Contractual term

Unilateral Contract: A one way contract. No counter promise, the contract is performed when both parties have performed i. e. “Wanted dog poster” – it is ultimately the exchange of a promise for an act o Australian Woollen Mills Pty Ltd v The Commonwealth (1953) 92 CLR 424 at 456 o Carlill v Carbolic Smoke Ball Co [1892] 2 QB 484 o Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd (1998) 153 ALR 198 at 222 • Informal (simple contract): Oral and/or in writing • Formal Contract: In writing, such as a deed. Vitiating Factors.

• Void: not a contract and the main effect of such an agreement is that neither party is able to sue each other pursuant to it – such as a mistake or restraint of trade. • Voidable: A contract whose validity is called into question because of a defect in the quality of the consent given by one of the parties upon entering into it – misrepresentation, mistake, duress, undue influence and unconscionability – no right to rescind in certain circumstances. • Rescinded contract: Treated as if it never had effect o London Borough of Islington v Uckac [2006] EWCA Civ 340 at [26].

• Unenforceable contract: An entirely valid contract, but can not be enforced due to absence of requirement by a state issued statute – such as in sale of lands. • Illegal contract: a prohibited contract. The Fact of Agreement (35) An offer • Must be communicated to the offerree, or his or her agent. • Must have will or intent of the offeror to be bound in contract by the terms of the offer. – Gibson v Manchester City Council [1970] 1 All ER • If an offer is learned by an unauthorized person there is no offer to accept: Bank v Williams (1912) 12 SR (NSW) 382 at 390-1 Acceptance.

• Can not be conditional • Must be in reliance on offer o R v Clarke (1927) 40 CLR 227 • May be express or implied • Must be communicated Invitation to treat Authority on treating: Storer v Manchester City Council [1974] 3 All Er 824 • Circulars, catalogues and advertisements • Displays of goods • Auctions • Tenders • Standing offers Authority on above contexts: Partridge v Crittenden [1968] 2 All ER 421 Exceptions to advertising material: If it is clear that the seller is limiting his/her liability to the amount of stock in hand: Lefkowitz v Great Minneapolis Surplus Store 86 NW 2d 689 (1957)

Displays of Goods Authority: Pharmaceutical Society of Great Britain v Boots Cash Chemists (southern) Ltd [1953] 1 QB 401; [1953] 1 All ER 482 • Are invitations to treat and not an offer. • Exception – things for hire: Chapleton v Barry Urban District Council [1940] 1 KB 532; [1940] 1 All ER 356 Auctions Are invitations to treat, bidders make the offers. Acceptance of an offer is by the fall of hammer. Advertising of an auction is not an offer to hold an auction. • Harris v Nickerson (1873) LR 8 QB 286 Tender Similar to auction, except each bidder makes one bid with no knowledge of other bids.

• Blackpool & Fylde Aero Club v Blackpool Borough Council [1990] 3 All ER 25 Termination of Offers Rejection An offer on rejection is terminated. A counter offer constitutes a rejection of an offer Authority: Hyde v Wrench (1840) 49 ER 132 Inquiry An inquiry is not a rejection, but simply a request for more information. Authority on Inquiry: Stevenson Jacques & Co v McLean (1880) 5 QBD 346 Revocation of Offer • Must be before acceptance • Must be communicated • Can happen at any time except: o Under an option which has been given consideration – Dikinson v Dodds (1876) 2 Ch D 463 at 472.

• Revocation of a Unilateral Offer: o Mobil Oil Australia v Lyndel Nominees (1998) 153 ALR 198 The Postal Acceptance Rule • Acceptance is completed as soon as letter is posted. Authority: Henthorn v Fraser [1892] 2 Ch 27 at 33 • Reasonable, contemplated or authorized Authority: Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1957) 98 CLR 93 Consideration Consideration must move from the promise • Dunlop Pneumatic Tyre co v Selfridge & Co [1915] AC 847 • Coulls v Bagot’s Executor & Trustee Co (1967) 119 CLR 460 Past consideration is not good consideration

• Roscorla v Thomas (1842) 114 ER 496 Consideration must be sufficient • Woolworths v Kelly (1991) 22 NSWLR 189 Promise to perform a public duty • Collins v Godefroy (1831) 109 ER 1040 • Glasbrook Bros v Glamorgan County Council [1925] AC 270 Promise to perform an existing contractual duty • Stilk v Myrick (1809) 170 ER 1168 Exceptions: • Hartley v Ponsoby (1857) 119 ER 1471 • Williams v Roffey Bros & Nicholls [1991] 1QB1 • Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 • Antons Trawling Co v Smith [2003] 2 NZLR 23 Forbearance to Sue Forbearance means abstaining from something or giving something up.

