Meeting of the Minds Meeting of the Minds Meeting of the Minds Meeting of the Minds Consensus ad Idem 2 22 2 Genuine Consent Genuine Consent Genuine Consent Genuine Consent There must be a genuine agreement between the parties to a contract for the contract to be binding and enforceable. If one of the parties has not given genuine consent, then the contract can be declared by the courts: Void; or Voidable The distinction is important if 3 rd parties get involved Note: The language here is slightly misleading. When a contract is voidable and is 'repudiated by the innocent party it does not become Void in the sense that it never existed, rather it becomes null in the sense that it has no more legal force into the future 3 33 3 Genuine Consent Genuine Consent Genuine Consent Genuine Consent Consent Mistake Misrepresentation Duress Undue influence Unconscionability Fraudulent Innocent Negligent Special relationship No special relationship Against the person Against goods Economic Common Mutual Unilateral Non est factum 4 44 4 Mistake Mistake Mistake Mistake What happens when a contract is formed but it is later discovered that one or both of the parties were mistaken about something involved in the transaction or its very nature? Different types of Mistakes may arise in agreeing to a contract Common Mistake (both parties mistaken about same thing) Unilateral Mistake (only one party mistaken) Mutual Mistake (misunderstanding) Non est Factum (Not My Deed) 5 55 5 Common Mistake Common Mistake Common Mistake Common Mistake There is agreement but both parties make the same mistake as to identity or existence of subject matter. The mistake must go to the existence or identity of the subject matter (Pritchard v. Merchants and Tradesmans Mutual Life Assurance Society (1858) (p349) Unknown dead policy holder) and not accidental qualities or attributes (see also Leaf v. International Galleries [1950] painting by famous painter called Constable purchased. When it was discovered that the painting was not by that famous painter, the owner wanted to sue the gallery for misrepresentation. The court considered if the entire contract was void because of common mistake. The Court determined it was irrelevant to the original purchase who painted it. It was purchased because of the paintings quality rather than because of who painted it therefore no common mistake (p 349)). Lesson: Mistake must be in relation to something central to the contract 6 66 6 Common Mistake Common Mistake Common Mistake Common Mistake McRae v. Commonwealth Disposals Commission (1951) (p350) Government asked for tenders in relation to a tanker it claimed was at the bottom of the ocean on a reef. McRae paid for the rights to find the ship. The ship was not there and McRae sued the government. The government claimed Common Mistake in defence the argument was not accepted) Lesson: If there is an implied promise about the existence of the subject matter of a contract and the other party acts in reliance on that promise to their detriment, common mistake cannot be established Generally contracts suffering from a Common Mistake are Void 7 77 7 Unilateral Mistake Unilateral Mistake Unilateral Mistake Unilateral Mistake There is a lack of agreement between the parties: A B C Mistakenly makes offer to B B knows (or ought to know) of As mistake Intends to make offer to C 8 88 8 Unilateral Mistake Unilateral Mistake Unilateral Mistake Unilateral Mistake Only one of the parties is mistaken, and the other is, or ought to be, aware of this. Usually arises in relation to mistakes about the identity of contracting parties or subject mater For example twins or people with similar sounding names; or It may also occur in relation to subject matter that is very similar (i.e. 2 cars that look the same or have similar names 9 99 9 Mutual Mistake The parties misunderstand each other and are at cross-purposes (talking about different things) so there is no genuine agreement between the parties Raffles v. Wichelhaus (1864) (p352) misunderstanding of ships name for cotton delivery to England and when the cotton ships would arrives. Contract was void the parties never had a meeting of the minds. The court will apply an objective test based on the reasonable person standard to try and preserve the agreement. If the evidence is so conflicting that it would be impossible to infer any agreement between them, the contract will be declared void. 10 10 10 10 Non Non Non Non est est est est factum factum factum factum Non est factum (it is not my deed as in not my contract) Only applies to written contracts There is a mistake as to the nature of agreement and the mistake arises because of a misunderstanding based on a parties understanding of a document. The signer must show that the document signed is essentially or fundamentally different from what they thought it was and that their failure to read the document was not due to carelessness on their part (Petelin v Cullen (1975) (p358) old man told to sign to confirm receipt of $50 but no mentionof agency extension) See also Ford v Perpetual Trustees [2009] (p359). 