Task - Please check this draft of the memorandum i have made and please edit and errors in RED WRITING.

Memorandumof Advice

Date:13/09/2022

File: 4503- Second Hand Rose

Re:Second Hand Rose contract dispute

Dear Coco,

Introduction

In this matter, I am instructed to advise whether the email correspondence and invoice provided

by Coastal Decking Co creates a binding contract between them and Second Hand Rose, and to

advise Second Hand Rose of her legal rights and liabilities.

I have structured my memorandum of advice as follows:

Legal Issues

Summary of Advice

Conclusion

Legal Issues

1:Whether there is a binding contract between Coastal Decking Co and Second Hand Rose.

In order for there to be a binding contract, there must be an offer and acceptance of that offer. This notion was clearly established in the case of Gibson v Manchester City Council (1979).[1]House of Lords strongly reasserted that agreement only exists when there is a clear offer mirrored by a clear acceptance.[2] An offer is an expression of willingness to contract on certain terms, made with the intention that it will become binding as soon as it is accepted. Precedent stood in the case of Balfour v Balfour (1919)[3] where the agreement made between the spouses held to be not binding.[4] The intention to make a legal contract was not made in the case of Balfour v Balfour (1919)[5] but in this case, Second Hand Rose and Coastal Decking Co made clear intent to make a legal binding contract. Second Hand Rose requested a quote providing the measurements and what she required and Coastal Decking Co provided a quote and expressed what other things they can do. Until this point, there was no binding contract created between the two parties. One party asked a question and the other answered the question.

This has been seen in the case of Harvey v Facey (1893)[6] where the lowest sale price was asked by Harvey and Facey merely answered, the privy counsel stated that "the agreement as alleged by the appellants did not denote a concluded contract"[7] as only mere information was passed between Harvey and Facey. This can be said for this situation, the price provided by Coastal Decking Co was a direct answer to Second Hand Rose's question. The following emails between the two parties denotes the beginning of the formation of a legally binding contract. Second Hand Co sent a follow up email which provided the terms and conditions of the company which outlined the requirements. Coastal Decking Co provided the terms and conditions prior to commencing the work. Although the previous email sent by Coastal Decking Co at 5:01pm implied that they will remove previous coating and apply their proprietary sealant as well as the deck refresh within the $1500 quoted originally, they did however provide the terms and conditions to Second Hand Rose in the following email.

This counteracted any confusion as to what they will do within the $1500 initially quoted price and made clear what will cost extra if they were to also perform those extra tasks outlined in the terms and conditions. Coastal Decking Co made a clear offer and Second Hand Rose made a clear acceptance. When Coastal Decking Co sent the email with the terms and conditions, and advising of the booking, they directly made an offer. Second Hand Rose had then responded with their address, which denoted the acceptance of the offer made by Coastal Decking Co. This is a very clear and simple transaction between both parties and an evident legally binding contract.

2: Whether Second Hand Rose is liable to pay Coastal Decking Co $5500

for the services provided and whether they can claim any damages for the damage to the deck.

Contractual Obligation is a duty to perform or pay the terms and conditions agreed upon within a contract. A breach may incur, when one of the parties failed to perform the task which they are liable to do so. In this sense, the aggrieved party may invoke damages and unenforceability of a contract and have the contracted voided.

For this contract to be considered unenforceable, one or more of the following needs to be founded:

• That there was undue influence when he/she entered the contract
• That the execution of the contract is dependent on future events or matters.
• That there was a mistake in the agreement
• That there was fraud or misrepresentation done by the other party.

The contract between two parties is valid. It is evident in the exchange of emails

between Second Hand Rose and Coastal Decking Co, that there was a bargaining and

meeting of minds that happened between them. It is unfortunate, that Second Hand

Rose did not read the terms and conditions sent to them by Coastal Decking Co before

they indicated acceptance of the offer, by sending their address. Due to this negligence,

they did not have knowledge of the complication that may happen with the

performance of Coastal Deck's services. Therefore, negligence by Second Hand Rose

unfortunately, does not suggest this contract to be considered as unenforceable, nor are

the above-mentioned conditions of an unenforceable contract being met.

The case of Pacific Hill vs Duggan[8], highlights that a contract may only be considered

unenforceable when an execution was done by a party even if there was no agreement

between them. The court stated, "future determination is not feasible, and it contradicts

the meeting of minds essence in the requirement of a contract,"[9] this exclaimed that

contracts can be voided if there is an uncertain future for the results of the contract or

outcome. Second Hand Rose had all the information provided and if they had only read

the terms and conditions, they could have taken necessary steps to avoid the extra

charges or had re-negotiated the price or the service which they required, or to meet

their budget. Second Hand Rose made and error on their part, and were negligent in not

reading Coastal Deck Co's terms and condition which was already provided prior to

any work being commenced. The terms and conditions had clearly mentioned the tasks

they do, and the tasks they charged extra for. They also mention clearly that they are not

liable for any damage caused during the process. Unfortunately, a claim of damages for

the damages caused on the deck in unsubstantiated.

Summary of Advice

1. Second Hand Rose and Coastal Decking Co have a legally binding contract.

The contract has been formed meeting all conditions for a sound contract, both offer, and acceptance have been made and an agreement has been established.

2. Second Hand Rose is liable to pay for the invoiced amount and does not have a valid claim for the damage caused to the deck.

Negligence on the part of Second Hand Rose does not constitute a contract void, nor could the contract be deemed unenforceable. The terms and conditions were provided by Coastal Decking Co prior to any work commencing and the fact that Second Hand Rose did not read them is solely Second Hand Roses' burden.

Conclusion

After assessing all relevant information, it can be determined that Second Hand Rose did have a valid contract with Coastal Decking Co. Unfortunately, not having read the terms and conditions provided, Second Hand Rose have acted in a negligent manner which in turn has caused them distress. This has no reflection on Coastal Decking Co, although the original communication implied that the deck refresh, removal of previous coating and the application of the proprietary sealant would be completed within the $1500, this ambiguity was extinguished by the attached document outlining the terms and conditions. The liability to fulfill the terms of the contract lie on both Second Hand Rose and Coastal Decking Co. Coastal Decking Co have fulfilled their obligations and performed the required works which were needed for the deck. Unfortunately, Second Hand Rose's liability stands with regards to the overpriced invoice. Second Hand Rose can not claim for any damages for the damage which had occurred to their deck.

Kindregards,

James Carter

Graduate Lawyer

BIBLIOGRAPHY

AArticles/Books/Reports

BCases

• Gibson v Manchester City Council [1979] 1 All ER 972

• Balfour v Balfour [1919] 2 KB 571

• Harvey v Facey [1893] AC 552

• Park Lane Hotel Ltd v Maginnis [1945] AC 89

• Pacific Hill vs Duggan [Civ. No. 19428. First Dist., Div. One. Feb. 5, 1962.]

CLegislation

DOther-Websites,Newspaper Article

[1] Gibson v Manchester City Council [1979] 1 All ER 972

[2] ibid

[3] Balfour v Balfour [1919] 2 KB 571

[4] ibid

[5] Balfour v Balfour [1919] 2 KB 571

[6] Harvey v Facey [1893] AC 552

[7] ibid

[8] Pacific Hill vs Duggan [Civ. No. 19428. First Dist., Div. One. Feb. 5, 1962.]

[9] ibid