If something is given up, this could amount to consideration, the question is whether the promisee that gives up the right to sue can take legal action. Generally this is sufficient as long as the person suing has a reasonable claim and secondly that you had a bona fide belief (or reasonably held belief) that they would win. Giving up the right to sue someone is seen as giving up something of value. • Hercules Motors v Schubert (1953) 53 SR (NSW) 301 • Wigan v Edwards (1973) 1 ALR 497 Part payment of a debt The question has arisen of whether part payment of a debt is sufficient consideration.

If a debt of $10000 is owed, and an arrangement is made where the debt will be squared at $7000 instead of $10,000 can the party sue for the extra $3000. The answer is yes, because part payment of the debt is not good consideration for your promise not to sue for the balance. The promise to pay less than what you are contractually bound to pay is not sufficient consideration. • Pinnel’s Case (1602) 77 ER 237 • Foakes v Beer (1884) 9 AC 605 Promise to perform a public duty The performance of one’s public duty (such as a police officer) is not considered good considerations: • Collins v Godefroy (1831) 109 ER 1040.

Exception: • Glasbrook Bros v Glamorgan County Council [1925] AC 270 Estoppel Courts may be prepared to enforce a promise without consideration (a gratuitous promise) as long as certain threshold requirements have been met, through the courts of Equity Estoppel: The concept of estoppel is widespread in the law, it has its roots in both common law and equity. Both common law and equity took views and interpreted estoppel in different ways. The principle of estoppel involves: Common Law Estoppel • A court preventing/precluding “estopping” a party from relying on their legal rights.

• Common Law estoppel, generally speaking, is where one party to a legal relationship caused the other party to make an assumption of fact. If this is the case then the party causing the other party to make the assumption will under estoppel be forced to make fact of the assumption. • If “estoppel” is raised successfully this allows the court to determine the fact, without creating new rights. • The law should not permit an unjust departure by a party from an assumption of fact, which he has caused another party to adopt or accept for the purpose of their legal relations.

Estoppel In Equity • Not limited to assumptions of facts • Also extended to future intentions • Bringing Promissory and Proprietary estoppel Promissory Estoppel • Courts were prepared in certain situations to stop a promisor from going back on his promise: Central London Property Trust v High Trees House [1947] 1 KB 130 • Unconscionably is the heart of equity • You could only raise promissory estoppel if there was a pre-existing legal relation • Promissory estoppel could only be used as a shield in case you were sued, however you cannot use it as a sword to avoid a loss or cost.

Proprietary Estoppel • Estoppel is a doctrine designed to protect a party from the detriment that would flow from that party’s change of position. • Also designed to act as a sword as well as a shield, usually introduced to equitable estoppel. • Operates in real property law, promissory estoppel does not. • Not available if plaintiff and defendant have a legally enforceable contract relating to the property’ • Dillwyn v Llewelyn (1862) 45 ER 1285. Consolidation of Promissory and Proprietary Estoppels • Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; 76 ALR 513.

o Maher used estoppel against Waltons (as a sword) rather than as a shied. o Waltons had acted unconscionably • Case established in Australia, equitable estoppel which means: Equitable Estoppel Walktons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; 76 ALR 513 Equity will provide relief to a plaintiff who has acted to his detriment by relying on a reasonable assumption arising from the defendants promise which the defendant has encourages or failed to deter, so that it will be unconscionable to allow the defendant to break the promise.

