Negligence

The main legal issue presented by the question is whether [P] can successfully sue [D] for negligence.
The rule of law states that negligence occurs if [D] owns [P] a (1) Duty of care (DOC), (2) Breach of DOC, (3) Causes P actual
damages/ injuries/ losses, and (4) the damages are reasonably foreseeable and not too remote. Applying this rule of law to the
facts of this question, we have to prove all the four elements above to have a successful claim for negligence.

1) Duty of care
The first legal issue is whether [D] owns [P] a DOC regarding physical injury/ purely psychological injury/ purely economic loss/
negligent misstatement.

Case 1: Physical injuries

A. The DOC is established
I: The legal issue is whether [D], the person(driver/manufacturer/owner of property/professional)did/did not do sth; own[P],
who(other driver, passenger, pedestrian, owner of property on the strees/customer/occupy/client) was injured by [D]s action, a
DOC for physical injury.
Motorists Road users (Imbree v McNeilly, 2008). (Exp: Motorists usually own a recognized DOC to other drivers,
pedestrians and owner of property near the road (Imbree v McNeilly, 2008))
Doctors Patients (Rogers v Whitaker, 1992)
Solicitors Clients (Hawkins v Clayton, 1988) Cvnphplut
Manufactures Consumers (Donoghue v Stevenson, 1932)
Occupiers Guests/ People who come onto their premises (Australian Safeway Stores Pty Ltd v Zaluzna, 1987)
Architects Clients/ People who occupy the building they design (Voli v Inglewood Shire Council, 1963)
Employers Employees
Agents Principal
Directors Company
R: According to Lord AtkinsNeighbour Test (Donoghue v. Stevenson, 1932)& (Bourhill v. Young), we owe a DOC to our
neighbours who are closely and directly affected by our acts or omissions, thus, as a reasonable person, we should think about
these people when we are about to act or not to act.
A: Here, when [D]did/did not(drive 150km/h at noon in downtown), it was RF that harm to people like [P] could result bc
(the human brains reaction and response time to visual images is not fast enough to safely control a heavy, hard steel motorbike at
such high speed, and when it goes out of control, the law of motion and inertia will cause It to veer off the road and hit anything
including people near the road, whose bodies are soft and will sustain injury upon impact. Also, at noon in downtown there are
many pedestrian, so it can be expected that such injuries can happen).
- Also, [P] was [D]s neighbor b/c[P]was (people or property on th street/occupier of Ds customer, client or patient) who
is RF being injured by [D]s action. (Levi v. Colgate-Palmolive Pty Ltd) (Australian Safeway Stores Pty Ltd v.
Zaluzna) (Donoghue v. Stevenson)
C:Thus, [D] did/did not owe to [P] a DOC for physical injury.

Case 2: Negligence misstatement:

I: The legal issue is whether [D], the person(professional)did sth (make the report carelessly); owed [P], whose business
suffered a monetary loss due to (Ds bad report), a DOC for negligence misstatement.
R-A: 3 elements must be proved:
a. The advice was of a business or serious nature (Hedley Byrne & Co Ltd v Heller and Partners Ltd 1964
Here, it is obvious that the subject was/was not of a business/serious nature because it does/does not cost lots of money.
Thus, this element is/is not satisfied.
a. The defendant knew or should have known that the plaintiff intended to rely on the advice (Rentokil Pty Ltd v
Channon 1990)
Here, [D]should/should not have known that he/she is being trustedbecause it was/was not a part of his/her job. As
known to [P], [D]is(a successful teacher/auditor/operating an audit firm). This means with/withouthis/her typical
knowledge about this field, [D]can/cannot give accurately information to [P] to make the right decision. Thus, this

element is/is not satisfied.

b. And it is reasonable in the circumstances for the recipients to accept and reply upon the advice.
Apply even if the advice is little more than the provision of information(L Shaddock & Associates Pty Ltd v Parramatta
City Council [No 1] 1981)
C:Thus, [D]did/did not owe to [P] a DOC for negligence misstatement.

2) Breach of DOC
The second legal issue here is whether [D] failed to meet the required standard of care (SOC)
I: The second legal issue here is whether [D] failed to meet the required standard of care (SOC)
R: Here, the rule is whatever a reasonable ordinary careful person (ROCP) should have done give the same set of circumstances. 4
Romeo factors will be analyzed to know how ROCP should act in the same situation(Romeo v. Conservation Commission of
Northern Territory).
A:
1. The probability of harm:
It means how likely it is that SO will be injured if [D] did not act reasonable carefully.
Here, because(almost certainly no one can control the motorbike at that speed and high population density on the street
means the chance people will get hit is very high)OR(it is difficult to make the report carefully when sleepless); thus(it
is possible that SO can be hitORalmost road users, who are likely to get hit, have close family who care about them such
as family, so it is RF that the close relatives will suffer serious psychological sickness when one family member get injury
OR retail business next to street, which are likely to get hit, tend to rely on each other to draw a foot traffic into a
neighbour, it can be expected that if one business shuts down to rebuild, the neighbor businesses will get less customers
which can lead to bankrupt)OR(it is possible that the business will lose a lot of investment due to the inaccurate
financial report).Thus, the probability of harm is high/medium/low which means [D]failed/did not fail to act as a
ROCP.(Bolton v. Stone, 1951)
2. The gravity of harm:
The first factor considers the worst possible thing that could happen and the number of people could be affected if D
did not act reasonable carefully. The worst(physical/psychological/pure economic/negligence misstatement)harms that
could happen from doing Sth(driving so fast)OR(making serious errors in the financial statement) and the number
of people on the street at that time and placeORclose relatives of victims are so emotionally traumatized that they
commit suicide or suffer irreversible psychological injuryORthe loss of customers will force the massage shop to close
bankrupt)OR (causing economic harm to potential investors, lenders or other people with the company). Thus, the
gravity of harm is high/medium/low which means [D] failed/did not failto act as a ROCP.(Paris v. Stepney Borough
Council, 1951)
3. The burden of taking precautions:
The third factor is whether the defendant could prevent the careless act and how difficult and expensive it is for D to
eliminate the risk
Here, it was veryeasy and cheap/difficult and exspensivefor [D] to avoid(the accidence, mistake)by(slow down the
speed and drive carefully ORstart to do the report earlier and make it carefully). Then, no one can suffer(physical injury
OR mental illness due to the injury of their family member OR financial loss due to the damage of neighbour
business)OR(economic loss as a result of bad report).Thus, [D]failed/did not fail to act as a ROCP.(Latimer v. AEC,
1953)
4. The social utility of the activity:
The final factor is that whether D [do careless act] that was socially useful. Here, there are no any other reasons
for [D]to do(driving so fast)OR (boredom) is not a good reason for (driving 150km/h)OR ([D]s child was dying
and needed to get into hospital immediately and that was the reason for his/her drove at 150km/h).Thus, [D]failed/did not
fail to act as a ROCP.(Watt v. Hertfordshire County, 1954)
C:Therefore, ROCP would not/would have done Sth (driven so fast) OR (given a bad advice)like [D] resulting in (the
death to Sb OR the mental harm to the relatives of [D] accidents victimOR economic loss to neighbour business due to the
rebuilding of the damaged property) OR (financial loss due to incorrect business statement). Thus, [D]breached/ did not breach a

