FORMATION. Meet of mind, off/acpt, not vague. [Offer. Inv to Treat] Baston v Toronto Fruit Vinegar Co.

Written exchange make final arrangements. No offer/accept. Fisher v Bell. Display knives. Invitation to treat (inv t). Harvey v Facey. Intention; no offer to sell, just price statement. Canadian D. Offer? Actions say yes; subsequent conduct. HBC v Rich. $$ bonds. Verbal thats done. Yes o/a. Pharma v Boots. Display offer or inv t? display is inv t. Christie v York. Black man refused service. Freedom of commerce. [Comm. Offer] Carbolic. Offer? Unilateral contract. Goldthorpe. Electrolysis. Ad an offer? Yes, procedure=acceptance. Anderson v Cntl Wisc Railw. Sale of Goods Act, fall of hammer is acceptance. Payne v Clark. Bid=offer; hammer=accept. Auctioneer free to reject. Harris v Nickerson. Auctioneer can w/d bf auctn. Warlow v Harrison. w/o reserve. No liability, didnt know scheme. McManus v NS. w/o reserve. Card: refuse bid. Bid=offer; conditional acceptance; receiver=no appc. Terms of diff items can change. Harvela Invsts. Offer in tender sale? Is good. Need specific forbidding of referential bid. RvRon Eng. w/d tndr aft time ended? Tenderer w/d late breach contract; lost dpst. MJB Enterprise. Resile from privilege clause. Owner only accpt compliant bid; otherwise contract breach [scc]. Blair. Transcription. Offer communicated? No. Williams. Motive irrelevant. RvClarke. Act must be with intention of accepting offer. [Acceptance]. Stevenson vMcLean. Correspondence a contract? Accepted when commd to offeror. Livingstone. Intervening acts end contract? cannot reduce=offer still open. ButlerMachineTool. Accept? Whose terms? Battle of forms: 2nd doc. Purchase on buyers terms, no price variation. ParketteApartments. Back-forth offers, final one not communicated/accepted. No unequivocal acceptance communicated. Tywood. Arbtr clause after negotiations. Clause seemed to be after thought, no concern; not part of contract. ProCD. Telephone database. License accepted as purchase? License attribute of good purchased. Century21vRogers. Offer accepted re info? Contract? Website use acceptance/agreement of terms. DawsonvHeli. Talks, agree, site w another. O/a? Binding bilateral contract; clear acceptance.Felthouse.Exchg letter re:price. Ownership interest? Silence cannot=accpt, no contract. SJSTug. Use bynd contract=same conditions? Tug still standing by; liable for +charge [scc]. Eliason. Offeror stipulated request wagon. Impost method? Yes; no oblg until accpt as reqd.[Comm.Accpt. Termntn Off]. HouseholdInsrvGrant. Shares, company bankrupt. Accept commd to offeror? Contract complete when offeree posts letter. HenthornvFraser. Offer, 3P, try to w/d orig. Accept commd b/f offer w/d? Postal accpt. Accpt made b/f revocation; binding contract. HowellSecur. Purchase by mail. Never reached recipient. Terms overrule pstl accpt? Yes; clear wording. CharleboisvBaril. Same as Henthorn. Postal accpt, not applic if orig ofr was delivd, not mailed [scc-qb appeal]. Brinkibon. International. Accept? Contract UK? Instant comm. Contract=when/when accept to offeror. DickensonvDodds. Offer open until x time. No contract; offer withdrawn; need bind the offer, w/o it is nudum pactum; no consid. Byrne. Tin plates. Offer, then revoke, but accepted b/f recd. Does w/d effect until commd? Postl for revoc? Revo after accpt=binding contract. Errington. Father bought house. Pay loan, its yours. Couple have right to stay in house? Enforceable agrmnt? No evict; entitled to transfer when loan paid; cannot w/d unil contract when performing. BarrickvClark. C off to purch, reply telegr. No teleg reply, new date/swift close. Binding contract? Not accpt in reasonable time. [Certainty of Terms]. Q of intention and intention. RvCae. GC sell AirCan maintn base; loose lang. Doc to contract? Too vague/uncertain? Yes; no. Enforceable contract. HobbsvEsquimault&NanaimoRail. No pvt mng to words. RafflsevWichelhaus. No bndg contract if meaning=undeterminable. Staiman. Steel beams. Ambiguous, not included; followed Raff. May&Butch. Price in future;time-to-time; arbitr. Binding contract? Price? No contract; soga arbit clause ineffec w no contract. Hillas. English timber firm to buy Russian timber. 