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758 Cards in this Set
- Front
- Back
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Evidence of a guarantee must be in writing, although the contract needn't be, eg...
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Birkmyr v Darnell (1704)
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Birkmyr v Darnell (1704)
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Evidence of a guarantee must be in writing, although the contract needn't be
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What can be used to backup a guarantee?
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Security or a promise to pay
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A guarantor must not ? to the primary contract
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Have any connection
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A shareholder who guarantees a company's debts to prevent its goods being taken does not have a connection with the primary contract, eg...
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Sutton & Co v Grey (1894)
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Sutton & Co v Grey (1894) |
A shareholder who guarantees a company's debts to prevent its goods being taken does not have a connection with the primary contract
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Why is disclosure of facts not required in a guarantee
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It is not a contract of the utmost faith (uberrimae fidei)
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A bank does not have an obligation to inform the guarantor regarding creditworthiness of the principal debtor, eg...
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National Provincial Bank of England Ltd v Glanusk (1913)
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National Provincial Bank of England Ltd v Glanusk (1913) |
A bank does not have an obligation to inform the guarantor regarding creditworthiness of the principal debtor
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A guarantee for insurance is a 'fidelity guarantee', so it is uberrimae fidei, eg...
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London General Omnibus Co v Holloway (1912)
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London General Omnibus Co v Holloway (1912) |
A guarantee for insurance is a 'fidelity guarantee', so it is uberrimae fidei
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If a contract changes, what happens to a guarantor?
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He is discharged
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What is the difference between a guarantee and indemnity?
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An indemnity is given by someone with a greater interest in the transaction, who will be primarily liable
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Does an indemnity need written evidence?
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No
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When will and indemnity end?
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When there is no possibility of the specified eventuality coming about (not necessarily when the contract is discharged)
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What is are some examples of bailment?
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A cloakroom
A pawnshop Hire of goods |
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A bailee will be liable for loss or damage whilst in possession, even if it is not his fault, eg...
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Mitchell v Ealing LBC (1979)
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Mitchell v Ealing LBC (1979) |
A bailee will be liable for loss or damage whilst in possession, even if it is not his fault
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What sort of property does bailment apply to?
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Personal property
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Bailment is applicable to ?, not ?
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Bailment is applicable to POSSESSION, not CUSTODY
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In a gratuitous bailment, what must the bailor communicate to the bailee
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Defects of which he is aware
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In a paid bailment, what warranties are implied on the bailor?
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That he has title to the goods so that the bailee's possession won't be disturbed
The goods are suitable for the bailee's purpose |
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In a paid bailment, the bailee will be liable for the tort of his servants, eg...
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Morris v CW Martin & Sons Ltd (1966)
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Morris v CW Martin & Sons Ltd (1966) |
In a paid bailment, the bailee will be liable for the tort of his servants
–A bailee was liable for goods stolen by his servant |
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If a bailee has not been paid, what can he do?
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Sell the goods, and keep part of the proceeds to cover his charges
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What is lien?
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The lawful right to retain possession in lieu of payment
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What are the three types of lien?
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Possessory
Martime Equitable |
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What is possessory lien?
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The right to retain that which is in the possession of the person claiming the lien. Possession must be continuous, and not for a particular purpose
(Hatton v Car Maintenance Co (1915)) |
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Hatton v Car Maintenance Co (1915)
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Possessory lien must be continuous and not for a specific purpose
–A company agreed to store Mrs Hatton's car in their garages, but she could use it when she liked. The company had no lien when her payments were in arrears |
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What are the two types of possessory lien?
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General and particular
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Can someone claiming lien sell the goods?
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No, and no expenses can be claimed
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What is a maritime lien?
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It is the arresting of a ship, and is not founded on possession
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What is an equitable lien?
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A charge on property, eg land or partnership assets
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If a person buys property subject to an equitable lien without knowledge of it, will it still be subject to the lien?
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No
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Is an equitable lien founded on possession?
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No
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Generally, the principal and third party are bound by a contract, whereas the agent has no rights or liabilities, eg...
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Spearmint Rhino Ventures (UK) Ltd v Commissioners for HM Revenue and Customs (2007)
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Spearmint Rhino Ventures (UK) Ltd v Commissioners for HM Revenue and Customs (2007)
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Generally, the principal and third party are bound by a contract, whereas the agent has no rights or liabilities
–Lap dancers paid a fee to work in the strip clubs, and any income was their own, so this was not an agency relationship |
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In what ways can agency be formed?
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Agreement
Estoppel Ratification Necessity |
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Formation of agency by agreement doesn't need any formal requirements, unless it is to execute deeds on the principal's behalf, eg...
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Chaudry v Prabhakar (1988)
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Chaudry v Prabhakar (1988)
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Formation of agency by agreement doesn't need any formal requirements, unless it is to execute deeds on the principal's behalf
–A driver asked her friend to recommend a car to buy. This was an agency relationship |
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Can an agent be a minor?
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Yes
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What is an example of a relationship where authority to act as an agent is implied?
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Managing Director
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Formation by estoppel occurs when the principal has made representations that a party has authority as an agent, so will be estopped from later denying this, eg...
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Hely–Hutchison v Brayhead Ltd (1968)
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Hely–Hutchison v Brayhead Ltd (1968) |
Formation by estoppel occurs when the principal has made representations that a party has authority as an agent, so will be estopped from later denying this
–By appointing a Managing Director, the directors were estopped from denying his authority |
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If a principal fails to advise a third party of a restriction to an agent's authority, they will be estopped from later relying on it, eg...
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Todd v Robinson (1825)
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Todd v Robinson (1825) |
If a principal fails to advise a third party of a restriction to an agent's authority, they will be estopped from later relying on it
–An agent was restricted to credit purchases of £31, but third parties were not informed, so the principal became bound to a sale of £45 |
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Authority by estoppel will only apply if the principal has made representations to the third party, eg...
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Freeman & Lockyer v Buckhurst Park Properties (1964)
Racing UK Ltd v Doncaster Racecourse Ltd and Doncaster Metropolitan Borough Council (2005) |
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Freeman & Lockyer v Buckhurst Park Properties (1964)
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Authority by estoppel will only apply if the principal has made representations to the third party
–A company did not appoint a Managing Director, and so one of the directors acted as MD with the knowledge of the board. They were estopped from denying authority |
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Racing UK Ltd v Doncaster Racecourse Ltd and Doncaster Metropolitan Borough Council (2005)
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Authority by estoppel will only apply if the principal has made representations to the third party
–Doncaster Racecourse's Chief Executive made an agreement for TV rights, as the Council had allowed in the past. They were estopped from denying authority |
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The third party must have relied on the principal's representation for estoppel to be applicable, eg...
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First Energy (UK) Ltd v Hungarian International Bank Ltd (1993)
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First Energy (UK) Ltd v Hungarian International Bank Ltd (1993) |
The third party must have relied on the principal's representation for estoppel to be applicable
–A bank manager did not have authority to grant credit, but advised that the it had been approved by the head office. The bank was estopped from denying authority |
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Representation of authority may be made after the contract has been made, eg...
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Spiro v Lintern (1973)
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Spiro v Lintern (1973) |
Representation of authority may be made after the contract has been made
–A wife did not have authority to sell a house, but sold it and the buyers brought in builders. The husband didn't challenge the builders, so was estopped from later denying his wife's authority |
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A contract may be formed by ratification, where a principal later validates an agent's actions, eg...
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Kelner v Baxter (1866)
Bolton Partners v Lambert (1889) |
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Kelner v Baxter (1866) |
A contract may be formed by ratification, where a principal later validates an agent's actions
–A company tried to ratify a purchase by an agent, but couldn't because it did not exist when the contract was made |
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Bolton Partners v Lambert (1889)
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A contract may be formed by ratification, where a principal later validates an agent's actions
–A works committee accepted an offer to buy the company, but did not have authority. The buyer then revoked his offer, after which the directors accepted it. The revocation was therefore not valid |
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A contract may be formed by necessity
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GN Railway v Swaffield (1874)
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GN Railway v Swaffield (1874) |
A contract may be formed by necessity
–A railway paid for a horse to be stabled overnight. It was acting as an agent of necessity |
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For a contract to be formed through necessity, what conditions must the agent fulfil?
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The agent must act in good faith
It must be impossible to obtain the principal's instructions |
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Implied and apparent authority may appear to overlap, eg...
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Waugh v HB Clifford and Sons Ltd (1982)
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Waugh v HB Clifford and Sons Ltd (1982) |
Implied and apparent authority may appear to overlap
–Solicitors accepted a compromise on the sale of property, even though they were instructed not to. This was binding, as they had implied and apparent authority |
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If an agent was no authority whatsoever, what is the liability on the agent or principal?
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No liability
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An undisclosed principal is still bound by an agent's usual authority, eg...
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Watteau v Fenwick (1893)
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Watteau v Fenwick (1893)
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An undisclosed principal is still bound by an agent's usual authority
–An owner of a hotel sold it, but kept his name above the door and worked as an employee. He bought cigars on credit, and the new owner was liable |
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An agent must use reasonable care and skill, eg...
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Arenson v Casson Beckman Rutley & Co (1977)
Chaudhry v Prabhkar (1988) |
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Arenson v Casson Beckman Rutley & Co (1977)
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An agent must use reasonable care and skill
–A share valuer undervalued his principal's shares. He was liable |
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Chaudhry v Prabhkar (1988)
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An agent must use reasonable care and skill
–A driver asked a friend to help a second–hand car. It turned out to be badly damaged, so the friend was liable |
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A paid agent will be liable for failing to carry out the principal's instructions, eg...
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Turpin v Bilton (1843)
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Turpin v Bilton (1843)
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A paid agent will be liable for failing to carry out the principal's instructions
–An insurer failed to arrange insurance for a ship which subsequently sank. The agent was liable |
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When does the obligation to delegate not apply?
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When authorised by the principal
(De Bussche v Alt (1878)) When it is necessary Ministerial matters When the agent is acting in good faith |
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De Bussche v Alt (1878)
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The obligation to delegate doesn't apply when authorised by the principal
–Authority to delegate was implied by trade custom |
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An agent must disclose anything that may influence the principal when making the contract, eg...
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Armstrong v Jackson (1917)
Kelly v Cooper (1993) Imageview Management Ltd v Kelvin Jack (2009) |
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Armstrong v Jackson (1917)
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An agent must disclose anything that may influence the principal when making the contract
–An agent was instructed to buy shares in a company, but did not disclose that he already owned shares and sold these to the principal. He had to repay his profit |
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Kelly v Cooper (1993)
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An agent must disclose anything that may influence the principal when making the contract
–An estate agent was instructed to sell two adjacent properties. The principal of one property claimed that the agent should have informed him of this, but the agent owed a duty to both principals so wasn't liable |
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Imageview Management Ltd v Kelvin Jack (2009)
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An agent must disclose anything that may influence the principal when making the contract
–Imageview made a contract with footballer Jack, then also with DUFC. This was a conflict of interest |
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If an agent makes a secret profit, the principal can recover it, eg...
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Reading v Attorney–General (1951)
Boardman v Phipps (1967) |
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Reading v Attorney–General (1951)
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If an agent makes a secret profit, the principal can recover it
–An army sergeant made £20k on the black market during the war. He had to repay this |
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Boardman v Phipps (1967)
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If an agent makes a secret profit, the principal can recover it
–An agent advised the principal to buy shares in a company. He refused, but the agent bought them anyway. The agent had to repay the profit made on the shares |
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When making secret profits, the agent forfeits his right to remuneration, unless the mistake was honest, eg...
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Hippisley v Knee (1905)
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Hippisley v Knee (1905) |
When making secret profits, the agent forfeits his right to remuneration, unless the mistake was honest
–An agent honestly believed he was entitled to printing–price discounts |
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With a disclosed principal, when will an agent have liability?
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If he signs a contract to attract personal liability
If he breaches a warrant of authority If he acts on behalf of a principal who doesn't exist |
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If the agent doesn't disclose that he is such, the third party must choose whether to hold the agent or principal liable, eg...
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Scarf v Jardine (1882)
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Scarf v Jardine (1882) |
If the agent doesn't disclose that he is such, the third party must choose whether to hold the agent or principal liable
–The third party can't sue the other party after bringing proceedings against one |
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When can an undisclosed principal claim against the third party?
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If the terms of the contract are consistent with agency
(Humble v Hunter (1848)) If the third party can't prove that he wanted to deal exclusively with the agent (Collins v Associated Greyhound Race Courses Ltd (1930)) |
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Humble v Hunter (1848)
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An undisclosed principal can claim against the third party if the terms of the contract are consistent with agency
–An agent signed a contract for charter expressly as the principal. This was not an agency relationship |
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Collins v Associated Greyhound Race Courses Ltd (1930)
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An undisclosed principal can claim against the third party unless the third party can prove they wanted to deal exclusively with the agent
–The third party relied on the agent's integrity to issue shares, to the exclusion of the principal |
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In what case was the position on undisclosed principals summarised?
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Siu Yin Kwan v Eastern Insurance Co (1994)
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Siu Yin Kwan v Eastern Insurance Co (1994) |
The position on undisclosed principals was summarised
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An agency agreement can by terminated by an act of the parties, or by operation of law, even if the agent is unaware, eg...
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Yonge v Toynbee (1910)
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Yonge v Toynbee (1910) |
An agency agreement can by terminated by an act of the parties, or by operation of law, even if the agent is unaware
–Toynbee became insane after solicitors started defending him. The solicitors defence was struck out, and they were ordered to pay costs |
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What is the difference between a general and special agent
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A general agent possesses authority in the ordinary course of business
A special agent is limited to perform a particular act |
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What is the effect of The Commercial Agents (Council Directive) Regulations 1993?
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A commercial agent has continuing authority to negotiate the sale or purchase of goods on behalf of a principal
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Which people are excluded from The Commercial Agents (Council Directive) Regulations 1993?
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Directors/managers, insolvency practitioners, someone operating in the commodity market or an unpaid agent
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When are activities are excluded from The Commercial Agents (Council Directive) Regulations 1993?
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Where the principal is not the manufacturer, importer or distributor
If the goods aren't specifically identified If the agent doesn't devote his whole time to the activities If customer's select goods themselves |
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When is commission payable under The Commercial Agents (Council Directive) Regulations 1993?
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If the order is a result of the agent's efforts
If it is a repeat order from a customer the agent acquired If the order is made from an area or group that the agent has exclusive rights to |
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When will payment become due under The Commercial Agents (Council Directive) Regulations 1993? When is the latest it should be paid?
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It will become due when the principal or third party executes the transaction.
It should be paid no later than the last day of the month following the quarter in which it became due |
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When must sales of goods be in writing?
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When they are on credit, and fall under the Consumer Credit Act 1974)
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Are exchange of goods covered by SOGA79?