DOC.

3)Causation
I: The third legal issue is whether [P] can prove that [D] caused all his/her damages, injuries or losses (DIL).
R: The law says that [D] caused actual damage, injury, loss to the [P] if the [P] were caused by the [D]and prove the But
For test.(Yates v. Jones, 1990)
A:But for [D]s actions, [P] would not have suffered the actual DIL. If we could go back in time and take away the [D]s
carelessness(driving carelessly), [P]would not suffer(broken leg/psychiatric fee/loss income) b/c ([D] would not have
lost control and [P] would not have been hit. And unless [P] had been hit, [P] would not have been outside the hospital on the day
and he would not have been robbed and stolen his/her Iphone 6s OR if [P] had not injured, he/she could have fought back and
saved the Iphone 6s when [P] was robbed).

C: Thus, we can conclude that[P]can/cannot prove that [D] caused all [P]s damages.

4) Remoteness
I: The forth element is whether [P]s damages are too remote (the scope of liability).
R: The rule is the [P]s specific damages were not too remote if the plaintiff could prove that these damages were RF by [D]
at the time of the accident. (Rowe v McCartney, 1976)
A:When [D] did sth(driving so fast), it cannot be expected that this action could cause(sb to be robbed).It is too remote.
C: Thus, (personal injuries, property damaged, medical expense, lost income, pure economic loss for neighbour businesses) were
RF types of Injuries. They are not too remote and [P] can claim against [D]/Therefore,[P] lost sth(Iphone 6s) by (being
robbed) was not a RF type of injuries, and [P] cannot claim against [D].

Conclusion of 4 elements (DOC, Breach of DOC, Causation, Remoteness): In conclusion, based on the analysis
above of DOC, Breach of DOC, Causation and Remoteness, [D] can/cannot successfully sue [P] for negligence.

5) Defenses: (depend if necessary, if not, leave this step)

Contributory Negligence
I: The legal issue is whether [P] can be proved for contributory negligence.
R-A:[P] can be proved for contributory negligence if [D] can prove 2 things:
1. The first element is that whether [P] was also negligent at the time of the accidents. [P]showed a lack of care for
his/her own safetyb/c (chasing football into the middle of the road) which could likely result in bodily harm from
[D]s carelessness (collision with motorist). Thus, [P] was also negligent.
2. The second element is that whether [P]s negligence contributed to [P]s damage.B/c[P]did (ran into the street), this
was one of the reasons why [P] got injuries. Thus, [P]s negligent contribute to his/her injury.
C:Thus, [P] was contributory negligence and liability will be apportioned between [P] and [D].The Court - It would be
recover its economic loss, minus its own percentage share of fault due to its contributory negligence. Supposing [P] were
found to be __% at fault, it could recover $___ of its $___ in economic loss.
OR
[P]did not do anything negligent contributing to his/her DIL.

6) Vicarious Liability(employer employee)

I: The legal issue is whether [A] is vicarious liable for [D]s negligence.
R: The law says that an employer will be vicariously liable for the negligence of an employee if the careless act occurred
while the employee was acting within the scope of his employment and not on a frolic or detour of his own. (Storey v. Ashton
and Hollis Vabu Pty Ltd)
A:
1. He was on the clock (on the working time)
2. Did the employee appear to be in the process of working for the employer?In the process of working for [A](wearing
his company uniform, driving a company vehicle, etc.), and not going off somewhere for his/her own enjoyment.

3. Was the employee at his place of work or places related to his work?
4. Was that activity a part of his job?
C:If the above factors exist, then the employer probably is vicariously liable for his/her employee/s negligence.
- Here, [D] was doig his job, which(was delivering pizza). When he/she carelessly decided to(drive too fast). He was
on the clock, which means is the process of working for(Pizza Hut), and not going off somewhere for his own
enjoyment. He was actually done(delivering pizza), what he was paid to do. [D]was acting within the scope of his
employment, so(Pizza Hut) is vicariously liable for [D]s carelessness.
OR
- Here, [D] was not doing his/her job. He was not on the clock or in the process of working within the scope of his
duties. He/she was on a frolic or detour of his own, pursuing his pleasure by going-off route, not for the
companysbenefit, at the time of his careless. (Pizza Hut) is not vicariously liable for [D]s carelessness.

7 )Occupiers liability
R: An occupierof premises owes a DOC to all persons entering the premises to ensure that the premises are safe [Australian
Safeway Stores Pty Ltd v Zaluzna 1987] =>c breach duty of care
R: The occupier is not automatically liable for any injury sustained by a visitor to their premises. It must be established that the
occupier has in fact been careless [Phillip v Daly 1989] =>khng breach duty of care

Contract formation

The legal issue is whether [A] had breach the contract with [B]because The (intention to be legally bound/ consider
capacity/ agreement offer & acceptance) should be considered in this case

1) Agreement Offer & Acceptance

Offer:

I: The legal issue here is whether a valid offer and acceptance exists between [and]
Note:If the case fall in 3 categories, we need to decide whether [Names statement] was a legal offer/unilateral offe
information
Invitation to treat[Partridge v. Crittenden] advertisement
Unilateral offers[Carlillv Carbolic Smoke Ball Company] [Johnson v Capital City Ford Co]
(*) Unilateral offer is an offer which is made to a group or class of people instead of one, specific person, and which is ac
performance by a limited number of people
Supply of information[Harvey v Facey]Ca hang ghigitinl $50 =>nchl information, khngphi offer
a- A supply of information
I:The legal issue whether [A]s statement ($50) was an offer or merely (ch) a supply of information.

