ISSUES/AUTHORITIES IN 2004-2005 CONTRACT LAW EXAMINATIONS
S/N
ISSUES
AUTHORITIES
ISSUES IN THE FORMATION OF A CONTRACT:
OFFER
Legal requirements necessary for the formation of a contract
Storer v Manchester City Council (1974) and
Intention to enter contract and offer not capable of being accepted. We may sell to you at certain prices.
Gibson v Manchester City Council (1978)
Display of Goods is an invitation to treat and an offer is made by the customer when he presents the goods at the cash desk. Newspaper advertisement is also an invitation to threat
Partridge v Crittenden (1968)
In a case of unilateral offer of contract, the advertisement can be the offer
Acceptance by performance
No communication of acceptance is required
Carlill v Carbolic Smoke Ball Co. (1893), Bowerman v ABTA (1995).
Harvey v Facey (1993) and Clifton v Palumbo (1944)
No offer between them because there is no offer matched by corresponding acceptance –
R v Clarke (1927) – Contrary authority Gibbons v Proctor (1891)
CONSIDERATION
Consideration must move from the promises but not necessarily to the promisor
Oxford v Davies
Consideration provided for one party can serve as good consideration to a second party in a separate contract
Pao On v Lau Yiu Long (1980)
Public duty and consideration
Glasbrook Bros Ltd v Glamorgan C. C. (1925)
Ward v Byham (1956).
To receive extra amount there must be consideration
Stilk v Myrick (1809)
Practical Benefit must be established to receive extra benefit –
Williams v Roffey Bros & Nicholls (1991) and doubts on the case Re. Selectmove Ltd (1995) and South Caribbean Trading Ltd (SCT) v Trafigura Beeher BV 2004
ACCEPTANCE
Can there be acceptance in ignorance of an offer. The law is ambiguous
Williams v Cardawardine (1833), Gibbons v Proctor (1891), R v Clarke (1927)
COMMUNICATION
If however the communication can be made over the phone or e-mail (something which will turn on the wording of the advertisement itself) then A should succeed in communicating his acceptance first and creating a binding contract before C’s communication has occurred.
Manchester Diocesan Council for Education v Commercial and General Investments (1970)
LEGAL ISSUES IN THE CREATION OF A CONTRACT
Rules on intention to create legal relations
Balfour v Balfour (1919),
Jones v Padavatton (1969)
Coward v MIB (1962)
Simpkins v Pays (1955)
Edmonds v Lawson (2000)
Problems with consideration – offer to make payment after the arrangement has commenced
Ø Roscorla v Thomas (1842), Re McArdle (1951), Pao On v Lau Yiu Long (1980)
Ø It appear there is no contract with Ian
Ø Jeremiah is her brother with – Balfour v Balfour and Jones v Padavatton
Intention to enter legal contract was excluded within a family relationship
Ø in which intention was excluded within a family relationship
REVOCATION OF AN OFFER
Revocation of an offer must be communicated to be effective
Byrne v Van Tienhoven (1880), Henthorn v Fraser (1892)
Revocation of an offer in a newspaper advert must reach substantially the same audience as the offer.
Shuey v USA (1875)
Principles of certainty of contract terms
Scammel v Ouston (1941) and Hillas v Arcos 1932
Promissory Estoppel
Central London Property Trust Ltd v High Street House Ltd (1947)
Variation of contract principles
Pinnel’s case and Foakes v Beer.
How can Cruisers end the arrangements – The
Post Chaser (1982)
Sale of Goods issues
Sale of Goods Acts 1979
PRIVITY OF CONTRACT AND RIGHTS OF THIRD PARIES
Linden Gardens v Lenesta Sludge Disposal (1994) 1 AC 85
They may fall within the limited class of exception discussed by Lord Denning in Jackson v Horizon Holidays ad still generally recognised
s.1(1) and .1(2) as regards the provision of bus service – Nisshin Shipping Co. Ltd v Cleaves & Co. Ltd.
Recognition of performance interest
Panatown v Alfred McAlpine Construction Ltd (2000): Radford v DeFroberviller (19977)
Common law exception to privity of contract
(Darlington B.C. v Wiltshier;Contract (Rights of Third Parties) Act 1999.