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No, at least a nominal value of money must be included
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SOGA79 Section 8
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If no price is implied, the buyer must pay a reasonable price
(Foley v Classique Coaches (1934)) |
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Foley v Classique Coaches (1934)
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SOGA79 Section 8
If no price is implied, the buyer must pay a reasonable price |
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SOGA79 Section 12(1)
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It is implied that the seller has the right to sell the goods
(Rowland v Divall (1923)) |
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SOGA79 Section 27
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There is a basic obligation to deliver the goods
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Rowland v Divall (1923)
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SOGA79 Section 12(1)
It is implied that the seller has the right to sell the goods –After a few months it was discovered that a car was stolen. Rowland was entitled to a full refund |
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SOGA79 Section 12(2)
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It is implied that the goods are free from any charge or encumbrance
(Microbeads v Vinhurst Road Making Ltd (1975)) (Rubicon Computer Systems Ltd v United Paints Ltd (2000)) |
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Microbeads v Vinhurst Road Making Ltd (1975)
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SOGA79 Section 12(2)
It is implied that the goods are free from any charge or encumbrance –Shortly after a sale, a third party obtained a patent preventing the buyer from using the goods. He was entitled to damages |
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Rubicon Computer Systems Ltd v United Paints Ltd (2000)
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SOGA79 Section 12(2)
It is implied that the goods are free from any charge or encumbrance –Rubicon supplied computers, but installed an immobilising device, which they used during a dispute. United Paints were entitled to a refund |
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SOGA79 Sections 13(3) and (5)
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The seller can only transfer such rights as he possesses
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SOGA79 Section 13(1)
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There is an implied condition that the goods shall meet the description, but the buyer must rely on the description for it to become a condition
(Harlingdon & Leinster Ltd v Christopher Hull Fine Art (1991)) (Beale v Taylor (1967)) (Re Moore and Co v Landauer and Co (1921)) (Arcos v Ronaason & Sons (1933)) |
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Harlingdon & Leinster Ltd v Christopher Hull Fine Art (1991)
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SOGA79 Section 13(1)
There is an implied condition that the goods shall meet the description, but the buyer must rely on the description for it to become a condition –Buyers of a Munter painting were experts, so could not rely on SOGA79 when it turned out to be a fake |
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Beale v Taylor (1967)
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SOGA79 Section 13(1)
There is an implied condition that the goods shall meet the description, but the buyer must rely on the description for it to become a condition –A car turned out to be two different models welded together. The buyer had relied on the advert, so could claim under SOGA79 |
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Re Moore and Co v Landauer and Co (1921)
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SOGA79 Section 13(1)
There is an implied condition that the goods shall meet the description, but the buyer must rely on the description for it to become a condition –Tins of peaches were ordered in cases of 30 tins, but half was packed in cases of 24 tins. The buyer was entitled to reject the whole order |
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Arcos v Ronaason & Sons (1933)
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SOGA79 Section 13(1)
There is an implied condition that the goods shall meet the description, but the buyer must rely on the description for it to become a condition –Some staves ordered 1/2 inch thick were delivered 9/16 inch. The buyer could reject the whole order |
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SOGA79 Section 15A
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In non–consumer sales, if the breach of description is slight, it may only be considered a breach of warranty
(Peter Darlington and Partners v Gosho Ltd (1964)) (Reardon Smith Line Ltd v Hansen–Tangen (1976)) |
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Peter Darlington and Partners v Gosho Ltd (1964)
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SOGA79 Section 15A
In non–consumer sales, if the breach of description is slight, it may only be considered a breach of warranty –Seeds ordered pure were only 98% pure. The buyer could not reject the order |
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Reardon Smith Line Ltd v Hansen–Tangen (1976)
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SOGA79 Section 15A
In non–consumer sales, if the breach of description is slight, it may only be considered a breach of warranty –A contract stated that a ship was to be built in 'yard 354'. It wasn't, but met all other requirements. The buyer couldn't reject it |
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SOGA79 Section 14(2)
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There is an implied condition that goods are of satisfactory quality in the course of business
(Stevenson v Rogers (1999)) |
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SOGA79 Section 14(3)
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There is an implied condition that the goods are fit for purpose in the course of business
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Stevenson v Rogers (1999)
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SOGA79 Section 14(2)
There is an implied condition that goods are of satisfactory quality in the course of business –A boat was not of satisfactory quality |
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In private sales, who is responsible for the risk of satisfactory quality?
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The buyer
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SOGA79 Sections 14(2A) and (2B)
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More protection is now given to buyers regarding satisfactory quality
(Millars of Falkirk v Turpie (1976)) (Rogers v Parish (Scarborough) Ltd (1987)) (Bartlett v Sidney Marcus Ltd (1965)) (Trac–Time Control Ltd v Moss Plastic Parts Ltd and others (2004)) (Shine v General Guarantee Corp Ltd (1988)) (Bramhill v Edwards (2004)) |
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Millars of Falkirk v Turpie (1976)
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SOGA79 Sections 14(2A) and (2B)
More protection is now given to buyers regarding satisfactory quality –Faulty power steering was not enough to reject a car under the old Act |
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Rogers v Parish (Scarborough) Ltd (1987)
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SOGA79 Sections 14(2A) and (2B)
More protection is now given to buyers regarding satisfactory quality –An expensive car started to rust within six months. The buyer was entitled to reject it |
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Bartlett v Sidney Marcus Ltd (1965)
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SOGA79 Sections 14(2A) and (2B)
More protection is now given to buyers regarding satisfactory quality –A buyer was warned of a defective clutch, so couldn't reject the car on that basis |
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Trac–Time Control Ltd v Moss Plastic Parts Ltd and others (2004)
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SOGA79 Sections 14(2A) and (2B)More protection is now given to buyers regarding satisfactory quality
–Plastic mouldings produced broken floodlights. The mouldings manufacturer was liable |
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Shine v General Guarantee Corp Ltd (1988)
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SOGA79 Sections 14(2A) and (2B)
More protection is now given to buyers regarding satisfactory quality –A car was discovered to have previously been written off for water damage. The buyer could reject it |
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Bramhill v Edwards (2004)
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SOGA79 Sections 14(2A) and (2B)
More protection is now given to buyers regarding satisfactory quality –A motor home was 2 inches wider than UK regulations. This was not sufficient for the buyer to reject it |
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Sellers will not be liable for damage caused by mistreatment, eg...
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Aswan Engineering Establishment Co Ltd v Lupdine Ltd (1987)
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Aswan Engineering Establishment Co Ltd v Lupdine Ltd (1987)
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Sellers will not be liable for damage caused by mistreatment
–Pails to store water were kept in bright sunshine and high temperatures, so split. The seller was not liable |
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SOGA79 Section 14(2C)
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A buyer does not have to examine goods before buying, but will lose the right to complain if a seller points out the fault before purchase
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SOGA79 Section 14(3)
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There is an implied condition that goods sold in business must be fit for the purpose that the buyer makes known
(Grant v Australian Knitting Mills (1936)) (Griffiths v Peter Conway Ltd (1939)) (Slater v Finning Ltd (1996)) (Ashington Piggeries Ltd v Christopher Hill Ltd (1971)) (Jewson Ltd v Kelly (2003)) |
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Grant v Australian Knitting Mills (1936)
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SOGA79 Section 14(3)
There is an implied condition that goods sold in business must be fit for the purpose that the buyer makes known –Underpants caused dermatitis. The seller was liable, as the buyer had made it clear that they were to be worn against skin |
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Griffiths v Peter Conway Ltd (1939)
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SOGA79 Section 14(3)
There is an implied condition that goods sold in business must be fit for the purpose that the buyer makes known –A coat caused dermatitis, but the buyer did not make it know that she suffered from very sensitive skin. The seller wasn't liable |
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Slater v Finning Ltd (1996)
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SOGA79 Section 14(3)
There is an implied condition that goods sold in business must be fit for the purpose that the buyer makes known –A camshaft was unsuitable for a certain boat. The seller was not liable |
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Ashington Piggeries Ltd v Christopher Hill Ltd (1971)
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SOGA79 Section 14(3)
There is an implied condition that goods sold in business must be fit for the purpose that the buyer makes known –Food bought for minks poisoned them. The seller was liable, as the buyer had relied on their skill |
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Jewson Ltd v Kelly (2003)
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SOGA79 Section 14(3)
There is an implied condition that goods sold in business must be fit for the purpose that the buyer makes known –Boilers relied on peak time electricity, which the buyer could not afford. The seller was not liable |
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SOGA79 Section 15
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There is an implied condition that the bulk must correspond to the sample
(Godley v Perry (1960)) |
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Godley v Perry (1960)
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SOGA79 Section 15
There is an implied condition that the bulk must correspond to the sample –A catapult worked in a sample, but broke when actually sold. The seller was liable |
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SOGA79 Section 15(A)
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In non–consumer sales, if the breach between sample and bulk us only slight, it may be regarded as a breach of warranty rather than condition
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SOGA79 Section 17
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Ownership of specific goods passes when the parties intend
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SOGA79 Section 18
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If no point is implied for the transfer of ownership, there are four rules for the transfer of specific goods, and one for unascertained goods
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SOGA79 Section 18 Rule 1
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If the goods are in a deliverable state, ownership passes when the contract is made
(Tarling v Baxter (1827)) (Dennant v Skinner and Collom (1948)) |
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Tarling v Baxter (1827)
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SOGA79 Section 18 Rule 1
If the goods are in a deliverable state, ownership passes when the contract is made –A haystack burnt down after the sale but before delivery. The buyer was liable |
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Dennant v Skinner and Collom (1948)
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SOGA79 Section 18 Rule 1
If the goods are in a deliverable state, ownership passes when the contract is made –A document signed after a sale that stated ownership would not transfer until a cheque cleared was too late to be valid |
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SOGA79 Section 18 Rule 2
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If the goods are not in a deliverable state, ownership passes when they have been put in such state, and the buyer has been informed
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SOGA79 Section 18 Rule 3
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If the goods must be weighed or measured by the seller, ownership passes once this has been done and the seller informed
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SOGA79 Section 18 Rule 4
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If goods are delivered 'on approval', ownership passes when the buyer approves the transaction, or after a reasonable time
(Elphick v Barnes (1880)) |
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Elphick v Barnes (1880)
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SOGA79 Section 18 Rule 4
If goods are delivered 'on approval', ownership passes when the buyer approves the transaction, or after a reasonable time –A horse was sold on 'approval for eight days'. It died on the third day, so the seller was liable |
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SOGA79 Section 18 Rule 5
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Ownership of unascertained goods passes when they are unconditionally appropriated
(Healy v Howlett (1917)) (Phillip Head and Sons v Showfronts Ltd (1970)) |
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Healy v Howlett (1917)
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SOGA79 Section 18 Rule 5
Ownership of unascertained goods passes when they are unconditionally appropriated –A railway company was to allocate boxes of fish to various customers during delivery. The train was delayed and the fish went off. The seller was liable |
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Phillip Head and Sons v Showfronts Ltd (1970)
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SOGA79 Section 18 Rule 5
Ownership of unascertained goods passes when they are unconditionally appropriated –Carpets were stolen before fitting. The seller was liable, as the customer had ordered FITTED carpets |
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SOGA79 Section 16
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Ownership of unascertained goods will not pass until they have been ascertained
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SOGA79 Section 19
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The seller can reserve a right on the goods, such as retention of title
(Aluminium Industrie Vaassen v Romalpa Aluminium Ltd (1976)) (Borden (UK) Ltd v Scottish Timber Products Ltd (1981)) (Pfeiffer W–W Gmb/h v Arbuthnot Factors (1988)) (Re: Peachdart Ltd (1983)) |
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Aluminium Industrie Vaassen v Romalpa Aluminium Ltd (1976)
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SOGA79 Section 19
The seller can reserve a right on the goods, such as retention of title –Foil was subject to a ROT clause, but was only applicable to unmixed foil |
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Borden (UK) Ltd v Scottish Timber Products Ltd (1981)
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SOGA79 Section 19
The seller can reserve a right on the goods, such as retention of title –Resin was subject to a ROT clause, but this was not valid once the resin had been used in chipboard |
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Pfeiffer W–W Gmb/h v Arbuthnot Factors (1988)
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SOGA79 Section 19
The seller can reserve a right on the goods, such as retention of title –An attempt to hold funds in trust as a charge on assets was rejected |
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Re: Peachdart Ltd (1983)
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SOGA79 Section 19
The seller can reserve a right on the goods, such as retention of title –A ROT clause on leather was not valid once it had been made into handbags |
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SOGA79 Section 20(1)
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Risk passes with ownership
(Tarling v Baxter (1827)) |
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SOGA79 Section 20(2)
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If delivery has been delayed, risk lies with the party at fault
(Demby Hamilton & Co Ltd v Barden (1949)) |
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Demby Hamilton & Co Ltd v Barden (1949)
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SOGA79 Section 20(2)
If delivery has been delayed, risk lies with the party at fault –A buyer delayed taking delivery of apple juice, so was liable when the juice deteriorated |
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SOGA79 Section 20(4)
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In consumer sales, risk remains with the seller until delivery
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SOGA79 Sections 20(A) and (B)
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A buyer can't own shares of a bulk if the bulk is unidentified
(Re Wait (1927)) |
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Re Wait (1927)
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SOGA79 Sections 20(A) and (B)
A buyer can't own shares of a bulk if the bulk is unidentified |
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SOGA79 Section 6
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Sellers are protected when specific goods have perished without their knowledge, as the contract will be void
(Asfar & Co Ltd v Blundell (1896)) |
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Asfar & Co Ltd v Blundell (1896)
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SOGA79 Section 6
Sellers are protected when specific goods have perished without their knowledge, as the contract will be void –Dates had sunk and when retrieved were a sodden pulp. The contract was void |
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SOGA79 Section 7
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If specific goods perish after a contract is made, but before delivery, the contract is frustrated
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SOGA79 Section 21
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Only the owner of goods is able to sell them
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If the true owner of goods confirms in any way that the seller has a right to sell them, they will be estopped from later denying it, eg...
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Eastern Distributors Ltd v Goldring (1957)
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Eastern Distributors Ltd v Goldring (1957)
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SOGA79 Section 21
If the true owner of goods confirms in any way that the seller has a right to sell them, they will be estopped from later denying it –Murphy gave a dealer the registration to his van to part–exchange. The dealer sold it without getting the new car |
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Estoppel does not apply to an agreement to sell if no money has passed hands, eg...
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Shaw v Commissioner of the Police for the Metropolis (1987)
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Shaw v Commissioner of the Police for the Metropolis (1987) |
SOGA79 Section 21
Estoppel does not apply to an agreement to sell if no money has passed hands –A rogue obtained a car registration and sold the car, but disappeared before being paid. The sale was not binding |
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SOGA79 Section 21(2)
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Sales by a mercantile agent are binding unless the buyer is aware of a lack of authority
(Folkes v King (1923)) |
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Folkes v King (1923)
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SOGA79 Section 21(2)
Sales by a mercantile agent are binding unless the buyer is aware of a lack of authority –An agent had authority to sell a car for a minimum price, but sold below this. The sale was binding |
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SOGA79 Section 23
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Goods obtained through a void contract can't be resold, but can be if it was a voidable contract that hasn't yet been put aside
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SOGA79 Section 24
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If a seller re–sells goods to an innocent third party, the third party will take valid ownership on delivery
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SOGA79 Section 25
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A buyer re–selling goods will be binding even if they were originally obtained by deception
(Newtons of Wembley Ltd v Williams (1964)) ...but not if the goods were originally stolen (National Employers Mutual Insrance v Jones (1990)) |
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Newtons of Wembley Ltd v Williams (1964)
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SOGA79 Section 25
A buyer re–selling goods will be binding even if they were originally obtained by deception –A car bought with a worthless cheque was resold. The resale was valid |
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National Employers Mutual Insrance v Jones (1990)
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SOGA79 Section 25
Re–sale of goods will not be binding if they were stolen –A van was stolen and then sold on several times. The original owner sued for return of the van |
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Sale of a vehicle subject to an existing hire purchase agreement will give a consumer good title, but not a business, eg...
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GE Capital Bank Ltd v Rushton and Jenking (2005)
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GE Capital Bank Ltd v Rushton and Jenking (2005) |
Sale of a vehicle subject to an existing hire purchase agreement will give a consumer good title, but not a business
–Rushton bought 13 cars subject to hire purchase, and sold one for private use to Jenking. Jenking gained ownership, but Rushton did not |
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What does 'nemo dat quod non habet' mean?
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No one can give that which he has not got
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SOGA79 Section 27
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The seller is obliged to deliver the goods, and the buyer is obliged to pay for them
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SOGA79 Section 28
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Payment and delivery are concurrent conditions
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SOGA79 Section 29(2)
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Unless otherwise agreed, the buyer must collect from the seller's place of business
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SOGA79 Section 32
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Delivery to a carrier will suffice for the seller's obligation
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If a delivery time is agreed, time is assumed to be of the essence, eg...
