Aspects of formation of contracts for the sales of land
McCook, H. J.
Degree GrantorUniversity of Canterbury
Degree NameMaster of Law
In delivering the judgment of the Court of Appeal in Carruthers v Whitaker, (1975), 1 N.Z.L.R. 667, Richmond J expressed the view that when parties in negotiation for the sale and purchase of land instruct solicitors and contemplate the preparation of a formal agreement, the ordinary inference to be drawn is that they intend to contract only by means of the formal document signed by them both. The first part of this dissertation represents an attempt to define the bounds of Carruthers v Whitaker by reference to the earlier authorities as they are seen to apply to the situation in which parties who have reached an oral agreement as to terms contemplate the preparation of a formal document. It will be concluded that the Court of Appeal’s decision cannot be regarded as an authority on oral contracts generally: that its ambit is confined to those situations in which there has been no agreement as to the terms contained in the formal document or where execution of the formal document is intended by the parties to operate as a condition precedent to the formation of a concluded contract. Subsequent New Zealand decisions, it is submitted, are seen to support this view. Carruthers v Whitaker, nevertheless, highlights the need for the plaintiff who seeks to rely on an oral contract to show clear evidence that the parties thereto intended to be bound. Moreover, in the light of recent English decisions it will be increasingly difficult to establish that certain non-contractual writings can amount to a sufficient memorandum to satisfy the statutory requirements. The latter part of this dissertation is devoted to the authenticated signature fiction, once again within the context of the situation where a formal agreement is contemplated. It will be argue that Sturt v McInnes, (1974) 1 NZLR 729, which is regarded as having established the criteria for the fiction's application in New Zealand, should again be treated as an authority on “written” contracts alone and that to extend its application to post-contract memoranda would be contrary to the earlier authorities within which the doctrine is seen to have emerged.