In that the best way of looking

In assessing how useful the
image of contracts is for understanding the specific doctrine of contract law.
I feel that the best way of looking at this would be with referring to
Contractual terms and vitiating factors in my essay. As an introduction according
to Jill Poole “a contract is basically a legally enforceable agreement between
two different people or parties”.1 Professor
Charles Fried is of the belief that there is a big debate over whether the
model of Contract as a promise or contract as consent is the more likely way to
view an agreement. There is also a new generation of scholars who now do not
deny that there is a morality of contract, but they do also insist that this is
not the same morality of contract as a promise. 2


I would say that one of the
first main things to focus on is what does actually make a contract valid or
legally enforceable. Well the most obvious would be that the contract has to
involve at least two different parties, we usually just need to know the name of
those involved and also their address and title, although usually in a sales
agreement they are just referred to in contracts or could be just referred to
as buyer or seller. For a contract to be valid it also requires the consent of
all parties taking part in the deal. Consent is certainly not valid when it has
been achieved through the likes of undue influence, duress, menace, fraud or
even mistake. The object being agreed in the contract has to legal, secure and
definite. So, for example a court will not enforce a contract to perform an
illegal act, as this simply would not be legal for a whole host of reasons.
Consideration is also something that is vital for a contract to be valid. Which
means that all parties entering into the contract must be able to gain
something from entering into the deal. 
Jeffrey Steinberger sums this up by using an example stating that “If I
say that I’ll paint your house, and you have not promised me anything in
return, then you cannot sue me for not showing up as I have not received any
consideration”.  Dori Kimel argues that
promises performed in a contract detracts from the trust that otherwise could
be realized in a human relationship and that the intrinsic value of a promise
lies in its propensity to enhance personal trust in relationships. 3 Also,
a discharge of contract is when all obligations that had been agreed between
the two parties has no been terminated and came to an end.


One of the first things
that I believe should be assessed would be consideration, a key doctrine for me
to look at would be the doctrine of promissory estoppel which is the notion
that if a person makes a mistake and another person justifiably acts to his or
her detriment based upon this promise, that the promise should be enforced in
the name of justice. If you then rescind your promise there is likely to be an
enforceable contract. 4 An
example of where the courts had applied Promissory estoppel was in McIntosh v Murphy, which had involved a
verbal agreement where the claimant was fired just two months into his one-year
contract by an auto dealership to go work in Hawaii.  The court had then favoured in the way of the claimant
as he had rendered the verbal agreement between the defendant and the claimant
as a past performance.5 Also
in Miller v Lawlor, the court
concluded that it was not necessary to distinguish the relative applicability
of the doctrines of part performance versus estoppel. The court held that the
language in the contract was satisfiable to support a finding that the contract
was enforceable by using the doctrine of promissory estoppel. 6 A
Court may imply a term into a specific contract to fill a gap, particularly a
gap in the contract’s drafting. Another way to ensure that a contract is of
sound nature is by using Implied terms for anything that may have been omitted
or accidently left out of the original contract, the rationale for implying a
term in this way is to reflect the parties’ intentions when the contract was
entered into. However, an implied term may be of little assistance if an
agreement lacks certainty. Implied terms are usually occasionally general in
concept, and may not assist the court in determining key performance criteria
if these have not been set out expressly in the agreement. Some case examples
could be White v John Warwick and Co Ltd
(1953) Where a tricycle was hired but it had a defective saddle, this
involved both a breach of a strict contractual obligation to supply a tricycle
reasonably fit for purpose and a failure to take care to ensure that the
tricycle was safe in terms of negligence liability. 7
However, where this may be exempt is shown in Chapleton v Barry UDC (1940). In
this case deckchairs were displayed in a pile available for hire. The tickets
which were obtained from the deckchair attendant, was held by the courts not be
a contractual document, but only a voucher or receipt for the money that has
been paid, which meant that the court could not rely on the exemption which was
contained in the ticket. 8