Rules for a plaintiff to establish equitable estoppel i) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, the defendant would not be free to withdraw from the expected legal relationship ii) the defendant has induced the plaintiff to adopt the assumption or expectation; iii) the plaintiff acts or abstains from acting in reliance on the assumption or expectation.

iv) the defendant knew or intended him to do so; v) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and vi) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. Intention to Create Legal Relations • Intention to be legally bound • Intention to create legal relations • A mutually held intention that the agreement will be enforceable in court. • Two presumptions: o Agreements between family, social and domestics are non binding.

o Commercial or business presumption: agreements between people in a commercial or trading relationship are presumptuously binding. o Both are capable of being rebutted with evidence of the contrary. Family, Social and Domestic • Balfour v Balfour, first real case in which courts started asking for evidence of intention. It indicates that the presumption will apply between spouses who are living together at the time. It does not apply if spouses have separated or are about to separate at the time of making. • Jones v Padavatton [1969] 2 All ER 616.

• You must look at the nature of the transaction, the key to rebutting the transaction is evidence of loss or detriment – loss must be serious enough that a reasonable person would consider that the agreement should be enforced and legally binding. o Roufos v Brewster (1971) 2 SASR 218, essentially an agreement that was commercial in nature. o Wakeling v Ripley (1951) 51 SR (NSW) 183 Commercial and Business • Rose & Frank v Crompton – written contract, with a clause that stated that if the parties fall apart, or are in dispute they both agree that the agreement will not be legally binding.

Letters of Comfort Letters that are designed to provide some sort of comfort to a commercial entity when it is about to enter into a contractual relationship with a third party. • A letter of comfort is usually provided without any intention of guaranteeing the performance of the company • Generally says “we will do our best to ensure the company meets the obligations” without guaranteeing it. • Is there intent through the letter to be legally bound? • Kleinwort Benson Ltd v Malaysia Mining Co [1989] 1 All ER 785.

• Banque Brussels Lambert v Australian National Industries (1989) 21 NSWLR 502’ Government Contracts • The issue of intent as to whether a contract is legally binding is dependent on whether contractual intention is locatable in the agreement. (Private Law) • If the government is implanting policy, this is usually implemented as non-contractual, non-binding because the government is carrying out a programmed involving public law consideration with expenditure on public funds with a political mandate, which it got from the electorate.

• Administration of the Territory of Papua & New Guinea v Leahy (1961) 105 CLR 6 – no contract • Anictomatis v Northern Territory of Australia [2008] NTSC 28 Completeness and Certainty Completeness A contract to be considered an agreement, to be considered a contract, it must set out the essential terms. For example: A contract for a sale of land under S54 of the Conveyancing Act NSW, must at least set out the essential terms in this case: the parties, the property and the price – these are the essential terms without these, the contract is not complete.

However, what if the contract says for example the price is to be determined by evaluation provided by an independent third party? • Booker Industries Pty Ltd v Wilson Parking (Qld) Ltd (1982) 149 CLR 600; 43 ALR 68 o There was an option to renew a lease, and that option contained a term that the rent of the new lease was to be determined by an arbitrator appointed by the president of the Queensland law society. The High Court held that that term made the contract sufficiently complete, we know how rent is to be determined.

o A contractual term that sets out some sort of mechanism to determine rent will render the contract complete o Incompleteness can be overcome if there is agreement on some mechanism for determining one or more terms of the contract. Certainty It must be clear or ‘certain’ what the parties have actually agreed. • An example of this is where parties enter into a contract on ‘reasonable’ terms. This is deemed uncertain. • The more novel or unusual an agreement, the less able will the court be to imply terms to complete the agreement.

• The consequence of lack of certainty/completeness generally means that the contract is void, from the beginning. • Whitlock v Brew (1968) 118 CLR 445 • Coal Cliff Collieries v Sijehama [1991] 24 NSWLR 1 Subject to Contract • In cases where parties have reached an informal agreement as to the essential terms of their bargain, but also envisage formal contracts being prepared and executed at a later date, the question that arises is whether the earlier informal agreement creates an enforceable contract or whether an enforceable contract only arises upon execution of the formal contract.

• Masters v Cameron (1954) 91 CLR 353. The Requirement of Writing • The earliest statute requiring writing was Statute of Frauds 1677 (UK), which imposed a writing requirement in relation to various types of contract, including contracts involving land and goods as well as those of guarantee. • Any subsequent to vary a contract in writing must also be placed in writing o Unless it is to discharge or release parties from their obligations pursuant to the sale of land. • In NSW Section 54A(1) of the Conveyancing Act 1919 stipulates:

“(1) No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged or by some other person thereunto lawfully authorized by the party to be charged”. The note or memorandum Legislation requires that a contract between parties be recorded in a written contract or ‘note or memorandum’.