R:At the time the person made the statement, does it sound like they were making a specific offer that could b
immediately to form a contract, or were they just giving general information in response to a question from the ot
[Harvey v Facey]

A:Here, [A] was just giving general information (lowest price) in response to a question from [B]. Its does not sound lik
offer that could be accepted immediately to form a contract. [A]s statement was merely a supply of information. When
reply I accept, [B] was making an offer. There is no acceptance from [A].
C:Thus, no agreement and no contract was formed between [A] and [B]
b- An invitation to treat (A l seller)
I: The legal issue is whether [A]s advertisement of (selling an iPhone for $50) was an offer or invitation to treat.
R:Most advertisements (In the newspaper of catalogue) are usually invitation to treat, not offer.(Patridge v. Crittenden)

A: Here, the advertisement of [A] was just the invitation to treat to induce people who see the advertisement making an
[B]s agreement to buy (the iPhone) was just an offer, not an acceptance because no offer was given by [A] and [A] can
offer

C:There was no agreement (offer and acceptance) between them. Thus, no enforceable contract was formed and
sue [A] for breach of contract.

c- Unilateral offers
I:The legal issue is whether [A]s advertisement of (selling the new iPhone for $50 to the first 20 people who show up
cash) was an offer or invitation to treat

R:An advertisement making an offer to a person in the world at large (any person who learns of it), that is capable of
through performance of specific act, are real and legally offer, not mere invitation to treat (Carlill v. Carbolic Smoke Ba
Co)

A:Here, the advertisement of [A] (for selling the iPhone) was an unilateral offer because it was made for typical people
people coming to store with $50 in cash). Then, the conduct of [B] following [A]s requirements was an valid acceptance.
C:There was an agreement (offer and acceptance) between them. Thus, enforceable K was formed and [B] can
breach of contract.

d- Legal Offers

Rule of offer
1- Offer must be clear and complete
I: The legal issue is whether the offer was clear and complete.

R: Offer must be clear and complete. They must contain all key details about the offer including subject matter, q
price.(Placer Development Ltd v Commonwealth)

A:[A]s offer was neither clear and complete because(a fair wage) Price was vague (m h) and ambiguous. Diffe
will give various meanings to this phrase. Moreover, (worker) Subject matter was not clear and complete, unless t
was (to do various kinds of general work)

C:There are no offer and therefore no acceptance by [B]. Thus, no agreement and no enforceable contract was form
cannot sue [A] for breach of contract.
2- Offers must be communicated to the offeree
I:The legal issue is whether the offer was communicated to the offeree.
R:Theagreement is not complete until the offeree communicates their acceptance to the offeror(Powell v Lee)

A:Here, [A] asked [C] to communicate his/her offer to [B] that he would purchase [B]s product. There was (no) ment
was (not) a normal, reliable person (mental illness, intoxicated xn, minor tremdi 18 tui)
C:Therefore, the offer between A and B was (not) successfully formed
3- Offer must can be accepted by the offeree
I:The legal issue is whether B was the person to whom the offer is addressed.
R:Only a person to whom the offer was addressed (the offeree) can validly accept the offer.

A: Here, [A] was asking to [C]----[A]s statement. This means that [A] provided a valid offer to [C]. As a result, [B
party) cannot accept to [A]s offer.

C:Thus, [B] was not a person [A] made the offer to, there was no acceptance by [B], no agreement thus no co
formed.

4- Offer may be revoked (withdrawn) by the offeror any time before acceptance and the offerors revoc
be communicated effectively to the offeree
I:The legal issue is whether [A] can take back his/her offer from [B]

R-A:Firstly, even if the offeror has promised to keep the offer open for a particular period, they are entitled (ch
revoke their offer at any time prior to acceptance.This mean [A] could revoke his/her offer any time before [B]s acce
only circumstance in which an offeror may not revoke the offer is when there is an Option contract . This exis
offeror promises to keep the offer open and exclusively available to the offeree for a period of time, in exchange for
giving up something of legal value as consideration for the offeror s promise. Here, [B] offeree gave up nothing of le
exchange for [A] offerors promise. Thus, [A]s promise was a bare promise unsupported by consideratio
unenforceable. There is no optional contract and [A] was free to revoke anytime before [B]s acceptance. Secondly, revo
be communicated.By(sending email)(Dickinson v Dodd).Since, there was no offer anymore from [A], when [B]said
your offer), he/she was actually making a new offer but no acceptance was given by [A].
C:With no acceptance, there are no agreement and therefore no contract.

Terminating the offer [Revoke (Offeror) or Reject (Offeree)]

1- Revocation: offeror can take back (revoke) the offer (Routledge v Grant)
(See 4th Rule of Offer)
2- Rejection:offeree refuses to accept (a counter offer is also a rejection)
(See 1st Rule of Acceptance)
3- Lapse of time
I:The legal issue is whether there was a valid offer and acceptance (agreement) exist between [A] and [B]
R:An offer may be terminated by the lapse of time, either the time specified in the offer or a reasonable amount of

A: Here, there is no evidence in the fact that [A]s offer specified it would be opened for a certain amount of time. Thu
terminate after a reasonable amount of time depending on the fact. It can be seenthat (5 month) is (not) beyond w
considered as a reasonable amount of time to (sell the house). Perhaps,(10 days or 2 weeks)might/might no
reasonable. Thus, [A]s offer terminated before [B] response, which was actually a new offer.

C: With no acceptance, there are no agreement and therefore no contract. Thus, [B] cannot sue [A] for breach of co
4- Death of either party before acceptance
Rule of acceptance
1- The terms of the offer must be accepted without suggesting changes
I:The legal issue is whether there was a valid offer and acceptance (agreement) exists between [A] and [B]. (The l
whether [B]s acceptance to [A] offer was complete and accepted without change)

R:A valid acceptance must be completed and unconditional. If the response attempts to change the terms of t
anyways, it is rejection and counteroffer but not an acceptance. (Masters v Cameron).

