Talk:Contract/Archive 01

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Rights of Third Parties

This whole area of the law of contract has been totally omitted. In English law, third parties to a contract didn't have the right to sue either of the original parties. See Dunlop Pneumatic Tyre Co. v Selfridge Co. [1915] AC 847. An analysis of Contracts (Rights of Third Parties) Act 1999 on this area of law needs to be included. Willstansfield 19:54, 4 September 2006 (UTC)

Contracts signed "under deed"

Deed at wikipedia seems to make no mention of this option, which exists in UK law, nor does Contract. Used for example in building contracts for numerous reasons, primary effect to increase the statute of limitation from 6 years to 12 years on such contracts. I was looking for the precise definition of it, clearly missing, so don't feel I ought to add to this page myself (not an expert on law, far from it, but if someone with legal knowledge reads this... Graldensblud 23:59, 16 February 2007 (UTC)

Validity of contracts

I thought another major element is "certainty of terms". Anyone? --68.127.89.164 23:14, 4 August 2005 (UTC)

Yeah, that sounds right. I remember from when I was studying for the California bar exam (which was last week) that an offer is supposed to have "definite and certain" terms and the acceptance must unequivocally manifest an intent to accept the offer.
Is that the case everywhere else? --Coolcaesar 23:23, 4 August 2005 (UTC)
I think contract with a minor is voidable not void. Anyone?
That sounds about right. If I recall correctly, the minor can choose to affirm the contract upon reaching majority or disaffirm it and render it void. So it's voidable (meaning it contains the potential to become void), but not void at inception. --Coolcaesar 21:21, 27 November 2005 (UTC)
A Minor is obliged to pay for goods and services that are "necessary goods"; necessary goods being defined as "suitable to the condition in life of the minor and to his actual requirements at the time of the sale and delivery" (s.3(3) Sale of Goods Act 1979). Note that necessary goods are not the same as necessities. In Ryder v Wombwell (1868) LR 4 Exch 32, a pair of cufflings worth £25 and a £15 goblet were held to be necessary goods for a child with a £500/year income. (Although the verdict was set aside for lack of evidence; the legal principle still applies). It is up to the Plaintiff (claimant) who is trying to enforce the contract to show that the goods are necessary goods. Willstansfield 20:15, 4 September 2006 (UTC)

An expert should add something to this section about the fact that both parties have to have the right to promise what they agree on for the contract to be valid, e.g. the situation of someone pretending to be a landlord and collecting rent. --Espoo 11:50, 25 August 2006 (UTC)

Puff or puffing or puffery?

The article says the term of art for sales talk is "puff," but here in the U.S. I was taught in Contracts that it was called "puffing." Also, Black's Law Dictionary, 7th ed., does not have a definition for "puff," but it does have a definition for "puffing," which includes the following note: "also known as puffery." I suspect that this is yet another American English v. Commonwealth English difference. Can anyone let us know exactly where the term "puff" is used instead of "puffing"? --Coolcaesar 18:47, 17 January 2006 (UTC)

  • In England & Wales we talk about a "mere puff", although I cannot provide a source for that off the top of my head. It implies you're right that this is a cross-Atlantic problem, though. AndyJones 19:06, 17 January 2006 (UTC)
    • "Mere puff" was mentioned in the Carlill v Carbolic Smoke Ball ([1893] 1 QB 256) case, as per Lindley LJ at 261. Sir Jimmy 10:29, 14 March 2006 (UTC)

Estopple

I noticed that there are no reference to estopple at all in the article. Is that because its is seen as two different parts of law? (ie. Common law and equity), or has someone simply forgotten? Sir Jimmy 10:31, 14 March 2006 (UTC)

See the Estoppel article. But yes, its exclusion is more due to the fact that it hasn't been written rather than an explicit intention to leave it out. enochlau (talk) 13:40, 14 March 2006 (UTC)

Fork

About forking this article:

  • Such a major change should not be done without prior discussion. I have reverted it. In particular, a lot of other pages need to be changed (e.g. the pages linked from the infobox), so this change shouldn't be taken lightly.
  • Unless we actually have content on contracts in the civil law, it is premature to fork it to common law/civil law articles.
  • Never move an article by copying and pasting. Use the move button and then recreate the original article if you really want to do this.

enochlau (talk) 04:00, 9 April 2006 (UTC)

I concur. From what I've read, civil law doesn't have a law of contracts per se, but rather treats it as part of the law of obligations. Therefore, I think any discussion of civil law contracts should be in a Wikipedia article on the law of obligations which should be linked to appropriately in a See also section in the footer of the Contract article.--Coolcaesar 06:26, 9 April 2006 (UTC)

Contractor?