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Bowes v Shand (1877)
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Bowes v Shand (1877)
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SOGA79 Section 29
If a delivery time is agreed, time is assumed to be of the essence –Rice was ordered for March. 7/8 was shipped in February, so the buyer was entitled to reject the order |
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SOGA79 Section 29(3)
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If no time is agreed, delivery must be within a reasonable time
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SOGA79 Section 37
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If a buyer fails to take delivery within a reasonable time, he is liable for any loss
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SOGA79 Section 29
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Delivery includes physical goods, keys and/or documents of title
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SOGA79 Section 8
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If the price is not set, the buyer is obliged to pay a reasonable price
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SOGA79 Section 30
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The buyer may reject the entire delivery if the amount is more or less than agreed, but minute deviations won't apply
(Shipton Anderson & Co Ltd v Weil Bros & Co Ltd (1912)) |
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Shipton Anderson & Co Ltd v Weil Bros & Co Ltd (1912)
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SOGA79 Section 30
The buyer may reject the entire delivery if the amount is more or less than agreed, but minute deviations won't apply –4,950 tons of wheat were order, but 4,950 tons and 55 pounds were delivered. The seller could not reject the order |
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SOGA79 Section 31(1)
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Buyers don't have to accept delivery by instalments unless previously agreed
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SOGA79 Section 31(2)
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If a contract is severable, the buyer may only be able to claim damages for missed delivery instalments, rather than repudiate the whole contract
(Maple Flock Co Ltd v Furniture Products (Wembley) Ltd (1934)) (Robert A Munro & Co Ltd v Meyer (1930)) |
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Maple Flock Co Ltd v Furniture Products (Wembley) Ltd (1934)
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SOGA79 Section 31(2)
If a contract is severable, the buyer may only be able to claim damages for missed delivery instalments, rather than repudiate the whole contract –100 tons of bricks were deliverable by instalment. The first 15 deliveries were acceptable, as were 17–20th, but the 16th was not. The buyer could not repudiate the contract |
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Robert A Munro & Co Ltd v Meyer (1930)
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SOGA79 Section 31(2)
If a contract is severable, the buyer may only be able to claim damages for missed delivery instalments, rather than repudiate the whole contract –1500 tons of bone and meal were ordered, but the first 651 tons contained cocoa husk. The buyer could repudiate the contract |
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SOGA79 Section 35(1)(b)
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Acceptance occurs if the buyer does anything with the goods inconsistent with ownership of the seller, or after a reasonable time(Clegg v Ollie Andersson (2003))
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SOGA79 Section 36
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The buyer has no duty to return rejected goods
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SOGA79 Section 35(3)
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Any agreement to prevent the right to examine goods is void
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SOGA79 Section 35(6)
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Acceptance is not made when a buyer asks for a repair to the goods
(J&H Ritchie Ltd v Lloyd Ltd (2007)) |
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Clegg v Ollie Andersson (2003)
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SOGA79 Section 35
Acceptance occurs if the buyer does anything with the goods inconsistent with ownership of the seller, or after a reasonable time – A boat keel was overweight, and it took the buyer three weeks to reject it. This was not unreasonable |
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J&H Ritchie Ltd v Lloyd Ltd (2007)
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SOGA79 Section 35(6)
Acceptance is not made when a buyer asks for a repair to the goods –A drill was faulty on delivery and returned for repair. When repaired, the buyer was still concerned and rejected it. He was entitled to do so |
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SOGA79 Section 49
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In the event of non–payment, the seller can sue for the contract price
(Colley v Overseas Exporters Ltd (1921)) |
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Colley v Overseas Exporters Ltd (1921)
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SOGA79 Section 49
In the event of non–payment, the seller can sue for the contract price –Goods were sold FOB, but because no ship was ascertained, so title didn't pass and the seller could not sue for price |
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SOGA79 Section 50
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If ownership of the goods has not passed, the seller can seeks damages for non–acceptance (calculated on the market price)
(WL Thompson Ltd v Robinson (Gunmakers) Ltd (1955)) (Charter v Sullivan (1957)) |
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WL Thompson Ltd v Robinson (Gunmakers) Ltd (1955)
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SOGA79 Section 50
If ownership of the goods has not passed, the seller can seeks damages for non–acceptance –A car was wrongly rejected, so the seller could claim the contract price (there was no market) |
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Charter v Sullivan (1957)
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SOGA79 Section 50
If ownership of the goods has not passed, the seller can seeks damages for non–acceptance –A car was wrongly rejected, but the seller could only claim nominal damages because there was plenty of demand elsewhere |
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SOGA79 Section 41
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Lien is the seller's right to withhold delivery as long as they still have possession
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SOGA79 Section 44
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Stoppage in transit is only available if the buyer becomes insolvent
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SOGA79 Section 48
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The seller has a right to resell if the goods are perishable, or if notice is given when a buyer fails to pay within a reasonable time
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SOGA79 Sections 51–53
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A buyer can sue for damages for breach of a condition or warranty, but can only reject the goods for a breach of condition
(Jones v Gallagher and Gallagher (2005)) (Lee v York Coach and Marine Ltd (1977)) (Rogers v Parish (Scarborough) Ltd (1987)) |
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Jones v Gallagher and Gallagher (2005)
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SOGA79 Sections 51–53
A buyer can sue for damages for breach of a condition or warranty, but can only reject the goods for a breach of condition –The right to reject a kitchen was lost because they waited until work was complete |
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Lee v York Coach and Marine Ltd (1977)
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SOGA79 Sections 51–53
A buyer can sue for damages for breach of a condition or warranty, but can only reject the goods for a breach of condition –Brakes on a second–hand car were discovered to be faulty in March, but only gave notice in September so lost the right to reject |
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Rogers v Parish (Scarborough) Ltd (1987))
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SOGA79 Sections 51–53
A buyer can sue for damages for breach of a condition or warranty, but can only reject the goods for a breach of condition –An expensive car started to rust within six months. The buyer was entitled to reject it |
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SOGA79 Section 52
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Specific performance is only usually available if the goods are unique
(Cohen v Roche (1927)) |
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Cohen v Roche (1927)
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SOGA79 Section 52
Specific performance is only usually available if the goods are unique –The seller failed to deliver Hepplewhite furniture. It was rare, but not unique, so specific performance was not granted |
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SOGASA82 Section 2
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There is an implied condition that the transferor has the right to sell the goods, and the implied warranties that there are no third party rights and that the transferee will enjoy quiet possession
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SOGASA82 Section 3
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There is an implied condition that the goods will match the description
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SOGASA82 Section 4
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There is an implied condition that the goods are of satisfactory quality and fit for purpose
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SOGASA82 Section 5
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The is an implied condition that the bulk will correspond to the sample
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SOGASA82 Section 7
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There is an implied condition that the bailor is entitled to transfer possession (hire), and an implied warranty that the hiree has the right to quiet possession. This section can be excluded if reasonable
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SOGASA82 Section 8
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The is an implied condition that hire goods will match the description
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SOGASA82 Section 9
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There are implied conditions that hired goods will be of satisfactory quality and fit for purpose
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SOGASA82 Section 10
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There is an implied condition that the bulk of hired goods will correspond to the sample
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SOGASA82 Section 13
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There is an implied innominate term that a service will be performed with reasonable care
(Wilson v Best Travel Ltd (1993)) (Midland Bank Trust Co v Hett Stubbs and Co (1979)) (Kimber v William Willet Ltd (1947)) (Luxmoore–May v Messenger May Beaverstock (1990)) (Thake v Maurice (1986)) |
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Wilson v Best Travel Ltd (1993)
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SOGASA82 Section 13
There is an implied innominate term that a service will be performed with reasonable care –On holiday in Greece, Wilson fell through a glass door. The door met Greek standards, so the tour operator was not liable |
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Midland Bank Trust Co v Hett Stubbs and Co (1979)
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SOGASA82 Section 13
There is an implied innominate term that a service will be performed with reasonable care –Solicitors failed to register an option to purchase. They were liable |
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Kimber v William Willet Ltd (1947)
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SOGASA82 Section 13
There is an implied innominate term that a service will be performed with reasonable care –A fitted carpet was left in a dangerous condition. The fitters were liable |
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Luxmoore–May v Messenger May Beaverstock (1990)
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SOGASA82 Section 13
There is an implied innominate term that a service will be performed with reasonable care –Auctioneers didn't realise the value of expensive paintings, and sold them cheaply. They were not liable |
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Thake v Maurice (1986)
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SOGASA82 Section 13
There is an implied innominate term that a service will be performed with reasonable care –A surgeon could not be held liable for an unsuccessful operation |
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SOGASA82 Section 814
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There is an implied innominate terms that performance of a business service should take place within a reasonable time
(Charnock v Liverpool Corporation (1968)) |
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Charnock v Liverpool Corporation (1968)
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SOGASA82 Section 814
There is an implied innominate terms that performance of a business service should take place within a reasonable time –A car repair that should have taken five weeks actually took eight. The garage was liable |
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SOGASA82 Section 15
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There is an implied innominate term that the price of a service will be reasonable (if not specified). A quote is binding, but an estimate is not
(Croshaw v Pritchard and Renwick (1899)) |
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Croshaw v Pritchard and Renwick (1899)
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SOGASA82 Section 15
There is an implied innominate term that the price of a service will be reasonable (if not specified). A quote is binding, but an estimate is not |
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SOGASA82 Section 16
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Liability for SOGASA82 Sections 13–15 can be excluded or limited subject to the Unfair Contract Terms Act 1977
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Unfair Contract Terms Act 1977 Sections 6 and 7
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A contract can't exclude the condition that the seller has the right to sell, or that the buyer has the right to quiet possession.
A consumer contract can't exclude/limit liability for SOGA79 Sections 13–15, but a business contract can if reasonable |
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Unfair Terms in Consumer Contracts Regulations 1999
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Unfair terms in unnegotiable consumer contracts will be void
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Supply of Goods (Implied Terms) Act 1973
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This mirrors SOGA79, but relates to hire purchase contracts
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Sale and Supply of Goods to Consumers Regulations 2002
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A consumer can only obtain a remedy from the retailer, not manufacturer
He can't claim for wear and tear or accidental damage He is entitled to a full refund within a reasonable time, or reasonable compensation within six years If goods are returned within six months, it is the retailers responsibility to prove quality |
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The Consumer Protection from Unfair Trading Regulations 2008
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Enforces penalties for aggressive selling or untruthful claims, without the need to prove that anyone has been deceived
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The Consumer Rights Directive 2011
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Aims to ensure clarity of information on purchases, and restrict unfair charges/fees
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In what ways can a contract be discharged?
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Performance
Agreement Frustration Breach |
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Part performance will not usually be enough to discharge a contract, eg...
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Re Moore and Co v Landauer and Co (1921)
Cutter v Powell (1795) |
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Re Moore and Co v Landauer and Co (1921)
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Part performance will not usually be enough to discharge a contract
–Fruit was ordered in cases of 30 tins. Half was delivered in cases of 24 tins, so the buyer was allowed to reject the entire consignment |
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Cutter v Powell (1795)
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Part performance will not usually be enough to discharge a contract
–A sailor agreed to travel from Jamaica to Liverpool, but died at sea. His widow was not entitled to any payment |
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Minute deviations are dealt with by common sense, eg...
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Reardon Smith Line Ltd v Hansen–Tangen (1976)
Peter Darlington and Partners v Gosho Ltd (1964) |
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Reardon Smith Line Ltd v Hansen–Tangen (1976)
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Minute deviations are dealt with by common sense
–A contract mentioned that a ship should be built in 'yard 354', but was built elsewhere. The court did not view this as a term |
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Peter Darlington and Partners v Gosho Ltd (1964)
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Minute deviations are dealt with by common sense
–Seed was ordered on a 'pure basis'. It was delivered 98% pure, which was the purest available, and so the seller had completed his obligation |
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What exceptions are there to the requirement to perform the full contract?
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Divisible contracts
Prevention of completion by the other party (Planche v Colborn (1831)) Agreement to accept partial performance Doctrine of substantial performance (Hoenig v Isaacs (1952)) (Bolton v Mahadeva (1972)) |
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Planche v Colborn (1831)
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Prevention of completion by the other party is an exemption to the requirement to perform the full contract
–A write was commissioned to write a book, but halfway through the publisher cancelled the contract. The writer was entitled to part–payment |
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Hoenig v Isaacs (1952)
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Doctrine of substantial performance is an exemption to the requirement to perform the full contract
–Hoenig agreed to decorate Isaacs' flat, but Isaacs withheld most of the payment for faulty work. Hoenig was entitled to the outstanding balance, less the cost of remedying defects |
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Bolton v Mahadeva (1972)
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Doctrine of substantial performance is an exemption to the requirement to perform the full contract
–A contractor agreed to install a central heating system, but it did not heat the house adequately. This was not considered substantial performance |
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Failure to complete on time will not allow termination of a contract unless time is of the essence, eg...
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United Scientific Holdings Ltd v Burnley Borough Council (1978)
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United Scientific Holdings Ltd v Burnley Borough Council (1978) |
Failure to complete on time will not allow termination of a contract unless time is of the essence
–A contract for rent was to be reviewed every ten years. The landlords were late reviewing the rent, but time was ruled not to be of the essence |
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Time can be made of the essence by serving a notice, eg...
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Charles Rickards v Oppenheim (1950)
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Charles Rickards v Oppenheim (1950) |
Time can be made of the essence by serving a notice
–A contract to build a Rolls Royce chassis within seven months had expired, but the buyer agreed to wait longer. After this period also expired, he served a notice requiring delivery within four weeks. When the chassis was finally delivered later than this, the buyer was not obliged to accept the delivery |
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Under unilateral discharge, one party may agree to substitute the original contract with a new one (novation), eg...
|
Re Charge Card Services Ltd (1986)
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Re Charge Card Services Ltd (1986) |
Under unilateral discharge, one party may agree to substitute the original contract with a new one (novation)
–A garage agreed to accept charge card instead of cash, therefore substituting the original agreement. When the charge card firm became insolvent, the garage could not claim cash payment |
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A clause can be included to end a contract if a certain event occurs, eg...
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Bland v Sparkes (1999)
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Bland v Sparkes (1999) |
A clause can be included to end a contract if a certain event occurs
–Bland was a swimmer hired as a consultant for the Amateur Swimming Association. A clause was included that allowed termination of the contract if Bland was convicted of a criminal offence |
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Until discharge by frustration was introduced, the obligation to carry out a contract was absolute, eg...
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Paradine v Jane (1647)
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Paradine v Jane (1647) |
Until discharge by frustration was introduced, the obligation to carry out a contract was absolute
–A tenant was evicted during the civil war, but was still liable to pay rent |
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What circumstances allow a contract to be frustrated?
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Subsequent impossibility (Taylor v Caldwell (1863))
Subsequent illegality (Avery v Bowden (1855)) Non–occurrence of future event (Krell v Henry (1903)) Intervening enforced delay (Metropolitan Water Board v Dick Kerr and Co (1918)) Contracts of a personal nature (eg imprisonment) |
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Taylor v Caldwell (1863)
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A contract can be frustrated by subsequent impossibility
–A music hall burnt down before the first performance |
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Avery v Bowden (1855)
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A contract can be frustrated by subsequent illegality
–The Crimean War broke out before a cargo was collected, so it was now illegal to trade with the enemy |
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Krell v Henry (1903)
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A contract can be frustrated by non–occurrence of a future event
–A room was hired to overlook the coronation of Edward VII, but the coronation was postponed |
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Metropolitan Water Board v Dick Kerr and Co (1918)
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A contract can be frustrated by an intervening enforced delay
–A firm agreed to build a reservoir, but using wartime powers the government ordered work to stop |
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Frustration will only apply if the change in circumstances fundamentally changes the contract, eg...
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Tsakiroglou & Co v Noblee (1962)
Davis Contractors v Fareham UDC (1956) |
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Tsakiroglou & Co v Noblee (1962)
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Frustration will only apply if the change in circumstances fundamentally changes the contract
–The sellers agreed to transport a cargo of ground nuts, and planned to use the Suez Canal. The canal was closed, but this did not frustrate the contract |
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Davis Contractors v Fareham UDC (1956)
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Frustration will only apply if the change in circumstances fundamentally changes the contract
–A contract to build houses was agreed, but work was delayed and incurred extra costs. This did not frustrate the contract |
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Frustration won't apply it is induced by one of the parties, eg...
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Maritime National Fish Ltd v Ocean Trawlers Ltd (1935)
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Maritime National Fish Ltd v Ocean Trawlers Ltd (1935)
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Frustration won't apply it is induced by one of the parties
–A charterer of boats was granted three operating licenses across five boats. It was their choice not to use one of these on the boat in question, so the contract was not frustrated |
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Frustration voids a contract, eg...
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Fibrosa Case (1943)
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Fibrosa Case (1943) |
Frustration voids a contract
–A polish company paid a deposit for the manufacture of machinery, after which the war broke out. The contract was therefore frustrated, so they could recover the deposit paid |
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What implications did The Law Reform (Frustrated Contracts) Act 1943 have?
|
The court has discretion to award expenses incurred
The court may order a party to make payment for a benefit obtained |
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In what ways may a breach occur?
|
Refusal to perform
Failure to perform |
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An anticipatory breach will only end a contract if it is sufficiently serious, eg...
|
Holchester v De La Tour (1853)
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Holchester v De La Tour (1853) |
An anticipatory breach will only end a contract if it is sufficiently serious
–In April, De La Tour agreed to employ Holchester as a courier from 1st June, but repudiated the contract in May. Holchester was able to claim damages immediately |
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What are the two options for an innocent victim of anticipatory breach?
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To end the contract
To affirm the contract, then claim damages |
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If a contract is affirmed after an anticipatory breach, it can be frustrated which would then stop the victim claiming any damages, eg...
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Avery v Bowden (1855)
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Avery v Bowden (1855) |
If a contract is affirmed after an anticipatory breach, it can be frustrated which would then stop the victim claiming any damages
–A ship arrived to collect a cargo, but was told it wasn't available. The ship decided to wait, but the Crimean War then broke out and frustrated the contract |
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A party can repudiate (renounce) a contract, but this must be clear and unambiguous, eg...
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Dalkia Utilities Services plc v Caltech International Ltd (2006)
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Dalkia Utilities Services plc v Caltech International Ltd (2006) |
A party can repudiate (renounce) a contract, but this must be clear and unambiguous
–Caltech was struggling to pay the agreed instalments for services provided, and advised that they were facing insolvency. This was not a clear refusal to perform the contract, so it was not discharged |
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An innocent party of an anticipatory breach must give notice if they also wish to repudiate a contract, eg...
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Vitol SA v Norelf (1996)
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Vitol SA v Norelf (1996)
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An innocent party of an anticipatory breach must give notice if they also wish to repudiate a contract
–When a buyer notified the seller that they wished to repudiate the contract, the seller did not send a bill of lading, which demonstrated evidence of his intention to repudiate |
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An innocent victim of anticipatory breach has no duty to mitigate losses until they acknowledge the breach, or the date of performance arrives, eg...