1931 binding contract? CA: gentlemans agrmnt. HOL: binding contract. Foley. Petrol deal for car fleet; 3 yrs ok; found better deal. 2nd contract binding? Yes. Wording/prevs conduct. NicoleneLtdvSimmonds. Meaningless clause can be removed, unless removal renders entire contract meaningless. [Agreement to Negotiate] EmpressTowers. Commercial landl/ten, renewal clause mutually agreed. Renewal clause void b/c uncertain? Contract reqd good faith; ll didnt do, tenant not evicted. Mannpar. Contract to remove/sell gravel on reserve land. Renewal clause: satisfactory performance. Renewal clause uncertain? No enforceable renewal term. Wellington. Process contract: good faith sales, not less than current market value. Enforceable contract? No, unenforceable. [Anticipation of Formalization] Bawitko. Complicated order. youve got a deal. Oral contract complete and binding? No. Contemplated signing; cannot contract to contract. CONSIDERATION. [The Promise] CurrievMisa. Defn of valuable consideration: interest, right, profit or benefit accruing to one party; forbearance, detriment, loss or responsibility given, suffered, or undertaken by other party (adopt SpruceGrovevYellowhead). GovernorofDalhousieCollege. Donation pledged, but never paid. Consideration to enforce payment? Or, contract to pay created? No binding contract. Otherwise naked/voluntary promise is converted to binding prom. BrantfordGeneral. Sim to Dalhousie. Marquis pledge 1M, died. Hospital wanted remaining. Consideration for pledge? No; never sought naming, cannot map as consid. Wood. 50% profit to Lady Duff for her endorsement; she endorses others. Consideration? Yes, enforceable. Eastwood. Money spent on baby Sarah (borrowed), agreed to pay back+inter, hubby prom to payback. Consideration (past)? No consideration for hubbys promise. Lampleigh. Murder. Riding around. Can promise of $ for pardon be enforced as contract? Contract enforced. RoscolavThomas. ThomasvThomas. Wife able to live in house for her lifetime or have 100pds. Consid for agrmnt? Yes. Mrs. Thomas could not be evicted. LorangervHaines. H land to L, liked him. L hesitated, but agreed. Agrmt drafted; L paid for services benefit both; L built house; H refused when relationship waned. Consid? Yes, specific performance ordered (estoppel). Callisher. Monies from Honduras govt. Contract enforceable as forbearance of prosecution of claim; good consideration. spent consideration: doing what supposed to do anyway. ShadwellvShadwell. Nephew promised to marry; uncle promised $; legally binding promise. PaoOnvLauYiuLong.nd Contract for indemnity? Good consid as promise to perform; or performance of pre-existing contractual obligation to a 3p can be valid consid. StilkvMyrick. Deserters on ship. Promise to pay more; not delivered. 2 agrmnt contrary to public policy; consid? Void for want of consid; past only, nothing new. GilbertSteel. Contract; price of steel rise;nd agreement, nothing signed. Consid for oral change in oral price? No consid; oral change in price unenforceable. WilliamsvRoff. (tripartite). Owners, 3p. contractors def, subcont plain. Money for flates. Consid for 2 contract? No duress from plaint; good consid to adv to nd nd defnd; defnd pays 2 contract in full. GreaterFreddyAirport. Dispute, went to arbitrn. Did arbitrator err in finding 2 contract enforceable? Consid? No fresh consid, but modern Stilk allows court to enforce contract if no economic duress. FoakesvBeer. Beer had judgement against Foakes. Payment plan, no further action. Seems like waiver of interest, is it so? No consid for waiver of interest. Instalments not diff than full.ReSelectmove. Govt official agrd to accpt payment from Selectmove b/c cash flow. Govt demanded money, but Selectmove made instalments, accptd by govt. If accpt by govt, then good consid? Agrmt unenforceable b/c no consid. FootvRawlings. Promissory note from defndt. Plaintiff offered reduced interest if defndt followed payment plan. Post dated cheques; defndt cashed then sued. Consid for agreement to forebear proceeding on notes? Action premature as there was binding agrmt to forbear proceeding so long as compliance w agrmt. [Promisory Estoppel]. HughesvMetro. Lease between landlord/tenant. Can ll enforce lease using notice to repair? Tenant given 6mos after negoti to do it, tenant completed. CentralLondonProp. 99yr lease w flats. WWII happened, lowered lease price. Friendly proceeding to determine proper rent for last 2 qrtrs in 1945. Agrmt to reduce rent binding on parties? Equitable or promissory estoppel ceases when conditions for estpl end, and is no longer is promisor bound to his promise to not enforce it strict lgl rghts, as promise was made w/o consid. JohnBurrows. Defndt purchased bldg, terms on note. Later than 10 days pymnt, acceleration clause; multiple late pymnts.. Is plaintiff estopped from legal rght to invoke acclrtn clause? Evidence warrant such inference that plantif intended these indulgences. DCBuilders. Little bldg. company. Work done, $ overdue; bitch wife. Accord/satis? No consid; actions of plaint=equitable estopl? Saskatch. Life insurance policy, payments, reinstatement if lapse w med evid. Conduct/actn waive its rights? Waiver retracted? Y waiver, effctly rtrctd, policy lapse. Waiver reqs: contrcting part w full knwldg of rights & others defici; gives unequiv and consc intent to abdn rights by actn/condt. Time is of essence: trans must be prfmd on day, innc prt term for dly. Landbank. Contract; t.o.e. vendor dndt satis. Ext waive t.o.e. provis? No, ok to insist t.o.e. WJAllan. Diff currency, on par. Diff contract? Estop? Yes; yes. Cndct=waive