-Ewan Mc Kendrick : «contract law »
-A level law : syntèse du droit des contrats
The formation of contract: the most majority of people think that contract is necessarily a signed document by the parties. If all contracts took this form, they would not be undisputed about weather. The parties are bound. The problem is in practice: the fast majority ofcontracts are not like this. They are intended to without any kind of formality.
Very often, the parties are going…without even no yet.
Many people are not to be going aware that in fact it’s a contract.
The foundations of the present day law of contracts were laid in the 19th century which is quite logical that this period of history, so a very big expansion of trade and industry, and thereforea very important increase in the volume of commercial disputes.
What happened in the 19th century in Britain in very important?
Before, trade was almost national and with the industry revolution, it’s the expansion of international commercial.
Gradually, the judges developed a body of rules which reflected both the commercial background of the disputes from which they rose and the prevailingbeliefs of the town. It’s liberalism.
At the time, the most important principle was that a freedom of contract.
A contract was the parties business and the parties were free to enter into contract or not and therefore it was not the role of judges to meddle with the parties business.
In Britain, the judges considerer that its not his role to interfere.
Nature of the contract:
Contract hasbeen defined as a legally binding agreement. Some agreement are going to be biding…and some others no. Contracts may be divided into two broad classes:
-specialty contracts: a form of contracts also know as deeds.
-simple contracts: can be either formal or informal and they can be made in anyway ( in writing, orally or in some cases implied by conduct).
The main elements of a valid contract:-an agreement = is formed when one party makes on offer and the other party accept the offer.
-consideration= means that the parties must demonstrated that their agreement is part of a deal/bargain.
Each side must demonstrate that he intended to give or do something for the other. The laws of contract will not enforced gratuitous promises.
-intention to create a legal relation. The partiesmust have intended their agreements to have legal consequences. That is why the law of contract wills not obly to social or domestic agreements.
-the form of the contract: in most cases, no form will be required to make a valid contract. But in some specific cases, some formalities will have to be respected.
-capacity: in order to make a valid contract, the parties must be legally capable ofentering into a contract.
The point is not everybody is not capable to enter into a contract. Ex: minors.
-Geniuses of contract: for a contract to be valid the agreement must have been entered into freely by parties and there must be a meeting of minds.
-legality: the purpose of the agreement must not be illegal or contrary to public policy.
If all these requirements are satisfied, the contractis going to be valid. And if one the parties does not perform an obligation of the contract, he or she may be sued (poursuivre en justice).
On the contrary, if there is one of these elements that is missing, the contract will be either void, voidable or unenforceable.
A void contract = is a contract which is supposed not to have existed. The all transactions is a nullity.
A voidablecontract: contract that is valid until it’s avoided. It’s a contract where one party is protected against the other.
Unenforceable contract: is a contract that is valid but which cannot be enforced before the courts.
We can make a contract in any form we want. But if I want to prove the existence of the contract, I’ve only the possibility to present a written document.
An agreement: the first...
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