Remote Losses
Hadley v Badendale and Jackson v Royal Bank of Scotland (2005) UKHL 3)
McAlpine Construction Ltd (2000) HL:
INCORPORATION OF TERMS INTO A CONTRACT
SALE OF GOODS ACT 1979 & COMMON LAW CASES
Ø Olley v Marlborough Court Hotel (1941), Chapleton v Barry UDC (1940)
Ø Thorton v Shoe Lane Parking (1971)
Ø Parker v South Eastern Rly (1987)
Ø s.14 of the Sale of Goods Act 1979 (goods sold in the course of business should be of satisfactory quality
UNFAIR CONTRACT TERMS ACT 1977
Ø Unfair Terms in Consumers Contract Act 1977 (UCTA) [s.1 applies where one party deals in the course of a business or s.2 where the parties deal on one party’s standard written terms
Ø The 1977 Act applies where a party attempts to exclude liabilities arising in the context of a business s.1.
Ø D & B Customs Brokers v UDT
Ø Central London properties v High tress Houses
Ø R&B Customs Brokers, Stevenson v Rogers
Ø Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004)
Ø or if the parties deals on Ultraclean’s written standard terms of business (St. Albans City District Council v International Computers Ltd (1996).
UNFAIR TERMS IN CONSUMER CONTRACT REGULATION 1999
Ø Unfair Terms in Consumers Contract Regulations Act 1999 (UTCCR)
Ø Applications of ss. 6 and 12 of UCTA 1997 and the relevant case law.
Ø Application of ss.2(2), 3, 11, 13, 24, Sch. 2 and the case laws interpreting the sections
Ø Terms are also implied into contract by Breach of implied terms and whether express terms cover the breach
Ø 1999 (UTCCR) applied to unfair terms between a seller and supplier on the one hand and consumer on the other s.4(1)
Ø Unfair terms principles in Director-General of Fair trading v First National Bank Plc (2002) HL; UTCCR 1999 ss.4-6, Sch.2)
Ø L’Estrange v Graucon
Notice must be given before the time of the contract
Olley v Marlborough Court (1949)
It must be embodied in a document of ‘contractual force’
Chapelton v Barry Urban District Council (1940)
Appropriate notice of exclusion clause must be given
Parker v South Eastern Railway (1877
Extra notice must be given of onerous or unusual terms
Spurling v Bradshaw (1956) and Interfoto Ltd v Stiletto Visual Programmes Ltd (1989) (terms iii and iv)
CATEGORISATION OF TERMS IN CONTRACT
Principles for establishing the importance of contract terms
L Schulter v Wickman Machine Tool Sale (1974); Lambeth North Central v Butterworth [1987
Innominate Terms
practical consideration will usually be of commercial nature [expectation of future business in other contracts, long-term relationship or an unwillingness to impede supply)
Legal consideration will generally be considered with the claimant’s duty to mitigate his losses
British Westinghouse Electric Co. Ltd v Underground Electric Rys Co of London Ltd (1912) and Payzu v Saunders (1919)
Classification of contractual terms into conditions, warranties and intermediate and innominate terms
Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd (1962)
ELEMENTS THAT COULD VITIATE AN APPARENT CONTRACT
Ø Legal doctrine of economic duress and equitable doctrine of undue influence
Ø As a matter of practicability and commercial reality, most transactions were affected by some form of duress or undue influence
Ø Are the principles upon which courts intervene very clear and whether the case which established this principles were in conflict.
Ø All involve the application of House of Lords’ decision in Shogun Finance v Hudson – the way in which the contract was formed (particularly whether it was made face to face) was critical in determining, whether the resulting contract was voidable or void.
