A contract, a term or the performance of a contract or term may be illegal on one of three broad grounds. First, it may be contrary to public policy. Second, it may be expressly or impliedly prohibited...
One of the requirements for the creation of a valid contract of employment is that “valuable consideration” moves between the parties, and that the terms of the purported contract are sufficiently...
For a contract of employment to come into existence, it is essential that the potential employer makes what the common law recognises as an “offer” to enter into legal relations, and that that...
The existence of a mutual intention to create legal relations is an essential precondition of the existence of a contract of employment (or any other kind of contract, including a principal/contractor...
The employment contract may be varied at any time by mutual agreement between the parties. Generally speaking, parties cannot unilaterally vary the employment contract unless the original contract of employment...
Contracts of employment contain both express and implied terms. Express terms are those that are explicitly agreed between the parties, whether in writing, orally or a combination of the two. See Guidance...
Parties wishing to enter into a contract of employment must have the legal capacity to do so. There is a common law presumption that a person has the capacity to enter into a contract. Issues concerning the capacity to contract rarely arise in employment. When they do, they usually concern employees who are minors, or have a mental disability, or are intoxicated.
Authored by Nicholas Ellery, Partner and Alannah Hogan, Lawyer, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team.
Parties wishing to enter into a contract of employment must have the legal capacity to do so.
There is a common law presumption that a person has the capacity to enter into a contract. Issues concerning the capacity to contract rarely arise in employment. When they do, they usually concern employees who are minors, or have a mental disability, or are intoxicated.
It should also be remembered that under the common law, a person cannot contract with himself or herself. So a partner cannot be engaged as an employee by a partnership of which he is a member, and a person as an employee cannot contract with himself or herself in his or her capacity as a trustee. On partnerships, see Momentum Productions Pty Ltd v Lewarne. On trustees, see Minister Administering National Parks & Wildlife Act 1974 v Halloran.
Corporations within the meaning of the Corporations Act 2001 (Cth) are also unlikely to encounter any difficulties in entering into contracts of employment. However the situation may be more complicated in relation to some other entities (such as the Crown).
Adult natural persons have full capacity to enter into contracts of employment (as employer or employee), subject only to the rules relating to mental capacity that are discussed below. See Mental incapacity of individuals.
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