rghts. CombevC. Eng divorce. Estp as sword; not ok. If promise, and accptd, cannot revert. Petridis. Lease, renew by date. B4 date, tnt said get together no deal. Ll estopd from term tncy? Waive rght for time lim? Waiver appld; 28 days not rsnbl ntce restore rghts. Promissory estopel is usually done by words. Waiver is usually done by action of promisor. Robichaud. Debt consol. Estpl by plaint? Defence only? Yes consid. ZelmvervVictorProjects. Silnc vs words/+cndct could=estpl.M(N). prom to pay mortg if grl to Canada. She went, no mortg pymt; 100k to pay mortg. A sued for mortg pymt and loan forgive. Estpl to proms w no prev contrctl rltns? LEGAL RELATION. Balfour. Married cpl mov arnd, get split. Reneged on money. Intend to create leg rltn? No contract; court doesnt want to regulate. Osorio. Race horse deal; share winnings w bet hedge. Intent to create lgl rlt? Agrmt to take <? Binding contract; no accrd/satis to accept less. Rose. Enter into honour only contracts; no lgl juris. Can bsns contrc create non bindg contrc w words? Yes. Contract unenforceable; unpaid goods had to be paid for. RoyalbankvKiska. No seal, but word seal. Mjr=yes consid. Laskin dissent; you need seal. [Requirement of Writing]. Not part of common law. But part of ON, tres imp. ON Stat of Fraud. no action can be brought. Contract unenforceable, but valid. McKenzievWalsh. Essential terms=parties, property, price. DynamicTransport. Parol evidence sufficient materiality re note/memo: plantvbourne-memo descrbd land, was good re subj matter; mcmurrayvspice-describ prop, was good; bleakleysmith-descrb prop, was good; turneyvzhilka-parol evidence not sufficient. Joinder Documents satisfy Stat of Fraud. Signed&unsigned can be joined, must be ovvi cnctn/ref btwn them; parol cannot join. Deglman. Degl lives w aunt, she would give neighbourin house if he helped her/drove her. He did. Contract? Part Perform? No part perform, appeal allowed; quantum meruit. Thompson. Like Degl, but years of servitude. Power of attorney drafted, oops (will?)! part perform for oral cntrct (out of s.o.f)? Yes, part perform. Stronger than Deglman, many years of work. Lensen. PRIVITY. ProvendervWood. Court allowed 3P to sue. TweddlevAtkinson. Consideration must move from the promise. If no consideration is coming from someone then that person cannot sue on contractthat person is 3p to consideration. DunlopTyrevSelfridge. Tyres at list price with Dew, unless motor trade, then 10% off. Can person who is not a contracting party in 2nd contract enforce its first contract with one of the parties to that second contract? Only a party to contract who has been given consideration can sue on it, Dunlop a stranger to second contract; Dunlop could not enforce contract between selfridge and customers and could not obtain an injunction. Beswick. Uncle coal deliv. Nephew worked for him, wanted to take over. Contract entered, when died, widow gets 5pds/wk for life. Neph paid uncle, he died, made one widow pymnt, stopped. Widow sued for enforcement of contract (administratix). Could widow, 3p, enforce contract as administratix or as beneficiary? So long as party and beneficiary sue, then court can enforce contract for beneficiary. TrustRelationshipVandepittevPreferredAccident. Can R.E. Berry enforce insur contract as trustee for the benefit of his daughter so his insurance company will have to pay judgement? No trust relationship, no indemnity by insurance company. McCannel.Studebaker contract w dealers. Outside area, split commission. Does no privity stop a dealer from another area (who is not a party) between selling dealer and Studebaker enforce this provision against the other dealer? Privity does not apply when 3p is principal and contracting party is the agent. NewZealandShipping. 4way contract. Can non-party rely on limitation of liability clauses? Carrier was agent of the stevedores and as such the Bill of Ladings limitation of liability clauses protected the stevedores. LondonDrugsLtd. Transformer stored in warehouse, dropped by employees. Can the employees rely on the limitation of liability clause? Employees could invoke the clause, even though the language wasnt clear re employees (see test). EdgeworthConstruction. Build section of highway; lost money b/c of poor engineering drawings (hired by BC), construction suing engineers. Could engineers take advantage of the limitation of liability clause in tendering documents? Engineers could not rely on lol clause. FraserRiverPile. Fraser barge under charter of Can-Dive sunk. Fraser made insurance claim; insur policy had clause that disallowed subrogation against fault of part. Fraser River waived clause and insures sued Can-Dive. Can Can-Dive take