Ø If it is voidable, has luxury taken steps to avoid the contract before jack ‘sell’ the jewellery to Owen. Car and Universal Finance Co. v Caldwell
Supervening event which renders the performance of contract impossible - and so forth
Ø Davis Contractors Ltd v Fareham Urban District Council (1956)
Ø National Carriers Ltd v Panalpina (Northern) Ltd (1981)
Ø Tsakiroglou & Co. v Noblee and Thorl (1962)
Ø Nature of frustration – Davis Contractors Ltd v Fareham Urban District Council (1956) and National Carriers Ltd v Panalpina (Northern) Ltd (1981)
Ø The coronation case were of particular use in determining these – Harne Bay Steamboat Company v Hutton (1903) and Krell v Henry (1903)
Principles for Breach of contract
Marine National Fish v Ocean Trawlers (1935) and the Super Servant Two (1990)
Law reform (Frustrated contracts) Act 1943
PROMISORY ESTOPPEL
Ø Circumstances in which promissory estoppel was developed (attempts at contractual variation or promises given which were intended to be relied upon but were given in absence of consideration)
Ø A rigid insistence upon consideration can lead to harsh result, promissory estoppel is designed to alleviate such injustice
Ø In English law promissory estoppel may be poised as alternative to consideration, that situation has not yet been realised – Baird Textile Holdings v Marks and Spencer (2001)
Ø Application of the rule in Balfour v Balfour (1919), Jones v Padavatton (1969), Coward v MIB (1962), Simpkins v Pays (1955) and Edmonds v Lawson (2000)Formation of contract
MISREPRESENTATION
Actionable Misrepresentation – Implicit statement
Spice Girls Ltd v Aprila World Service BV (2000)
Misrepresentation Act 1967
Is the statement of an agent a misrepresentation?
Bisset v Wilkonson (1927) AC 177
Smith v Land House Corporation (1884) 28 ChD 7
Royscot v Rogerson
Operative mistake has the effect of vitiating a contract
Smith v Hughes
Negligent misrepresentation
Hedley Byrne v Heller(1964) AC 465
Effect of a mistake as to the quality of the subject matter in a contract –
Bell v Lever Bros
Mutual mistake
Sole v Butcher, Associated Japanese Bank v Credit du Nord, the Great Peace
Discharge of a contract
Davis Contractors Ltd v Fareharm Urban District Council
MISTAKE
MISTAKE INDUCED BY FRAUD
THE EFFECT ON CONTRACT
MISTAKE AS TO IDENTITY AND ATTRIBUTES
Ø The situation required candidates to explore, analyse and attempt to reconcile the growing body of case law on the issue of mistake as to identity of one of the contracting parties brought about by the fraud of that party
Ø The law is difficult to reconcile in this area.
Ø The judgement of the House of Lords in Shogun Finance Limited afforded ample materials to discuss in answering this question.
Ø
MISREPRESENTATION - FALSE/FRAUDULENT
warranties of representation:
Heilbut, Symons &Co. v Buckelton (1913)
Statements of opinion can be misrepresentation
Bisset v Wilkinson (1927)
Esso Petroleum v Mardon (1976).
Possession of knowledge which implies a set of fact particularly within her knowledge:
Smith v Land and House Property Corp (1884);
BG Plc v Nelson Group Services (Maintenance) Ltd (2002)
Negligent misrepresentation
Hedly, Byrne v Heller
Innocent misrepresentation
Entitled the other party to rescission of the contract
Fraudulent Misrepresentation
Derry v Peek
James modification of the van may make rescission impossible and would prevent relief under the Act –
Floods of Queensferry Ltd v Shand Construction Ltd (2000);
Government of Zanzibar v British Aerospace (Lancaster House) Ltd (2000).
Contrary authority in Thomas Witter Ltd v TBP Industries (1996).
Finally, has there been a lapse of time that bars rescission?
FRUSTRATION
Principle relating to frustration
Davis Contractors Ltd v Fareham Urban District Council (1956)
National Carriers Ltd V Panalpina (Northern Ltd (1981)
ILLEGAL CONTRACTS
ILLEGAL CONTRACTS
Ø Different treat to contract illegal as formed (which are unenforceable)
Ø Illegal as performed (which may be enforceable in some circumstances)
Ø The importance is, thus, as to the potential enforceability of the contract as to recover money or benefits conferred upon another pursuant to an illegal contract
Statutory illegality – purpose behind the statute
John Shipping v Rank,
In some circumstances, courts have allowed such contract to be enforced
(cf Archbolds (Freightage) v Spanglett); i
in other cases, courts have not allowed the contract to be enforced
(cf Re Mahmoud and Ispahani)
Recovery on a quantum valebat basis for the goods supplied
Mohammed v Alaga
Public policy may not however allow restitutionary recovery on a quantum valebat basis
Awwad v Geraghty & Co.