A: Here, [B]s statement(make it $200) was an counteroffer which terminated [A]s offer (to sell for $250). Thus, [
later accept that offer, which was terminated. [B]s statement(OK, I agree to pay $250) was therefore a new o
acceptance
C:With no acceptance, there are no agreement and therefore, no contract. Thus, [B] cannot sue [A] for breach
2- Option contract:

I: The legal issue is whether [A] provides sufficient consideration for the promise (whether having a option contra
[A] and [B]

R: An offeror is entitled to revoke their offer even if they have promised to keep the offer open for a particu
However, if the offeree has provided consideration for offerors promise to keep it open, the offeror cannot withdra
A: Here,[A](gave money)to[B] to keep the offer of(selling the bike) for(three days).[A]s consideration has a

However, [B] (sold the bike someone two days after forming the option contract with [A]) [Dickinson v Dodds 1876]
OR
Here, [A] gave up nothing in exchange [B]s promise to keep the offer of(selling the bike)for(three days), so no c
was provided by [A]. Thus, [B]s promise to keep the offer was merely a bare promise unsupported by co
[Goldsborough Mort & Co Ltd v Quinn 1910]

C: Consideration is required from both parties, so (no) enforceable contract was formed and [A]can/cannot sue [B
of option contract.
3- The offeror can require a certain method of acceptance by the offeree

I:The legal issue is whether there was a valid offer and acceptance (agreement) exists between [A] and [B].(The le
whether [A], offeror can require a certain method of acceptance by [B], the offeree)

R-A:Firstly,when an offer is made and offerees are invited to accept the terms by performing specified acts, an o
responds to the offer and performs the required acts will be held to have validly accepted the offer. (Carlill v Carb
Ball Co).Here, the method of acceptance specified by [A] (offeror) was being(The first person who brings $25 cash to
in a pink develop, while wearing high heels and miniskirt). However, [B] only partially followed this method because
(The pink envelope). Thus, [B]s acts were not a valid acceptance, but merely a counteroffer. Moreover, offer may be r
time before acceptance and revocation must be communicated(Dickinson v Dodd).[A]s statement communicated
a valid revocation because no acceptance had occurred prior to it.

C:With no acceptance, there are no agreement and therefore no contract. Thus, [B] cannot sue [A] for breach of co
4- Acceptance must be communicated [Powell v Lee 1908]. Silence does not mean acceptance [Felhouse v Bind

I:The legal issue is whether there was a valid offer and acceptance (agreement) exists between [A] and [B], as well
[A] and [C]. (The legal issue is whether there was a communication between [A] and [B] when B accepted As offer

R1:When an offer is made and offerees are invited to accept the terms by performing specified acts, an offeree wh
to the offer and performs the required acts will be held to have validly accepted the offer. (Empirnall Holding
Machon Paul Partners Pty. Ltd)

R2: (Truong hop ngoai le moi lam) An exception to the rule that acceptance must be communicated is unilateral o
v Carbolic Smoke Ball Co)(only for post/letter)

R3: An exception of the rule that acceptance must be communicated is an acceptance by post takes effect when t
acceptance is posted (drop in the mailbox). This is true unless the offeror has stated that the offeree may n
post(Henthom v. Fraser).

A: Firstly, [A](send)[B](the email) with the content that (if you do not reply me, it is acceptance). Based on the rule,
not equal acceptance. Therefore, between [A] and [B] does not exist the valid acceptance. Moreover, offer may be revok
before acceptance and revocation must be communicated effectively. Here, as there was no acceptance, [B] was entitle
his/her offer and this revocation was communicated effectively when [A](read[B]s email).

C:(Here, there is (no) evidence that [A] stated that [B] may use the post to accept. So if [B] mailed the letter of ac
[A], the acceptance was (not) valid the moment the letter was posted. [A] contract was (not) formed at the momen
second mail would have been too late to be a valid revocation.)There was (no) acceptance, (no) agreement, and
contract was formed.
-

Acceptance by electronic communication (for email, sms, instant messaging):

If two people are communicating with each other, did one or both of them designate an information sys
purposes of the communication? (Electronic Transaction (Victoria) Act 2000)
+ If Yes, then that person deemed to have received the communication when it enters the information system (eg. G
inbox), even if the person has not read it yet (s.13 (3) ETA)
+ If No, then the person deemed to have received the communication when they read

2) Intention to be bound

A- Business agreement/ Cng vic m phn

I:The legal issue is whether [A] and [B] intended to be bound in a legal relationship

R:Agreements that are obviously in commercial nature usually are contractual and parties have the intention to
However, they can still prove through circumstance that there was no intention.(Rose and Frank v. JR Crompton)

A:Here (the phrase agreement to be bound in honor only, pledge of our best intention to work together and n
legal instrument show clearly that although this is a commercial setting, there was not an intent to be legally bound, m
of comfort letter which provides some assurance, but falls short of an enforceable contract)

C:[A] and [B] did not intent to be bound in a legal relationship. Thus, no enforceable contract was formed and [A]
[B] for breach of contract
B- Social Agreement (Gianh)
I:The legal issue is whether [A] and [B] intended to be bound in a legal relationship (or just a social agreement)

R:Agreement that are obviously in social nature (friend or family) are not normally intended to be contractual an
do not likely have the intention to be bound. However, they can prove through circumstances, such as economic
that there was legal intention. (Wakelling v Ripley)

A: Here, although [A]and[B] were family (friend), [A] gave up a very important and valuable opportunity (a full ex
scholarship at Harvard). This was a big sacrifice, economically very serious and it was given in exchange for the prom
house, Sth with financial important).
C:The circumstance showed there was likely intent to be bound between [A] and [B]. Thus, enforceable contract
and [A] can sue [B] for breach of contract.

3) Consideration
A- Valid consideration trong contract
I:The legal issue is whether [A] gave any consideration in exchange for [B]s (promise or property)

R:For an agreement to be binding and legally enforceable, both parties must agree to give up Sth having legal va
goods, services or legal right) or suffer from detriment. If only one party agrees to give up Sth of legal value, then
mere bare promise that is unsupported by consideration not a binding, legally enforceable contract (Carlill
Smoke Ball Co 1893).