I am trying to remove direct links to the contractor disambiguation page. As you'll see, it has a definition there, which is used by a few pages as a link, and seems sensible from those pages (see for example mentor). The definition does not really belong on the disambiguation page, could it be teased in here somewhere, so it all looks a bit more sensible? I'll not do anything for a while, as I don't want to over-lengthen or mess about with this article. A separate page just for a definition seems wrong, and a Wiktionary link in mentor would spoil the article. Help! LeeG 13:35, 3 June 2006 (UTC)

From what I understand, the definition provided on contractor ("A contractor is a legal term...") is not the legal term as it suggests. My legal dictionary states that a contractor is "the builder of a construction project". The usage suggested seems to be the more general, everyday usage. enochlau (talk) 17:24, 3 June 2006 (UTC)

Thanks, that is interesting. I had started to form the opinion that I would move that definition from the disambiguation page to the independent_contractor article as it seemed to fit better there, and it's easy to link back to contract. If it is not a legal definition I'll delete the bit that makes it purport to be so. Off to check out the Black's Legal Dictionary... LeeG 18:05, 3 June 2006 (UTC)

EULAs

EULAs in software seem to violate the fundamental form of contract (by adding unspecified terms after the exchange of value), and the very least I think the topic is worthy of linkage here. Thoughts? Belltower 16:25, 27 October 2006 (UTC)

I've heard that arguement made before, but am not an expert.Graldensblud 00:01, 17 February 2007 (UTC)

...without prior notice.

I've recently stumbled accross a contract which I've signed that stated "(This organisation) reserves the right to change, amend, or modify these rules at any time without prior notice."

Is this really legal?

They keep adding new laws to it without notification. And I'm getting blamed for breaking them.

They probably are - they're quite common. If they're really unfair though, could you probably complain to your local consumer watchdog. enochlau (talk) 21:47, 2 November 2006 (UTC)

http://www.oft.gov.uk/Consumer/Unfair+terms+in+contracts/what+are+unfair+terms.htm This may help. Graldensblud 00:03, 17 February 2007 (UTC)

edits by Wikidea

I see big problems with the recent edits to this article. First, it does not conform to the Wikipedia:Manual_of_Style. Secondly, despite the assertion that nothing was deleted, things were. The prior article had a concise list of the elements of a contract (consideration, proper subject matter, competent adult parties, etc., under the heading "validity of contracts"), which is now gone. The preamble continues to get more muddled. I am suggesting a revert, and a) first a discussion of the proposed changes/reorg, and b) more incremental changes. --Bhuston 03:43, 30 November 2006 (UTC)

I would agree with you. I have reverted the page. I'll analyse this in greater depth after I get some sleep. If you wish to dissect the main changes, please go ahead. enochlau (talk) 16:57, 30 November 2006 (UTC)
Sorry to upset anyone. Here are the reasons that the article needs change:
1. There is a muddled structure. e.g. Comparing contract and tort at the start isn't helpful, when you aren't sure yet what either are; e.g.2 why would the so called bilateral v. unilateral contracts section not be put in the same part as the so called elements of a contract section? Especially considering both are discussions straight out of Carlill v. Carbolic it's probably better to leave the seminal case of the law of contract as the top. The dog example in the bilateral v. unilateral contracts section is straight from what Bowen LJ said in the same case:

"If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circumstances, as it seems to me, that in order to make the contract binding there should be any notification of acceptance."

Although that's probably more succinctly and eloquently expressed than in the current article! Better to start people off with Carlill (as almost every textbook does!)
2. There is too much "this and that is what a contract is" without references, and unfortunately it's often incorrect. The best parts of the article are at the bottom, where there's more case law dealt with. The lists at the top are repetitive. Both in the 'scope' and the 'elements' sections are references to 'capacity' to contract, the second part saying "...minor children, and mentally disabled individuals do not have the capacity to form a contract, and any contracts with them will be considered void or voidable." This is untrue. Of course children and mentally disabled people can make valid contracts. Quite right, there are (sometimes) different rules for kids and mentally disabled people, but more importantly, where is the reference to tell anyone?
3. There is no need to exclude civil law. For example, in the Buergerliches Gesetzbuch (the German civil code) para. 110 (the notorious Taschengeldparagraf[1] or 'pocket money paragraph') is authority for children to be able to make contracts. I noticed at the top of the current page it asks for a worldwide view, and that's fair. So it's a bad idea to put in titles things like Scope of common law contract law when it may go for contract law in all jurisdictions. It's an even worse idea when scope of contract law doesn't really mean anything. What does scope of contract law mean? Wouldn't that imply its place within the law of obligations? That section doesn't tell people, but instead talks about contractual formation, which is a more sensible heading.
4. Headings should try to have main links to other articles, esp. in such a big subject. That's why some more headings that were reverted had links to other articles - like offer and acceptance, consideration, etc. I wasn't quite sure what Bhuston meant by not following the Wikimanual, or which bit of it you had in mind. But I hope you agree that change isn't bad, and incrementalism isn't good, just for the sake of it. More references would be great, especially from different countries. User:Wikidea

Changing contract

I hope that the changes are a bit of an improvement. Further to the above, maybe it's just good to write down what I've done and why.

