Contract: What Contract?

Trevor Thomas

June 2010

A paper based on the highly commended entry in the Hudson Prize essay competition 2009

This paper considers the not uncommon scenario whereby an owner and contractor begin negotiating a building contract but fail to reach agreement on all the terms. Despite there being no written contract, work begins and payments are made. A dispute arises, and the contractor takes the view that it would be better off being paid on a quantum meruit basis than under the contract. Trevor Thomas then asks (i) whether it is arguable that the parties had actually come to an agreement or (ii) whether the parties intended to be bound by the agreement.

Introduction - Agreement - Basis of the agreement - The offer - Acceptance - Agreement in the absence of formal offer and acceptance - Intent to be bound - Should estoppel by convention apply? - Estoppel by convention generally - An assumption of present or future, fact or law? - Common adoption - Conduct based on common assumption - Knowledge of intention to rely on assumption - Departure which would occasion detriment - Conclusions.

The author: Trevor Thomas BEng, MEng, LLB, LLM is a Senior Associate with Clayton Utz in Melbourne, Australia.

Text 15 pages