Contract Law I - Formalities

Oral contract but evidenced in writing - principles

1) Writing after contract formed

2) Writing before the plaintiff brings action

3) Reason for writing is irrelevant

4) Contract must be properly identified

5) Joinder doctrine

Haydon v McLeod

The letters were not a ‘memorandum or note in writing’ for the purpose of the statute. The memorandum or note must come into existence after the contract is formed.

Pirie v Saunders

The note or memorandum must identify all of the essential terms with sufficient particularity. This was ‘nothing more or less’ than a ‘brief notation’ of instructions.

Timmins v Moreland Street Property Co Ltd

Joinder doctrine did not apply because the cheque (document signed by D) contained no reference to the receipt (the document that contained all of the essential terms). It was not sufficient to place the documents side by side and see that, as a matter of res ipsa loquitur (common sense), they were part of the same transaction.

Elias v George Sahely & Co

Joinder doctrine applied as the receipt signed by D’s solicitor contained a reference to the transaction, i.e. the agreement to sell the property in Swan Street. The letter of P’s solicitors contained all of the terms of the bargain: it was writing that evidenced the transaction.

Pirie v Saunders (authenticated signature fiction)

“if the name of the party to be charged (not being a signature in the ordinary sense of the word) is placed on the document said to constitute the written memorandum of the contract, it is to be treated as a signature for the purposes of the statute if such party expressly or impliedly indicates that he recognizes the writing as being an authenticated expression of the contract”.

Farrelly v Hircock

The AS fiction does not apply if the parties intended to subsequently sign the document in the usual way ‘with their own personal signatures’

Stuart v Hishon

P at the very least “impliedly represented … that the name [Tom] can be treated as a signature.” It had no other conceivable purpose. It is not in contest that D wrote the email. The printed name “Tom” was an attestation by him of authorship of a document that acknowledged the debt.

Golden Ocean Group v Salgaocar Mining Industries

An email sign-off may amount to a signature. ‘… an electronic signature is sufficient and … a first name, initials, or perhaps a nickname will suffice. … Chartering brokers may communicate with one another in a familiar manner but that does not detract from the seriousness of the business they are conducting.’

South West Terminal v Achter Land

Thumbs-up emoji satisfied signature requirement - This court readily acknowledges that an emoji is a non-traditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature’.

Thomas v Brown

The contract may be invoked as a defence to a personal claim by the other party (eg as a defence to a personal claim for the payment of money). D was ready and willing to perform its side of the contract. There was nothing unconscientious in the D keeping the deposit. It would be ‘quite monstrous’ in the circumstances if P could rely on the unenforceability of the contract to recover the deposit.

Head v Kelk

If money has been paid pursuant to a contract, and the contract is unenforceable, the payee (D), may rely on that contract by way of defence. D can rely on an unenforceable contract to ‘defeat the plaintiff’s claim’ (Like in Thomas). But D cannot use the contract if the effect of doing so would be to enforce the contract itself (Like in Russell). Explained Russell on the basis that if D in that case had tried to enforce the promise as a plaintiff, D would have lost.

Required characteristics of part performance

1) The act(s) must be done by or on behalf of or at the request of the plaintiff (party seeking to enforce the contract).

2) The act(s) must be sufficiently probative of the alleged contract. When viewed independently of the oral contract, the acts must be ‘unequivocally and in their own nature referable to some such contract of the general nature of that alleged’: Mere preparatory, anticipatory, or ancillary acts are insufficient.

3) The defendant (party denying the contract) must have either known that the act(s) had been done in furtherance of the contract or authorised their performance

Once sufficient acts of part performance are proved, the plaintiff can then adduce evidence as to all the terms of the oral contract and seek specific performance of that contract.

Regent v Millett

Giving and taking possession of land will ordinarily amount to part performance. ‘Giving and taking possession by itself was sufficient part performance’, and the possession was ‘unequivocally referrable’ to the type of contract alleged.

TA Dellaca Ltd v PDL Industries

No part performance.

Wakeham v MacKenzie

’Liberal’ (generous) approach to part performance. The acts of P were referrable ‘to some contract’ and were consistent with the contract alleged.

Ogilvie v Ryan

The strict test for part performance is the test to be applied. P’s act were not ‘unequivocally referrable to or indicative of a promise to give her an interest’ in the property. Her act of moving in with him was ‘consistent’ with her continuing her relationship with D; her caring services were ‘explicable on the grounds of love and affection’.

Pipikos v Tryas

The acts of part performance the appellant relied upon were ‘consistent with some transaction other than a sale of the Clark Road property’. HCA confirmed that ‘...the test [of Lord Selborne in Maddison v Alderson] that the acts relied upon as part performance “must be unequivocally, and in their own nature, referrable to some such agreement as that alleged”, has been consistently accepted as a correct statement of the law. It is enough that the acts are unequivocally and in their own nature referrable to some contract of the general nature of that alleged.”