A: Here, [A]promise(a new car, giving money OR giving up a legal right OR suffering from a detriment), which
consideration because this had a legal value/ caused harm to [A]. However, [B] promised nothing and did nothing in exch
consideration was provided by [B]. Thus, [A] s promise was merely a bare promise unsupported by consideration.

C:Consideration is required from both parties, so no enforceable contract was formed and [B] cannot sue [A] fo
contract.

Cc trng hp xt contract c consideration hay khng???

A- Adequate consideration (khng cn fair value of goods)
I:The legal issue is whether [A] gave valid consideration in exchange for [B]s (promise or property)

R: Consideration does not have to be adequate (good enough, fair, reasonable, etc). To be a valid consideration
given must have some legal value but it can be very low in value.(Thomas v Thomas 1842)

A: Here (The used piece of tissue paper) had some value but small. Its value need not be comparable to(The
Consideration may be doing Sth you are not already obligated to do, or not doing Sth which you have a legal right t
(Offering the tissue paper), [A] was doing something he/she was not obligated to do incurring a kind of detriment. Th
provided valid consideration in exchange for [B] promise. [B]s promise was a binding promise supported by consideratio
C:Thus, enforceable contract was formed and [A] can sue [B] for breach of contract

B- A prior legal obligation

Xt v sufficient consideration:
Vn 1: Ngi c trch nhim x hi
I:The legal issue is whether [A] gave sufficient consideration in exchange for [B]s (promise or property)

R:1/Consideration must be sufficient. To be sufficient, the consideration must not already be owned under ex
duty(Stilk v. Myrick).

A1: Here, [A] had a pre-existing legal duty to(Teacher a lecture under the contract with RMIT). Thus, he/she did
anything to (Be a lecture) because that was what he/she was already required to do (Stilk v Myrick). Thus, [A
insufficient consideration in exchange for [B]s promise which was a bare promise unsupported by consideration.
OR
R: 2/A provided sth to B which A did not already owe under an existing legal duty (Hartley v. Ponsonby).

A2: Here, [A] had no legal duty or obligation to (Attend class), so [A] was free to choose whether to(Attend)
promising (Attending class), [A] gave Sth to [B] which [A] did not already own under an existing legal duty (Hartley v
Thus, [A] provided sufficient consideration in exchange in exchange for [B]s promise.

C: With the insufficient consideration, (no) enforceable contract was formed and [A] can/cannot sue [B] for
contract

Vn 2: Past Consideration (Khi thay i contract th phi exchange 1 ci mi)

I:The legal issue is whether [A] gave merely past consideration in exchange for [B]s (promise or property)

R: Consideration may not be past. To be valid consideration, the thing having legal value must be given at the ti
the promise it is given for exchange is made.(Roscorla v. Thomas)

A: Here, [A]s agreement of(Not telling to his mother) was a valid consideration because[A] agreed to refrain from
which he/she had a legal right to do. However, [A]s agreement (the thing having legal value) was given before[B]s pro
good consideration, it would have to be given at the same time or after [B]s promise. Thus, [A] gave merely past con
exchange for [B]s promise, which was a bare promise unsupported by consideration. (Roscorla v Thomas).

C: Consideration is one of the elements to form contract, so with insufficient consideration contract, no enforceab
was formed and [A] cannot sue [B] for breach of contract.

Vn 3: Vague promise => insufficient consideration

R: If the price paid by the promise is vague promise by the promise to do something, this is insufficient considera
means uncertain or no legal value (White v Bluett 1853)
A: ng A ny ha s i x nice vi ng B if ng B tr tin cho ng A=> vague promise =>As consideration is ins
contract cannot be enforceable. (White v Bluett 1853)

Negating contract (Terminate contract)

1 Lack of consent
Rule: A contract will only be enforceable if both

parties have entered into the contract willingly. If one of the parti
bullied, pressured or manipulated into entering into the contract, the contract will be unenforceable by the other party due
consent.

A. Action Misrepresentation: (false statement of fact to induce other party to enter a contract) (A
to buy sth from B. A believes Sth is an original and B also dont know it is copy)
I:(After Unilateral Mistake) The next rule we need to discuss is actionable misrepresentation.
OR The legal issue is whether A can rescind the contract with B due to actionable misrepresentation.

R:An actionable misrepresentation exists where one party makes a false statement of material fact which is addres
to the other party and induces the other party to enter into the contract (Alati v. Kruger).
A:Here, we need to consider the 4 elements to decide whether an actionable misrepresentation exists among [A] and [B].
1. False statement Untrue:
Here, [B] has made a false statement about (fact)

2. Material of fact
+ Material means important or significant. Here, the has some/ great importance as(mon
benefits (explain).
+ Fact means a statement which can be verified by a third party independently. Here, a third party can observe
So, [B]s statement was regarding a material fact.
3. Which is addressed to the other party
+ Bs statement was addressed to [A] directly when he/she spoke to him/her.

4. And induce them to enter into the contract (the other party will not sign contract without statement)
+ The other party likely wouldnt have entered the contract without the exercise of the false statement. (expl
C:Therefore, [A] can rescind the contract with due to actionable misrepresentation by [B]. The contract can
and the parties restored to their original position before the contract was signed (money returned to [A]).

B. Mistake
Common mistake:
I:The legal issue is whether the contract between [A] and [B] are void due to common mistake

R:Bilateral or common mistake exists when both parties to the contract make the same mistake when they form th
The mistake must exist at the time the contract was made. Also the bilateral mistake must be extremely fundam
subject matter of the contract.

(1)The mistake may refer to the existence of the goods (destruction of the goods) or there is nothing to sell. The
more likely say that the contract is void (Couturier v. Hastie)
(2) If the subject matter is only different in character, value, or quality than what the parties think, thus it is no
mistake (Leaf v. International Galleries).

(1) A:(1) Here, when the parties entered the contract, the subject matter, which, in this situation, is(fact)has bee
(existence)/ + been already owned (nothing to sell)/ .at the time the contract was made, while both [A] and [B] mistake
.(fact mistake) while entering the contract.
(2)
(3) (1)Here, when the parties entered the contract, the subject matter, which, in this situation, is(fact)has existed (Only th
value is different)at the time the contract was made, while both [A] and [B] mistakenly believed (fact mista
entering the contract
(4) C:
(1) Therefore, the contract is void and unenforceable by either party due to common mistake, and [B] ma
damages for breach of contract.
(2) Therefore, this is a good contract and not voidable because of no common mistake by [A] and [B], and [B] m
[A] for breach of contract.

