Australia: When is an agreement legally binding?
澳大利亚：协议何时具有法律约束力？
14 February 2024
14 二月 2024
by Farah Motley
作者 Farah Motley
When is an agreement legally binding?
协议何时具有法律约束力？
For an agreement to be legally binding, it must meet certain criteria. Australian contract law requires that there is an offer, acceptance, an intention to create legal relations and consideration. There are also a few more criteria that need to be present.
要使协议具有 法律约束力，它必须满足某些标准。澳大利亚 合同法 要求存在要约、接受、建立法律关系的意图和对价。还需要提供一些其他标准。
In Australia, common law and statutory provisions govern contracts. For example, the Australian Consumer Law (ACL). Knowing what makes an agreement binding is crucial, whether it's a simple agreement or a complex business deal.
在澳大利亚，普通法和成文法规定管辖合同。例如，澳大利亚消费者法 （ACL）。了解协议具有约束力的因素至关重要，无论是简单的协议还是复杂的商业交易。
In this article, our contract lawyer will explore the key elements that make a contract legally binding in Australia.
在本文中，我们的 合同律师 将探讨使合同 在澳大利亚具有法律约束 力的关键要素。
Offer and Acceptance
要约和接受
The first element of a binding contract is an offer.
具有约束力的合同的第一个要素是要约。
An offer is an unequivocal proposal made by one party to another. In the context of a contract, it is an expression of a willingness to agree on specific terms.
要约是一方向另一方提出的明确建议。在合同的上下文中，它是就特定条款达成一致意愿的表达。
You must communicate the offer to the other party and the offer must be open for acceptance.
您必须将要约传达给另一方，并且要约必须开放以供接受。
When someone makes an offer, the other person can choose to accept it, say no, or suggest a different offer. To form a binding contract, you must communicate acceptance that matches the original offer.
当有人提出报价时，其他人可以选择接受、说不或建议不同的报价。要形成具有约束力的合同，您必须传达与原始报价相匹配的接受情况。
Examples of offer and acceptance
要约和接受示例
Example 1: Purchase of Goods |
Offer: Alice owns a bicycle shop and displays a bicycle with a price tag of $500. This is considered an offer to sell the bicycle at that price. Acceptance: Bob enters the shop, takes the bicycle to the counter, and tells Alice he wants to buy it for $500. Bob's statement and action constitute acceptance of the offer, forming a binding contract for the sale of the bicycle. |
Example 2: Online Shopping |
Offer: David operates an online store and lists a laptop for sale on his website for $1,000. Acceptance: Sarah visits David's website, adds the laptop to her cart, proceeds to the checkout, and pays the $1,000. Completing these steps constitutes her acceptance of the offer, and forms a binding contract for the sale of the laptop. |
Example 3: Job Offer |
Offer: ABC Company offers Jane a position as a marketing manager via a formal job offer letter. Acceptance: Jane accepts the job offer by signing and returning the offer letter to the company. This acceptance formalises her employment contract with ABC Company. |
You can revoke an offer before the other party accepts it. Furthermore, the offeree must communicate acceptance to the offeror. Australian contract law generally does not consider silence a valid form of acceptance.
您可以在对方接受报价之前撤销报价。此外，受要约人必须将接受情况传达给要约人。澳大利亚 合同法 通常不认为沉默是一种有效的接受形式。
Additionally, the terms of the acceptance should match the terms of the offer. If there are changes or different offers, it may be perceived as rejecting the first offer and making a new one.
此外，接受条款应与要约的条款相匹配。如果有更改或不同的报价，可能会被视为拒绝第一个报价并提出新的报价。
Intention to Create Legal Relations
建立法律关系的意图
For a contract to be binding, there must be an intention by both parties to create legal relations.
要使合同具有约束力，双方必须有建立法律关系的意图。
Most commercial agreements inherently possess this intention. However, it can be difficult to establish in domestic or social agreements. Courts check if parties meant to make a legal contract by looking at their objective intention. In business, people usually assume this, but in other situations, people may disagree about it.
大多数商业协议本身就具有这种意图。但是，在家庭或社会协议中建立起来可能很困难。法院通过查看当事人的客观意图来检查他们是否打算订立法律合同。在商业中，人们通常会假设这一点，但在其他情况下，人们可能会不同意这一点。
Examples of an intention to create legal relations
意图建立法律关系的示例
Example 1: Commercial Contracts |
A company gives a contract to provide a set amount of materials to another business at an agreed cost. Both parties want the contract to be legally binding as it affects their business and financial interests. |
Example 2: Employment Contracts |
A person gets a job offer letter from a company with information about salary, benefits, and job duties. The applicant accepts the offer, demonstrating the mutual intention to create a legally binding employment contract. Here's another example: An employee and employer agree on a contract that explains the terms of their work, like job duties, hours, and pay. Both parties enter into this agreement to create a legally binding employment relationship. |
Consideration
考虑
Consideration refers to something of value exchanged between the parties as part of the contract. It can be in the form of money, goods, services, or a promise to do something. Consideration is essential because it distinguishes a contract from a gratuitous promise. For a contract to be legally binding, both parties must exchange something valuable in return for what they receive.