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White and Carter (Councils) Ltd v McGregor (1962)
Clea Shipping Corporation v Bulk Oil International (1984) |
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White and Carter (Councils) Ltd v McGregor (1962)
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An innocent victim of anticipatory breach has no duty to mitigate losses until they acknowledge the breach, or the date of performance arrives
–McGregor's employee agreed to pay for advertising on council bins. McGregor then repudiated the contract before the adverts were placed, but the council did not accept the repudiation and was entitled to claim the full contract |
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Clea Shipping Corporation v Bulk Oil International (1984)
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An innocent victim of anticipatory breach has no duty to mitigate losses until they acknowledge the breach, or the date of performance arrives
–The charterers repudiated a contract for a ship before the charter commenced. The owners held the ship for them anyway, but had no right to do so as there was no legitimate interest for doing so |
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A breach of condition is only so if it goes to the very root of the contract, eg...
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Poussard v Spiers (1876)
Bettini v Gye (1876) |
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Poussard v Spiers (1876)
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A breach of condition is only so if it goes to the very root of the contract
–The lead singer in an opera breached her contract by being ill on the opening night |
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Bettini v Gye (1876)
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A breach of condition is only so if it goes to the very root of the contract
–The lead singer was ill during rehearsals, but fit to appear on the opening night. The manager could only claim for damages, the contract was not discharged |
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What is the remedy for breach of warranty?
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Damages
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The option to discharge a contract for breach of an innominate term depends on the seriousness of the breach, eg...
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Hong Kong Fir (1962)
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Hong Kong Fir (1962)
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The option to discharge a contract for breach of an innominate term depends on the seriousness of the breach
–A ship was required to be seaworthy, but required considerable repair. This was not serious enough to discharge the contract |
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What elements must be satisfied to claim damages?
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Loss
Causation Remoteness Mitigation |
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Damages will only return the claimant to the same position as if the contract had been performed, eg...
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Robinson v Harman (1848)
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Robinson v Harman (1848)
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Damages will only return the claimant to the same position as if the contract had been performed
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What is the most frequent way of calculating damages?
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Loss of expectation
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If there is no market price, the loss for damages must be calculated in a less precise way, eg...
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WL Thompson Ltd v Robinson (Gunmakers) Ltd (1955)
Charter v Sullivan (1957) Lazenby Garages v Wright (1976) |
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WL Thompson Ltd v Robinson (Gunmakers) Ltd (1955)
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If there is no market price, the loss for damages must be calculated in a less precise way
–The buyers of a car refused delivery. The car was under condition that it must be sold at the RRP, but there was no demand so the car was returned to suppliers. They were entitled to the lost profit |
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Charter v Sullivan (1957)
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If there is no market price, the loss for damages must be calculated in a less precise way
–The buyers of a car refused delivery. The car was in demand and the sellers were able to sell at the same price to a different buyer, so were only entitled to nominal damages |
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Lazenby Garages v Wright (1976)
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If there is no market price, the loss for damages must be calculated in a less precise way
–The buyers of a car refused delivery. The car had been made to the buyer's exact specifications, so could not be resold. The seller was entitled to losses calculated on the actual value of the car |
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Damages for a breach of contract should be calculated at the date of breach, but there are exceptions, eg...
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Golden Strait Corporation v Nippon YKK (2007)
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Golden Strait Corporation v Nippon YKK (2007)
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Damages for a breach of contract should be calculated at the date of breach, but there are exceptions
–Nippon YKK repudiated the contract giving the ship back to Golden Strait, who claimed damages for the remainder of the contract term. Nippon YKK were only obliged to pay up until the point that the Gulf War broke out two years later |
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Reliance loss is calculated as any expenses incurred while relying on the contract, eg...
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Anglia Television Ltd v Reed (1972)
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Anglia Television Ltd v Reed (1972)
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Reliance loss is calculated as any expenses incurred while relying on the contract
–The star actor pulled out at a late stage. As the loss of expectation could not be reliable calculated, the film company were entitled to expenses incurred during the preparatory stages |
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma, eg...
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Malik v Bank of Credit and Commerce International (1998)
Johnson v Unisys (2001) Eastwood and Anor v Magnox plc (2004) McCabe v Cornwall County Council (2004) Aerial Advertising Co v Batchelors Peas Ltd (Manchester) (1998) Heywood v Wellers (1976) Farley v Skinner (No2) (2001) Jarvis v Swan Tours (1973) Ruxley Electronics and Construction Ltd v Forsyth (1995) |
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Malik v Bank of Credit and Commerce International (1998)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–An ex–employee struggled to find work after the company was convicted of corrupt dealings. He was awarded damages |
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Johnson v Unisys (2001)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–An employee suffered a nervous breakdown after being dismissed, and was awarded £12k for unfair dismissal at a tribunal. He was not entitled additional damages |
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Eastwood and Anor v Magnox plc (2004)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–Two employees were unfairly dismissed, but were able to claim losses for the actions of their employer to demotivate them BEFORE their dismissal |
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McCabe v Cornwall County Council (2004)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–An employee was able to claim damages for illness after his employer failed to carry out a proper investigation into allegations made against him |
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Aerial Advertising Co v Batchelors Peas Ltd (Manchester) (1998)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–Damages were awarded to Batchelors after Aerial Advertising flew a banner for them during silence on Remembrance Day |
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Heywood v Wellers (1976)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–Heywood claimed damages after a solicitor negligently failed to obtain an injunction to prevent her ex–boyfriend from harassing her |
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Farley v Skinner (No2) (2001)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–Farley claimed damages after he specifically asked a surveyor whether a property was affected by Gatwick Airport, and the surveyor lied |
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Jarvis v Swan Tours (1973)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–Jarvis was awarded damages for a holiday from hell after promises in a brochure were broken |
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Ruxley Electronics and Construction Ltd v Forsyth (1995)
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Miscellaneous grounds for calculating damages include pain and suffering, distress and stigma
–A swimming pool was built too shallow, and Forsyth claimed for the cost of rebuilding it. As it was still usable, the court only awarded damages for loss of amenity |
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Causation only exists if losses are caused specifically by a party's breach of contract, eg...
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County Ltd v Girozentrale Securities (1996)
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County Ltd v Girozentrale Securities (1996)
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Causation only exists if losses are caused specifically by a party's breach of contract
–Brokers breached a contract to sell shares, which left the claimant with a large loss. The brokers breach was ruled to be the cause of the loss |
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The loss must not be too remote from the contract, eg...
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Hadley v Baxendale (1854)
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Hadley v Baxendale (1854)
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The loss must not be too remote from the contract
–A carrier agreed to delivery a broken windmill shaft for repair, but delivery was delayed. The mill owner could not claim loss of profits as the carrier could not know that the mill would have to stand idle |
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In order to claim damages, the loss must have been within the contemplation of both parties when making the contract, eg...
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Victoria Laundry (Windsor) Ltd v Newman Industries Ltd (1949)
The Heron II (1969) Transfield Shipping Inc v Mercator Shipping Inc (2008) Wroth v Tyler (1974) Balfour Beatty Construction (Scotland) v Scottish Power plc (1994) |
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Victoria Laundry (Windsor) Ltd v Newman Industries Ltd (1949)
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In order to claim damages, the loss must have been within the contemplation of both parties when making the contract
–A laundry firm ordered a new boiler for a exceptionally profitable contract. Delivery was delayed, but they were only entitled to damages for normal loss of profits |
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The Heron II (1969)
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In order to claim damages, the loss must have been within the contemplation of both parties when making the contract
–A delivery of sugar was delayed, and the market price fell. The buyer was able to recover lost profits, as the carrier should have been aware that prices fluctuate |
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Transfield Shipping Inc v Mercator Shipping Inc (2008)
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In order to claim damages, the loss must have been within the contemplation of both parties when making the contract
–A ship was returned late, and subsequent charterers were only willing to accept the ship at a lower price. The original charterers were only liable for the days they were late, not the entire term of the subsequent charter |
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Wroth v Tyler (1974)
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In order to claim damages, the loss must have been within the contemplation of both parties when making the contract
–A seller repudiated a contract to sell his house, and by the time the case came to court prices had risen sharply. The seller was liable for the difference in price |
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Balfour Beatty Construction (Scotland) v Scottish Power plc (1994)
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In order to claim damages, the loss must have been within the contemplation of both parties when making the contract
–Balfour needed a continuous supply of electricity to build a bridge. The supply was interrupted, and the bridge had to be rebuilt, but this cost was too remote to claim |
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What is the final requirement for a claimant to be entitled to damages?
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He must make reasonable efforts to mitigate his losses
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If a defendant benefits financially from breaching a contract, what power does the court have?
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The court may award additional damages to deprive him of the profit
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A liquidated damages clause (where reasonable damages for a specific breach are agreed) are valid, but if the damages agreed are punitive it will be deemed a penalty clause under The Unfair Contract Terms Act 1977, eg...
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Bridge v Campbell Discount Co (1962)
Jeancharm v Barnet Football Club (2003) Tullet Prebon Group v Ghaleb El Hajjali (2008) Dunlop v New Garage Ltd (1915) |
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Bridge v Campbell Discount Co (1962)
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A liquidated damages clause (where reasonable damages for a specific breach are agreed) are valid, but if the damages agreed are punitive it will be deemed a penalty clause under The Unfair Contract Terms Act 1977
–A hire purchase agreement stated that if the car was returned, two thirds of the full price was payable. This was punitive and void |
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Jeancharm v Barnet Football Club (2003)
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A liquidated damages clause (where reasonable damages for a specific breach are agreed) are valid, but if the damages agreed are punitive it will be deemed a penalty clause under The Unfair Contract Terms Act 1977
–A penalty of 20p per day for late delivery of football kits was punitive and void |
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Tullet Prebon Group v Ghaleb El Hajjali (2008)
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A liquidated damages clause (where reasonable damages for a specific breach are agreed) are valid, but if the damages agreed are punitive it will be deemed a penalty clause under The Unfair Contract Terms Act 1977
–El Hajjali was liable for liquidated damages of 50% of his salary for leaving the job. He received legal advice before accepting the contract, so this clause was valid |
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Dunlop v New Garage Ltd (1915)
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A liquidated damages clause (where reasonable damages for a specific breach are agreed) are valid, but if the damages agreed are punitive it will be deemed a penalty clause under The Unfair Contract Terms Act 1977
–Damages of £5 per tyre were payable if they were sold below RRP. This was valid |
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If one party performs his part and payment is withheld, how is the claim regarded?
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As a debt rather than a claim for damages
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What criteria can determine whether a payment is late?
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The expiry of an agreed credit period
The credit period determined by the trade 30 days after delivery |
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Damages for the opportunity loss of money may be claimable, eg...
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Sempra Metals Ltd v Inland Revenue Commissioners (2007)
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Sempra Metals Ltd v Inland Revenue Commissioners (2007) |
Damages for the opportunity loss of money may be claimable
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Quantum meruit (for as much as he deserves) is an equitable remedy for damages, eg...
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Craven–Ellis v Canons Ltd (1936)
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Craven–Ellis v Canons Ltd (1936) |
Quantum meruit (for as much as he deserves) is an equitable remedy for damages
–A MD's appointment transpired to be void, but he could claim compensation for work done |
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Quantum meruit (for as much as he deserves) can't be used to claim more than an agreed price, eg...
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Gilbert and Partners v Knight (1968)
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Gilbert and Partners v Knight (1968)
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Quantum meruit (for as much as he deserves) can't be used to claim more than an agreed price
–Surveyors did more work than agreed, but could not claim more than the agreed price |
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Specific performance (common in the sale of land) will only be granted if damages are not considered adequate, eg...
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Cohen v Roche (1927)
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Cohen v Roche (1927) |
Specific performance (common in the sale of land) will only be granted if damages are not considered adequate
–A seller refused to deliver Hepplewhite furniture. Although rare, it was available elsewhere, so specific performance was not granted |
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Specific performance will not be granted to enforce personal contracts, eg...
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Co–Operative Insurance Society Ltd v Argyll Stores Ltd (1997)
Malins v Freeman (1937) |
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Co–Operative Insurance Society Ltd v Argyll Stores Ltd (1997) |
Specific performance will not be granted to enforce personal contracts
–A tenant closed a shop as it was making a loss. He was liable for damages, but could not be made to continue running the shop |
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Malins v Freeman (1937)
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Specific performance will not be granted to enforce personal contracts
–A bidder mistakenly bought a property at auction. He was liable for damages, but could not be made to buy the property |
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An injunction is the same, but opposite, of specific performance, eg...
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Warner Brothers v Nelson (1937)
Hill v CA Parsons and Co Ltd (1972) |
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Warner Brothers v Nelson (1937) |
An injunction is the same, but opposite, of specific performance
–An actress agreed not to work for anyone else. An injunction was granted to stop her breaking this clause |
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Hill v CA Parsons and Co Ltd (1972)
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An injunction is the same, but opposite, of specific performance
–An employee was dismissed without adequate notice, so an injunction was granted to stop the employer from dismissing him until adequate notice had been given |
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The courts limit the use of injunctions for personal services, eg...
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Page One Records v Britton (1968)
Warren v Mendy (1989) |
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Page One Records v Britton (1968)
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The courts limit the use of injunctions for personal services
–The Troggs employed a manager, who seeked an injunction to prevent them from hiring someone else. This was not granted |
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Warren v Mendy (1989)
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The courts limit the use of injunctions for personal services
–A boxer's manager tried to seek an injunction to prevent the boxer seeking advice about his career. This was not granted |
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Rescission can be granted if it is possible to return parties to their original position, but it must be claimed promptly, eg...
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Leaf v International Galleries (1950)
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Leaf v International Galleries (1950)
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Rescission can be granted if it is possible to return parties to their original position, but it must be claimed promptly
–A painting was discovered to be a fake five years after purchase. The right to rescind was lost |
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What act sets out the periods within which action must take place for breach of contract?
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The Limitation Act 1980
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What are the limits set out by The Limitation Act 1980?
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Simple contract actions – 6yrs
Contract by deed – 12yrs Actions to recover land – 12yrs |
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What act contains a provision for additional time to claim for breach of contract?
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The Latent Damage Act 1986
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What is the impact of The Latent Damage Act 1986?
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It provides three years from discovery of damage if this is longer than the standard limit
(Applegate v Moss (1972)) (Lynn v Bamber (1930)) |
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Applegate v Moss (1972)
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The Latent Damage Act 1986
–Foundations were found to be unsafe several years after being laid, but the claimant was still entitled to damages |
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Lynn v Bamber (1930)
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The Latent Damage Act 1986
–Plum trees turned out to be the wrong type when they matured after seven years, but the buyer could still claim damages |
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Can a limitation period be extended?
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Yes, if the guilty party agrees
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What governs limitation for equitable remedies?
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Laches
(Jones v Gallagher (2005)) |
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Jones v Gallagher (2005)
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Laches governs the period to claim equitable remedies
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What factors can invalidate a contract?
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Mistake
Misrepresentation Duress Undue Influence |
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Do mistakes about law invalidate a contract?
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No
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Mistakes about facts don't usually invalidate a contract, eg...
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Leaf v International Galleries (1950)
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Leaf v International Galleries (1950)
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Mistakes about facts don't usually invalidate a contract
–Both parties believed a painting to be a Constable, and the contract was valid |
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Although a mistake about the subject matter won't void a contract, confusion between the two parties will, eg...
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Raffles v Wichelhaus (1864)
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Raffles v Wichelhaus (1864)
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Although a mistake about the subject matter won't void a contract, confusion between the two parties will
–The two parties thought the cargo was on different ships with the same name |
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Mistakes about the existence of subject matter will void a contract, eg...
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Couturier v Hastie (1856)
Galloway v Galloway (1914) |
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Couturier v Hastie (1856)
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Mistakes about the existence of subject matter will void a contract
–A contract for corn was void because, unknown to either party, it had been sold elsewhere |
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Galloway v Galloway (1914)
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Mistakes about the existence of subject matter will void a contract
–A separation agreement was void because the couple were never legally married in the first place |
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Mistakes about the identity of the parties will only void a contract is that specific person is material to the contract, eg...
