This book is only available in PDF format

Published: 11 August, 2010
Pages: 142

Introduction

It seems safe to assume that by the middle of the 20^th century face-to-face contracting had ceased to be common practice in most Commonwealth countries. By then, most businesses, and not just large ones, had incorporated, so that when one bought one’s newspaper (or tobacco!) from the corner dairy one was not contracting with the person behind the counter, but with the abstract entity that owned the business. The only financially significant contracts that were likely to involve humans on both sides of the transaction were contracts for the sale and purchase of land. But even here, it was, and remains, rare for the parties to deal face to face. Usually intermediaries, in the form of real estate agents and solicitors, will do much of the work on the parties’ behalf.

This seminar deals with aspects of what might loosely be called “remote contracting”, situations where there are not straightforwardly only two persons with an interest in the subject matter of the contract, who then proceed to negotiate and conclude a contract with one another by direct communication. The seminar does not purport to be a comprehensive treatment of remote contracting. It is not, for instance, a seminar on the general law of agency, although agency law is central to most forms of remote contracting. It deals with the contracting process applicable to the most common forms of business “entity”; the company, the partnership and the trust. It also deals with situations where a contracting party, whether entity or individual, purports to contract for another person, usually unidentified and merely designated by the words “or nominee”, or where the contracting party appears to be contracting personally but is in fact intending to contract for a third party, who is “undisclosed”.

The section on company contracting, which comes first, reproduces Chapter 4 of Peter Watts’ book, Directors’ Powers and Duties (LexisNexis, Wellington, 2009). That chapter was written with the position of directors in mind, but most of the material therein is applicable to anyone who purports to contract on behalf of a company. The presentations of this seminar will not be confined to the contracting power of company directors. References to the CA in the chapter are to the Companies Act 1993.