1. Contract formation is a clear way to start. Note that the side bar has the same category. It's a good way to unify all the stuff about 'validity' or making a contract

2. Terms of a contract are the next important part - the side bar has a section for contractual interpretation, which sort of falls under this heading; but the topic of 'contract terms' also includes things like implied terms, or increasingly 'consumer law' like UCTA 1977 in England, for example.

3. Setting aside the contract is a part that covers the (I suppose?) American way of saying 'defenses against formation' (the only difference in the Commonwealth countries I guess is we'd say 'defences against formation'!) and it also covers the 'excuses for non performance' category - also in the side bar. This side bar is good, isn't it! The only thing to note is that mistake and misrep really need to get put in (can't do all at once though!)

4. Remedies for breach of contract is the fourth header, because breach of contract is really covered when you go into the different types of remedy, and it makes sense to put them together (breach in itself isn't really anything difficult - frustration is the only knotty part, but otherwise breach is almost as simple as someone saying "I won't do it"!)

5. The contract and obligations bit I think does belong at the bottom, because it's probably best to give people an idea of the general rules before diving into theoretical debates that have been going since the middle ages - what does anyone think about putting it with contract theory? The two sort of go hand in hand, because the obligations debate is about 'what is the basis for creating and enforcing legal rights' and contract theory slides into the same, e.g. Atiyah's Rise and Fall of Contractual Freedom book covers the way the state inserts obligations into the framework of "commercial freedom".

But really, the changes are simple - and all it needs next is work on getting good referencing and a logical story as you read the article through. Hope to hear more from everyone! User:Wikidea

Again, Revert User:Wikidea's big changes : I am doing as User:Enochlau did initially and am reverting these changes. User:Wikidea, you have said "nothing has been deleted", "the changes are simple", and that you have "improved" things, but this is simply not the case. The structure is very different, and essential details (elements of a contract) have again been deleted. I will try to (later in the day, like in a few hours) tell you exactly what I feel are the problems with this massive edit -- not the least of which being that you have not attempted to justify it here on the Talk page first, as requested -- Bhuston 09:35, 3 December 2006 (UTC)
Sorry, I'll make detailed comments soon as well - I have more time during weekdays. I agree with Wikidea that there are problems with the article, sure, but regardless, I have some issues with your changes. enochlau (talk) 14:21, 3 December 2006 (UTC)
Come on guys, I don't think repeated reverts really help. I gave all the reasons I thought the structure I've given is better above. The biggest reason perhaps, is simply that the contract law template is on my side, not the side of the previous page. No essential details have been deleted. If they have, why not put them back into the existing page? No references have been deleted. If there are issues with the content of the changes, I'm all too happy to have them corrected! But nothing's been added to the page otherwise. Just have a read of any good textbook on the subject (or, again, the contract law template) and it'll assure you that this is a better way forward. At the start of the Wikipedia:Resolving disputes page it says:
"Be respectful to others and their points of view. This means primarily: Do not simply revert changes in a dispute. When someone makes an edit you consider biased or inaccurate, improve the edit, rather than reverting it. Provide a good edit summary when making significant changes that other users might object to. The revision you would prefer will not be established by reverting, and repeated reverting is forbidden; discuss disputed changes on the talk page."
I just added bits that are needed on misrep and mistake. The last reversion cut out all the stuff with headings and links to new articles, the new description of consideration, and a host of new references (you can see the list growing). It'd be really great if you could use your knowledge to add more of the same. User:Wikidea

Vandalism by Wikidea

Wikidea, I am not happy with your edits. Can you a) propose the change you want to make FIRST, and attempt to get consensus? As I have stated, I am not happy with your massive restructuring. You have made false assertions about improvment and preserving information, when in fact you are not adhering to WP:MOS and deleting useful information (such as the most basic: elements of a contract). I consider your blanking large sections of this article is more than just a bold edit. It is vandalism according to WP:VANDAL. Please stop and discuss FIRST. --Bhuston 03:45, 4 December 2006 (UTC)