11 11 11 11 Language or interpretation issues are usually Non est factum issues There are only two groups of persons who can raise the defence: those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; and those who through no fault of their own are unable to understand the meaning of a particular document (cannot read the language). If there is no consent because of this issue the contract is void Non est factum 12 12 12 12 Types of Misrepresentation Types of Misrepresentation Types of Misrepresentation Types of Misrepresentation Misrepresentation Fraudulent (intentional deceit) Innocent (Lack of intention to deceive) Negligent (Reckless and careless statement special relationship) 13 13 13 13 Misrepresentation Misrepresentation Misrepresentation Misrepresentation An essential element of misrepresentation is the making of a representation by a REPRESENTOR to a REPRESENTEE What is a Representation? 1. A representation is a statement of fact made by one party to another, either before or at the time of contracting; and 2. The statement of fact induces the contract. Is it ok to make representations? Yes of course, as long as they are true Note: conduct (as opposed to just verbal statements) may also be a representation and could also give rise to promissory esstoppel if the belief created by a party causes loss and the party creating that belief does not follow through with the representation 14 14 14 14 Misrepresentation Misrepresentation Misrepresentation Misrepresentation The following representations are generally excluded under the Common Law Statements as to future conduct or intention; Statements of Opinion; Mere Puffs (extreme advertising); Silence or non-disclosure. Statements of Law Note: Remedies may exist under the Australalian Consumer Law 15 15 15 15 Fraudulent Misrepresentation There must be an intention to deceive. The court is mainly concerned with the state of mind of the representor at the time of making the representation. There must be a false statement of fact that the representor knew was false or did not believe was true, which it was known would be acted upon, and which was in fact acted upon by the representee. See Derry v Peek (1889) (p362) A contract induced by fraud is actionable under statute law (consumer protection law and criminal law) as well as the tort of deceit. 16 16 16 16 Innocent Misrepresentation A misstatement of a material fact, not known to be false, made by one party to another, which induces the other to enter into a contract. It is distinguished from fraudulent misrepresentation by the lack of an intention to deceive by the person making the representation i.e. Saying something wrong without knowing it to be wrong or intending to deceive See Whittington v Seale-Hayne (1900) (p364) (involved chicken farm that was not actually in a sanitary condition as was honestly thought) 17 17 17 17 Innocent Misrepresentation Remedies Statute Law remedies (ACL) The appropriate remedy depends on whether the representation is a Condition orWarranty of the contract If Condition You are able to sue for damages/or for a total failure to perform the contract. If Warranty You are able to sue for damages only/no order for rescission in equity. 18 18 18 18 Negligent Misrepresentation You may sue a party for an innocent but negligent misrepresentation only when a special relationship can be shown to exist between the parties. (see Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] (p 365) and Esso Petroleum Co. Ltd v. Mardon [1976] (p365)). Special relationship based on the principles of negligence and the idea of a duty of care 19 19 19 19 Negligent Misrepresentation Negligent Misrepresentation Negligent Misrepresentation Negligent Misrepresentation Guidelines in establishing Negligent Misrepresentation (similar to Negligent Misstament but in the context of Contract Law) A special relationship exists between parties such that the person providing the information or advice must exercise a duty of care; Subject matter is of a serious or business nature; Person providing the advice realises that the recipient intends to act upon that advice or information; It was reasonable for recipient to rely on the advice or information; and Damage was suffered by the recipient usually, monetary loss. 20 20 20 20 Statutory Modifications Statutory Modifications Statutory Modifications Statutory Modifications The Australian Consumer Law (ACL) Competition and Consumer Act 2010 (Cth)(formerly the Trade Practices Act 1974)(see week 12) has impacted on the area of Misrepresentation by targeting various types of conduct For example, relevant sections under the ACL include: s18 misleading or deceptive conduct; s30 false representations in relation to land; s31 false representations in relation to employment; s29 misleading conduct regarding services; s37 misleading statements about business activities. 