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Intention, Consideration, Genuine Consent (Consideration
something of…
Intention, Consideration, Genuine Consent
Intention
to create legal relations - agreement will not create contract, need intention
Domestic, family, social agreements
presumption = parties did not intend to create legal relations- Unless evidence to rebut
-significantly changed their position in reliance on the agreement -marital relationship has broken down
Merritt v Merritt - pay outstanding mortgage balance - since the parties had separated, the agreement regarding ownership of the home was intended to create legal relations and was binding
Balfour v Balfour - promise to the wife to receive money every month - court said ordinary domestic agreement, no contract, love and affection holds so little, not consideration
Todd v Nicol - presumption rebutted by evidence of the high cost and inconvenience - significant consequence
Ashton v Pratt - "mistress"- not cast in the language of obligation - no intention to create legal relations, absence to attention to matters of detail
Ermogenous v Greek Orthodox Church of SA - employment with church not contractual because church social arrangement - not held - wrong to make presumption because it involved religion, had rights of employment (flavour of agreement)
Commercial agreements
presumption = parties intended to create legal relations - unless express exclusion of intention or government policy proposals
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Australian Woollen Mills v Commonwealth of Australia - no binding contract to subsidise wool purchases - not locked in -broken policy has political consequences not legal ones
Rose & Frank v JR Crompton - not legally binding as it was clear from the clause that the agreement intended to be binding in honour
Consideration
something of value in return for the promise - the 'price paid' for the promise - did something - promised something - refrained from doing something
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May be Executory (promise given in exchange for a promise) Executed (promise then the act, unilateral) but can not be
Past Consideration (act done then promise made)
Exception to 'past consideration' - act must be done at the promisor's request / the parties understood the act would be remunerated either by payment or benefit - reasonable to expect
Williams v Roffey Bros & Nicholls - promise to pay extra money was - practical benefit/avoided paying damages - no duress
Musumeci v Winadell - promise to reduce rent agreement was supported with consideration and was binding - practical benefit
Anderson v Glass - past consideration - contract was unenforceable to the past period, increase wages for past services not enforceable
Genuine Consent
If the consent affected by a mistake or induced by a misrepresentation or extracted under duress or by the use of undue influence or unconscionable conduct, the agreement may not be enforced
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