The parties are in pari delicto and neither can sue on the contract.
PRINCIPLES FOR AWARD OF DAMAGES FOR BREACH OF CONTRACT
Expectation loss
Robinson v Harman (1884).
Non-pecuniary matters such as loss of amenity, pain, distress and so forth
Ruxley Electronics and Contruction v Forsyth (1995), Farley v Skinner, Hamilton Jones v David & Snape (2003)
Alternative basis for measuring damages on the reliance loss or loss of expenditure basis
Anglia Television v Reed (1972)
Award for restitutionary losses e.g. an account of profit following House of Lords decision in
Attorney General v Blake (2001). Controversy in Experience Hendrix LLC v PPX Enterprises Inc. 2003
Nature of award of damages
under s.2(1) of the Misrepresentation Act 1967 in the light of decision in Royscot Trust Ltd v Rogerson (1991) in terms of removal of possibility of claim of either negligent misstatement or fraudulent misrepresentation at common law
Either a duty of care or an assumption of responsibility to be established by the claimant.
Hedley Byrne v Heller
Claimant need only establish that a misrepresentation has occurred
S.2(1) shifts burden of proof to the defendant to establish that they had reasonable ground to believe that the statement was true up to the point of contracting
Generous awards
Royscot Trust v Rogersn which allows a claimant to receive damages measure as if the tort of deceit had been committed.
Reservations
Forest International Gaskets Limited v Foster Marketing Limited (2005) the CA refused permission for the issue to be sent on appeal to the House of Lords
Non-financial losses arising from loss of enjoyment and this irrecoverable or can they be recovered
Addis v Gramophone Co. Ltd (1909), Jarvis v Swans Tour (1973),
Ruxley Electronics and Construction Ltd v Forsyth (1996),
Malik v BCCI (1991)
Hamilton Jones V David & Snape (2003).
Remote losses
Hadley v Baxendale (1854)
Victoria Laundry (Windsor) v Newman Industries (1949)
The Heron II (1969) and H Parsons (Livestock) v Uttley Ingham (1978)
If the breach is not enough to justify termination of the agreement and the innocent party does so, he may himself be have breached the contract
Decro-Wall International SA v Practitioners in Marketing Ltd 1971
Damages could not be recovered on the basis
Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997).
Damages for loss of employment because the purpose of the contract was employment
Jarvis v Swan Tours (1973); Jacksons vs Horizon Holidays (1975); Farley v Skinner (2001)
Damages on behalf of guest
Pantown v Alfred McAlpine Construction Ltd (2002)
DISCHARGE OF CONTRACTS
Relevant criteria established for the frustration of a contract by the case law
Ø Davs Contractors Ltd v Fureham Urban District Council and National Carriers Ltd v Panalpina (Northern) Ltd [1981]
Ø Destruction of the subject matter Taylor v Caldwell (1863)
Ø Bay Steam Boat Co v Hutton (1904): it is still possible to perform a significant element of the contracts and that they are therefore not frustrated
Ø Bay Steam Boat Co v Hutton (1904) and Krell v Henry (1903) to ascertain whether the existence of the island formed a foundation of the hall hire contract
Ø Essential element - Steam Boat Co v Hutton
Misrepresentation Act 1967 – Frustration
s.1(1), s.2(5), S.1(2) must be applied to determine the result of frustration.