In terms of establishing the
contractual terms of a deal in any contract it has to be known what the parties
said or wrote. However, you must be able to compare between what is a
representation and what is a contractual term to avoid being sued for
misrepresentation. In order for the courts to decide this they would most
likely use the Heilbut, Symons & Co v Buckleton 1913 case which lays down that intention is the overall as to whether a
statement between two parties can be a term of a contract.9 This
case also brought use of the term Collateral contracts which avoids privity by
finding a separate collateral contract between the third party and the promiser
relating to the contractual obligation. The collateral contract has also been
previously used in cases of hire-purchase. In many cases consumers are unaware
of this sort of agreement. Which means that the dealer will generally sell the
goods to the finance house, who in turn will hire the goods to the consumer on
hire-purchase terms.  10 Therefore,
if one party makes a statement or a promise that causes another party to act in
such a way that is financially injured by that reliance on the dealer, the n
the courts will automatically just enforce the statement or promise as if it
was a completed contract as the court does not actually need an agreement or
consideration in order to enforce the promise as a contract, however this may
be more difficult in terms of a statement made for consideration. Also with the
Parole Evidence rule contracts do not always necessarily need to be in writing
to be valid. 11


Another part to take into
account when assessing whether all contracts are promises rather than binding
agreements is the vitiating factors. Such as misrepresentation, with there
being many different types such as fraudulent, negligent or innocent. In order
to succeed with a case for misrepresentation, it must be proven to the courts
that the misrepresentation was material in the sense that it would have induced
the reasonable person to have entered into that contract on that basis alone.
Such as in Museprime Properties v
Adhill Properties 1990 where it was shown that if it was the
misrepresentation part of the contract that enforced or even convinced a person
to enter into a contract should then have recession of that contract, and this
will mean that the onus will be on the representor to show that the person
entering the deal was not induced by the misrepresentation. 12 Which
may undermine the view of contracts as promises as to the misrepresentation of
the person entering the deal. As even in a contract where there is a clear
promise the representor could only just be telling a half truth in order for a
person to sign the contract e.g. Nottingham Brick
& Tile Co. v Butler (1889). 13 Again,
highlighting that even a binding contract could even contain parts of
misrepresentation within it. 14
Also, could a contract be viewed as a promise rather than binding when perhaps
both of the parties involved have made a mutual mistake. Where both of the
parties maybe misunderstood what was the meaning behind the contract. This
could be handier for the courts to interpret as whether only one party
misinterpreted this statement in the contract is completely irrelevant. Example
of a Mistake could be in Hartog v Colin
and Shields (1939), where the defendant in this case had mistakenly offered
to sell hare skins at a price per pound instead of piece and the claimants had
accepted this. The claimants had then not been able to enforce the contract on
the basis of these alleged terms. However, the Claimant’s must has been aware
of the mistake made by the defendant as they knew the term at which he was
offering the hare skin at price per pound and this would have been cheaper on
the defendant’s part and this according the to the courts had made the contract
void. 15 Undue
influence is another vitiating factor that may affect the promise or binding
agreement of a contract that occurs when one party exerts on another party any
pressure or most usually influence, which subsequently induced that party to
enter into the contract. There are two different types of undue influence which
exist, that are actual and presumed. Actual undue influence happens when one
party to a contract inflicts illegitimate pressure onto the other party in
order to take advantage of that party.16
Furthermore, presumed Undue influence is when one party takes an advantage over
another party in a case which may be involving trust and relationship with
regards to the other party in the case. However, as shown in the Macklin v Dowsett (2004) not all cases
of undue influence can be regarded as “cases of wrong”.  As in this case the transaction was incredibly
unfair on the transferor, and this case does provide an example of how the
courts will always intervene to protect very vulnerable people from
exploitation.  17
The issue of Duress may also back up the view that contracts are more seen as
being a mere promise rather than binding between two parties, as the person or
party may have been forced to agree and enter the deal, but the fact we have
seen previously in cases that parties can get out of them would highlight the
view that they are not fully binding and rather just a promise. For example, in
Barton v Armstrong (1976) the
claimant had threatened to kill the defendant if he did not sell off a part of
his interest in a company that both them were major shareholders in.18
The privy council had held that the plea of duress should stand and the
contract become void and that this should still stand even if the death threat
was not the claimant’s only reason for entering into this contract.  19
Another example of Duress would be in North
Ocean Shipping Co Ltd v Hyundai Construction Co Ltd (1979) which was in
relation to a promise to pay more for an oil tank which had already been used
by the owner itself.20 The
owners had then waited nine months until after the ship had been delivered to them
before which was paid under duress. However, the owners had affirmed and
therefore lost the right to avoid liability under duress.  This brings me into looking at other types of
promises which may undermine the doctrines of contract law such as an
Alteration promise, this though may enforce the possibility of Duress as it can
mean that some people in contracts can go out of their rules and pay more or
pay less to someone. As shown in Stilik v Myrick (1809) where the promise of extra wages was unenforceable
due to extortion. While a Formation promise is basically a bilateral contract
where both of the parties are bound on their promise even though they have not
undertaken it yet. 21