Mutual mistake
I:The legal issue is whether the contract between [A] and [B] is void due to mutual mistake.

R:Mutual mistake exist when parties have both made mistakes on key factors of the contract but each party h

different mistake no meeting of the minds (Raffles v Wichelhaus)

A: Here, [A] and [B] had different ideas of what the subject matter of the contract (becausegive the fact, explain), refe
intended to contract on different terms from each other. There was no meeting of the minds between them. (D agreed to
arriving from Bombay to be delivered on the ship Peerless. There were two ships arriving from Bombay one in October
December. [A]s offer was for the December ship. Ds acceptance was for the October ship. The court said no bindi
because P and D each intended to contract about different terms. No meeting of the minds and the contract was void)
C:Thus, the contract was void and unenforceable by either party due to mutual mistake.
Unilateral mistake:
I:The legal issue is whether the contract between [A] and [B] is voidable to unilateral mistake.

R:Unilateral mistake, one type of failure of genuine consent exists when only one party is mistaken about a key
contract, and the other party is aware of that mistake or should be aware(Taylor v Johnson)

A: Here, just [A] was mistaken about the key fact, the subject matter of the contract (v ) and [B] was aware/should
about [A]s mistake because [A] was .and [B] knew the potential confusionbut choosing to remain silent.
(Even if Taylor did not actually know about the mistake, the law would say that he should have known. The current mar
the time was around $15000 per acre. Objectively, any person should have known that the offer of $150000 for 10 ac
good to be true. So the courts would say that Taylor should have known about that mistake)

C:The contract is voidable by the innocent party who made the unilateral mistake. It can be enforced against the
knew about the mistake.
Note: Case of unilateral mistake may also be treated as actionable misrepresentation.

C- Duress (illegitimate force)

I:The legal issue is whether [A] can rescind the contract, avoid the legal transaction with [B] due to failure of genu
(duress)
R: One of the parties has expressly or impliedly threatened the other party with harm. (Barton v. Armstrong).
The threat of harm contributed to the threatened partys decision whether or not to enter into the contract

The threat may be:

To the person safety of the other party or to that of their loved (Barton v Amstrong) (Seear v Cohen)
To the safety of the other partys goods or property (Hawker Pacific Ltd v Helicopter Charter Pty Ltd) or
To the other partys economic or financial wellbeing, known as economic duress ( North Ocean Shipping
Huyndai Construction Co Ltd, 1979)
A: Here, [A] has no right to reject the contract with [B] because(the threat may be)

C:As the contract was signed due to duress, the threatened party can void the contract if [A] want to
Note: Duress makes a contract a voidable contract rather than void. This means contract still effective and enforceab
terminated (chmdt) by other party.

D- Undue Influence (special relationship)

I:The legal issue is whether [A] can rescind the contract, avoid the legal transaction with [B] due to failure of genu
(undue influence)

R:The parties are in a pre-existing relationship such that one party has controlling influence over the other
Skinner)

A1: In this situation, there is a special relationship of trust between [A] and [B](parent and child/ lawyer and client/
patient/ preacher and church member). The court presumes undue influence exists. The defendant must prove undue inf
not exist by disproving:
1. A party enters into a one-sided contract (Does the trusted party get all the benefit under the contract?)
2. As ability to make free and independent choices including the As age, knowledge and understanding of the subje
the contract, education level.
3. Whether [A] received any independent advice (was he/she able to get the advice from independent 3 rd parties)
(*) Ordinary business relationship is not a special relationship.

A2:In this situation, there is no special relationship between [A] and [B]. The court wont presume undue influence, th
undue influence exist, the plaintiff must prove 3 elements:
1. The contract was one-sided.
2. Their entry into the contract was not because of their own independent will and judgment and was instead bec
other partys influence over them.
3. The party claiming undue influence received any independent advice.

C:Having proved 3 elements, [A] may claim that [B] undue influenced him to enter the contract. Therefore, the co
void

E- Unconscionability
I:The legal issue is whether the contract between [A] and [B] was unconscionable.

R:Unconscious dealing is when that conduct does not conform to what the inner sense of conscience prescribes
usually assume that the parties to a contract are legal, have equal bargaining power, but where
1. One party has superior bargaining power
2. The other party has special ability
Special disability includes poverty or need, physical or mental sickness, age too young/ old, drunkennes
lack of education/ assistance/ explanation
3. The parties enter into a very unfair, one-sided, take-it-or-leave-it contract (Commercial Bank of Australia v
Then the court may find the contract to be unconscionable.

A: Here, [B] was very strong and had much more bargaining power than [A]. (the great disparity in wealth/ financial sop
expertise between the 2 sides).[A] was very weak, and unaware of true fact and had the following disabilities (list) T
was very unfair as(fact)

C: The contract between [A] and [B] was unconscionable, and A may have the contract set aside as void. (Gain
returning the $...)

2- Lack of capacity

Rule: A contract will only be enforceable if both of the parties have the legal capacity to enter into contracts. A
rule. A person will not have legal capacity to enter into contract if they are minor or a person lacking intellectual ca

 Minors (under 18)

I: The legal issue is whether [A], a minor, had a legal capacity to enter into a contract with [B]

R: The rule states that contracts with minors are valid, but most contracts cannot be enforced against a minor i
wishes to void them. However, some contracts are fully enforceable against minors, including employee training
for the minors benefit)(Hamilton v Lethbridge),and contracts for necessaries, up to a reasonable level (
Gregorcewicz)
A: Here, the K between [A] and [B]was(an employment training contract) for [A]s benefit b/c[A] wanted to be(a
singer). Thus, we can assume(this training) would have enable [A] to do so.
C:As/Although [A] is a minor, [A]did/did not have legal capacity to enter the K with [B]. Thus, [no] enforceable K
and [B]can/cannot sue [A] for breach of K.