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Cundy v Lindsay (1878)
Kings Norton Metal Co. Ltd v Edridge Merrett and Co. (1897) Phillips v Brookes (1919) Lewis v Averay (1971) Shogun Finance v Hudson (2003) |
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Cundy v Lindsay (1878)
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Mistakes about the identity of the parties will only void a contract is that specific person is material to the contract
–A man signed his name to appear like a reputable company when buying linen, and when he failed to pay the seller found out and rendered the contract void |
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Kings Norton Metal Co. Ltd v Edridge Merrett and Co. (1897)
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Mistakes about the identity of the parties will only void a contract is that specific person is material to the contract
–Goods were sold to a non–existent company. The contract was merely voidable by the buyer, as the seller was prepared to sell to an unknown company |
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Phillips v Brookes (1919)
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Mistakes about the identity of the parties will only void a contract is that specific person is material to the contract
–A man posed as a well known Sir, and bought a ring with a worthless cheque. As the sale was made in person, the contract was not void |
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Lewis v Averay (1971)
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Mistakes about the identity of the parties will only void a contract is that specific person is material to the contract
–A man posed as a famous actor, and bought a car with a worthless cheque. As the sale was made in person, the contract was not void |
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Shogun Finance v Hudson (2003)
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Mistakes about the identity of the parties will only void a contract is that specific person is material to the contract
–Hudson posed as an innocent third party to buy a car on hire purchase, and paid 10% deposit. The contract was void for mistake |
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Mistakes of signing, ie 'non est factum' (it is not my deed), can void a contract, but there must be a difference between the legal effect and what the signer believes, there must have been no carelessness, and the signing must have been fraudulently induced, eg...
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Foster v Mackinnon (1869)
Saunders v Anglia Building Society (1971) (formerly Gallie v Lee (1969)) |
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Foster v Mackinnon (1869)
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Mistakes of signing, ie 'non est factum' (it is not my deed), can void a contract, but there must be a difference between the legal effect and what the signer believes, there must have been no carelessness, and the signing must have been fraudulently induced
–Foster fraudulently induced Mackinnon (an old man with poor eyesight) to endorse a bill of exchange for £3k |
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Saunders v Anglia Building Society (1971) (formerly Gallie v Lee (1969))
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Mistakes of signing, ie 'non est factum' (it is not my deed), can void a contract, but there must be a difference between the legal effect and what the signer believes, there must have been no carelessness, and the signing must have been fraudulently induced
–Mrs Gallie carelessly assigned her house to Lee |
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Relief in equity can be made by rectification if an agreement does not reflect the common intention, eg...
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Frederick E Rose (London) Ltd v William H Pim Jnr & Co Ltd (1953)
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Frederick E Rose (London) Ltd v William H Pim Jnr & Co Ltd (1953)
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Relief in equity can be made by rectification if an agreement does not reflect the common intention
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Relief in equity may be by rescission (compromise) on terms, eg...
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Grist v Bailey (1966)
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Grist v Bailey (1966)
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Relief in equity may be by rescission (compromise) on terms
–When it was discovered that a property was vacant, the court agreed to set the contract of sale aside provided that a new price was agreed |
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Relief in equity may be realised by refusal of a grant of...
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...specific performance
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Misrepresentation is a false statement of fact (not law), eg...
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Bisset v Wilkinson (1927)
Smith v Land and House Property Corporation (1884) Dimmock v Hallet (1866) Gordon v Sellico (1986) |
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Bisset v Wilkinson (1927)
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Misrepresentation is a false statement of fact (not law)
–A seller with no expertise expressed an opionion that a field would support 2,000 sheep. This was an opinion, not a misrepresentation |
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Smith v Land and House Property Corporation (1884)
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Misrepresentation is a false statement of fact (not law)
–The seller's description of a tenant was 'most desirable' was a misrepresentation because the seller had sufficient knowledge |
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Dimmock v Hallet (1866)
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Misrepresentation is a false statement of fact (not law)
–A description of land as 'fertile and improvable' was sales talk rather than misrepresentation |
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Gordon v Sellico (1986)
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Misrepresentation is a false statement of fact (not law)
–A seller who deliberately concealed dry not is liable in misrepresentation |
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Misrepresentation must be between who?
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The two parties rather than a third party
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When must a misrepresentation have occurred?
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Before the contract is made
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Misrepresentation must have been made with a view to...
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...induce the other party
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Silence is not generally misrepresentation, but half–truths are, eg...
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London Assurance v Mansell (1879)
Nottingham Brick and Tile Company v Butler (1886) |
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London Assurance v Mansell (1879)
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Silence is not generally misrepresentation, but half–truths are
–A person seeking life assurance was asked what other proposals he had made. He answered that the had been accepted by two others, but failed to mention that he had had several rejected |
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Nottingham Brick and Tile Company v Butler (1886)
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Silence is not generally misrepresentation, but half–truths are
–A solicitor in a land transaction stated that it was free from restrictions as far as he was aware, but he had not bothered to investigate this. This amounted to misrepresentation |
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There is a duty to correct statements which are no longer true, eg...
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With v O'Flanagan (1936)
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With v O'Flanagan (1936)
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There is a duty to correct statements which are no longer true
–A doctor's surgery was being sold with an annual income of £2k, but by the time of sale the doctor had fallen ill so the profits had fallen substantially. This amounted to misrepresentation |
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When are damages for misrepresentation for breach of contract?
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When the misrepresentation has become a term
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When can silence amount to misrepresentation?
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In contracts of 'uberimae fidei' (utmost good faith), eg insurance
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Remedies for fraudulent misrepresentation are rescission or damages for deceit, eg...
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Derry v Peek (1889)
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Derry v Peek (1889)
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Remedies for fraudulent misrepresentation are rescission or damages for deceit
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Remedies for fraudulent misrepresentation are rescission, damages for the tort of deceit, damages for the tort of negligent mis–statement or damages for negligent misrepresentation, eg...
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Hedley Byrne and Co Ltd v Heller & Partners (1963)
Corner v Mundy (1988) Howard Marine and Dredging Co Ltd v Ogden Ltd (1978) Spice Girls Ltd v Aprillia World Service (2002) |
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Hedley Byrne and Co Ltd v Heller & Partners (1963)
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Remedies for fraudulent misrepresentation include damages for the tort of negligent mis–statement
–A companies bankers carelessly stated that they were financially sound in a credit reference |
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Corner v Mundy (1988)
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Remedies for fraudulent misrepresentation include damages for the tort of negligent misrepresentation
–The seller of a house advised the buyer that the central heating was in good order, but before the sale the pipes burst and the seller failed to inform the buyer |
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Howard Marine and Dredging Co Ltd v Ogden Ltd (1978)
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Remedies for fraudulent misrepresentation include damages for the tort of negligent misrepresentation
–Sellers of two barges incorrectly quoted the capacities based on an official register, but should have known the true capacity |
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|
Spice Girls Ltd v Aprillia World Service (2002)
|
Remedies for fraudulent misrepresentation include damages for the tort of negligent misrepresentation
–Spice Girls were guilty of misrepresentation because they knew one of the members would be leaving when taking part in a photoshoot |
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|
What is the remedy for innocent misrepresentation, and under what act?
|
Rescission or damages under The Misrepresentation Act 1967
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Rescission must be exercised promptly, eg...
|
Leaf v International Galleries (1950)
|
|
|
Leaf v International Galleries (1950) |
Rescission must be exercised promptly
–Five years after sale, a Constable painting was found to be a fake. The right to rescind had been lost |
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|
When won't rescission be granted?
|
If it disadvantages a third party
If the innocent party affirms the contract |
|
|
Damages for the tort of deceit include foreseeable and unforeseeable losses, eg...
|
Doyle v Olby (1969)
Royscot Trust Ltd v Rogerson (1991) |
|
|
Doyle v Olby (1969) |
Damages for the tort of deceit include foreseeable and unforeseeable losses
|
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|
Royscot Trust Ltd v Rogerson (1991)
|
Damages for the tort of deceit include foreseeable and unforeseeable losses
|
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|
Damages for the tort of negligence include what losses?
|
Only foreseeable losses
|
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|
Damages for negligent and innocent misrepresentation (as per The Misrepresentation Act 1967) will result in damages between what the claimant thought they were getting and what they actually got, eg...
|
William Sindell plc v Cambridgeshire County Council (1994) (obiter)
|
|
|
William Sindell plc v Cambridgeshire County Council (1994)
|
Damages for negligent and innocent misrepresentation (as per The Misrepresentation Act 1967) will result in damages between what the claimant thought they were getting and what they actually got
|
|
|
What is the difference between contract and tort damages?
|
Contract damages repair the contract, tort damages aim to put the claimant back in the position they were in before the tort
|
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Exclusion of liability for misrepresentation can only be allowed if it can be proven reasonable, eg...
|
Walker v Boyle (1982)
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|
|
Walker v Boyle (1982)
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Exclusion of liability for misrepresentation can only be allowed if it can be proven reasonable
–A contract for sale of a house excluded liability for misstatements. This was unreasonable |
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|
Any contract entered under duress is voidable, eg...
|
Barton v Armstrong (1975)
|
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|
Barton v Armstrong (1975) |
Any contract entered under duress is voidable
–Armstrong threatened to have Barton murdered unless he sold his interest in a company. The contract was voidable |
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Contracts entered into under economic duress are voidable, eg...
|
Atlas Express Limited v Kafco Limited (1989)
CTN Cash and Carry v Gallaher (1994) Opel GMBH and Renault SA v Mitras Automotive (2008) Universe Tankships v International Transport Workers' Federation (1983) |
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|
Atlas Express Limited v Kafco Limited (1989)
|
Contracts entered into under economic duress are voidable
–A manufacturer received a large order from a high street chain, and made a contract with a carrier for delivery. The carrier realised they had miscalculated, and increased their price, and because the manufacturer was desperate to fulfil the order agreed to pay. The higher price was unenforceable |
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|
CTN Cash and Carry v Gallaher (1994)
|
Contracts entered into under economic duress are voidable
–A supplier who had a monopoly on cigarette brands delivered to the wrong address. They agreed to redeliver, but the wrong delivery was stolen first. When the order was eventually fulfilled, the supplier also charged for the stolen delivery. This was not considered duress, as the defendant genuinely felt entitled to payment |
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|
Opel GMBH and Renault SA v Mitras Automotive (2008)
|
Contracts entered into under economic duress are voidable
–Mitras supplied bumpers for vans, but were given notice of termination by Renault. Mitras demanded compensation, and threatened to stop supply when Renault only had 24hrs stock. This was voidable |
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|
Universe Tankships v International Transport Workers' Federation (1983)
|
Contracts entered into under economic duress are voidable
–The workers' federation demanded a payment to end a strike. This was considered duress |
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|
What is the difference between duress and undue influence?
|
Duress operates in common law, undue influence is an equitable doctrine
|
|
|
Undue influence is an equitable doctrine, eg...
|
Royal Bank of Scotland v Etridge No.2 (2001)
|
|
|
Royal Bank of Scotland v Etridge No.2 (2001) |
Undue influence is an equitable doctrine
|
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|
Actual undue influence is treated the same way as duress, eg...
|
Williams v Bayley (1866)
|
|
|
Williams v Bayley (1866) |
Actual undue influence is treated the same way as duress
–A father was pressured to give security for his son's debts. This was undue influence |
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Undue influence is presumed in certain relationships, but is not actually evident until the relationship has been abused, eg...
|
O'Sullivan v MAM Ltd (1985)
National Westminster Bank v Morgan (1985) Leggatt v National Westminster Bank (2000) Credit Lyonnais Bank v Burch (1997) |
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|
O'Sullivan v MAM Ltd (1985)
|
Undue influence is presumed in certain relationships, but is not actually evident until the relationship has been abused
–A singer entered into contracts with a management company. These were set aside as unduly harsh |
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|
National Westminster Bank v Morgan (1985)
|
Undue influence is presumed in certain relationships, but is not actually evident until the relationship has been abused
–A bank manager persuaded the wife to mortgage her house, but she didn't realise it covered her husband's business debts. The contract was binding, as husband and wife relationships are not presumed to be undue influence |
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|
Leggatt v National Westminster Bank (2000)
|
Undue influence is presumed in certain relationships, but is not actually evident until the relationship has been abused
–A wife co–signed a loan to cover her husband's partnership, and the bank later claimed the family house. The contract was binding, as it was in her financial interest to keep the partnership trading |
|
|
Credit Lyonnais Bank v Burch (1997)
|
Undue influence is presumed in certain relationships, but is not actually evident until the relationship has been abused
–An employer made his employee mortgage his flat for the employer's debts. This was set aside as undue influence |
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The presumption that there is undue influence in certain relationships can be rebutted by evidence to the contrary, eg...
|
Barclays Bank plc v O'Brien (1993)
Lloyds Bank v Bundy (1975) CIBC Mortgages plc v Pitt (1993) |
|
|
Barclays Bank plc v O'Brien (1993)
|
The presumption that there is undue influence in certain relationships can be rebutted by evidence to the contrary
–A husband persuaded his wife to mortgage the family home. He deceived her regarding her liabilities, and the bank was unable to prove that it has taken reasonable steps to explain this, so the mortgage was unenforceable against the wife |
|
|
Lloyds Bank v Bundy (1975)
|
The presumption that there is undue influence in certain relationships can be rebutted by evidence to the contrary
–A bank manager persuaded a father to guarantee his son's debts, but he did not have the option of any independent advice, so the guarantee was set aside |
|
|
CIBC Mortgages plc v Pitt (1993)
|
The presumption that there is undue influence in certain relationships can be rebutted by evidence to the contrary
–A married couple took a loan to pay off their mortgage, but the real reason was for the husband to speculate on the stock market, to which the wife reluctantly agreed. The loan was enforceable |
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|
Simply 'advising' the weaker party to seek legal advice is not sufficient to rebut the presumption that there is undue influence in certain relationships, eg...
|
Royal Bank of Scotland v Etridge No2 (2001)
|
|
|
Royal Bank of Scotland v Etridge No2 (2001)
|
Simply 'advising' the weaker party to seek legal advice is not sufficient to rebut the presumption that there is undue influence in certain relationships
|
|
|
What must a lender do to ensure a weaker party is not unduly influenced?
|
Verify the quality of legal advice received, and ensure the weaker party understands the consequences of the contract
|
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|
Even if undue influence is established, rescission must still be sought within a reasonable time, eg...
|
Allcard v Skinner (1887)
|
|
|
Allcard v Skinner (1887) |
Even if undue influence is established, rescission must still be sought within a reasonable time
–Six years after leaving a religious order, Miss Allcard tried to recover the money she gave to it |
|
|
Restraint clauses are generally void. When can they be severed from the contract?
|
If it doesn't alter the nature of the contract
|
|
|
When are restraint clauses not considered void?
|
When proven reasonable to both parties and the public
|
|
|
Employment contracts can reasonably restrain an employee from working for a rival for a limited period of time, eg...
|
Home Counties Dairies Limited v Skilton (1970)
Littlewoods Organisation v Harris (1978) Forster and Sons v Suggett (1918) Eastham v Newcastle United Football Club (1964) Mason v Provident Club Clothing Company (1913) Bull v Pitney Bowes Limited (1967) |
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|
Home Counties Dairies Limited v Skilton (1970)
|
Employment contracts can reasonably restrain an employee from working for a rival for a limited period of time
–A milkman's contract contained a clause prohibiting him from selling milk to customers of his original employer. This was valid |
|
|
Littlewoods Organisation v Harris (1978)
|
Employment contracts can reasonably restrain an employee from working for a rival for a limited period of time
–Harris' contract stated that he couldn't work for Universal Stores for one year after leaving Littlewoods, as he worked on the coming year's catalogue. This was valid |
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|
Forster and Sons v Suggett (1918)
|
Employment contracts can reasonably restrain an employee from working for a rival for a limited period of time
–The manager of a glass works agreed not to work for a rival firm for five years after leaving. This was valid |
|
|
Eastham v Newcastle United Football Club (1964)
|
Employment contracts can reasonably restrain an employee from working for a rival for a limited period of time
–A clause prohibited a footballer moving from one club to another without the original club's consent. This was too wide to be valid |
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|
Mason v Provident Club Clothing Company (1913)
|
Employment contracts can reasonably restrain an employee from working for a rival for a limited period of time
–A clause prohibited Mason from working for a similar business within 25 miles of London for three years. This was too wide to be valid |
|
|
Bull v Pitney Bowes Limited (1967)
|
Employment contracts can reasonably restrain an employee from working for a rival for a limited period of time
–A clause attempting to restrain an employee 'by the back door' such as a penalty to a pension, will have to pass the same test of reasonableness as a normal restraint clause |
|
|
An employer can't prevent an employee from using...
|
... a skill gained in that employment
|
|
|
If an employer ends the employment contract, they can't enforce a restraining clause, eg...
|
Briggs v Oates (1990)
|
|
|
Briggs v Oates (1990)
|
If an employer ends the employment contract, they can't enforce a restraining clause
|
|
|
There can be implied terms of confidentiality in an employment contract, eg...
|
Faccenda Chicken Ltd v Fowler (1986)
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|
|
Faccenda Chicken Ltd v Fowler (1986) |
There can be implied terms of confidentiality in an employment contract
–Faccenda argued that an implied term restricted the use of confidential sales information. The court agreed, but information about the Faccenda's customers was not considered confidential |
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|
Restraint clauses in the sale of a business can't be used to protect other businesses owned by the seller, eg...