21 21 21 21 Summary of Misrepresentation Summary of Misrepresentation Summary of Misrepresentation Summary of Misrepresentation Type Description Remedy Fraudulent A false statement of fact made knowingly or without belief in its truth, or recklessly, or carelessly as to whether it is true or false with the intention to induce a person to enter into a contract and which did in fact induce the contract, causing the innocent party to suffer loss The remedy is not in contract but in the tort of Deceit. Rescission and/or damages at the option of the injured party. May be remedy ACL Innocent The maker of a statement of fact believes it to be true there is a lack of intentional deceit. Injured party has right to damages. Right in equity to rescind or resist an action for specific performance. Negligent The maker of the statement innocently but carelessly makes a false statement which the innocent party relies on and suffers loss. Remedy in tort of negligence for damages; contract may be rescinded. 22 22 22 22 Duress Duress Duress Duress Duress involves use of threats or violence against a person, their goods or economic interest to force them to enter into a contract against their will. Lack of voluntary agreement. It only has to be one of the reasons for a person to enter into a contract and the effect on the contract is that it will be voidable at the option of the injured party (Barton v. Armstrong (1973) (p 368)). 23 23 23 23 Types of Duress Types of Duress Types of Duress Types of Duress Duress To the person (Actual or threatened violence to immediate family) To goods (Threat against goods or property) Economic duress (Economic pressure to gain a benefit not in contract 24 24 24 24 Summary of Duress Summary of Duress Summary of Duress Summary of Duress Type Description Remedy To the person Actual or threatened violence to one contracting party, or their immediate family or near relatives (Seear v Cohen (1881) (p369) criminal proceedings against son). Contract voidable at option of coerced (forced) party To goods Threats to seize, damage or destroy the goods of one contracting party Contract voidable at option of coerced (forced) party Economic duress Economic pressure beyond normal acceptable commercial practice (Universe Tankships Inc. of Monrovia v. International Transport Workers Federation [1983] (p370)) Contract voidable at option of coerced (forced) party 25 25 25 25 Undue Influence Undue Influence Undue Influence Undue Influence Involves the improper use of a position of influence or power possessed by one person over another in order to INDUCE that other person to act for their benefit. Lack of GENUINE CONSENT to the agreement. Usual remedy is Rescission. Action must commence within a reasonable time or right to rescission may be lost (Allcard v. Skinner (1887) (p 372)). 26 26 26 26 Types of Undue Influence Types of Undue Influence Types of Undue Influence Types of Undue Influence Where a special relationship is presumed to exist: The defendant stands in an unequal relationship to the plaintiff in a relationship of influence or confidence, eg doctor and patient. Onus of rebutting the presumption lies with the defendant Where no special relationship exists: Onus on the plaintiff to prove that the defendant exerted influence over them. If undue influence is established, the contract is voidable. 27 27 27 27 Summary of Undue Influence Summary of Undue Influence Summary of Undue Influence Summary of Undue Influence Type Description Remedy No special relationship exists Improper use of a position of influence or power, onus on Plaintiff to prove Defendant exercised influence Contract voidable at option of weaker party Special relationship presumed to exist Defendant stands in unequal relationship to Plaintiff because of parental or confidential relationship, onus on Defendant to prove that the transaction was voluntary and Plaintiff understood the contract Contract voidable at option of weaker party 28 28 28 28 Unconscionable (Unfair) Contracts Unconscionable (Unfair) Contracts Unconscionable (Unfair) Contracts Unconscionable (Unfair) Contracts In their equitable jurisdiction, the courts may set aside a contract for being unconscionable (unfair) where the defendant has abused their superior bargaining position in their dealings with the plaintiff (Commercial Bank of Australia v. Amadio (1983) (p373)). The plaintiff has to establish: They were in a position of special disadvantage (Louth v. Diprose (1992) (p 374) Male (Diprose) in love, Female manipulated him to get $60 000); Which substantially affected their ability to protect themselves; The defendant knew, or ought to have known, of the plaintiffs disability and not taken advantage of it; 29 29 29 29 Unconscionable (Unfair) Contracts Unconscionable (Unfair) Contracts Unconscionable (Unfair) Contracts Unconscionable (Unfair) Contracts Statute Law also prohibits Unconscionable Conduct: Sections 20, 21 and 22 of the ACL prohibit a person who is acting in trade or commerce, from engaging in conduct which is, in all the circumstances, unconscionable: Section 20 of the ACL provides that the meaning of unconscionable is to be found in the common law and Amadios case. 30 30 30 30