"Any good-faith effort to improve the encyclopedia, even if misguided or ill-considered, is not vandalism. Apparent bad-faith edits that do not make their bad-faith nature inarguably explicit are not considered vandalism at Wikipedia." From Wikipedia:Vandalism
It's not nice to accuse people of vandalism when they're trying to help. It's not smart to accuse people of vandalism and cite the WP:Vandal page when it doesn't match what's written there. There's no requirement to ask peoples' permission before updating a page. The elements of a contract have not been deleted, the updates I put now mean that there are 36 instead of 17 references, there is less innaccurate information, along with a clear structure resembling the template, and proper links to the main articles. But reverting so quickly, one may not notice this. I would like to help more, but the changes get reverted. Moreover, there has been no response to any of the points listed above. At all. Can anyone else please offer their opinion? User:Wikidea
I don't think your edits are vandalism. However, I think you should make changes slowly and explain your rationale, so that other people interested in the page have sufficient time to review them. Anyway, what of my offer to meet you in person? enochlau (talk) 10:57, 4 December 2006 (UTC)
Hi Enoch, I replied on your User page a few days ago! Wikidea 00:43, 6 December 2006 (UTC)
It's vandalism if you are blanking (the most) useful content, hidden within the contect of a massive edit, while saying "just tidying up, nothing being deleted". It seems like bad faith, yet I know I must assume the best. But when you try this twice after being asked to explain your massive edits first, or make them more incrementally... As I must assume good faith, your actions should show likewise. I'm glad we are having this talk. --Bhuston 02:31, 5 December 2006 (UTC)

Critique of present article, Wikidea's edits

Wikidea writes, with my comments in bold intermixed.

There is a muddled structure. e.g. Comparing contract and tort at the start isn't helpful, when you aren't sure yet what either are; -> agree e.g.2 why would the so called bilateral v. unilateral contracts section not be put in the same part as the so called elements of a contract section? -> because those are two types of a contract, not elements which every contract must have Especially considering both are discussions straight out of Carlill v. Carbolic it's probably better to leave the seminal case of the law of contract as the top. The dog example in the bilateral v. unilateral contracts section is straight from what Bowen LJ said in the same case:

"If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circumstances, as it seems to me, that in order to make the contract binding there should be any notification of acceptance."

Although that's probably more succinctly and eloquently expressed than in the current article! Better to start people off with Carlill (as almost every textbook does!) -> If you mean move something up from farther down, go for it. I have a big problem with your deletes of useful information. Rearranging for clarity is always fine.
2. There is too much "this and that is what a contract is" without references, and unfortunately it's often incorrect. -> specific examples please The best parts of the article are at the bottom, where there's more case law dealt with. -> disagree. In an encyclopedia entry on contracts, one of the first things better be "what a contract is". The lists at the top are repetitive. Both in the 'scope' and the 'elements' sections are references to 'capacity' to contract, the second part saying "...minor children, and mentally disabled individuals do not have the capacity to form a contract, and any contracts with them will be considered void or voidable." This is untrue. Of course children and mentally disabled people can make valid contracts. Quite right, there are (sometimes) different rules for kids and mentally disabled people, but more importantly, where is the reference to tell anyone? -> A reference would be nice, and perhaps this may be local government specific. What I will tell you is that in the United States, neither children, the insane, prisoners, animals, trees, or rocks are free to make contacts with people, as they are not sui juris. Are you saying that in Austrailia, children are allowed to make legal decisions for themselves? Then can a 10 y/o get married in Perth? I don't think so, or please cite case law from any showing that children can make contracts. I'm talking about civilized nations, where children do not perform compulsory labor, or work as prostitues, etc.
3. There is no need to exclude civil law. For example, in the Buergerliches Gesetzbuch (the German civil code) para. 110 (the notorious Taschengeldparagraf[2] or 'pocket money paragraph') is authority for children to be able to make contracts. I noticed at the top of the current page it asks for a worldwide view, and that's fair. So it's a bad idea to put in titles things like Scope of common law contract law when it may go for contract law in all jurisdictions. -> So how about general concepts, and when-needed, saying "but this feature is not universally held, e.g., in Foostanislad, children drink alcohol, get married, fight in wars, and start businesses" It's an even worse idea when scope of contract law doesn't really mean anything. What does scope of contract law mean? -> I agree, these seem weird Wouldn't that imply its place within the law of obligations? That section doesn't tell people, but instead talks about contractual formation, which is a more sensible heading.
4. Headings should try to have main links to other articles, esp. in such a big subject. That's why some more headings that were reverted had links to other articles - like offer and acceptance, consideration, etc. -> If you mean this article is way too long in addition to being disorganized, I strongly agree. Big ancillary topics should be broken up into distinct articles. I think the "elements of a contract" section is the essence (the part you keep deleting), but we have to deal with "contract law" because that redirects here. I wasn't quite sure what Bhuston meant by not following the Wikimanual, or which bit of it you had in mind. You weren't bolding the first occurance of the main title. Several things redirect here, so there may be several of these bolded. But I hope you agree that change isn't bad agree, and incrementalism isn't good -> incremental change to good sections is desirable, and boldly whack the bad. Problem is, you were blanking the best part, just for the sake of it. More references would be great, especially from different countries. agree... I'll write more later, with specific problems with your edit. But I have an emergency to deal with now :( User:Wikidea -- Bhuston 02:27, 5 December 2006 (UTC)

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