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LAW410A Study Guide - Meeting Of The Minds, Le Classique, Rebuttable Presumption

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Mitchell Mc Innes

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A. Contracts BATTLE CAN
B. Intention to Create Legal Relations
B. Intention to Create Legal Relations
Rose and Frank Co v JR Compton and Bros Ltd, 1924 UK
In a commercial context we presume the parties have an intention to create legal relations
but that presumption is rebuttable (we can say it’s not true).
Balflour v Balflour, 1919 England
There is a rebuttable presumption against the intention to create legal relations in the
family context (NO intention to create legal relations).
o(Husband agreed to pay wife when gone but didn’t)
Toronto Dominion Bank v Leigh Instruments Ltd, 1999 ONCA
Documents (e.g. “comfort letters”) are determined by the reasonable person test
C. Offer and Acceptance
Offers and Invitations to Treat
Pharmaceutical Society v Boots Cash Chemists, 1953 EngCA
Display of items on shelf or window or an advertisement leads to the presumption of an
invitation to treat
Goldthorpe v Logan, 1943 OWNCA CA
Application of Carbolic. When there is an offer (advertisement or otherwise) to treat, an
acceptance, and good consideration then a contract enforceable by law is formed. If that
contract is breached D is liable.
o*NOT good for exam
Carlill v Carbolic Smoke Ball, 1892
Advertisements are generally invitations to treat, but in these facts, it constitutes a
unilateral K.
Tender Process
- Call for tenders = invitation to treat. Entitled to accept or reject all tenders.
- Tenders (bids) = offers. Entitled to revoke prior to acceptance
Harvela Investments v Royal Trust Co of Canada, 1986 Eng
Terms of an invitation to treat may be binding on eventual offeree
o(Bid + $101k if not lowest)

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Page 2
R v Ron Engineering & Construction, 1981 SCC
Tender process involves creation of two contracts (KA and KB).
MJB Enterprises Ltd v Defence Construction, 1999 SCC
Privilege clauses are generally effective only for cost and not for noncompliant bids
o(Three materials could be used)
Communication of Offer
Carlill v Carbolic Smoke Ball Co, 1892
Contract formed upon performance of act of acceptance of offer
Blair v Western Mutual Benefit Association, 1972 BCCA
No contract unless acceptance motivated by desire to accept offer. No contract unless
statement communicated as offer.
o(Secretary’s retirement package)
o*NOT good for exam (wrongly decided)
Williams v Carwardine, 1883 England
Motivation is irrelevant if offeree knowingly performs stipulated act.
o(Brother of D murdered, offered money for information leading to murderer)
R v Clarke, 1927 Australia
Offeree need not be motivated by desire to accept, but cannot accept offer in ignorance.
o(Reward for two murderers. P forgot about reward)
Acceptance: Counter-Offer
Livingstone v Evans, 1925 ABSC
Counter-offer is rejection of old offer and creation of new offer.
Acceptance: Battle of the Forms
Butler Machine Tool Co v Ex-Cell O Corp, 1977 Eng CA
There are various means of resolving battle of the forms.
o(Here: last contract won).
oDenning (concurring): Strong judicial concern to find K if it’s already executed.
Three approaches (no longer viable in England):
o1. Last shot wins- if no objection to last set of terms, there is deemed acceptance
o2. First shot wins- later terms irrelevant unless highlighted to the other party
o3. Reconciling the shots- all terms construed together. If consistent, valid K on
such terms. If contradictory, judicially create reasonable terms.
oImplication today – in Canada judges often take Denning’s way. Is that good
law? We don’t know in Canada.

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Page 3
Tekdata Interconnections Ltd v Amphenol Ltd, 2009 EWCA
In most situations apply the orthodox analysis (Butler). But, there’s an exception, which
applies if the parties have made it abundantly clear that the parties are willing to be
bound by something other than the orthodox analysis and they are willing to look at the
terms together.
o(This is rarely the case)
a. Go with orthodox, with rare exceptions (Tekdata) aside. Denning approach is no longer
viable in England. In Canada we don’t know.
b. If you had a case on the exam like Butler or Tekdata but you need a reasonable explanation,
Denning route would be harder to explain.
Acceptance: by Performance
ProCD v Zeidenberg, 1996 USCA
Existence of terms must be sufficiently disclosed at outset BUT don’t have to be
specified as long as they are reasonable. Buyer accepts terms when, after having
opportunity to inspect them in greater detail, he fails to reject them.
o(Three contracts: 1. Between store and manufacturer, 2. Between store and
consumer, and 3. Between consumer and manufacturer)
Carlill v Carbolic Smoke Ball
Unilateral K: acceptance of offer through performance ONLY (use of product) and NOT
Williams v Carwardine
Motivation is irrelevant if offeree knowingly performs stipulated act. Mutual consent is
not necessary. If P fulfilled all conditions of the contract, she is entitled to recover.
(NOT the case here)
Dawson v Helicopter Exploration Co, 1955 SCC
The Court presumes a bilateral contract over a unilateral contract in commercial matters.
oBilateral K provides protection for both parties.
Acceptance: by Silence or Conduct
Felthouse v Bindley, 1862 Eng
Silence alone is not acceptance.
o(P wants to purchase horse from nephew. Auctioneer sells it)
Saint John Boat Co v Irving Refinery, 1964 SCC
Acceptance if so construed on reasonable person test. Silence + something usually =
acceptance. New contract is deemed each time tugboat service is provided.
o(Continued service after contract up. D made no changes but later refused to pay)
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