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HK_99313_2.ppt
Have we got a contract and when do we have
to perform?
Presented by Steven Yip/James Yeung
20 June 2007
Topics
• Formation of contract
• Offer
• Acceptance
• Intention
• Consideration
• Privity of Contract
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Offer
• Expression of willingness to contract on certain terms,
made with the intention that it shall become binding as
soon as it is accepted by the offeree.
• Definite and unambiguous
• Communication of offer to the offeree (eg. Letter, fax,
newspaper, email, conduct etc.)
• Can be withdrawn before acceptance
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Offer v Invitation to Treat
• Invitation to treat is an indication of willingness to
negotiate a contract
• Not an offer
• Objective test
• Example: Display Goods
Invitation to Tender
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Harvey v Facey [1983]
Harvey: “Will you sell us Bumper Hall pen? Telegraph
lowest price.”
Facey:
“Lowest cash price for Bumper Hall pen £900.”
Harvey: “We agree to buy Bumper Hall pen for the £900
asked by you.”
Held by Privy Council: No contract. Facey’s telegraph only
amounts to a statement of price. Offer to buy the pen was
made by Harvey’s 2nd telegram.
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Invitation to Tender
• Not an offer binding the employer to accept the lowest
tender UNLESS express the wordings are clear to turn
the invitation to tender into an offer, eg. lowest tender
made
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Tender
• May amount to an offer
• Normally stipulates a time within which the tender is to
remain valid
• If time is not stipulated, reasonable time to accept is to be
implied
• Costs of tender
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Acceptance
• A final and unqualified expression of assent to the terms
of an offer
• Definite and unambiguous
• Must be unconditional
• Must be communicated to offeror
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Acceptance
• ‘Meeting of minds’/’Concurrence of will’?
• Objective test
• Can only be accepted by the offeree
• Silence cannot be construed as acceptance
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Conditional Acceptance
• Not an acceptance
• Amount to counter-offer
• No contract is formed until acceptance of counter-offer
• ‘Mirror image rule’ → acceptance in its entirety
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Certainty of Terms
• Reasonable degree of certainty
• Approach sensibly and reasonably
• Custom and trade usage
• Commercial reality
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‘Back to Back’ Contract
• Usually in sub-contracts
• Incorporating main contract terms into sub-contract
• Difficulty to ascertain extent of incorporation
• Eg. Scope of work, payment terms
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‘Pay when paid’ clause
• ‘In the absence of any clear express words to the
contrary, those clauses merely provide for the time of
payment and that the right to be paid is not dependent
upon the party getting paid first?
• Very high standard for those clauses to be held to be
valid
• ‘Pay if paid’ is usually not enforceable
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Contract Price
• Original contract price will invariably change
• Variations, missing items etc.
• Implied promise on the Employer to pay for the
work/services on basis of reasonable charge (ie.
quantum meruit)
• Mechanism by which the price for the particular works or
services to be rendered can be determined
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Intention
• Intention to create legal relations between themselves
• Objective test – how reasonable persons would perceive
the words, conduct and circumstances
• If reasonable persons would assume that there was no
intention to create legal relation  no contract
• Presumption that an intention to create legal relationship
exists in commercial context
• Presumption that NO intention to create legal relationship
exists in social or family arrangements
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Cable & Wireless (Hong Kong) Ltd Staff
Association v Hong Kong Telecom
International Ltd [2001]
• The Court held that
• Look at the terms of the agreement itself
• If the terms show intention to create legal relationship 
Contract
• If the terms do not provide a clear answer, the Court would
look at all the surrounding circumstances
• Surrounding circumstances include background of entering
into the agreement, relationships of parties, nature of the
agreement etc
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Intention
• Family arrangements
• Balfour v Balfour [1919]
• Merritt v Merritt [1970]
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Consideration
• Consideration is generally expressed as follows:
• ‘Consideration may be found in an exchange of mutual
promises or in an exchange of a promise for an act or
forbearance’
• Consideration is important because
• Make it an enforceable contract
• The law will not enforce gratuitous promise (eg. gift)
• Only the person who provides consideration can enforce
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Types of Consideration
Consideration must be executory or executed
• Executory – Promise to do something in the future is given
for another promise to be done in the future
• Example: Buying a house
• Executed – When a promise is actually executed, in
exchange for another promise to be executed in the future.
• Example: Finding a dog.
