Contracts (Rights of Third Parties) Act [1999] C. 31

British Act of Parliament. Key sections:

3rd party must be expressly ID'd in K

(5) 3rd party has rights available as if party to K

(6) limitations of liability apply to 3rd parties

(7)(2)(1) where 3rd party has right under 1, parties to K may not vary or rescind without consent of 3rd party if 3rd party has assented to term of promise, promisor is aware 3rd has relied on term, promisor can be reasonably expected to have foreseen 3rd party would rely on term and 3rd party has so relied.

(7)(2)(2) “Assent” includes words or conduct, if sent by post or other means, not regarded as communicated to promisor until received by him.

(7)(2)(3) – 7.2.1 does not apply where term expressly allows rescission or revision w/o consent of 3rd party or parties create other conditions for consent, replacing s.1 a-c.

(4) courts or tribunals may dispense with consent where 3rd party can not be reached or is mentally incapable of giving consent, or where unable to ascertain if 3rd party reasonably relies on term.

if court dispenses with consent, may impose terms or conditions feels appropriate.

Oliver Wendel Holmes, 1987. The Path of the Law. The Harvard Law Review X8. CB p. 340 Article deals with separation between law and morality and “the business of law.” Business of law is prediction of “the incidence of the public force through the... courts.” In order to be good at predicting the law, we need to think clearly about it chief bar to this is to confuse morality with law words often share both contexts, i.e. negligence, malice, but have different meaning. Correct standard to take in understanding law is the “bad man.” cares not a whit for morals or ethics, is only deterred by threat of public force. In interpreting law, we look only to what is likely to engage this force. Example: Ask fundamental question, “what is the law.” Some reply with logical axioms or divine law. Bad man cares nothing for these. Only cares about rules applied by district court. Therefore, law is the rules applied by district court. Or malice: In morals imports an intent to harm and ill will. In law, need only false statements calculated to cause harm, no need for ill-will.

Grant Gillmore. The Death of Contract. 1974. Ohio State University Press. CB p. 348. Contract law in state of doctrinal disintegration. Not an invaluable thing. “Our observation of how the general theory of contract was put together and how it fell apart may stand us in good stead when next we feel ourselves in a mood to build something.” Analogy to literary studies to situate current state of law Classical and Romantic periods. Classical concerned with constructing elaborate theories of everything Romantic with breaking all the rules and focusing on creativity the two are cyclical. We are likely heading into a romantic period, but there will come a new “classical Langdell” to rebuild K theory.

I INTRODUCTION

II Formation of Contract: Moment of Responsibility

Intention

CML – Carlill v. Carbolic Smoke Ball Co. [1893] 1 Q.B. 256 (C.A.): CB 113
CML – John D.R. Leonard v Pepsico, Inc. US District Court, NY (2000): CB 108
CML – Kleinwort Benson Ltd. v. Malaysia Mining BHD. [1989] 1 All E.R. 785 (C.A.): CB 1

Offer and Acceptance

Temporal and Spatial Dimensions of Offer and Acceptance

CML – Pharmaceutical Soc. of G.B. v. Boots Cash Chemists Ltd. [1953] 1 Q.B. 401 (C.A.): CB 211
CML – Entores v. Miles Far East Corporation, [1955] 2 Q.B. 327 (C.A.): CB 191
CML – Shatford v. B.C. Wine Growers Ltd., [1927] 2 D.L.R. (B.C.S.C.): CB 190
CML – Errington v. Errington and another, [1952] 1 K.B. 290 (C.A.): CB 193
CVL – Dawson v. Helicopter Exploration Co. [1955]

CVL Approach to Unilateral Contracts
The Mirror Image and the Battle of the Forms

CVL – C.U.Q. v. Construction Simard-Beaudry, [1987] R.J.Q. 2020 (C.A.): CB 185
CML – Doughboy Industries Inc. (1962) 233 NYS 2d 488 (C.A.): CB 181
CML – Raffles v. Wichelhaus (1864) 2 H. & C. 906 (Exch.): CB 142
CVL - Terrace Holdings v. Saunders [1989]

Alternatives to Legal Contracts

The Option Contract 18

CVL – Cere c. Neely, [1980] C.S. 1160: CB 206

Agreements to Agree 19

CML – Empress Towers v. Bank of Nova Scotia (1991), (B.C.C.A.): CB208

III Consideration and Formalities

The Civil Law and Formalism

Cause

CVL - Hutchison v. Royal Institution (McGill), [1932]

The Common Law and Consideration

IV Contract Drafting and Contract Interpretation

Policing the Agreement

Problems with Not Understanding or Not Reading Terms

Incorporation of Terms: Unsigned Documents

CML - Thonton v. Shoe Lane Parking, [1971]
CML – British Crane Hire Corp. v. Ipswich Plant Hire Ltd., [1975] Q.B. 202 (C.A.): CB 290
CML – McCutcheon v. David MacBrayne Ltd. [1964] 1 All E.R. 430 (H.L.): CB 287

Doctrine of Good Faith

Good Faith in Quebec Case Law

Calls for tenders

V. Policing The Agreement

Absolute Nullity and Objectionable Contracts, Public Policy and Community Values

CVL - Severability

CVL - Brasserie Labatt v. Villa [1995] C.A. Que – CB2: 5 52
CVL - Cameron v. Canadian Factors [1971] SCC – CB2: 10 53
CML - In The Matter of Baby M [1988] Supreme Court of New Jersey CB2: 19 54

2. Is the Contract Voidable / Relatively Null? Vitiated Consent – Flawed Formation

Introduction: Vitiated Consent in CML

CVL - Lesion

Introduction: Misrepresentation – Dol – Mistake – Error

Duty to Disclose

Error / Mistake

VI. Change in Circumstance, Frustration, Hardship

Supervening Events and Change of Circumstances

1. Impossibility of Performance in CVL
CVL – Otis Elevator Co. Ltd. v. A. Viglione & Bros. Inc., (C.A.): CB2 22
2.Commercial Impracticality – CVL

1.CML Frustration 85

VII. Breach and Remedies – Has a Breach Occurred?

VIII Remedies to Breach

SPECIFIC PERFORMANCE

CVL - Belcourt c. Golden Griddle Pancake House Ltd. 1988 CB2: 272
CML - Co-Operative Insurance Society v. Argyll Stores (Holdings) Ltd. CB2: 268
CML – Warner Bros. Pictures v. Nelson, [1937] 1 K.B. 209: CB2 261

DAMAGES 97

IX - Third Parties and the Relative Effects of Contracts