Intent to be bound in future.
Pirt Biotechnologies v Pirtferm [2001] WASCA: “Letter of Intent” included clause: 'at this stage parties do not seek a contractual obligation', indicated parties still negotiating. Murray j: “if there is ambiguity or omission of important terms, there was no intention to form a binding legal agreement.”
Kleinwort Benson v. MMC [1989] WLR: “Letter of Comfort”.
Norman; Re Forest Enterprises [2011] FCAFC: “Letter of commitment”. Stated it was not binding, did not create legal relations, not supported by consideration and was uncertain and incomplete
4. Government Schemes
Australian Woollen Mills v Commonwealth [1954]: Government wool subsidy scheme in wartime. Held: No intention to make a contract, No statutory authority and no bargain (Cth had no commercial interest in purchase, only to help glut). Was omly a conditional gift/administrative arrangement.
5. Difficult Categories
Burden on person alleging contract
Ermogenous v Greek Orthodox Community (2002): Hellenic association (not church) appointed Archbishop. Archbishop sued for unpaid leave. Held: was an employment contract to perform spiritual duties and extensive rights of control exercised
Kirby: must be house, eat, be clothed… spiritual vocation does not remove need
Joint: had to adhere to their will in the running of the church
Shahid v Australasian College of Dermatologists [2008] per Jessup. student failed, all passes got jobs.
Each lodging of appeal was intended to create legal relations
Objective assessment used: Handbook detailed and comprehensive
Commercial relationship: S major commitment of time energy and money Fees for seminars, sitting exam, appeals. Jessup J: parties not at arms length where payment is made
Consideration
Currie v Misa (1875) LR 10 Ex, Lush J :“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.” (bargain principle)
Thomas v. Thomas (1842) QB, Patteson J: “Consideration means something which is of some value in the eye of the law, moving from the [promisee]; it may be of some benefit to the [promisor] or some detriment to the [promisee], but at all events it must move from the promisee.”
Carbolic: in unilateral contracts the same act may be both consideration and acceptance
*Beaton v McDivitt (1987) NSW: M invited B to move onto land rent free and work it, would transfer deeds on subdivision. B accepts offer as is having difficulties with current LL, constructs residence spent $1000 over 7 years. Fell out, council required demolition of home. LL barrs B from property. No subdivision. Contract held, worked land for promise
Mahoney: intention of parties and discussion required - increased rates meant subdivision benficial
Mchugh: need some exchange (reaffirmed curie v misa) bargain was working the land infor transfer
ex post facto consideration plus reliance on unconditional gift sufficient
Kirby in dissent: required sufficient quid pro quo
No QPQ. Appellant had financial difficulties, rent free occupation was of considerable benefit to him. all LL got was congenial neighbour (more like a social arrangement) – not substantial promise in return for rent.
Consideration was promise to maintain private road (after)
2. Past Consideration
Roscorla v. Thomas [1842] QB: consideration and promise must be linked. sale of horse, later warranty not binding.
Lampleigh v. Brathwait (1615) E.R: Easy “exception” to past consideration allegation, implication to pay (as opposed to mere voluntary courtesy). where services are provided at request a later promise to pay will be binding because the promise ‘couples itself’ with earlier request
Pao On v. Lau Yiu[1980] AC: Good consideration if
Act at promisor's request
Parties understood at start that act was to be remunerated
