LAWS104 Chapter Notes - Chapter 8: Parol Evidence Rule, Oral Contract, Specific Performance
11 May 2018
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Chapter 8 [The Requirement of Writing]
- A contract can be completely oral, partly written and partly oral, or entirely written
- In relation to entirely written contracts, all the terms of the contract are set out in
the written documentation in accordance with the parol evidence rule
- In relation to establishing the terms of an oral contract
o The court must feel an actual persuasion of its occurrence or its existence
o The court must be persuaded that any consensus reached was capable of
forming a binding contract and was intended by the parties to be legally
binding
- The presence of writing makes it must easier to establish the existence of a contract
and it is prudent for parties to enter into contract in written form, even if there is no
common law requirement of writing
- Proving the existence of an oral contract has evidentiary difficulties
Contracts Relating to Land
- All Australian jurisdictions have provisions requiring writing in relation to contracts
involving land
- In NSW – s 54A(1) Conveyancing Act 1919 (NSW)
o 54A Contracts for sale etc of land to be in writing
▪ (1) No action or proceedings may be brought upon any contract for
the sale or other disposition of land or any interest in land, unless the
agreement upon which such action or proceedings is brought, or
some memorandum or note thereof, is in writing, and signed by the
party to be charged or by some other person thereunto lawfully
authorised by the party to be charged.
- Contracts must generally include
o Full names of the seller and the buyer
o The full legal description of the property including
▪ The council address
▪ Any matters affecting the property
▪ The sale price
▪ The deposit to be paid
o Any conditions that the contract is to be subject to
▪ Relevant dates for satisfaction of these conditions
- Other specific terms of the transaction may also be essential and therefore required
to be set out in the written document – examples of such terms include that
o The date for completion of the contract is one where time is of the essence
o The payment of the purchase price is to be by instalments
o The vendor was not to give vacant possession of the property upon
completion of the contract and would be entitled to remain in possession of
the property until he or she could find suitable arrangements for himself or
herself
o Separate prices are to be paid for separate loss
o Chattels are included as well as land for an all-inclusive price
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Document Summary
A contract can be completely oral, partly written and partly oral, or entirely written. In relation to entirely written contracts, all the terms of the contract are set out in the written documentation in accordance with the parol evidence rule. The presence of writing makes it must easier to establish the existence of a contract and it is prudent for parties to enter into contract in written form, even if there is no common law requirement of writing. Proving the existence of an oral contract has evidentiary difficulties. All australian jurisdictions have provisions requiring writing in relation to contracts involving land. The enforcement in equity of contracts unenforceable at law. Courts of equity have long recognised that although the purpose of the statute is to prevent fraud, the statute itself cannot be relied upon if doing so will result in fraud.