对价是指作为合同的一部分，双方之间交换的有价值的东西。它可以是金钱、商品、服务或承诺做某事的形式。对价是必不可少的，因为它将合同与无偿承诺区分开来。要使合同具有 法律约束力，双方必须交换有价值的东西以换取他们所收到的东西。
Contracts lawyers can get around the issue of consideration by making a contract a 'deed'.
合同律师 可以通过将合同设为“契约”来规避对价问题。
Examples of consideration
考虑示例
Consideration is a fundamental element in the formation of a contract under Australian law. It refers to something of value exchanged between the parties, typically in the form of a promise, an act, or forbearance from an act. Here are some examples of consideration in Australian contract law:
根据澳大利亚法律，对价是订立合同的基本要素。它是指各方之间交换的有价值的东西，通常以承诺、行为或不作为的形式出现。以下是澳大利亚 合同法中的一些考虑因素示例：
Example 1: Payment for goods or services |
Sarah agrees to pay $500 to a carpenter in exchange for building a custom bookshelf. Sarah's promise to pay and the carpenter's promise to build the bookshelf constitute valid consideration. |
Example 2: Promise to perform a service |
Tom and his neighbour have made an agreement. Tom will cut his neighbour's grass every week during the summer. In return, the neighbour will water Tom's plants when he goes on vacation. Both promises represent valid consideration. |
Example 3: Forbearance to sue |
John is involved in a car accident with Mary. Instead of suing Mary for damages, John agrees not to pursue legal action against her in exchange for Mary's promise to cover the repair costs of John's car. John's forbearance to sue serves as consideration. |
Example 4: Mutual promises |
Alex promises to deliver 100 units of a product to a retailer within a specified timeframe. In return, the retailer promises to pay Alex the agreed-upon price upon delivery. Both promises constitute consideration. |
Example 5: Part payment of a debt |
Laura owes $1,000 to her creditor. They agree that Laura will pay $500 now and the remaining $500 in a month's time |
Legal Capacity
法律行为能力
For a contract to be binding, all parties involved must have the legal capacity to enter into an agreement. To sign a contract, a person must be mentally healthy, not drunk or high, and able to understand the contract's terms. Minors in Australia have the ability to make contracts. However, rules exist to protect them and safeguard their best interests.
要使合同具有约束力，所有相关方都必须具有签订协议的法律行为能力。要签订合同，一个人必须精神健康，不醉酒或嗨，并且能够理解合同条款。澳大利亚的未成年人有能力签订合同。但是，存在保护他们并维护他们最大利益的规则。
Examples of legal capacity
法律行为能力的例子
In Australian contract law, legal capacity means the ability of people to make binding contracts. Certain groups of people may lack the capacity to contract, or their capacity may be limited. Here are some examples of legal capacity under Australian contract law.
在澳大利亚 合同法中，法律行为能力是指人们订立具有约束力的合同的能力。某些人群可能缺乏感染能力，或者他们的能力可能受到限制。以下是澳大利亚 合同法下法律行为能力的一些示例。
Example 1: Adults of Sound Mind |
A 30-year-old individual named Emily, who is mentally sound, has the legal capacity to enter into various contracts, such as purchasing a car or signing a lease agreement. |
Example 2: Minors (Persons Under 18) |
A 17-year-old named Sam signs a contract to buy a computer. In this case, Sam's legal capacity is limited due to their status as a minor. However, some contracts entered into by minors may still be binding, but they have the option to void the contract if they choose. |
Example 3: Individuals with Mental Incapacity |
Sarah, who has been declared legally incapacitated due to a severe mental illness, enters into a contract to sell her property. In this case, her legal capacity is limited, and the contract may be voidable. |
Example 4:Intoxicated or Drugged Individuals |
John, who is heavily intoxicated, agrees to buy a valuable painting from Jane. Jane knows John is very intoxicated and takes advantage. John's legal capacity may be compromised due to his intoxicated state, and the contract may be voidable. |
Example 5: Individuals Under the Influence of Duress or Undue Influence |
Mark is coerced into signing a contract under duress, as he is threatened by his employer. In such cases, Mark's legal capacity may be impaired, and the contract may be voidable. |
Example 6: Bankrupt Individuals |
Lisa, who has been declared bankrupt, enters into a contract to buy a car. Bankrupt individuals may have limited legal capacity to contract, depending on the specific circumstances. |
Example 7: Corporations and corporate entities |
XYZ Corporation enters into a contract to purchase machinery for its operations. Companies and other organisations can make contracts as long as they stay within their legal authority. |
It's important to note that contracts entered into by individuals or entities lacking legal capacity may be voidable. The party with limited capacity can choose to confirm or cancel the contract. They can do this once they restore their capacity or once the reasons for limited capacity are no longer present. This protection is in place to safeguard the rights of vulnerable individuals and ensure fairness in contractual relationships.