Written contracts, usually prepared by solicitors or conveyancers, are the usual way in which this aspect of legislation is satisfied. However other documents, provided they satisfy a ‘note or memorandum’ of the contract are also sufficient. • A letter is sufficient: Thirkell v Cambi [1919] 2 KB 590 • A receipt is sufficient: Dinan v Harper [1922] VLR 49 • A written offer to be charged and accepted by the offeree is sufficient: Lifoon Pty Ltd v Gillard [2006] NSWCA 182 at [42] Required Terms (material terms) The terms to be set out in any contract involving land are not specified in the legislation.

It has, therefore, been left to the courts to fill this gap and they have determined that to comply with the legislation the written contract relating to land, or some note or memorandum of the contract, must contain, at least, its essential terms (for example, the specific location of a property – lot number etc…): Harvey v Edwards Dunlop & Co at 307 Three Essential terms for property: • There must be a description of the parties to the contract • The contract must set out the price or consideration for the land or interest in land • The contract must describe the land or interest in land that is subject of the contract.

The need for acknowledgement of contract: Signature The essential terms of the agreement must be set out in a written contract or note or memorandum that is signed. The signature must be that of the party against whom the contract is sought to be enforced or another person lawfully authorized to sign the document on his or her behalf. An alternative way in which a signature for the purposes of the legislation an be met is: • Welsh v Gatchell [2009] 1 NZLR 241 at 253-4, Miller J: o His or her full name o Last name prefixed by initials o Initials only o Pseudonym o Combination of letters and numbers.

o A person’s name appended at the end of an email o Clicking “I accept” button A Typical transfer of land (contracts for Sale of Land) with Section 54A • Land registered under the Real Property Act 1900 (NSW) Four steps: • Pre-contract: Purchaser finds the property, inspects the property, negotiates and agreement (price) or at an auction. – This is an oral contract thus far (unenforceable until Section 54A) • Contract (exchange): Each party signs their own copy of the contract, and an exchange of contracts is arranged – parties sit down, meet and look at the two contracts, and ensure that the two are identical.

Then the two copies are exchanged (normally accompanied with a payment of deposit) – Thus far there is an enforceable contract and Section 54A is satisfied because each party has a signed copy of the contract by the other party. • Post-contract: Usually there are certain things to be done. For example, the purchaser has to pay stamp duty. The purchaser prepares a memorandum of transfer (a formal document which says “the owner transfer it now to me”) the vendor signs this. The purchaser must also finalise a separate contract, a contract with their bank to get money such as a mortgage.

The vendor must then arrange for a discharge of his own mortgage. • Completion (settlement): Exchange of documents for money or cheque. The purchaser then gets the memorandum of transfer signed by the vendor and gets the certificate of title and then goes to the land title’s office and lodges the documents to become the registered owner. Enforcement of Oral Contracts Involving Land A failure to comply with the statutory requirement of writing renders the contract unenforceable. Thus, there can be no actions for remedies such as damage at common law and specific performance and injunction in equity.

However, unenforceability is not absolute. Equitable principles recognize two situations in which a contract that does not comply with the statutory writing requirement will, nevertheless, be enforced by an order for specific performance. • First, the courts have long recognized that, if the reason for non-compliance with statutory requirement is fraud on the part of the defendant, the contract will be specifically enforced. (A statute can not be used as an instrument of fraud) – Wakeham v MacKenzie [1968] 2 All ER 783

• Second, equity will order the remedy of specific performance of a contract that does not comply with the statutory requirement if the elements of the doctrine of part performance are established. The Doctrine of Part Performance Part performance is a doctrine developed by the courts of equity. In certain situations the courts of equity were prepared to accept what the plaintiff did after the oral contract was formed. In other words, the post-contractual acts of the plaintiff as evidence of an oral contract: Equity may enforce an oral contract for the sale of land if a party has acted in part (or partial) performance of that oral contract.