|
British Reinforced Concrete v Schleff (1921)
|
|
|
British Reinforced Concrete v Schleff (1921) |
Restraint clauses in the sale of a business can't be used to protect other businesses owned by the seller
–A large national firm bought a small manufacturer, and tried to include a clause that the seller must not manufacture general road surfacing products. This was void, as it went beyond the scope of the business being sold |
|
|
What laws are restrict price fixing agreements?
|
The Competition Act 1998
The Lisbon Treaty The Enterprise Act 2002 |
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|
Solus (exclusivity) agreements must only be valid for a reasonable period, eg...
|
Esso Petroleum Limited v Harper's Garage (1968)
Cleveland Petroleum v Dartstone Ltd (1969) |
|
|
Esso Petroleum Limited v Harper's Garage (1968)
|
Solus (exclusivity) agreements must only be valid for a reasonable period
–Esso made solus agreements with two garages, one for four years and one for 21 years. The first was valid, the second invalid |
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|
Cleveland Petroleum v Dartstone Ltd (1969)
|
Solus (exclusivity) agreements must only be valid for a reasonable period
–Dartstone took a lease on a garage knowing that they could only sell Cleveland's petrol for the entire term of the lease. This was valid, as they were aware of the restriction when taking the lease |
|
|
Restraint clauses will stand or fall in their entirety, eg...
|
Clarke v Newland (1991)
Nordenfeldt Case (1984) |
|
|
Clarke v Newland (1991) |
Restraint clauses will stand or fall in their entirety
–A doctor who was under a restraint clause successfully started working in a hospital, as this did not compete with the original employer |
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|
Nordenfeldt Case (1984)
|
Restraint clauses will stand or fall in their entirety
–A manufacturer of munitions agreed not to engage in the munitions trade or any other business that would compete with the purchaser. This was two separate restrictions, the munitions one was valid, but the 'any other business' was invalid |
|
|
Illegal contracts get no assistance from courts, but void contracts get assistance to recover property, eg...
|
Foster v Driscoll (1929)
Allen v Rescous (1676) Miller v Karlinski (1945) Parkinson v College of Ambulance (1925) Pearce v Brooks (1866) |
|
|
Foster v Driscoll (1929)
|
Illegal contracts get no assistance from courts, but void contracts get assistance to recover property
–A contract to import whiskey to the USA during prohibition was void |
|
|
Allen v Rescous (1676)
|
Illegal contracts get no assistance from courts, but void contracts get assistance to recover property
–A contract to assault and evict a tenant was not carried out, but was illegal and the money couldn't be recovered |
|
|
Miller v Karlinski (1945)
|
Illegal contracts get no assistance from courts, but void contracts get assistance to recover property
–An agreement between employer and employee to disguise part of their salaries was void |
|
|
Parkinson v College of Ambulance (1925)
|
Illegal contracts get no assistance from courts, but void contracts get assistance to recover property
–The secretary of the college promised a knighthood in return for a donation. This was illegal, so the money could not be recovered |
|
|
Pearce v Brooks (1866)
|
Illegal contracts get no assistance from courts, but void contracts get assistance to recover property
–A coach owner hired it to a prostitute to attract clients. This was illegal and void, so the money could not be collected |
|
|
A party can't insure the life of a third party if they don't have a financial interest, as per The Life Assurance Act 1774, eg...
|
Harse v Pearl Life Assurance (1904)
|
|
|
Harse v Pearl Life Assurance (1904) |
A party can't insure the life of a third party if they don't have a financial interest, as per The Life Assurance Act 1774
–A son insured the life of his mother, but there was no insurable interest, so the contract was void |
|
|
A party can sue on a contract is an act is illegal rather than the contract itself, eg...
|
Archbolds (Freightage) Ltd v S Spanglett Ltd (1961)
Cope v Rowlands (1836) |
|
|
Archbolds (Freightage) Ltd v S Spanglett Ltd (1961)
|
A party can sue on a contract is an act is illegal rather than the contract itself
–Spanglett used an uninsured van to deliver whiskey. The whiskey was stolen, and they unsuccessfully claimed that the contract was void |
|
|
Cope v Rowlands (1836)
|
A party can sue on a contract is an act is illegal rather than the contract itself
–An unlicensed broker sued for his fees, but the contract was illegal |
|
|
Sales of what things must be in writing?
|
Land
Marine insurance Guarantees |
|
|
There must be certainty in an offer, eg...
|
Gunthing v Lynn (1831)
|
|
|
Gunthing v Lynn (1831)
|
There must be certainty in an offer
–Offer to pay an enhanced price for a horse 'if it was lucky' was too vague to be an offer |
|
|
There must be a firm offer, eg...
|
Harvey v Facey (1893)
Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953) Fisher v Bell (1960) Partridge v Crittenden (1968) Carlill v Carbolic Smokeball Company (1893) |
|
|
Harvey v Facey (1893)
|
There must be a firm offer
–Preliminary information of the lowest price for Bumper Hall Pen did not amount to an offer |
|
|
Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953)
|
An invitation to treat is not an offer
–Drugs considered poisons were displayed on shelves, but this did not amount to an offer |
|
|
Fisher v Bell (1960)
|
An invitation to treat is not an offer
–A knife with a price tag was not an offer, so he was not selling an offensive weapon |
|
|
Partridge v Crittenden (1968)
|
An advert is not an offer
–A magazine ad for wild birds was not an offer |
|
|
Carlill v Carbolic Smokeball Company (1893)
|
If an advert contains a specific promise it will be considered an offer
–A promise that the company would pay £100 if anyone caught flu after using the smokeball, along with the statement that it had deposited £1,000 in a bank to fund this, was considered an offer |
|
|
An offer must be communicated to the other party, eg...
|
Taylor v Laird (1856)
|
|
|
Taylor v Laird (1856)
|
An offer must be communicated to the other party
–A retired captain continued to work on a ship while he was abroad, but was unable to claim payment |
|
|
Offers for the sale of land must be in definitive writing, eg...
|
Clifton v Palumbo (1944)
Gibson v Manchester City Council (1979) |
|
|
Clifton v Palumbo (1944)
|
Offers for the sale of land must be in definitive writing
–This was just a preliminary statement as to price, not an offer |
|
|
Gibson v Manchester City Council (1979)
|
Offers for the sale of land must be in definitive writing
–The council wrote that they 'may be prepared to sell', but this was not an offer |
|
|
In what ways can an offer be terminated?
|
Death before acceptance (only personal contracts)
Revocation Refusal/rejection Lapse of offer Counter–offer |
|
|
Any offer can be revoked before acceptance, eg...
|
Routledge v Grant (1828)
|
|
|
Routledge v Grant (1828)
|
Any offer can be revoked before acceptance
–An offer to buy a house required acceptance within six weeks, but the seller revoked the offer before this time |
|
|
Revocation must be communicated, eg...
|
Byrne v van Tienhoven (1880)
Payne v Cave (1789) |
|
|
Byrne v van Tienhoven (1880)
|
Revocation must be communicated
–A letter revoking the offer arrived after the buyer has accepted it, so the revocation was not valid |
|
|
Payne v Cave (1789)
|
Revocation must be communicated
–A bid in an auction may be revoked before the fall of the hammer |
|
|
Revocation can be made by a third party, eg...
|
Dickenson v Dodds (1876)
|
|
|
Dickenson v Dodds (1876)
|
Revocation can be made by a third party
–A buyer had until Friday to accept and offer for a property, but heard from a third party on Thursday that it has already been paid, so the contract was terminated |
|
|
An offer can lapse, eg...
|
Ramsgate Victoria Hotel Company v Montefiore (1866)
Financings Ltd v Stimson (1962) |
|
|
Ramsgate Victoria Hotel Company v Montefiore (1866)
|
An offer will lapse after a reasonable length of time
–An offer to buy shares in June was accepted in November, but it has lapsed |
|
|
Financings Ltd v Stimson (1962)
|
An offer can lapse on the basis of a condition
–A car was badly damaged before the offer was accepted, so the offer lapsed |
|
|
A counter–offer terminates the original offer, eg...
|
Hyde v Wrench (1840)
|
|
|
Hyde v Wrench (1840)
|
A counter–offer terminates the original offer
–Hyde offered to buy a farm for less than the offer, then when this was rejected he tried to accept the original offer |
|
|
It is important to distinguish between counter–offer and a request for more information, eg...
|
Stevenson v McLean (1880)
|
|
|
Stevenson v McLean (1880)
|
It is important to distinguish between counter–offer and a request for more information
–The defendant took a request for credit as a counter–offer, and sold elsewhere. The claimant then accepted the original offer |
|
|
Acceptance must be in the form specified in the offer, but other methods may suffice if the offerer is not disadvantaged, eg...
|
Yates Building Company v Pulleyn (1975)
|
|
|
Yates Building Company v Pulleyn (1975)
|
Acceptance must be in the form specified in the offer, but other methods may suffice if the offerer is not disadvantaged
–The offer stated that acceptance must be by recorded delivery, but it was made by normal post |
|
|
Acceptance must be of the entire offer, and be unqualified, eg...
|
Neale v Merrett (1930)
|
|
|
Neal v Merrett (1930)
|
Acceptance must be of the entire offer, and be unqualified
–The defendant accepted an offer, but promised to pay by instalments. This did not make a contract |
|
|
When terms are disputed, the last proposed terms should be used, eg...
|
Butler Machine Tool Co Ltd v Ex–Cell–O Corporation England Ltd (1979)
|
|
|
Butler Machine Tool Co Ltd v Ex–Cell–O Corporation England Ltd (1979)
|
When terms are disputed, the last proposed terms should be used
|
|
|
Using the term 'subject to contract' ensure no implied acceptance, but a provisional contract is binding, eg...
|
Branca v Cobarro (1947)
|
|
|
Branca v Cobarro (1947)
|
A provisional contract is binding
|
|
|
'Subject to contract' will be defeated if there is clear evidence to the contrary, eg...
|
Alpenstow Ltd v Regalian Properties plc (1985)
|
|
|
Alpenstow Ltd v Regalian Properties plc (1985)
|
'Subject to contract' will be defeated if there is clear evidence to the contrary
|
|
|
Acceptance can be implied, eg...
|
Brogden v Metropolitan Railiway Company (1877)
|
|
|
Brogden v Metropolitan Railiway Company (1877)
|
Acceptance can be implied
–Brogden supplied coal for years, and suggested an agreement which the company drafted and he amended. Supply then continued, but the company later denied there was a contract |
|
|
Acceptance can't be implied by silence, eg...
|
Felthouse v Bindley (1862)
|
|
|
Felthouse v Bindley (1862)
|
Acceptance can't be implied by silence
|
|
|
Acceptance can't be forced, eg...
|
Rust v Abbey Life (1979)
|
|
|
Rust v Abbey Life (1979)
|
Acceptance can't be forced
–Mrs Rust applied for bonds that she was silent on once received. Her application showed that acceptance hadn't been forced |
|
|
Acceptance by post is effective from the moment of posting, eg...
|
K&R Adams v Lindsell (1818)
Household Fire Insurance Co. v Grant (1879) |
|
|
K&R Adams v Lindsell (1818)
|
Postal rule
–An offer was delayed in the post, but once received acceptance was made by return. The offerer had sold the goods elsewhere, but the acceptance was valid |
|
|
Household Fire Insurance Co. v Grant (1879)
|
Postal rule
–Grant applied for shares in a company, but never received acceptance. As the acceptance had been posted, he still owned the shares and was liable for the balance |
|
|
Acceptance must be by an authorised person, eg...
|
Powell v Lee (1908)
Inland Revenue Commissioners v Fry (2001) |
|
|
Powell v Lee (1908)
|
Acceptance must be by an authorised person
–Powell applied for the post of headmaster, and the managers decided to appoint him. One of the managers informed Powell without authority, and the managers then changed their mind. They were free to do so |
|
|
Inland Revenue Commissioners v Fry (2001)
|
Acceptance must be by an authorised person
–Mrs Fry owed the Revenue, and sent a cheque for part–payment. This was cashed, but did not amount to acceptance that the debt was settled |
|
|
Unilateral agreements only require acceptance by action, eg...
|
First Sport Ltd v Barclays Bank plc (1993)
|
|
|
First Sport Ltd v Barclays Bank plc (1993) |
Unilateral agreements only require acceptance by action
–A cheque guarantee card was held to be an offer to the whole world, the customer did not need to communicate its acceptance before relying on it |
|
|
'Option to purchase' letters are only valid acceptance once received, eg...
|
Holwell Securities v Hughes (1974)
|
|
|
Holwell Securities v Hughes (1974) |
'Option to purchase' letters are only valid acceptance once received
–The customer was given an option to purchase land, to be exercised by 'notice in writing'. This notice was lost in the post, so there was no contract |
|
|
Instant communication (phone, email etc) is not covered by the postal rule, eg...
|
Entores v Miles Far East Corporation (1955)
Brinkibon v Stahlag Stahl (1983) J. Pereira Fernandes SA v Mehta (2006) |
|
|
Entores v Miles Far East Corporation (1955)
|
Instant communication (phone, email etc) is not covered by the postal rule
–A contract was made by telex between firms in London and Amsterdam. As it was equivalent to making the contract in person, it was considered that the offer was made and accepted in London, so the London firm could serve a writ if they wished |
|
|
Brinkibon v Stahlag Stahl (1983)
|
Instant communication (phone, email etc) is not covered by the postal rule
|
|
|
J. Pereira Fernandes SA v Mehta (2006)
|
Instant communication (phone, email etc) is not covered by the postal rule
–Systems other than post are not common to both parties, so there is no indication of exactly when communication is effective until it is actually received |
|
|
A person unaware of a unilateral offer can't accept it, eg...
|
R v Clarke (1927)
|
|
|
R v Clarke (1927) |
A person unaware of a unilateral offer can't accept it
–Clarke had forgotten about a reward for information leading to the conviction of a murderer, so could not claim it when she supplied the information |
|
|
Standing offers are converted to a contract when an order is placed, eg...
|
Great Northern Railway Co. v Witham (1873)
|
|
|
Great Northern Railway Co. v Witham (1873)
|
Standing offers are converted to a contract when an order is placed
–The supplier issued a standing offer, which was accepted, which the supplier then refused to fulfil. The supplier was in breach of the contract |
|
|
Domestic agreements are not usually legally binding, eg...
|
Balfour v Balfour (1919)
Albert v Motor Insurers Bureau (1971) – exception Merritt v Merritt (1970) Simpkins v Pays (1955) Wilson and Anor v Burnett (2007) |
|
|
Balfour v Balfour (1919)
|
Domestic agreements are not usually legally binding
–A husband promised his wife maintenance while working abroad, but stopped the payments. This was not a binding contract |
|
|
Albert v Motor Insurers Bureau (1971)
|
Domestic agreements are not usually legally binding
–A worker gave lifts to colleagues for payment. This was considered binding |
|
|
Merritt v Merritt (1970)
|
Domestic agreements are not usually legally binding
–An estranged husband agreed to transfer the matrimonial home to his wife when the mortgage was paid, but refused when the time came. This was a binding contract |
|
|
Simpkins v Pays (1955)
|
Domestic agreements are not usually legally binding
–Three tenants shared a house and regularly entered a competition with the agreement to share the winnings. This was binding because the intention to create legal relations existed |
|
|
Wilson and Anor v Burnett (2007)
|
Domestic agreements are not usually legally binding
–On a girls night out at bingo, the defendant won £10k, but refused to share it. Although there had been discussions about sharing winnings, there was no clear intention to create legal relations |
|
|
Commercial agreements are presumed to be legally binding, eg...
|
Edwards v Skyways (1964)
Judge v Crown Leisure Ltd (2005) Rose and Frank v Crompton Brothers Ltd (1925) |
|
|
Edwards v Skyways (1964) |
Commercial agreements are presumed to be legally binding
–When making an employee redundant, an employer promised an ex gratia payment. This was binding |
|
|
Judge v Crown Leisure Ltd (2005)
|
Commercial agreements are presumed to be legally binding
–Judge claimed unfair dismissal because a manager had promised a pay rise at a Christmas party. This was not binding |
|
|
Rose and Frank v Crompton Brothers Ltd (1925)
|
Commercial agreements are presumed to be legally binding
–The agreement between the parties contained a clause that it was not intended to be legally binding. This was sufficient to rebut the presumption |
|
|
Exceptions to the presumption that commercial agreements are intended to be legally binding are...
|
Collective agreements between employers and trade unions
Letters of comfort Letters of intent Advertisements |
|
|
When is consideration not required?
|
If a contract is made by deed
|
|
|
Past consideration is not legally binding, eg...
|
Re: McArdle (1951)
|
|
|
Re: McArdle (1951)
|
Past consideration is not legally binding
–A widow made improvements to the family home, and the children later agreed to reimburse her when the estate was distributed. They refused to pay when the time came, and the contract was not binding |
|
|
Past consideration is valid in...