Gamerco SA v ICM/Fair Warning Agency (1995) would be appropriate
If there was unilateral mistake the contract is void unless is within
Smith v Hughes (1871)
Bilateral or common mistake
Bell v Lever Bros (1931); Great Peace (2002)
Impossibility – you can purchase what belongs to you
Cooper v Phibbs (1987)
Destruction of the subject of contract
Financings Ltd v Stimson (1962)
Misrepresentation of warranty
Heillbut, Symons & Co. v Buckleton (1913)
Type of misrepresentation
Hedly, Byrne v Heller (1964) and s.2(1) of the Misrepresentation Act 1967
REMEDIES FOR BREACH CONTRACT
Ø Generally it is only damages that is available for a breach of contract
Ø Nature of damages available
Ø Equitable remedies – order of specific performance or an injunction (granted only in exceptional circumstance
Ø A would not in any event, recover damages for disappointment on the basis of Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997).
Friday, March 28, 2008
LAW OF CONTRACT - GENERAL ESSAY
It is important to firstly establish if all the pre-requisite legal requirements for a valid contract are present in the relationship between Andrew and the other parties involved in the question. The requirements are a valid offer duly communicated by the offeror to the offeree, acceptance and consideration. Where all these elements are present the court will find the existence of a valid contract as in the case of Storer v Manchester City Council (1974) while the absence of a valid offer led to the non-recognition of the alleged contract in Gibson v Manchester City Council (1979). I will begin with Andrew’s offer. Generally advertisements are considered invitation to threat, rather than offers because of commercial difficulties that would attend any other sort of construction (Partridge v Crittenden (1968). Any other interpretation would create anarchy of unimaginable proportion most especially in this recent time where newspapers are available to millions of readers both online and in printed copies. Unilateral offers, where advertised or communicated through other means, could however be made to whosoever come in contact with the information and perform the act(s) required. The advertisement by Andrew to pay a reward of £10,000 appears to the person who found his dog is an offer when considered in the light of the principle set out in Carlill v Carbolic Smoke Ball Co. (1893). The acceptance of such offer is the performance of the act required in the advert. There is also no need to communicate acceptance of the offer to the offeror, what is required is the performance of the act specified by the offeror. We will now examine if any of the offerees accepted and took steps to enjoy the benefits of the contract.
To start with, Charles made attempt to accept the offer, but his attempt appears unsuccessful since he failed to find Buddy, the lost dog. His purchase of £500 equipment fell short of the conditions specified in the offer – recovery on the lost.
Darwin on the hand found the dog the dog at a time when he was not aware of the offer. The question at the point is can there be a contract where there was offer matched by corresponding acceptance. Put differently, could Darwin perform a contract in the ignorance of an offer? The law appears to be ambiguous on this issue. In Williams v Cardawardine (1833) and Gibbons v Proctor (1891) the court answered yes in situation where the offeree performed what was required by the offeror. However in R v Clarke (1927) the court on the basis of the motive ruled performance did not amount to acceptance. Andrew revoked the offer on Thursday, through a medium which was radically different from the medium use to announce the offer. Was the revocation effective? The answer appears to be ‘no’ in view of the fact that revocation of an offer must be communicated to be effective as decided by the courts in these cases i.e. Byrne v Van Tienhoven (1880), Henthorn v Fraser (1892). Shuey v USA (1875). Revocation of Andrew’s offer in a newspaper advert must reach substantially the same audience as the offer. On balance it is more realistic to assume that Andrew’s revocation not adequate. If the offer was still subsisting and Darwin performed the act specified in the offer, Andrew is bound by the specified terms to give the reward. On the other hand If Andrew has successfully revoked his offer, Darwin cannot claim the reward as the offer has been revoked.
In the situation where Darwin’s duty is the village dog keeper, it is unlikely that would be any consideration to support a contract as Darwin only performed his legitimate duty. If Darwin could however show that he has none more than contractual duty, he could lay claim to the reward.
