Minors: Binding on minor for necessaries, unless repudiated/ void on option of minor
Mentally disabled (intoxicated similar): voidable if they can prove they were incapable of understanding contract at the time and other party new or ought to have know this
Companies, Corporations Act 2001 Cth
s124 a company has the legal capacity of both and individual (both inside and out of jurisdiction), corporation and body corporate
s125 constitution of a company may not limit legal powers
s126 agent may exercise a companies power regarding contracts
2. Formality (linked to express terms and intention):
Common law has few formal requirements
makes identification of terms easier, promotes caution by drawing attention to potentially serious consequences, protects vulnerable parties and channels making certain types
Lord Wright: statue creates rather than prevents injustice as parties can avoid requirements
Statute of Frauds 1677 (Imp)
No action on certain contracts unless agreement is in writing and signed
Vestiges remain in common law world.
Differences within Australian State law
Many technicalities.
Property Dealers and Motor Agents Act 2000 (Qld),
S133: (1) real estate agent must be appointed in writing, (3) must state service and fees
s300: used motor vehicles: (3) dealer must give statement including: identification, names, cooling off period, amount non-refundable, (4) must be signed, (5) before contract to buy
Domestic Building Contracts Act 2000 (Qld)
S26: building contractor must ensure contract is written as soon as practicable (within 5 days) and before work is carried out
S30: must be signed
Electronic Transactions Act 2001 (Qld)
S.8: Transaction not invalid because it took place by electronic means
S.14: electronic signature requirements
Express Terms
Sanctity of written doc v. evidence other of terms (undermines certainty of common law).
1. Signature
L'Estrange v. Graucob [1934] KB: binding in absence of fraud or misrepresentation even if unread.
*Toll v Alphapharm (2004 HC): immaterial whether doc was read. Terms on reverse included as signature below ‘please read overleaf prior to signing’. Exclusion clauses with less clarity can be read down.
Curtis v. Chemical Cleaning: receipt excluded all liability, but when questioned cleaner said it was for beads only exchange limited exclusion. Denning: reasonably thought it was just a receipt.
1.1 Doctrine of Non Est Factum (it is not his deed, historic use, heavy onus of proof)
Petelin v Cullen [1975 HC]: could not read or speak English, signed contract. Upheld. Limitations:
unable to read or have any understanding of a doc through no fault of their own
signed doc believing it was radically different OR failure to understand was not due to carelessness
Should take reasonable precautions to ascertain character of doc before signing
Saunders v. Anglia Building Soc. [1971] AC: Mrs G glasses broken and signs transfer of house to wrong person. Held: G new it was a legal doc. Should have got glasses or assumed risk herself.
DOC: BOP on signer. Mrs G not physically or mentally incapable. busy, lazy or relied on trusted person insufficient. Could have asked it to be read or got glasses.
2.2 online signatures: Elizabeth Macdonald:
EU and UNCITRAL define and allow online signatures
Clicking I agree should not amount to signature and incorporate l’estrange were unjustness outweighed by certain as not reading online is more common and lacks significance and alerting power.
2. Term/collateral contract or mere representation/opinion
Stoddart Tiles v. Alcan (1983) SCQld: May be possible to look outside doc to find intention
Nemeth v Bayswater Road [1988] FC Qld (obiter): “presumption will vary according to a variety of circumstances, including the nature, form and content of the written instrument”
Old cases strict application: Gordon v McGregor (1909) CLR: presumption doc is binding record of contract
3.1 Exceptions to PER
Equuscorp Pty Ltd v Glengallan CLR: Extrinsic evidence is admissible for “exceptions”
Ambiguity and Implied terms Codelfa (1982), if both parties want to rectify, Custom Hutton v Warren (1836), Condition precedent Pym v. Campbell (1856), Invalidity (eg misrepresentation or “mistake”) Curtis v. Chemical Cleaning & Dyeing (drycleaning), Rectification (equity intervention), Estoppel Saleh v Romanous [2010]
Collateral contracts (independent contract connected to main contract, one consideration for other)
Van Den Eschert v Chappell (1960) WAFC: P bought house after being answered there were no white ants. Signed contract did not mention ants. Promissory: immediately before contract signed, tipped him over the line and ants a big problem in aust.
Hoyt's v. Spencer (1919) CLR: Knox, Rich and Issacs: where written contract is contradicted by collateral PER applies. lease said terminable on 4 weeks, but landlord promised beforehand.
cf: Ferguson and Maralinga: not court function to determine parties agreements, cant say agreement doesn't reflect intent when there is knowledge and a signature
3.2 Contract Partly In Writing
The Ardennes [1951] KB: oral promise cargo would sail direct, once loaded doc issued allowing detour. Doct not contract but evidence of it.
County Securities v Challenger Group (2008) NSWCA: Extrinsic evidence of conversations could be admitted. Spigelman CJ: ‘subject matter determined using surrounding circumstances including conversations, docs and conduct ’. Important to distinguish oral contract from negotiations
Skyrise Consultants v Metroland [2011] NSWCA: Easier to say part oral/part in writing if consistent.
“Entire Contract” Clauses
Nemeth v Bayswater Road [1988] FC Qld: indication that doc meant to be entire contract in exclusion clause. McPherson: pre-contractual oral exchange expressed hope.
Skiwing v Trust Co [2011] FCA: Sensible use, clause cannot exclude fraud. clause combined with questionnaire effective in acknowledging what has been agreed rather than excluded
Alstom v Yokogawa Australia: to supersede earlier agreement
Hope v RCA Robophone(1937) CLR: Clause conclusive Cf. Nemeth v Bayswater Road: Not decisive
MacDonald v Shinko Australia [1999] QCA: Clauses show intent but are subject to: rectification, misrepresentation, implied terms, later oral variation, attempts to excluded liability - CCA 2010,