Where as Section 54A will not support the law on part performance. • Estoppel is at the root of part performance. If one party allows the other party to act in performance of an oral contract (or to their detriment) he will be stopped from denying the existence of that contract. At common law it is about assumption of fact, in equity it is about stopping the promissor from going back and breaking his promise. (Walton Stores v Maher (1988) 164 CLR 387) • Courts began to recognize that post-contractual acts very often, were very good evidence of an oral contract.

Thus, if a party has acted in reliance of an oral contract, but can not prove that the contract satisfies the writing requirements of Section 54A(1) they may never the less be able to bring a suit in equity by pointing to their performance and conduct after the performance was formed. The defendant is charged upon the equities resulting from the acts done in execution of the contract. Not the contract itself. Equity looks at what the plaintiff has done (usually to his own detriment or loss). Requirements of the doctrine of part performance:

• To prove part performance, the acts that you are pointing to, must be those of the party asserting past performance or their authorized agent (McBride v Sandland (1918) 25 CLR 69) • Acts must be authorized by the oral contract, this means that the acts that I have done in reliance of the oral contract, must be acts which are permitted by the oral contract. Although they needn’t necessarily be required by the contract, they must be permitted by the contract (Regent v Millett (1976) 133 CLR 679) Capacity Not all persons have full contractual capacity.

Some persons have limited contractual capacity and some persons have no contractual capacity at all. The contractual capacity of minors, persons suffering a mental disability, bankrupts, corporations, aliens and married women are of particular question. Minors The common law considers any person under the age of 21 to be a minor, more commonly referred to as an infant. Throughout Australia, the age of majority has been reduced to 18 years of age. Generally each state has it’s own statute regulating the capacity of minors and allows them to enter into binding contracts except New South Wales.

In essence, in all states other than New South Wales, a person who is under age lacks contractual capacity in most circumstances, and if a contract is made with a minor then it is voidable at the minor’s option unless it is a contract for ‘necessaries’ or a beneficial contract of service, in which case it is valid Necessaries The word necessaries, is somewhat difficult to define, but it would include those things essential to the maintenance of the minor such as articles necessary to sustain the minor’s life: food, clothing and shelter: • Bojczuk v Gregorcewicz [1961] SASR 128 at 131.

• Chapple v Cooper (1844) 153 ER 105 at 107, Alderson B. Furthermore, contracts involving the minor receiving tuition or instruction have been held to be binding on the minor under the term ‘necessaries’: • Roberts v Gray [1913] 1 KB 520 Employment agreements with Minors The common law has recognized that minors may be bound to certain employment contracts such as apprenticeships where they are to the minor’s advantage or to their benefit and as long as such a contract does not contain unusual and prejudicial clasues outweighing the beneficial terms: Roberts v Gray.

• If the employment contract does not benefit the minor it is then not binding and will be void. Acquisition or disposition of property Minors may become involved in contracts to buy or sell property. Such contracts are not specifically enforceable due to the absence of mutuality. However with respect to land agreements, it is arguable that a common law minor should ratify such contracts when they attain 18 years of age: Orakpo v Manson Investments Ltd [1978] AC 95 at 106-7; [1977] 3 All ER 1 at 9, and that such contracts can be repudiated by the minor.

With respect o contracts to purchase shares, a similar position may apply. Minors in New South Wales Minors (Property and Contracts) Act 1970 (NSW) has abolished the application of the common law principles relating to infants’ contracts in New South Wales and provides that a minor is presumptively bound to a civil act which is made in accordance with the provisions of the Act. This does not affect the rights that a minor might otherwise have to avoid the contract. • Example: in cases of misrepresentation or undue influence • It will not affect any statutory rights a minor may have.

‘Civil act’ means, as it is defined in s 6 of the Act as including a contract, and an election to rescind or determine a contract, a disposition of property, a disclaimer or acknowledgement and by “any act in relation to contractual or proprietary rights or obligations to any chose in action”. Civil acts for a minor’s benefit are presumptively binding. • Section 18: Provides that a minor who, because of age, lacks or appears to lack, the necessary understanding, is not bound to a civil act. • Section 19: houses the primary test for the validity of a minor’s contract.