advantage of waiver of subrogation clause in insurance contract even though not party? Applying principles in London Drugs, 3p beneficiary Can-Dive may rely on waiver of subrogation aand cannot be sued by insurer, and established another exception to privity rule. Contract Formation. Offer/acceptance; certainty of terms; consideration; intention to create legal relations; exchange/reciprocity. Company service, displaying service = invitation to treat. Online service, catalogue = offer to sell. Acceptance: an offer can be accepted once notice of acceptance has been given properly, even if it hasnt reached offeror. Expression of words or conduct to assent to the terms of an offer. Courts will find bilateral contracts when two people exchg mutual oblgatns in normal commrc transaction, vs unilat contract, requiring performance before acceptance. Sale of Goods Act: auctions (hammer is acceptance); Section 16 of the Mercantile Law Amendment Act, R.S.O. 1990, c. M.10, which provides for an exception to the rule in Foakes v. Beer: 16. Part performance of an obligation either before or after a breach thereof when expressly accepted by the creditor in satisfaction or rendered in pursuance of an agreement for that purpose, though without any new consideration, shall be held to extinguish the obligation. R.S.O. 1990, c. M.10, s. 16. It only applies in part performance. It does not apply when there is no performance or complete forgiveness of a debt. It also does not apply for executor contracts (contracts that are underway). If agreement is accepted by duress or some other vitiating circumstance then it is not a valid agreement. Certainty of Terms. Law looks to enforce exactly what the parties have agreed to and share an unambiguous understanding of their respective rights and obligations. The court will not enforce an agreement where each party has expressed a different set of rights and obligations. Usually question is one of the degree of vagueness and also a question of intention: 1) did the parties intend to contract? 2) what is the intention of the parties as to the wording used? Commonly, terms fail to define essential obligations. Agreement to negotiate: usually over future obligations where the parties do not want to commit themselves on prices, delivery dates, etc, until they reach that point in time. Agreements to negotiate may be enforced although damages may be nominal. Anticipation of Formalization: Parties negotiate complex agreements in stages. Prelim negotiations conclude with a letter of intent or a memorandum of agreement, but there will be more items in a large/+complex doc to be negotiated and signed. Subject to Contract are magic words. Their inclusion always leads a court to find that the letter of intent is no binding contract, and that is contrasted w similar words such as a formal agreement will be drawn up soon as possible or subject to the preparation and approval of a formal contract where Courts have concluded that the letter of intent type document is a binding contract (Calvan Consolidated). Indemnity: when one indiv takes on the obligation to pay for any loss or dmg that has been or might be incurred by another. Prima Facie: On the first appearance; a fact presumed to be true unless it is disproved. 3 ways that a promise is enforced: contract; deed; way of estoppel. Enforcement as contract: 1) promise must be supported by consid; promisor must intend to create legal relations. Preexisting Legal Duty: If promise only promises to do what is bound/obligated to do anyway, there is no consideration. Consistent with past/spent consid. Public duty: promise already public duty, no consid, but if promise provided something extra, there was consid (Glasbrook v Glamorgan).The Promise. Force Majure: Chance occurrence, unavoidable accident. Clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties (war, strike, riot, acts of God), prevents one or both parties from fulfilling their obligations. Promissory Note: negotiable instrument, wherein one party (maker/issuer) makes an unconditional promise in writing to pay a determinate sum of money to the other (payee), either at a fixed or determinable future time or on demand of the payee, under specific terms. Promissory Estoppel. Estoppel: Party who is estopped is precluded from leading evidence making or proving an allegation, even if it might be the proof. New promissory or equitable estoppel (sometimes called detrimental reliance) relates to representations as to that partys own conduct in the future. Equitable or promissory estoppel ceases when the conditions for the estoppel came to an end, and no longer is promisor bound to his promise to not enforce its strict legal rights, as the promise was still made w/o consid. Accord and Satisfaction. The purchase of a lrease from an obligation arising under contract or tort by means of any valuable consideration, not being the actual performance of the obligation itself. The ACCORD is the agreement by which the obligation is discharged; the SATISFACTION is the consideration which makes the agreement operative. Intention to Create Legal Relations. Animus