Ashley Vs Ben : Agreement

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Ashley v Ben Agreement In order to have a binding contract, it must first be established that Ashley and Ben have reached an agreement. Agreement is reached when acceptance is communicated to the offeror and precisely corresponds with the offer. An offer being an expression of willingness to contract on certain terms without further negotiation. Although it is arguably unclear which party stated the final offer and which party accepted, when viewing the contract in its entirety, an agreement is clearly discerned. The contract executed by Ben which contains standard terms raises a ‘battle of the forms’ issue. Adopting ‘the last shot’ approach arguably suggests that Ben’s contract prevails as it was sent and received without objection by…show more content…
It would be argued that the terms ‘expenses’ and ‘costs’ raise issues of uncertainty. As courts endeavour to avoid ‘being the destroyer of bargains’, uncertain terms will be interpreted by ascertaining the intention of the parties. In this case, the terms are capable of a meaning and accordingly cannot be held to be void for uncertainty. Following Barwick CJ’s reasoning, the concept of ‘expenses’ and ‘costs’ incurred is certain in that it provides a criterion by which the monetary price can be logically worked out. Agreement to negotiate An issue arises as to whether the ‘agreement to negotiate in good faith the other terms of this agreement’ clause renders the contract unenforceable due to incompleteness. Kirby P recognised that a contract to negotiate in good faith is not unknown to the law, and will be enforceable depending on the terms and construction of the particular contract. An agreement to negotiate in good faith may be enforceable where the negotiations are well advanced and where an ‘identified third party has been given the power to settle ambiguities and uncertainties’. In contrast to Coal Cliff Collieries where too many terms had not been agreed, it is arguable that negotiations between Ashley and Ben are well advanced as they have agreed on many essential terms, including the subject matter, parties, price and date. However, it is unlikely that the agreement to negotiate
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