If B advertisement is to offer to contact with the first person to come forward. If it is a presentation in person C will succeed because A has not presented himself. If however the communication can be made over the phone or e-mail (something which will turn on the wording of the advertisement itself) then A should succeed in communicating his acceptance first and creating a binding contract before C’s communication has occurred. Manchester Diocesan Council for Education v Commercial and General Investments (1970) If the advertisement is silent on how one is to be the first come, consideration need to be given to what is reasonable in the circumstance. If a telephone number or e-mail are given, it seems likely that these are appropriate method as either system allow a person to determine with certainty who has communicated first in time, it should be clear who has accepted the offer first. In this instance the person is A and a contract is concluded with him before C. B needs to be advised that the resolution of the problem is determined by the wording of her advertisement, in particular, has she included her telephone number and e-mail address and thus held herself out as capable of communication on these grounds? If the China is worth more than three times the advertised price, this should not affect a concluded contract with A or C. The only possible ground for setting aside the contract here would be that there is some fundamental mistake which goes to the root of the contract: here the sale concerns the same china and the only possible misapprehension is the value of the china. Who should succeed in an action for breach of contract? On balance it seems likely that a court will not allow that B’s advertisement is an offer capable of acceptance unless it is clearly worded as such and clearly worded that presentation may occur by e-mail of telephone message because of the commercial inconvenience which can attend a determination that advertisement is an offer. Consequent A will be disappointed in his action because the contract was formed with C and A responded to an advertisement knowing that he might not be the first to come forward. A would not in any event, recover damages for disappointment on the basis of Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997). A would not in any event, recover damages for disappointment on the basis of Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997).
to accept this offer and Bigbytes have refused to allow the completion of this act. A consideration of the decisions in Luxor (Eastbourne) Ltd v Cooper (1940) on the one hand and Errington v Errington (1952) and Daulia Ltd v Four Milbank Nominees (1978) on the other hand is required. The issues present some difficulty in its resolution.
To receive extra amount there must be consideration – Stilk v Myrick (1809). Practical Benefit must be established to receive extra benefit – Williams v Roffey Bros & Nicholls (1991) and doubts on the case Re. Selectmove Ltd (1995) and South Caribbean Trading Ltd (SCT) v Trafigura Beeher BV 2004. To determine whether or not terms are certain, the principles established in such cases as Scammel v Ouston (1941) and Hillas v Arcos 1932 are important. It is necessary to consider whether or not Cruisers was estopped from claiming the full amount by reason enunciated by Lord Denning in Central London Property Trust Ltd v High Street House Ltd (1947). Can it be said that a promise intended to be binding was made and that Donald acted upon this promise (Donald has not opened the letter). Is it possible that Donald has attempted a variation of the contract by paying only half the price – Pinnel’s case and Foakes v Beer. Edwina had already sent three-quarters of the fee by the time she receives cruisers’ letter. Can it be said she has acted upon Cruisers’ promise or on her own behalf. In the case of Fiona, Cruisers initially fulfils the criteria necessary to bring the situation within the ambit of the principles established in Central London Property Trust Ltd v High Street House Ltd (1947). How can Cruisers end the arrangements – The Post Chaser (1982).