Mental illness
I: The legal issue is whether [A], lacked a legal capacity to enter into a K with [B] due to mental illness.
R:Contract with the mentally ill are valid unless (2 elements) (Gibbons v. Wright)
1. They are so mentally ill that they did not know what they were doing, and
2. The other party was aware of their mentally ill condition.

A:There is (no) evidence to show that [A] was so mentally ill that he did not know what he were doing. At the m
signed the contract, ( state facts of mental status of [A]).
There is (no) evidence that [B] was aware of [A]s mental status or [A] was so mentally ill (state the fact of [B]s aw
C: Therefore, [A] did (not) lack legal capacity to enter into a contract. A valid contract was (not) formed between
and [A] was (not) bound to a contract.

Intoxication

I: The legal issue is whether [A], lacked a legal capacity to enter into a K with [B] due to mental illness/intoxication
R:Contracts with the intoxicated are valid unless
1. They are so intoxicated that they did not know what they were doing, and
2. The other party was aware of their intoxicated condition.

A:There is (no) evidence to show that [A] was so intoxicated that he/she did not know what he/she was doing. At th
he/she signed a contract, . (state facts of intoxicated status)
There is (no) evidence to show that [B] was aware of [A]s intoxicated condition, . (state facts of [B]s awareness).

C: Therefore, [A] did (not) lack legal capacity due to intoxication. A valid contract was (not) formed between [A] a
[A] was (not) bound to a contract.
Note: If the contract is not illegal, a court may declare a contract void and refuse to enforce the contract\\
I: The contract between [A] and [B] meet illegal as formed category

R: Contract is voided if it is formed for an illegal purposes illegal as formed including accomplishing a crim
promoting

corruption, harming public safety, various other activities that are deemed to threaten the public good (Pearce v Bro
A: Here, the contract with the aim of violating ()
C: Thus, the contract is illegal as formed and it will be voided. Neither party made enforce it.

Content of contract
A. Term or Mere Presentation

I: The legal issue is whether the statement ... that [A] made to [B] is legally enforceable term or mere representation.
R&A:
Terms are generally guarantees, promises, or statements of fact about the subject matter of the contract and it can be verified. For it to
become a binding, legally enforceable part of the contract, the statement of fact must be made during the formation of the contract
(Handbury v Nolan)
Here, this statement can be verified independently Sbody could determine whether... (there was a policy that HD students do win
the trip, hotel, etc. OR university [B] is accredited in the USA
B. In writing and signed contract
I: The first legal issue is whether [A] breach the contract
R: If a term is in a written contract that has been signed by the parties, it is a binding and enforceable term of the contract, even if one
of the parties has not actually read and understood the written contract
A: Here, it is easy to see that the written contract contained the following term that This agreement contains all the terms and
condition under I agree and any express or implied condition, statement of warranty, statutory, not stated herein is hereby
excluded. Although [B] did not read and understand the terms, by signing the contract [B] is likely to agree all of the term of the
written terms of the contract (LEstrange v F Graucob Ltd, 1934)
C: [A] did not have obligation to [B] and did not breach the contract. (Ty concluse v issue)
OR
A: Here, [B] argued that [A] did not give attention about the terms and [B] has not read the term in the contract. However, there is
evidence that [B] signed into the contract. Therefore, the term was binding and enforceable term of the written contract because it had
been signed by [B] and [A] does not have obligation to bring particular terms to the attention of [B] [Toll(FGCT) Pty Ltd v
Alphapharm Pty Ltd (2004)]
C: [B] cannot sue [A]
C. Outside the contract
1. Incorporation by reference
I: The legal issue here is whether a written statement outside of the contract between [A] and [B] is incorporated by reference
R: The court will usually incorporate by reference a written statement outsude the contract as long as REASONABLE NOTICE is
given to all parties that the outside written statement is part of the written contract. (Parker v Southeastern Railway)
In this case when the written contract does not refer to it, the signs/document/verbal statement outsides the contract that [B]
want to incorporate it into the contract (Grand Prix case) must be:
Signs (Wall, Banner): the sign must be prominently displayed clearly visible where everyone, including [A], did or
could have seen before or at the time the contract was entered into. That means would a reasonable person have seen
it? It does not matter whether the party actually saw it or not
Documents: the document itself must be contractual in appearance. In other words, would a reasonable person expect
to see legal terms and obligations on that document? If not, then no reasonable notice was given so it was not valid
[Le Mans Gran Prix Circuits Pty Ptd v Iliadis (1998)] (dung cho case not valid)
Note: Tickets have been known to contain terms which are contractual in nature (Sydney City Council v West)
Verbal Statement (Incorporate by reference only): Oral Statements will sometimes be given before the contract is
signed. If the parties discussed the matter, then obviously the parties have received reasonable notice. It must be
presented before or at the time signing the contract.
2. Parol Evidence
Since there was a written contract and a verbal statement, we need to discuss Parol Evidence Rule. The courts presume that written
formal document which appear on their face to be a complete record of the agreement between the parties contain the whole
agreement. If this is the case, parties will not be able to subtract from, add to, vary or contradict the language of the written
instrument (Skywest Aviation Pty, Ltd. v. Commonwealth of Australia). However, the presumption can still be rebutted, some
case for rebutting the presumption:
Even if a written contract appears complete, if what was agreed orally is very important to the agreement, the court may
conclude the oral statement is a term (Vanden Esschert v Chappell)
Parties may also be able to correct errors in the written document (Pukallus v Cameron)
Explain technical terms or an ambiguity in the contract (Codelfa Construction Pty Ltd v State Rail Authority of NSW)
Lastly, when a way to avoid the Parol Evidence presumption is not possible, courts may resort to the concept of a
collateral contract a second contract: in return for the representation or promise the other party has enterned into the
main contract (vi nguoi ta phai tu bo legal right de mua somewhere else) [De Lasalle v Guildford]
Note: Collateral contract is not the main contract, the other party is not entitled to terminate the main contract. However, they
can be entitled to damages and equiptable remedies for breach of the collateral contract.
3. Condition or warranty
I: The second issue is whether the statement was a condition or a warranty