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Rules of Consideration
• Consideration must be referable to the promise
• Consideration must move from the promisee
• Consideration must be sufficient, but need not be
adequate
• Consideration must be current
• Performance of an existing obligation is not enough
• Performance of public law duty is not consideration
• Performance of a contractual obligation owed to a third
party is good consideration
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Referable to the Promise
• Some kind of connection between the promise and the
consideration
• Inducement to enter into the promise
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Move from the Promisee
• But not necessarily to the Promisor
• Example: A promised to pay B $1000 if B clean C’s car.
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Sufficient, not Adequate
• Capable of expression in economic terms
• Some legal value in the eyes of the law
• No need to be adequate
• Nominal value can be sufficient consideration
• Example: $1 to buy a car
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Ho Yuk Chu v Shun Hing Refrigerator AirConditioning Engineering [2001]
• The procurement of an award of air-conditioning
contract by way of introduction, recommendation and
assistance in preparation of tender was found to be valid
consideration to support an agreement to pay 7% of the
contract sums
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White v Bluett (1853)
• Cessation of complaints are not sufficient consideration
• No economic value
• No contract was formed
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Current, not Past
• Past consideration is not good consideration
• Consideration that was provided before the promise was
made = past consideration
• Requires an exchange of current promises/consideration
at the time of the contract
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Current, not Past
• Eastwood v Kenyon (1840)
• Roscorla v Thomas (1842)
• Exceptions in Pau On v Lau Yiu Long (1980)(Privy
Council)
• The consideration was at the request of the Promisor
• Common understanding that the promisee will be
rewarded for the performance
• Consideration is legally enforceable
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Not Existing Obligation
• Performance of existing contractual duty is not good
consideration
• Stilk v Myrick (1809)
• Exceptions in William v Roffey Bros & Nicholls [1991]
• Will the promisor gain an advantage arising out of the
continuing relationship with the promisee?
• Example: Risk of Liquidated Damages
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Williams v Roffey Bros & Nicholls
• Exception
• Roffey sub-contracted the carpentry work to Williams
• Roffey doubted that Williams would perform his obligation
under the contract
• Roffey promised to pay Williams an extra amount in return
(consideration) for a promise that Williams would fulfill his
obligation under the contract
• As a result, Roffey received benefit or avoided a detriment
• Roffey did not make the promise to pay more under
duress form Roffey
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UBC (Construction) Limited v Sung Foo Kee
Limited [1993]
• In such circumstances that they were clearly incentives
to both the main contractor and subcontractor to make a
further arrangement in order to relieve the subcontractor
of its financial difficulties and also to ensure that the
subcontractor was in a position or was willing to
continue with the subcontract works to a reasonable and
timely completion
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Not Public Law Duty
• Performance of a public law duty is not good
consideration
• Promisee required to carry out the statutory duty anyway
• Collins v Godefroy (1831)
• Subpoena
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Partial Satisfaction of Existing Liability
• Generally not a good consideration
• Exceptions
• Changes to the original arrangement (eg. place, mode or
time of repayment) to the convenience of the creditor
• Settlement Agreement?
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Settlement Agreement
• Usually partial satisfaction of debt
• How to get around the ‘lack of good consideration’
hurdle?
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Overcoming a Lack of Consideration
• Nominal Consideration
• Example: $1 to settle claims
• Evidence of consideration
• By Deed
• No need for consideration in a deed
• Deed of Settlement
• Gratuitous assurance made without consideration is
enforceable
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Privity of Contract
• Only the parties to a contract are bound by it and entitled
to sue on it
• A third party cannot enforce a promise made in a contract
for its benefit if it is not party to the contract
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Privity of Contract (Cond’t)
• Relationship between privity and consideration:
• some say consideration and privity are flip sides of the same coin
• some say consideration and privity are distinct and separate principles
• Law in Hong Kong is clear: ‘only a person who is a party
to a contract can sue on it’ (see Dunlop Pneumatic Tyre
Co Ltd endorsed in B+B Construction)
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Construction Contracts
Employer
Privity of contract
Main Contractor
No privity of
contract
Privity of contract
Sub-Contractor
• A sub-contractor cannot sue the employer on the main
contract obligations in relation to payment for the works
(See Morison, Son & Jones (Hong Kong) Ltd v Yiu Wing
Construction Co Ltd [1989] and Shui On Construction Co
Ltd v Moon Yik Co [1987])
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Insurance Contract
Main Contractor
Privity of contract
No privity of contract
Insurer
Sub-Contractor
Privity of contract
• The Main Contractor cannot enjoy privity of contract with
the subcontractor’s insurers and cannot claim under the
insurance policy (see Otis Elevator Company (HK)
Limited v Wide Project Engineering & Construction
Company Limited [1985])
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Any Questions?
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