A minor will be bound to a civil act that is beneficial to the minor at the time that it is made. “Beneficial” generally has a wider meaning than “necessaries” at common law. • Section 20: A contract for the acquisition of property where the consideration paid or payable by the minor is not manifestly excessive at the date of contract or a contract for the disposal of property where the consideration is received at least in party by the minor and is no manifestly inadequate. – Binding • Section 23: a contract of investment in government securities – Binding • Section 27: a contract with consideration not exceeding $10,000 that.

has the prior approval of a Local Court and which is for the minor’s benefit – binding Mentally Unsound and Intoxicated Persons (persons suffering a mental disability) • A contract with a person who has been legally declared insane is void. • Contracts for the purchase of necessaries may be binding under sale of goods legislation. Difficulty arises in situations where a person lacks the necessary mental capacity to give genuine consent to commercial transactions: • The lack of capacity may be permanent or temporary and can arise from mental illness, sickness, age, or because of the consumption of alcohol or drugs.

• In such situations, the courts will not enforce a contract against a party who ‘lacks such soundness of mind as to be capable of understanding the general nature of what [he] is doing, and the other party knows of the lack of mental capacity: o Gibbons v Wright (1954) 91 CLR 423 at 437 • In order to avoid a fair contract on the ground of insanity, the mental incapacity of the one must be known to the other of the contracting parties. • A defendant who seeks to avoid a contract on the ground of his insanity, must plead and prove, not merely his incapacity, but also the plaintiff’s knowledge of that fact.

o Hart v O’Connor [1985] AC 1000; [195] 2 All ER 880 Corporations Previously, a corporation could only make a valid contract which it was authorized to make by its constitution. This constitution, part of which was known as the memorandum of association, contained the company’s objects or reasons for its formation, and defined the powers which could be exercised in order to achieve these objectives. If the company exceeded its stated objects or powers, it was regarded as having acted ultra vires and any such act was regarded as void at common law.

• This has been substantially abolished by ss 124 and 125 of the Corporations Act 2000 (Cth) • Companies registered to this act are bound to it, companies not registered to this act are still bound under ultra vires. • Sections 124 and 125 of the Corporations Act 2000 (Cth) have now substantially changed common law positions with respect to companies registered under that or previous companies legislations Aliens A contract made with an alien, a foreign national, generally does not cause problems of contractual capacity in peacetime conditions.

However, if there is a state of war between Australia and the country of that foreign national, there are two important consequences: 1. The foreign national is without contractual capacity to enter into a contract; and 2. The foreign national may not enforce a contract even if that contract was made before the outbreak of hostilities. Married Women • Equitable doctrine of separate state altered the position that married women lacked contractual capacity. • Now the position has been altered by statute in all jurisdictions in Australia such that almost all contractual restraints on married women have been abolished.

Express Terms Express terms are those explicitly included in the contract by the parties. In many cases this will not present any difficulties. Thus, in a written contract signed by both parties and which sets out the parties’ obligations, the express terms will be the said obligations. Terms and Representations We must differentiate between what are mildly considered to be ‘terms’ and those that are ‘representations. • Representation: ‘is a statement, or assertion, made by one party to the other, before or at, the time of the contract, of some matter or circumstance relating to it’: Behn v Burness (1863) 122 ER 281 at 282.

• A representation may constitute a misrepresentation, with the consequence that a party may be able to rescind the contract. • Alternatively, false representation may attract various remedies for breaching the statutory prohibition of misleading or deceptive conduct. Ascertaining Statements – A term or a mere representation? • Ellul & Ellul v Oakes (1972) 3 SASR 377, set out a number of factors that can be used to determine the difference between a term or a mere representation: 1. The importance of the statement – the more important it is the more likely it is a term;

2. The time that has elapsed between the making of the statement and the making of the agreement – the longer the time the more likely the statement is a representation only; 3. Whether the party making the statement was a vis-a-vis – if so, the more likely it is that the statement is a term; 4. Whether the statement was subsequently omitted when the agreement was embodied in a more formal written document – if so, the more likely it is that the statement is a representation only. • None of these factors is conclusive. They are simply indicators.

• In Oscar Chess Ltd Williams [1957] 1 All ER 325 Williams traded his Morris motor vehicle with Oscar Chess for a new car. Williams told Osca