Overall, as we know there
are many different types of scholars who have different views on what a
contract is, whether it is a promise between two parties or whether it really
is legally binding. I would say it is very important for contract especially
when it comes to consent between two parties that are entering the deal. As
consent in contracts is crucial in making the deal legal and fully secure. And
this helps contracts from becoming void in the face of the likes of undue
influence, duress, representation or fraud. Contractual terms are very key as
they help strengthen the standards set in doctrines of contract law such as
offer and acceptance.  While we know that
Vitiating factors are helpful in making sure that the contracts or promises
made are fair for both parties, though can undermine the view that contracts
are always supposed to be a promise by making them void if this is not fully
the case. Though we also know that with Promissory Estoppel that if another
person makes a mistake and one person acts to the detriment of this mistake,
then the promise should then be enforced in the name of justice.

1 Jill Poole,
Contract Law, Concentrate, Second Edition, 2016, page 3

2 Charles Fried,
‘Contract is not Promise, it is Consent’, URL
Date Accessed 2nd November 2017

3 Anthony J Bella
Jr, Promises, Trusts and Contract Law, Page 27 URL
Date accessed 10th November 2017

4 Whitney O’
Sullivan ‘What makes a promise legally binding considering consideration’ Date
accessed 10th November 2017

5 McIntosh v Murphy 1970

6 Promissory
Estoppel, Date
accessed 14th November 2017

7 White v John
Warwick and Co Ltd 1953 1 WLR 1285  

8 Chapleton v Barry
UDC 1940 1 KB 532  

9 Heilbut, Symons & Co v Buckleton 1913
AC 30

10 Ewan McKendrick,
Contract Law, Twelfth Edition, 2017, Page 143

11 When will a
promise or statement be considered a binding Contract? Find Law, URL:
Date Accessed 3rd December 2017

Museprime Properties v Adhill Properties 1990 36 EG 114

13 Nottingham Brick
& Tile Co. v Butler 1889 16 QB 778

14 Vitiating Factors
of a Contract,
Date accessed 17th November 2017

15 Hartog v Colin and
Shields 1939 3 All ER 566

16 The Impact of
Misrepresentation, Mistake, Duress and Undue Influence on the validity of a
contract, URL

The impact of misrepresentation, mistake, duress and undue influence on the validity of a contract.

Date Accessed 16th November 2017

17 Macklin v Dowsett
2004 EWCA Civ 50

18 Barton v Armstrong
1976 AC 104

19 What is Duress and
Undue Influence in Contract Law? URL
Date Accessed 23 November 2017

20 North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd 1979,
The Atlantic Baron, QB 705

21 Stilik v Myrick 1809 170 ER 1168