请务必注意，由缺乏法律行为能力的个人或实体签订的合同可能是无效的。限制能力的一方可以选择确认或取消合同。一旦恢复了容量或容量受限的原因不再存在，他们就可以执行此操作。这种保护措施旨在保护弱势群体的权利并确保合同关系的公平性。
Legality of Purpose
目的的合法性
The purpose of the contract must be legal. Contracts with illegal objectives or that involve illegal activities are not enforceable. This is in line with the principle that the courts will not aid or enforce an illegal contract. For example, a contract to commit a crime or to defraud someone would be void.
合同的目的必须是合法的。具有非法目标或涉及非法活动的合同不可执行。这符合法院不会协助或执行非法合同的原则。例如，犯罪或欺诈某人的合同将无效。
Examples of illegal agreements
非法协议示例
In Australia, a contract must meet certain requirements to be legally enforceable. These requirements include having a legal purpose and not going against public policy or law. Contracts with illegal objectives or involving illegal activities as void and unenforceable. Here are some examples illustrating the legality of purpose in Australian contract law:
在澳大利亚，合同必须满足某些要求才能在法律上执行。这些要求包括具有合法目的并且不违反公共政策或法律。具有非法目标或涉及非法活动的合同无效且不可执行。以下是一些说明澳大利亚 合同法中目的合法性的示例：
Example 1: Sale of Illegal Drugs |
Two parties enter into a contract for the sale and purchase of a substantial quantity of illegal drugs, such as cocaine or methamphetamine. This contract is not valid because it involves illegal activity, and breaking drug laws in Australia. |
Example 2: Contract for a Hitman's Services |
An individual engages a contract killer to commit a murder. This contract is not only morally repugnant but also illegal, making it void and unenforceable. Gambling Contracts in Violation of Regulations: |
Example 3: Gambling Contracts in Violation of Regulations |
A gambling website operator offers bets on sports events in contravention of the relevant state or territory gambling laws. Any contracts related to these bets would be unenforceable due to the illegal purpose. |
Example 4: Contract to Defraud Creditors |
A company's directors conspire to transfer company assets to themselves or related entities to avoid paying creditors. Contracts made for this purpose would be unenforceable, as they involve illegal activities and fraud. |
Example 5: Contracts for Counterfeit Goods |
Two parties enter into a contract for the sale and purchase of counterfeit designer clothing. Such contracts are unenforceable because they involve transactions in counterfeit goods, which are illegal. |
Example 6: Discriminatory Employment Contracts |
An employment contract that discriminates against employees based on their race, gender, or other protected characteristics is unenforceable and against anti-discrimination laws in Australia. |
In Australia, contracts with illegal purposes are not valid and can have legal consequences for the people involved. People and companies should ensure their contracts are legal and comply with laws and regulations to avoid legal issues.
在澳大利亚，具有非法目的的合同是无效的，并且可能会对相关人员产生法律后果。个人和公司应确保他们的合同合法并遵守法律法规以避免法律问题。
Certainty and Possibility of Performance
性能的确定性和可能性
Contracts must be certain and capable of performance. The terms and obligations outlined in the contract should be clear and definite. If the terms are too vague or uncertain, the contract may not be enforceable. Additionally, the performance of the contract must be possible and not dependent on impossible or unlawful actions.
合同必须是确定的并且能够履行。合同中概述的条款和义务应清晰明确。如果条款过于模糊或不确定，合同可能无法执行。此外，合同的履行必须是可能的，而不是依赖于不可能或非法的行为。
Key takeaways
关键要点
make sure an agreement contains all the key elements if you want a contract to be legally binding
如果您希望合同具有 法律约束力，请确保协议包含所有关键要素
if an agreement doesn't include all the elements of a binding contract, it may be unenforceable
如果协议不包括具有约束力的合同的所有要素，则可能无法执行
talk to a contract lawyer if you need contract law advice
如果您需要 合同法建议，请咨询合同律师
if you fail to properly draft a contract it can have legal and financial consequences
如果您未能正确起草合同，可能会产生法律和财务后果