R:A Condition is an essential term that is extremely fundamental and important to the subject matter of the contract. If the term is a
condition, then if that term is breached, the other party can terminate the contract (or rescind) and sue for damage (Associated
Newspapers Ltd v Bancks). Warranty is a term that is not as important to the subject matter of the contract. It is of secondary
importance not as fundamental to the contract as a condition. If a term is only a warranty, then if that term is breached, the other
party can only sue for damages. It cannot terminate the contract (Bettini V Gye)
Court has distinguish between Condition and Warranty by applying the Essential Test: Whether it appears from nature of the
contract, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been
assured of a strict performance of the promise (Tramways Advertising v Luna Park)
A:Here, the statement about... (Hawaii trip) does not go to the root of the contract. (Hawaii trip) was not fundamental, but merely or
lesser impotance, given the nature of this contract. Primarily, [A] choose... (university [B] for education purposes and the trip would
be nice, but not essential]. Money damages would be an adequate remedy for [A] here and [A] cannot terminate the contract.
OR
Here, the statement about... (US accredititation) goes to the root of the contract, it is central to the whole purpose of... (going to
school and getting the degree). ... (the accreditation) is essential that [A] would not have entered to the contract without assurance of
strict preformance of the promise. Therefore, in this case, because [B] has breached condition term, [A] can terminate the contract
and sue for damages caused.
C: This statement is/isnot the most important, top concern of the contract because.... Hence, it is a condition/warranty of the contract.
Therefore, because [B] breached the condition/ warranty, [A] can successful...
Note: Specific Remedies
Injunction
R: An injunction is when the court orders the breaching party not to do something (Lumley v Wagner)
A: In the circumstance, [A] cannot request the court to order specific performance with regard to [B] force [B] to___ (do something)
____ for [A] because the [A]-[B] contract is one for personal services (what services). But [A] may request the court to order an
injuction to prevent [B] from ___(doing something)___ for a period of time
4. Exampting, Excluding Terms (under common law) Cm tuong tu term va concluse disclaimer
I: The legal issue here is whether the exclusion/waive clause_____ is a binding, legally enforceable term of the contract (under
common law)
R: Examption clause is a statement that one of the parties to a contract will not be liability for the consequences of a failure to perform
their obligations. In order for exclusion clause to be valid, Resonable Notive that the examption clause existed must be given at the
time the parties entered to the contract.
Step 1: Where is the term
If inside the contract, is it specific enough to clearly identify the document (Maxitherm Boilers v Dunlop)
Step 2: In this case, the exclusion clause located in form of a
Signs (Wall v Banner), was it prominently displayed?
Yes, ... (We dont have ability for any...) exclusion clause was prominently displayed
Document [Le Mans Gran Prix Circuits Pty Ptd v Iliadis (1998)]
No, ...(We dont have liability for any damages) exclusion clause was contained in a document (marketing brochure) with non
contractual appearance. A reasonable person would not expect to be bound by statements in... (a marketing brochure or survey)
Step 3: It must be presented to the [A] before or at the time the contract was entered into?

Consumer Protection
Note: Under statutory law, liability cannot be voided by use of a disclaimer (ACCC v Telstra Corporation Limited, 2007)
1. Consumer

First, have to prove that person [A] is a consumer if they have acquired goods or services
a. The price of good is $40,000 or less.
The price of () is ($...), which is less than $40,000.
b. Have not been acquired for re-supply or for use in a manufacturing process.
OR
a. If the price is more than $40,000, they have to be goods (or service) that ordinary acquired for personal,
domestic, or household purpose.
If a consumer buys a (...), he/she will normally take it home for personal use of (purpose). Therefore, () is a type of
good which is ordinarily used for personal, domestic or household purpose.
b. Have not been acquired for re-supply or for use in a manufacturing process.

A. AUSTRALIAN CONSUMER LAW (ACL) General Protection

Misleading and deceptive conduct (Section 18)
I:The legal issue is whether the conduct of (business name) is misleading or deceptive that (business name) have breached the section
18 of ACL
R: According to section 18 of ACL, a person or a business must not in trade or commerce which is misleading or deceptive or
likely to mislead or deceive. Since, there is no specific definitions for which can be considered as misleading or deceptive conduct, we
must take into consideration the certain situation of the conduct along with the 3 elements of section 18 ACL.
) The business has engaged in the conduct,
) The conduct was in trade or commerce, and
) The conduct was misleading or deceptive.
A: First we must prove that:
(1)The business/person has engaged in the conduct if it makes a statement or a claim or a promise, performs an action or refuses to
do any of these things. In some certain circumstances, even silence can be conduct (Henjo Investments v Collins Marrickville)
(2)The conduct was in trade or commerce if it had the intention to enter a contract to buy and sell goods and it was taken place in
a commercial context. => the conduct was in trade or commerce
Conducts that take place in a non-commercial context will not breach section 18 of ACL - Concrete Construction (NSW) Pty Ltd v
Nelson, political or educational context are not in trade or commerce Durant v Greiner and Pilmer v Roberts
(3)The conduct was misleading or deceptive.
Basically, mislead means to lead into error and deceive means to cause to believe untrue thing is true
C: As 3 elements above are satisfied, we can conclude that the conduct of (business name) is misleading and deceptive conduct.
Therefore, (business name) have breached section 18 of ACL.

Unconscionable conduct (unfairly taking advantage of another persons special weakness

or disadvantage)

I:The legal issue is whether the conduct of the (business name) is unconscionable conduct that (business name) have breached the
section 21 of ACL
R: As defined in the ACL, a business/person conduct is considered to be unconscionable if they unfairly take advantages of
bargaining power or another persons weaknesses or disadvantages.
To determine whether the conduct is unconscionable, we must apply 3 elements:
(1)The business/person has engaged in the conduct if it makes a statement or a claim or a promise, performs an action or refuses to
do any of these things.
In some certain circumstances, even silence can be conduct (Henjo Investments v Collins Marrickville)
(2)The conduct was in trade or commerce if it had the intention to enter a contract to buy and sell goods and it was taken place in a
commercial context.
Conducts that take place in a non-commercial context will not breach section 18 of ACL - Concrete Construction (NSW) Pty Ltd v
Nelson, political or educational context are not in trade or commerce Durant v Greiner and Pilmer v Roberts
(3)The conduct was unconscionable.
Since there is no specific definition of what is unconscionable conduct in the ACL, however, we can determine whether or not a
business or person has contravened/breached section 21 when supplying goods/services by considering:
The bargaining power between the business and consumer