test
- Aug 21, 2025
- 1 min read
test
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Phenomenon.n.(pl.phenomena)
1.a fact or occurrence that appears or is perceived,especially one of which the cause
is in question.
2.the object of a person's perception:what the senses or mind notice.
If there is a dispute about whether a contact has been made,the courts will generally assess
whether there has been an agreement on an objective basis.
The question is not'what did the parties actually intend to do?' ,but rather'what would
a reasonable observer think that they intended to do ,based on their words and actions
in the circumstances?' .
A farmer took a sample of 'new 'oats to a racehorse trainer's manager,who agreed to purchase 50 guarters of them,believing them to be 'old' oats.When the discoverer his mistake ,he refused to pay.
HELD:There was no fraud by the farmer ,and as it appeared that they had an agreement,they did have.
Objective Test
Smith v.Hughes (1871)
''If ,whatever a man's real intention may be,he so conducts himself that a reasonable man
would believe that he was assenting to the terms proposed by the other pa party ,and that other party, upon that belief enters into a contract with him,the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms,
per Blackburn J.
Objective Test
RTS Flexible systems Ltd.v.Molkerei Alois Muller Alois Muller[2010]
'' The general principles are not in doubt.Whether there is a bindings upon what they have agreed.It depends not upon their subjective state of mind ,but upon a consideration of what was communicated between them by words or conduct ,and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law reguires as essential for the formation of legally binding relations''. per Lord Clarke
Objective Test
Why do the courts adopt an abjective approach to deciding matters in dispute in contract cases?
What would the alternative approach be?
Objective Test
A subjective approach (i,e.trying to work out what the parties actually meant to do) would often lead to a'stalemate ' situation,as both parties might honestly believe their position as to whether or not they intended to make a contract.
Objective Test
If the court held that each of the opposing litigants honestly believed different things, who would win the case on the application of a subjective test?
Objective Test
The defendant would always win,as the onus is on the claimant to prove the case 'on the
balance of probabilities',and 50:50 is not good enough.
Subjective Test
The courts will not always stick by the objective doctrine when the subjective (i.e.real)
intentions of the parties are clear...
Subjective Test
Hartog v.Collin & Shields [1939]
The defendants accidentally offered to sell 10.000 Argentine hare skins for a price per pound,instead of per piece.As there are three pieces to a pound,this would have been ridiculously cheap,and was obviosly a mistake.
Subjective Test
Hartog v.Collin & Shields [1939]
,,The offer was wrongly expressed,and the defendants by their evidence ,and by the correspondence, have satisfied me that the plaintiff could not reasonably have supposed that that offer contained the offerer's real intention.
Indeed,i am satisfied to the contrary.That means that there must be judgment for the defendants,''per Singleton J.
Contracts are often not genuine 'agreements' for several other reasons
Many contracts contain' implied terms 'to which the parties have not expressly agreed,and about which they may know nothing.
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