Required elements of actionable misrepresentation. Did the offeror say anything to induce the contract? Implicit statement – Spice Girls Ltd v Aprila World Service BV (2000). Operative mistake has the effect of vitiating a contract (Smith v Hughes). Affirmation of a contract in which bars rescission . Is the statement of an agent a misrepresentation? Bisset v Wilkonson; Smith v Land House Corporation. If Lewis is John’s Agent he can take action under Misrepresentation Act 1967 (but no ken as the Act applies only to another party to the contract). Lewis statement may also be actionable as a negligent misstatement within the ambit of Hedley Byrne v Heller The new judicial appointment commission was established under the constitution Reform Act 2005 and commenced operation in April 2006. Effect of a mistake as to the quality of the subject matter in a contract – Bell v Lever Bros. Whether mutual mistake in equity still exists was also relevant to the resolution of the problem (Sole v Butcher, Associated Japanese Bank v Credit du Nord, the Great Peace. Has the performance of the contract been frustrated and is the contract discharged) or was it mere frustration or increase expenses (Davis Contractors Ltd v Fareharm Urban District Council). Doctrine of mistake and frustration
PRIVITY OF CONTRACT AND RIGHTS OF THIRD PARIES
Linden Gardens v Lenesta Sludge Disposal (1994) 1 AC 85. Does Gorgon has performance interest in the contract which will be recognised by the courts (Panatown v Alfred McAlpine Construction Ltd (2000): Radford v DeFroberviller (19977). Common law exception to privity of contract (Darlington B.C. v Wiltshier) and Contract (Rights of Third Parties) Act 1999. s.1 expressly provided damages and it could be inferred that there is no intent to provide other benefits (Panatown v Alfred McAlpine Construction Ltd (2000) HL: Third party apparently suffering from a contract they were not a party to. If a loss is not too remote is recoverable (Hadley v Badendale and Jackson v Royal Bank of Scotland (2005) UKHL 3) Contract between Gongorn and Iffy to absolve iffy of any liability under the building contract. Can Heracles the third party maintain action against iffy. If the right exist in 1999 Act, the ability to vary the contract is determined by the original contract If Gongor and Iffy agreed in the original contract that this was possible without agreement to Heracles they can modify this contract by subsequent agreement in such a way as to remove any claim by Heracles. If the contract was silent s.2 of the 1999 act will apply
Incorporation of terms into a contract – Olley v Marlborough Court Hotel (1941), Chapleton v Barry UDC (1940), Thorton v Shoe Lane Parking (1971) and Parker v South Eastern Rly (1987). Terms are also implied into contract by reason of s.14 of the Sale of Goods Act 1979 (goods sold in the course of business should be of satisfactory quality. Breach of implied terms and whether express terms cover the breach. Unfair Terms in Consumers Contract Act 1977 (UCTA) [s.1 applies where one party deals in the course of a business or where the parties deal on one party’s standard written terms s.2) and Unfair Terms in Consumers Contract Regulations Act 1999 (UTCCR). Applications of ss. 6 and 12 of UCTAA 1997 and the relevant case law. A business cannot exclude the implied terms arising by operation of SOGA 1979 as against a consumer. Application of ss.2(2), 3, 11, 13, 24, Sch. 2 and the case laws interpreting the sections. 1999 (UTCCR) applied to unfair terms between a seller and supplier on the one hand and consumer on the other s.4(1). Unfair terms principles in Director-General of Fair trading v First National Bank Plc (2002) HL; UTCCR 1999 ss.4-6, Sch.2). Unfair terms are of no effect against a consumer s.8. For a consumer UTCCR 1999 is preferable, because express term are of no effect if unfair to UCTA 1997 which would allow the express terms to the extent that they are reasonable. Because Mary deals as a consumer, the express will not survive the scrutiny and cannot be used by the seller to bring action. Meaning of condition (e.g. Schuler v Wickman Machine Tool Sales (1974) Lombard North Central Finance v Butterworth (1987). If the term is a condition, the perfect produce can terminate the contract for breach the fact that they have not suffered is irrelevant. If the terms is a warranty or innominate, breach of it will only sound in damages and not damages. Term is an innominate term within the decision in Hong Kong Fir Shipping v Kawasaki (1962). Cehave v Bremer HG (The Hansa Nord) 1976 for innominate terms it appears the consequences are not sufficiently serious for termination of the contract.
