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Acceptance And Certainty Notes

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This is an extract of our Acceptance And Certainty document, which we sell as part of our Contract Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Contract Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


ACCEPTANCE AND CERTAINTY
* *
* *
* *
* Final and unqualified assent
Only can be accepted by the person or persons to whom the offer has
been made
o unless circumstances say otherwise
o unilateral contract
SS? first person to respond
All that can be accepted is what was offered
o terms can't be modified
Acceptance must be in response to and as a result of the offer
o Crown v Clarke
SS? can only claim the 'reward' if you are accepting the offer
SS? must know about it/ be a response to an offer
Counter offer is NOT acceptance
o Hyde v Wrench
Standard forms
o "battle of the forms"
SS? Butler Machine Tool Co Ltd v Ex--Cell--O--Corp (England) Ltd
SS? terms of the buyer different to the terms of the seller * accepted as a counter offer not original terms
To be valid, the offeree must not only agree with the terms proposed by
the offeror but acceptance must be unqualified
o sometimes it is conditional
SS? "Terms and Conditions" Conditional Acceptance: * Is there finality?
o "subject to contract"
SS? Master v Cameron
SS? High Court of Australia -- 3 possibilities

1. reached final agreement
a. terms set out more precisely

2. reached final agreement
a. defer performance

3. reached final agreement
a. second formal contract is required -- CONDITIONAL
o "subject to finance"
SS? purchaser must take all steps reasonably necessary to get
financial approval
SS? finance satisfactory is a decision made by the seller


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ACCEPTANCE MUST BE COMMUNICATED! * Acceptance is only effective when communication has been received
o offeror can stipulate the way acceptance should be communicated * "only method"
o acceptance must be made in this way * "specify a method but don't say it's the only method"
o acceptance is accepted if it is advantageous to the offeror * "no method"
o acceptance in the same form as the offer was given * "acceptance by conduct"
o infer acceptance from conduct
SS? Empirnall Holding v Machon Paul Partners * "acceptance by silence"
o OFFEROR CANNOT STIPULATE THAT CONTRACT IS ACCEPTED
BY SILENCE
SS? Felthouse v Bindley
SS? Australian Consumer Law
s40 - Assertion of right to payment for unsolicited goods or
services
1) A person must not, in trade or commerce, assert a right
to payment from another person for unsolicited goods
unless the person has reasonable cause to believe that there
is a right to the payment.
S41 -- Liability etc. of recipient for unsolicited goods,
1) If a person, in trade or commerce, supplies unsolicited
goods to another person, the other person :
(a) is not liable to make any payment for the goods; and
(b) is not liable for loss of or damage to the goods, other
than loss or damage resulting from the other person doing
a wilful and unlawful act in relation to the goods during the
recovery period.

Postal Rule * acceptance arises as soon as the letter is properly posted NOT when it is
received
o Adams v Lindsell * parties must have contemplated post would be means of communication
o Henthorn v Fraser * EXCEPTIONS
o offeror stipulated actual receipt of acceptance letter
SS? Bressan v Squires
o circumstances of case -- where negotiations are complex and highly
contentious
SS? Tallerman v Nathan's Merchandise


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