|
Bills of Exchange
Implied promises to pay (Stewart v Casey (1892)) |
|
|
Stewart v Casey (1892)
|
Past consideration is valid when there is an implied promise to pay
–Stewart asked Casey to promote some patents, then offered a share in them. This was binding because the original request implied a promise to pay |
|
|
Consideration can be of any value, eg...
|
Chappell and Co. v Nestle and Co. (1960)
Thomas v Thomas (1842) White v Bluett (1853) |
|
|
Chappell and Co. v Nestle and Co. (1960)
|
Consideration can be of any value
–A promotion asked for chocolate wrappers as payment. This was sufficient consideration |
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|
Thomas v Thomas (1842)
|
Consideration can be of any value
–Mrs Thomas agreed to pay £1 per year rent to continue living in the family home |
|
|
White v Bluett (1853)
|
Consideration must be of some value
–A father promised not to enforce repayment of a loan if the son did not bother him with complaints. This was not binding, as the son's promise did not have any economic value |
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Consideration can come from a third party, eg...
|
Pao On v Lao Yiu Long (1979)
|
|
|
Pao On v Lao Yiu Long (1979)
|
Consideration can come from a third party
–LYL gave Pao On a guarantee for Pao On promising to carry out a contract with a company. This was sufficient consideration |
|
|
A promise to perform an existing public duty is not sufficient consideration, eg...
|
Collins v Godefroy (1831)
|
|
|
Collins v Godefroy (1831)
|
A promise to perform an existing public duty is not sufficient consideration
–An agreement to appear as a witness was not consideration |
|
|
A promise to do more than is required by public duty is sufficient consideration, eg...
|
Glasbrook Brothers v Glamorgan County Council (1925)
Harris v Sheffield United FC (1987) |
|
|
Glasbrook Brothers v Glamorgan County Council (1925)
|
A promise to do more than is required by public duty is sufficient consideration
–Police were offered £2k to provide a special guard for a coalmine. This was more than their ordinary duty |
|
|
Harris v Sheffield United FC (1987)
|
A promise to do more than is required by public duty is sufficient consideration
–Police were entitled to payment for providing officers inside the football stadium |
|
|
Promises to pay more for a service for which the price has already been agreed are not binding, eg...
|
Stilk v Myrick (1809)
Hartley v Ponsonby (1857) Williams v Roffey Brothers (1990) Re: Selectmove Ltd (1995) |
|
|
Stilk v Myrick (1809)
|
Promises to pay more for a service for which the price has already been agreed are not binding
–Two crew members of a ship deserted it, and the master agreed to split their wages amongst the remaining crew if they completed the voyage. This was not binding |
|
|
Hartley v Ponsonby (1857)
|
Promises to pay more for a service for which the price has already been agreed are not binding
–Half of a ship's crew deserted, making the journey much more hazardous. They were promised an additional £40 to get home, and because the journey was more hazardous this was a new contract and was binding |
|
|
Williams v Roffey Brothers (1990)
|
Promises to pay more for a service for which the price has already been agreed are not binding
–Builders contracted a carpenter for £20k, but realised he would not be able to complete his work for this price. They then offered more, and this was binding because although he was carrying out the original contracted work, there was a practical benefit from their offer |
|
|
Re: Selectmove Ltd (1995)
|
Promises to pay more for a service for which the price has already been agreed are not binding
–The company was struggling, and offered to pay tax debt in instalments. The court ruled that there was no practical benefit to the Revenue to accept this |
|
|
A promise to pay more is not binding if made under duress or fraud, eg...
|
D & C Builders v Rees (1966)
|
|
|
D & C Builders v Rees (1966) |
A promise to pay more is not binding if made under duress or fraud
–The Rees family put undue pressure on the builders to accept a reduced sum. The builders accepted under duress, but they were still entitled to the full payment |
|
|
Agreements to pay less than agreed are not binding, eg...
|
Foakes v Beer (1884)
|
|
|
Foakes v Beer (1884)
|
Agreements to pay less than agreed are not binding
–Dr Foakes asked for payment by instalments, which Mrs Beer accepted. After the debt had been paid, Mrs Beer claimed interest, which she was entitled to as the original contract was still binding |
|
|
Situations where an agreement to pay less for a service are binding are...
|
Composition arrangements
Arrangements by third parties (Hirachand Punamchand v Temple (1911)) When payment conditions are amended at the creditor's request (Pinnel's Case (1602)) Promissory Estoppel (Central London Property Trust v High Trees House (1947)) (Baird Textile Holdings Ltd v Marks and Spencer (2002)) (Combe v Combe (1951)) (Collier v P&MJ Wright (Holdings) Ltd (2007)) |
|
|
Hirachand Punamchand v Temple (1911)
|
Arrangements by third parties to pay reduced debts are binding
–To allow otherwise would amount to fraud by the third party |
|
|
Pinnel's Case (1602)
|
If payment conditions are amended at the request of the creditor, they are binding
–Payment conditions include early settlement discount, payment by different method |
|
|
Central London Property Trust v High Trees House (1947)
|
Promissory Estoppel is binding
–The landlord agreed to reduce the rent during the war, which was binding, but was free to increase it again after the war ended |
|
|
Baird Textile Holdings Ltd v Marks and Spencer (2002)
|
Promissory Estoppel is binding
–Baird claimed that the flexible agreement with M&S amounted to promissory estoppel not to terminate the contract. The court did not agree |
|
|
Combe v Combe (1951)
|
Promissory Estoppel is binding
–This case was consistent with Baird v M&S (2002) |
|
|
Collier v P&MJ Wright (Holdings) Ltd (2007)
|
Promissory Estoppel is binding
–By agreeing to only chase Mr Collier for 1/3 of a partnerships debts, the creditor made promissory estoppel |
|
|
A promise not to take further action in return for an action, such as instalment payments, is binding, eg...
|
Williams v Roffey Brothers (1990)
Alliance Bank v Broom (1864) |
|
|
Williams v Roffey Brothers (1990)
|
A promise not to take further action in return for an action, such as instalment payments, is binding
|
|
|
Alliance Bank v Broom (1864)
|
A promise not to take further action in return for an action, such as instalment payments, is binding
|
|
|
Privity of contract prevents third parties from suing or being sued, eg...
|
Dunlop v Selfridge (1915)
Tweddle v Atkinson (1861) |
|
|
Dunlop v Selfridge (1915)
|
Privity of contract prevents third parties from suing or being sued
–Dunlop provided tyres on the agreement that they would not be sold at less than the retail price. They were then sold to Selfridges by the distributor on the agreement that Selfridges would pay £5 to Dunlop for each tyre sold for less than the retail price. Dunlop couldn't enforce this because it was a third party to this agreement |
|
|
Tweddle v Atkinson (1861)
|
Privity of contract prevents third parties from suing or being sued
–The father and father–in–law agreed to pay the bride a sum of money when she got married. The father–in–law died without paying, and the bride tried to sue. She could not as she was a third party to the agreement |
|
|
What are the exceptions to the doctrine of privity?
|
Trusts
Agency Statutory exceptions Guarantees Voluntary assignment Involuntary assignment by law (Beswick v Beswick (1968)) The Contracts (Rights of Third Parties) Act 1999) |
|
|
Beswick v Beswick (1968)
|
Involuntary assignment by law is an exception to the doctrine of privity
–A son promised payments to his father, and her widow after his death. The payments to his widow stopped, and the wife failed in suing for her share, but was successful in the role of administrator of her husband's estate |
|
|
The Contracts (Rights of Third Parties) Act 1999
|
Allows third parties to enforce rights where there is an express or implied intention of the parties to the contract. It does not impose burdens or liabilities (Avraamides v Colwill (2006))
|
|
|
Avraamides v Colwill (2006)
|
The Contracts (Rights of Third Parties) Act 1999
–Colwill took over the assets and orders of a company of which Avraamides was a customer. Avraamides then sued Colwill for damages, but as he was not mentioned by name, class or description on the contract between Colwill and the company, the Act did not apply |
|
|
Are contracts of a child voidable?
|
Yes, at their insistence, except when the products are both suitable and necessary (Nash v Inman (1908)
|
|
|
Nash v Inman (1908)
|
Contracts of a child are only binding if the goods are suitable and necessary
–Inman (a minor) ordered expensive waistcoats. These were suitable, but not necessary, so the contract was voidable |
|
|
When are the conditions of suitability and necessity not applicable?
|
In trading contracts (Cowern v Nield (1912)) (Mercantile Union Guarantee Corporation v Ball (1937))
|
|
|
Cowern v Nield (1912)
|
Trading contracts with a minor are voidable regardless of the product
–A minor was not liable for the price of hay and straw |
|
|
Mercantile Union Guarantee Corporation v Ball (1937)
|
Trading contracts with a minor are voidable regardless of the product
–A minor was not liable for a lorry on hire purchase |
|
|
Contracts of employment and education are binding on a minor, eg...
|
Doyle v White City Stadium (1935)
Roberts v Gray (1913) Proform Sports Management Ltd v Pro–Active Sport Management Ltd (2007) |
|
|
Doyle v White City Stadium (1935)
|
Contracts of employment and education are binding on a minor
–A child boxer was bound by a clause that he forfeit his prize money if he was disqualified |
|
|
Roberts v Gray (1913)
|
Contracts of employment and education are binding on a minor
–A billiard player agreed to take a minor on a world tour with him, and spent a lot of money organising it. The minor then changed his mind, and the player successfully sued for breach of contract |
|
|
Proform Sports Management Ltd v Pro–Active Sport Management Ltd (2007)
|
Contracts of employment and education are binding on a minor
–Wayne Rooney was represented by one company, then joined another. As the representation was voidable by Rooney, no breach had occured |
|
|
Contracts for leases, partnerships and shares remain voidable for a reasonable time after a minor turns 18, but any money paid can't be recovered
, eg... |
Steinberg v Scala (Leeds) (1923)
Valentini v Canali (1889) |
|
|
Steinberg v Scala (Leeds) (1923)
|
Contracts for leases, partnerships and shares remain voidable for a reasonable time after a minor turns 18, but any money paid can't be recovered
–Steinberg paid for shares then repudiated the contract, but she could not recover the amount paid |
|
|
Valentini v Canali (1889)
|
Contracts for leases, partnerships and shares remain voidable for a reasonable time after a minor turns 18, but any money paid can't be recovered
–A minor leased a house and bought some furniture. He then left, but could not recover the payments as he had received some benefit from the furniture |
|
|
Contracts with mentally impaired or drunk persons are voidable unless they are for necessary goods, eg...
|
Gore v Gibson (1845)
|
|
|
Gore v Gibson (1845)
|
A drunk person can ratify a contract once sober
|
|
|
A contract signed before a company is incorporated will make the signatory personally liable, eg...
|
Kelner v Baxter (1866)
|
|
|
Kelner v Baxter (1866) |
A contract signed before a company is incorporated will make the signatory personally liable
–A newly incorporated company could not ratify a contract made before it was incorporated |
|
|
Statements made by an expert are considered terms of the contract, eg...
|
Dick Bentley Production v Harold Smith Motors (1965)
|
|
|
Dick Bentley Production v Harold Smith Motors (1965)
|
Statements made by an expert are considered terms of the contract
–A car dealer stated a car had only done 20,000 miles, but it had actually done 100,000. This was a term of the contract |
|
|
Statements by an amateur are likely to be a representation rather than term, eg...
|
Oscar Chess v Williams (1957)
|
|
|
Oscar Chess v Williams (1957)
|
Statements by an amateur are likely to be a representation rather than term
–Williams sold a car to a dealer, believing it was a specific model. It turned out to be a cheaper model, but this was not a term as the dealer was in a more knowledgeable position than Williams |
|
|
A recent statement is more likely to be considered a term an older statement, eg...
|
Routledge v McKay (1954)
|
|
|
Routledge v McKay (1954)
|
A recent statement is more likely to be considered a term an older statement
–A party selling a motorbike stated that it was a 1942 model. A week later the sale was made, and there had been no further mention of the year. This suggested the fact was not considered a term |
|
|
If the importance of a statement is emphasised, it is more likely to become a term, eg...
|
Bannerman v White (1861)
|
|
|
Bannerman v White (1861)
|
If the importance of a statement is emphasised, it is more likely to become a term
–White asked before buying hops whether they had been treated with sulphur, and stated that he would not consider buying them if they had. He was told they hadn't and bought them, but when it turned out they had, this was a breach of terms |
|
|
What are the types of terms?
|
Condition
Warranty Innominate (Hong Kong Fir Shipping Company (1962)) (The Hansa Nord (1975)) |
|
|
Hong Kong Fir Shipping Company (1962)
|
Example of an innominate term
|
|
|
The Hansa Nord (1975)
|
Example of an innominate term
–A contract stated that goods should arrive in a 'good condition'. Some of them arrived damaged, but this was not enough to reject the whole shipment |
|
|
A term is not binding if it is too vague, eg...
|
Scammel v Ouston (1941)
|
|
|
Scammel v Ouston (1941)
|
A term is not binding if it is too vague
–A clause stated that a van was to be paid 'on hire–purchase terms'. This was too vague to be enforcable |
|
|
A price can be determined by previous dealings, eg...
|
Hilas v Arcos (1932)
|
|
|
Hilas v Arcos (1932)
|
A price can be determined by previous dealings
–A contract for the supply of timber did not state the price, so it was deduced from another load the previous year |
|
|
Non–essential words can be disregarded, eg...
|
Nicolene v Simmonds (1953)
|
|
|
Nicolene v Simmonds (1953)
|
Non–essential words can be disregarded
–A contract said 'the usual conditions of acceptance apply', but there were no usual conditions so the phrase could be ignored |
|
|
If a contract is signed, it is considered to be agreed in full, eg...
|
L'Estrange v Graucob Ltd (1934)
|
|
|
L'Estrange v Graucob Ltd (1934)
|
If a contract is signed, it is considered to be agreed in full
–Miss L'Estrange was bound by the conditions of purchasing a typewriter |
|
|
If a term is explained misleadingly, it may no longer be binding, eg...
|
Curtis v Chemical Cleaning Company (1951)
|
|
|
Curtis v Chemical Cleaning Company (1951)
|
If a term is explained misleadingly, it may no longer be binding
–A clause for excluding liability for dry cleaning was explained as covering beads and sequins, so when it was stained the customer could claim damages |
|
|
Terms must be put forward before making a contract, eg...
|
Olley v Marlborough Court (1949)
Thornton v Shoe Lane Parking Limited (1971) |
|
|
Olley v Marlborough Court (1949)
|
Terms must be put forward before making a contract
–In a hotel bedroom there was a notice excluding liability for loss of valuables, but the customer had already made the contract at the front desk |
|
|
Thornton v Shoe Lane Parking Limited (1971)
|
Terms must be put forward before making a contract
–Terms on a parking ticket are not binding if the ticket is paid for before being issued |
|
|
Prior notice of terms is not required if previous documents have contained similar terms, eg...
|
Spurling v Bradshaw (1956)
McCutcheon v MacBrayne (1964) |
|
|
Spurling v Bradshaw (1956)
|
Prior notice of terms is not required if previous documents have contained similar terms
–A document excluding liability for orange juice was not sent until after the contract, but the firm had always excluded liability in previous contracts |
|
|
McCutcheon v MacBrayne (1964)
|
Prior notice of terms is not required if previous documents have contained similar terms
|
|
|
A receipt containing terms will not usually be binding, eg...
|
Chapelton v Barry UDC (1940)
|
|
|
Chapelton v Barry UDC (1940)
|
A receipt containing terms will not usually be binding
–Chapelton hired a deckchair, and the receipt excluded liability. The clause was ineffective |
|
|
A particularly unusual term must specifically be brought to the affected party's attention, eg...
|
Interfoto v Stiletto (1988)
Middleton v Wiggins (1995) |
|
|
Interfoto v Stiletto (1988)
|
A particularly unusual term must specifically be brought to the affected party's attention
–The delivery note provided for a unusually high penalty for late return of transparencies. The clause could be ignored because it should have been brought to the customer's attention |
|
|
Middleton v Wiggins (1995)
|
A particularly unusual term must specifically be brought to the affected party's attention
–An insurance company tried to exclude liability for 'loss arising from disposal of waste material', but the damage had occurred from unforeseen gas escaping from the waste |
|
|
Exclusion clauses are subject to the contra proferentem rule (ie the clause is interpreted in the manner least favourable to the author), eg...
|
Hollier v Rambler Motors Ltd (1972)
Houghton v Trafalgar Insurance (1954) |
|
|
Hollier v Rambler Motors Ltd (1972)
|
Exclusion clauses are subject to the contra proferentem rule (ie the clause is interpreted in the manner least favourable to the author)
–A garage tried to rely on a clause which excluded liability in the case of a fire on the premises, but this could have been interpreted as for a fire not caused by their negligence |
|
|
Houghton v Trafalgar Insurance (1954)
|
Exclusion clauses are subject to the contra proferentem rule (ie the clause is interpreted in the manner least favourable to the author)
–An insurer tried to rely on an exclusion clause for excessive load. The car had six passengers, but 'load' could be interpreted as goods only so it did not apply |
|
|
Very specific language is required to exclude liability in tort as well as contract, eg...
