Course Outline

The essential ingredients

• Offer and acceptance
• Consideration
• Intention – identify issues with Memoranda of Understanding, letters of intent and letters of comfort
• Certainty of terms – express and implied, agreements to agree
• Contingent conditions
• Consider the impact of ‘good faith’ requirements in contracting practice
  
  Exercise:
  A practical problem which highlights how the formation process can lead to problems within an organisation

Capacity issues

• Rules relating to commercial entities
• Agency issues
• Statutory provisions
• Practical steps to overcome capacity issues

Creating legal contracts

• Do contracts always have to be in writing?
• Consequences of non-compliance
• Part performance
• Variations and the rules
• How do you sign a contract?

What kinds of contracts are there?

• The real costs of “sloppy” contracts: learning from the mistakes of others
• Deeds vs. Agreements – what’s the difference?
• What are implied contracts?
• Standard form contracts and other express forms of contract
• Tenders and the legal issues which impact on the tender process
  
  Exercise:
  A case study considering problems in a tender situation. This will involve designing a process which avoids the legal and commercial pitfalls in tendering

Constructing good contracts

• Understanding the form and content of a contract
• What makes a good contract: details and consistency
• The advantages of “Plain English”
• Risk management in contract drafting: exemption clauses and limitations of liability
• Legal issues surrounding indemnities & warranties
• Consider the problems with intellectual property clauses and how to overcome them
• Minimising misunderstanding: traps and pitfalls with drafting clauses
• Tips for effectively reading contracts
  
  
  Exercise:
  Examples of plain English drafting together with a case study which involves an approach to practical drafting

Estoppel – knowing when & how to use it

• What are the principles?
• Inducement and detrimental reliance
• Exploring when and how to use estoppel
• Estoppel in practice – discussion of case law
• Practical tips to manage estoppel in contracting practice
  
  Exercise:
  Case study problem examining estoppel issues in a commercial setting

Statutory impact on contract law

• Trade Practices Act 1974
• Sale of Goods Act 1908
• Corporations Act 2001
• Workplace Relations Act 1996

Setting aside contracts

• Mistake
• Misrepresentation
• Misleading and deceptive conduct
• Fraud
• Duress and undue influence
• Unconscionability – statutory unconscionability
  
  Exercise:
  Case study examining a contractual negotiation which leads to a contract but which contains clauses based on misrepresentation and mistake. How the law will treat these statements and the impact for the contracting parties

Termination

• Types of termination
• Breach
• Repudiation
• Delay
• Consequences of affirmation and termination

Remedies for breach

• Injunctions
• Specific performance
• Cancellation
• Damages
• Actions for debt and relief against forfeiture
• Restitution
• Alternative dispute resolution

Assessing damages

• How and when damages are assessed
• What if the contract provides for the way damages are assessed?
• Liquidated damages and penalty clauses
• Reliance and expectation losses: damages resulting from “loss of a chance”
• Damages for disappointment, distress and psychological injury arising from breach of contract
• Matters affecting the recovery of damages: mitigation and contributory negligence
  
  Exercise:
  A case study on damages together with drafting a liquidated damages clause which will avoid the legal pitfalls and encourage use and compliance by contracting parties

Contractual issues in an e-commerce environment

• The contractual implications of e-commerce
• On-line trading, encryption and electronic signatures
• Jurisdiction issues
• The impact of e-commerce on contractual practice