contrahendi: intention to contract. Locus sigilli: the place of the seal. Testimonium: the authenticating clause of an instrument (as a deed) that typically begins in withness whereof the parties have set their hands and seals and furnishes such information as when it was signed and before what witnesses. Attestation: the clause where the witnesses certify that the instrument has been executed before them, and the manner of the execution the same. Contracts require animus contrahendi; they are considered voluntary obligations, unlike tort obligations, which arise by operation of law. In arms length transactions, intention is usually presumed, but in non-arms length or domestic/family transactions there is no such presumption, and in fact will be presumed that parties did not intend to create legal relations. Promises Under Seal. In very old days of common law, all contracts had to be under waz seal with signet ring impression (called deeds), but rule was relaxed over years with advent of consideration. Ability to make a contract under seal, that did not require consideration, remained as part of our law, and was also seen as clear evidence that parties wanted to created legal relations. Requirements of Writing. Parol Evidence: extraneous evidence such as an oral agreement (a parol contract), or even a written agreement, that is not included in the relevant written document. Quantum Meruit: a claim for the reasonable value of services rendered irrespective of contract. Power of Attorney: one party, the donor, giving authority to another party, the attorney to do a legal act. Consumer Protection Act 2002 (internet contracts, time shares, door-to-door sales, health sales); Ontario Energy Board Acts 1998 (natural gas and electricity marketers). Ontario Statute of Frauds R.S.O. 1990, c. S.19, s.4. No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executors or administrators own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party. Key point No action can be brought means that the contract is not void, but it cannot be sued upon this is seen as procedural only, which renders a contract unenforceable, prevents a legal action from being brought, while not affecting the validity of the contract. So? 1) Can use non written contract as a defence, as you would not be bringing an action, so for example in an action by a purchaser to recover a deposit in an oral agreement of purchase and sale of land, could rely on provisions of oral contract. 2) Since contract exists, a note or memoranda made after original contract has been formed, or part performance of the contract may render the contract enforceable even if it was unenforceable before. 3) The oral contract could act as consideration for a new contract or a negotiable instrument. What does memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party mean? No particular formality is required, but it must evidence the existence of the contract and contain all essential terms. Requisite Signature. Statue says lawful agent may sign. Can be own name or that of principal. Only requires one signature; party to be charged. So party this is suing on contract must have signed. Included? 1) charge any executor or administrator upon any special promise to answer damages out of the executors or administrators own estate historical not used today; 2) or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person covers guarantees but not indemnities or sureties; 3) Contracts for the sale of an interest in land. Rigidity overcome by equity doctrine of part performance. Privity. Bill of lading: A document signed by a carrier (a transporter of goods) or the carrier's representative and issued to a consignor (the shipper of goods) that evidences the receipt of goods for shipment to a specified designation and person. Consign: To give over to the care of another; entrust. Subrogation: the assumption by a third party (as a second creditor or an insurance company) of another's legal right to collect a debt or damages. Basic premise only parties to a contract can enforce it. b/c: 1) contracts are private arrangements and only those who have signed and given consideration should be able to take advantage of them, and; 2) Lack of reciprocity if 3P beneficiary cannot be sued on contract becauase he is not a party, then she should not be able to sue on it; 3) Parties could vary or rescind it at will. How 3p acquire benefit? By Statute: beneficiaries under life insurance policies can enforce insurance contract when beneficiary is not a party (s. 195 of Ontario Insurance Act, RSO 1990). Invoke employee exception: 1) There is a contractual limitation of liability clause that expressly or impliedly extends its benefit to employees; 2) The employees responsible for the loss are acting within the scope of their employment when loss occurs; 3) They must be performing the very services provided for in the contract.