英美契约法板书no.2.ppt

2.agreement:clearing the ground  There are two fundamental issues which should be dealt with at the very beginning so as to clear the ground. The first is: who decides that an agreement has been reached? The second question is: how is it decided whether or not the parties have actually reached agreement? ? 2.1 Who decides that an agreement has been reached? Its been established that the test for the existence and the scope of an agreement is objective one rather than subjective one. A subjective test attempts to ascertain the actual intention of the contracting parties, whereas an objective test examines what the parties said and did and not what they actually intended to say or do. The commercial justification for the adoption of an objective test is to promote certainty. ? A good example of the application of the objective test is provided at p20: 2.2 A residual role for a subjective approach? ? It should not, however, be assumed that the subjective intentions of the parties are irrelevant to the law of contract. There are several situations in which the objective test is either displaced or modified by a test, which appears to place greater emphasis upon the subjective intentions of the parties. The first arises where the offeree knows that the offeror is suffering from a mistake as to the terms of the offer. In such a case, the courts, on one view, have regard to the subjective understanding of the offeree but in fact, on closer examination, it is more likely that the courts adopt the approach of a reasonable person in the position of the offeree. An example is provided at p22 2.2 A residual role for a subjective approach? The second situation in which it has been argued that the subjective intentions of the parties are relevant is where the offeree is at fault in failing to note that the offeror has made a mistake. Such was the case at p23: A further situation in which it has been argued that the subjective intentions of the parties are relevan