|
White v John Warwick & Co Ltd (1953)
Alderslade v Hendon Laundry Ltd (1945) |
|
|
White v John Warwick & Co Ltd (1953)
|
Very specific language is required to exclude liability in tort as well as contract
–A clause excluding liability for injury in the sale of a bicycle was not enough to exclude liability in negligence (tort) |
|
|
Alderslade v Hendon Laundry Ltd (1945)
|
Very specific language is required to exclude liability in tort as well as contract
–A clause excluding liability for lost laundry was sufficient to exclude liability in negligence (tort) |
|
|
Limitation clauses are viewed less strictly than exclusion clauses, eg...
|
Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd (1983)
|
|
|
Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd (1983)
|
Limitation clauses are viewed less strictly than exclusion clauses
–A clause limiting liability to £1k for insurance on boats in a harbour could be relied upon |
|
|
Terms can be implied by trade, custom or usage, eg...
|
Hutton v Warren (1836)
|
|
|
Hutton v Warren (1836) |
Terms can be implied by trade, custom or usage
–A agricultural tenant claimed a right for an allowance for growing crops, as this was the local custom |
|
|
Express clauses take precedence over trade custom, eg...
|
Les Alfreteurs v Watford (1919)
|
|
|
Les Alfreteurs v Watford (1919)
|
Express clauses take precedence over trade custom
|
|
|
A term can only be implied if it is necessary to give effectiveness to the contract, eg...
|
Reigate v Union Manufacturing Co (1918)
|
|
|
Reigate v Union Manufacturing Co (1918) |
A term can only be implied if it is necessary to give effectiveness to the contract
–Obiter dicta comments |
|
|
Terms can be implied by statute, such as the Unfair Contract Terms Act 1977
|
Section 2 – Clauses restricting liability for death or personal injury are void
Section 3 – A party can't use their standard terms to restrict liability unless it is reasonable Section 5 – No guarantee can restrict liability in goods for consumer use Sections 11 & 12 – Test of reasonableness (guidelines in Schedule 2) |
|
|
Examples of reasonableness under the Unfair Contract Terms Act 1977 include...
|
Mitchell v Finney Lock Seeds (1983)
RW Green Ltd v Cade Brothers Farm (1978) St Albans City and District Council v International Computers (1996) Phillips Products v Hyland (1987) Britvic Soft Drinks Ltd v Messer UK Ltd (2002) Smith v Eric Bush (1990) Watford Electronics v Sanderson (2001) Regus UK Ltd v Epcot Solutions Ltd (2008) |
|
|
Mitchell v Finney Lock Seeds (1983)
|
Example of reasonableness under the Unfair Contract Terms Act 1977
–A clause that excluded liability for the wrong type of cabbage seed was unreasonable |
|
|
RW Green Ltd v Cade Brothers Farm (1978)
|
Example of reasonableness under the Unfair Contract Terms Act 1977
–A clause that any complaint for potato seeds must be made within three days was unreasonable |
|
|
St Albans City and District Council v International Computers (1996)
|
Example of reasonableness under the Unfair Contract Terms Act 1977
–A clause limiting liability to £100k for computer software was unreasonable because the defendant was insured for much more |
|
|
Phillips Products v Hyland (1987)
|
Example of reasonableness under the Unfair Contract Terms Act 1977
–A clause excluded liability for damage caused by a hired digger or driver was unreasonable |
|
|
Britvic Soft Drinks Ltd v Messer UK Ltd (2002)
|
Example of reasonableness under the Unfair Contract Terms Act 1977
–A clause limiting liability for supply of liquid CO2 was unreasonable |
|
|
Smith v Eric Bush (1990)
|
Example of reasonableness under the Unfair Contract Terms Act 1977
–A clause limiting liability for surveying a house was unreasonable |
|
|
Watford Electronics v Sanderson (2001)
|
Example of reasonableness under the Unfair Contract Terms Act 1977
–A clause limiting liability for a computer software package to the contract price was reasonable as both companies had equal bargaining power |
|
|
Regus UK Ltd v Epcot Solutions Ltd (2008)
|
Example of reasonableness under the Unfair Contract Terms Act 1977
–A clause to exclude liability for loss of business or profits 'in any circumstances' was reasonable because both companies had equal bargaining power |
|
|
Under what circumstances does the Unfair Contract Terms Act 1977 not apply?
|
Land
Insurance Company promotions, shares and debentures Patents |
|
|
The Unfair Terms in Consumer Contracts Regulations 1999 reflects and EC Directive and applies to pre–formulated/standard terms that were not open to negotiation by consumers, eg...
|
Director General of Fair Trading v First National Bank (2000)
Office of Fair Trading v Abbey National plc (2008) Evans v Cherry Tree Finance Ltd (2008) Newham London Borough Council v Khatun and others (2004) Murkenbeck & Marshall v Michael Harold (2005) |
|
|
Director General of Fair Trading v First National Bank (2000) |
The Unfair Terms in Consumer Contracts Regulations 1999
–Gave guidance on a term in a bank loan agreement |
|
|
Office of Fair Trading v Abbey National plc (2008)
|
The Unfair Terms in Consumer Contracts Regulations 1999
–Overdraft charges were deemed to be subject to the regulations, but were considered fair |
|
|
Evans v Cherry Tree Finance Ltd (2008)
|
The Unfair Terms in Consumer Contracts Regulations 1999
–The size of an early repayment penalty was deemed to be unfair |
|
|
Newham London Borough Council v Khatun and others (2004)
|
The Unfair Terms in Consumer Contracts Regulations 1999
–A term which required a homeless person to accept accommodation without viewing it was considered fair |
|
|
Murkenbeck & Marshall v Michael Harold (2005)
|
The Unfair Terms in Consumer Contracts Regulations 1999
–Terms in a contract for architectural services were deemed unfair |
|
|
The Competition and Markets Authority (CMA) can investigate and threaten legal action against unfair terms, eg...
|
OFT v Foxtons (2009)
|
|
|
OFT v Foxtons (2009)
|
The Competition and Markets Authority (CMA) can investigate and threaten legal action against unfair terms
– The CMA took over the role from the OFT, which in this case won an injunction to prevent the imposition of unfair terms in an estate agent's contract |
|
|
Courts will impose obligations that parties would have reasonably agreed upon, eg...
|
The Moorcock (1889)
|
|
|
The Moorcock (1889)
|
Courts will impose obligations that parties would have reasonably agreed upon
–A ship was damaged when entering a berth. There was no condition that access should be suitable, but this was implied by the court |
|
|
Statute Law is made by...
|
Parliament
|
|
|
Common Law is made by...
|
The way law has evolved
|
|
|
Law of Equity is made to...
|
Counter the rigidity of Common Law
|
|
|
Common Law matters are dealt with by...
|
The Queen's Bench
|
|
|
Equity matters are dealt with by...
|
the Chancery
|
|
|
Equity looks to the ? rather than the ?
|
Equity looks to the intent rather than the form
|
|
|
He who comes to equity must come with...
|
Clean hands
|
|
|
? defeats equity
|
Laches (delay) defeats equity
|
|
|
EU law was introduced in the UK through...
|
The European Communities Act 1972
|
|
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Supremacy of EU law over UK law is proven by...
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Marshall v Southampton & SW Hampshire Area Health Authority (Teaching) (1986)
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Marshall v Southampton & SW Hampshire Area Health Authority (Teaching) (1986)
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Supremacy of EU law over UK law
Miss Marshall claimed that she had been discriminated against because of her gender by of early dismissal |
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The Treaty on European Unity (Maastricht Treaty)
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Created EU citizenship
Granted new powers for the EU Increased power for the European Parliament |
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The Treaty on European Reform (Lisbon Treaty)
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Created the European Council
Created the High Representative of the EU for Foreign Affairs and Security Policy Made the EU more democratic Increased the power of the European Parliament so that it was equal to the Council of the EU Created the Citizen's Initiative to debate an issue if there is a petition by 1m+ |
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Council of the European Union (CEU)
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Supreme lawmaker, legislates proposals from European Commission
One minister from each state, on the basis of the topic discussed Revolves presidency every six months |
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European Commission (EC)
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Day–to–day management of the EU
Commission President appointed by European Council One commissioner from each state (must act in EU interests) Guardian of the Treaties Drafts legislation for the CEU Implements legislation |
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European Parliament
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MEPs are elected within member states and retain domestic outlook
Elections every five years Represents EU citizens Works with CEU on proposed laws Monitors and can dismiss the EC |
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European Court of Justice (ECJ)
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President, one judge per member state and eight Advocates–General
The Advocates–General suggest an unbiased conclusion for judges to rule on Can take action against a member state or EU institution No appeal route, but not bound by previous decisions |
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EU regulations are designed to...
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Achieve uniformity of law among member states
–(Leonesio v Italian Ministry of Agriculture (1973)) –(Consorzio del prosciutto di Parma v Asda Stores Ltd (2003)) |
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Leonesio v Italian Ministry of Agriculture (1973)
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EU regulations designed to achieve uniformity of law among member states
The Italian government tried to withhold payment promised by an EU regulation for not producing milk |
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Consorzio del prosciutto di Parma v Asda Stores Ltd (2003)
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EU regulations designed to achieve uniformity of law among member states
Parma Ham Association tried to bring a claim agaist Asda for labelling parma ham, but the EU regulation describing packaging requirements had not adequately been brought to the attention of Asda so it was unenforceable |
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EU directives seek to...
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Harmonise the law of member states
–(Van Duyn v Home Office (1974)) –(Pubblico Ministero v Ratti (1979)) |
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Van Duyn v Home Office (1974)
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Lack of implementation of an EU directive does not excuse denial of rights
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Pubblico Ministero v Ratti (1979)
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Lack of implementation of an EU directive does not excuse denial of rights
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The European Convention on Human Rights
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Enshrines basic human rights and created the European Court of Human Rights
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The Human Rights Act 1998
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Measures by police must be proportionate
–(Austin v Commissioner of the Police of the Metropolis (2009)) Domestic courts must take the decisions of the European Court of Human Rights into accounts –(Garry Flitcroft v Mirror Group Newspapers Ltd (2002)) |
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Austin v Commissioner of the Police Metropolis (2009)
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The Human Rights Act 1998 – Measures by the police must be proportionate
Ms Austin claimed that the police deprived her of her liberty when they detained her at a demonstration, but the claim was dismissed |
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Garry Flitcroft v Mirror Group Newspapers Ltd (2002)
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Domestic courts are obligated to take decisions of The European Court of Human Rights into account
The Court of Appeal refused to grant an injunction to prevent publication of Mr Flitcroft's extramarital exploits |
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Which courts are not bound by their own decisions?
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The European Court of Justice and The Supreme Court
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The Court of Appeal (Civil Division) is not bound by its own decisions when...
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An earlier decision was made 'per incuriam' (in error)
When two previous decisions conflict When a previous decision has been overruled ––(Young v Bristol Aeroplane Company (1944)) When a legal principle didn't existat the time –––(R (on the application of Kadhim) v Brent London Borough Housing Benefit Review Board (2001)) |
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Young v Bristol Aeroplane Company (1944)
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The Court of Appeal (Civil Division) is not bound by its own decisions in certain circumstances
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R (on the application of Kadhim) v Brent London Borough Housing Benefit Review Board (2001)
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The Court of Appeal (Civil Division) is not bound by its own decisions if a legal principle did not exist at the time
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The High Court decisions are only binding with the court when...
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The decision is by two judges and one judge is currently sitting alone
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Is the Crown Court bound by its decisions?
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No, because it uses a jury
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'Ratio dicidendi' means...
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Reason for decision
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'Obiter dicta' means...
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Passing comments
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What is the civil courts hierarchy?
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ECJ
Supreme Court Court of Appeal (Civil Division) The High Court (QBD/Chancery/Family) County Court |
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What is the criminal courts hierarchy?
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ECJ
Supreme Court Court of Appeal (Criminal Division) Crown Court Magistrate's Court |
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Supreme legislations is enacted by...
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Parliament
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Delegated/secondary legislation is enacted by...
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specialist bodies. It is open to challenge in the courts, and can be void or ultra vries
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What is the process of legislation in the Houses of Commons and Lords?
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1st reading (title only)
2nd reading (full debate) Committee (small sample of MPs) Report 3rd reading Royal Assent |
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What are the three rules of statutory interpretation?
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Literal rule
Golden rule Mischief rule |
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The golden rule of interpretation
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Can moderate wording if there is clear ambiguity –(Alder v George (1964))–(Inco Europe Ltd v First Choice Distribution (2000))
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Adler v George (1964)
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The golden rule can be used to interpret clear ambiguity
Prisoners were guilty of obstructing HM Forces in a prohibited place, but also within the vicinity of the place |
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Inco Europe Ltd v First Choice Distribution (2000)
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Words can be added to a statute to give effect to Parliament's intention
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The mischief rule of interpretation
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Looks at the statute's intention
–(Smith v Hughes) –(Elliott v Grey (1960)) |
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Smith v Hughes
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The mischief rule looks at a statute's intention
A prostitute solicited customers from a balcony, but this was under the scope of 'a public place' |
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Elliott v Grey (1960)
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The mischief rule looks at a statute's intention
An uninsured car was jacked up, but was still considered to be 'on the road' |
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'Ejusdem generis' means
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Things of the same kind
–(Powell v Kempton Park Racecourse Company (1899)) |
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Powell v Kempton Park Racecourse Company (1899)
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Ejusdem generis
–An act prohibited keeping a place for the purpose of betting, but it didn't a Tattersalls Ring at the racecourse because all the prohibited places were indoors |
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'Noscitur a sociis' means
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A thing known by its comparisons
–(Pengelly v Bell Punch Co Ltd (1964)) |
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Pengelly v Bell Punch Co Ltd (1964)
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Noscitur a sociis
–All passages and gangways should be kept free from obstructions, but this did not apply to part of a factory used for storage |
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'Expressio unius est exclusio alterius' means
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Express mention of one thing excludes others
–(R v Sedgely Inhabitants (1831)) |
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R v Sedgeley Inhabitants (1831)
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Expressio unius est exclusio alterius'
–Raising taxes on coal mines specifically meant that it did not apply to a limestone mine |
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An interpretation clause is an ? aid
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An interpretation clause is an intrinsic aid
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The Interpretation Act 1978 is an ? aid
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The Interpretation Act 1978 is an extrinsic aid
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Criminal liability requires...
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A wrongful act (actus reus)
A guilty mind (means rea) |
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Civil liability requires...
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Tort
Breach of contract |
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In the County Courts, most cases are dealt with by the ? judge, and complex cases by the ? judge
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In the County Courts, most cases are dealt with by the district judge, and complex cases by the circuit judge
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In the County Courts, the limit for equity and land disputes is...
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£30,000
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In the County Courts, the limit for consumer credit agreements is...
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£25,000
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What is the appeal hierarchy from the civil courts?
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District Judge in County Court
Circuit Judge in County Court High Court Judge Court of Appeal Civil Judge(s) |
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The High Court of Justice
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Has complete powers
Handles judicial reviews (eg ultra vries) Hears criminal appeals for admin claims only |
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What are the divisions of the High Court?
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Chancery Division
Family Division Queen's Bench Division |
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The Chancery Division of the High Court deals with...
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Equity
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The Family Division of the High Court deals with...
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Matrimonial matters
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The Queen's Bench Division of the High Court deals with...
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Common law
Public bodies |
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A litigant can apply to the QBD of the High Court for which orders against public bodies?
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Mandatory
Prohibiting Quashing |
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The Court of Appeal (Civil Division)
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Headed by Master of the Rolls
Staffed by Lord Justices of Appeal |
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The Supreme Court
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Hears both civil and criminal cases
Has a President and 12 Justices of the Supreme Court |
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What are the alternative forms of dispute resolution?
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Informal negotiations
Mediation Conciliation Arbitration |
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What are the restrictions for each civil 'track'?
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\< £10,000 – Small Claims
£10,001 – £25,000 – Fast–Track >£25,000 – Multi–Track |
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What executions are available on a civil judgement?
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Warrant of execution
Charging order Attachment of earnings Third party debt order |
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What sort of disputes do tribunals deals with?
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Public body
Emplyment |
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How many first tier and upper tribunal chambers are there?
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Seven first tier chambers
Four upper tribunals |
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What is the difference between solicitors and barristers?
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Solicitors offer general services
Barristers are specialists and can only be approached through solicitors |
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What case decided that solicitors and barristers could no longer be immune from negligence?
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Arthur Hall and Co v Simons (2000)
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Arthur Hall and Co v Simons (2000)
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Solicitors and barristers can no longer be immune from negligence
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What is the difference between solicitors and barristers?
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Solicitors offer general services
Barristers are specialists and can only be approached through solicitors |