PRINCIPLES FOR AWARD OF DAMAGES FOR BREACH OF CONTRACT
The basic measure of loss is the expectation loss Robinson v Harman (1884). The law seeks to compensate the claimant for his disappointment expectation; it is compensation for loss of a bargain. The English courts have begun to expand the kind of loss to include non-pecuniary matters such as loss of amenity, pain, distress and so forth (e.g. Ruxley Electronics and Contruction v Forsyth (1995), Farley v Skinner, Hamilton Jones v David & Snape (2003). Alternative basis for measuring damages on the reliance loss or loss of expenditure basis (e.g. Anglia Television v Reed (1972). Award for restitutionary losses e.g. an account of profit following House of Lords decision in Attorney General v Blake (2001). Controversy in Experience Hendrix LLC v PPX Enterprises Inc. 2003. The extent to which the recognition of restitutionary loss threatens to erode the traditional losses measured in terms of expectation and reliance. Nature of award of damages under s.2(1) of the Misrepresentation Act 1967 in the light of decision in Royscot Trust Ltd v Rogerson (1991) in terms of removal of possibility of claim of either negligent misstatement or fraudulent misrepresentation at common law. S.2(1) the claimant need only to establish that a misrepresentation has occurred and the burden of proof shifts to the defendant to establish that they had reasonable ground to believe that the statement was true up to the point of contracting. It is easier to establish a claim of misstatement under Hedley Byrne v Heller, which requires either a duty of care or an assumption of responsibility to be established by the claimant. The comparative ease is assisted by the decision in Royscot Trust v Rogersn which allows a claimant to receive damages measure as if the tort of deceit had been committed. There are reservations about an apparent generousity in the award express in a number of case since Royscot, but a recent decision in Forest International Gaskets Limited v Foster Marketing Limited (2005) the CA refused permission for the issue to be sent on appeal to the House of Lords
Discharge of contracts. Frustrating events. Clarity of organisation requires a) to consider each of the issues in relation to each of the particular contract or consider each of the contracts in the light of the issues. Relevant criteria established for the frustration of a contract by the case law (e.g. Davs Contractors Ltd v Fureham Urban District Council and National Carriers Ltd v Panalpina (Northern) Ltd [1981]. Destruction of the subject matter Taylor v Caldwell (1863). Bay Steam Boat Co v Hutton (1904): it is still possible to perform a significant element of the contracts and that they are therefore not frustrated. For Sam contract, the likelihood is frustration. Bay Steam Boat Co v Hutton (1904) and Krell v Henry (1903) to ascertain whether the existence of the island formed a foundation of the hall hire contract. If the viewing of the multimedia exhibition is an essential element of the overall experience within the meaning of Bay Steam Boat Co v Hutton then the contract with Q, R and 400 customers will not be frustrated. If viewing is only an ancillary element to the view of the island then the contracts will be frustrated. Contract with same is frustrated and it is necessary to examine the application of s.1(1), s.2(5) and the consequence of s.1. It seems the sum are payable to Sam. S.1(2) must be applied to determine the result of frustration. Gamerco SA v ICM/Fair Warning Agency (1995) would be appropriate. S.1(2) may be applied in the case if Q, R and 400 customers if the contracts have been frustrated. If the contracts have not been frustrated, the candidates will need to consider the consequences of a breach of contract, which will sound in damages.
CATEGORISATION OF TERMS IN CONTRACT: WARRANTIES, CONDITIONS OR INNOMINATE TERMS AND THE CONSEQUENCES FROM THE TERMS
Can the contract be terminated or does the breach sound only in damages). The extent to which candidates can establish that a particular term is so important that breach of them entitles the injured party to repudiate the contract (L Schulter v Wickman Machine Tool Sale (1974); Lambeth North Central v Butterworth [1987. Extend to which victim of a breach would not end a contract following the breach of or sufficiently serious innominate term – practical consideration will usually be of commercial nature [expectation of future business in other contracts, long-term relationship or an unwillingness to impede supply). Legal consideration will generally be considered with the claimant’s duty to mitigate his losses (British Westinghouse Electric Co. Ltd v Underground Electric Rys Co of London Ltd (1912) and Payzu v Saunders (1919). person is guilty of theft contrary to s.1 of the Theft Act 1968. s.9(1)(a) – Conditional intention. The question of intention to permanently deprive is a question for the jury to determine. s.6 generally applied to borrowing.
While it may be that Kevin has committed a misrepresentation in entering into the contract with Loopy on the basis of an implicit statement about an existing state of facts (Spice Girls Ltd v Aprilia World Services BV (2000). This is difficult to establish because it is by no means clear that Kevin’s improprieties have occurred before the contract or, if they have, that he is aware that this will have an effect upon the contract or that such a disclosure is imminent.
The central issue is whether or not the contract between Kevin and Loopy has been frustrated. Has there been a supervening event which renders the performance of contract impossible - Davis Contractors Ltd v Fareham Urban District Council (1956), National Carriers Ltd v Panalpina (Northern) Ltd (1981), Tsakiroglou & Co. v Noblee and Thorl (1962) and so forth. Breach of contract – principles in Marine National Fish v Ocean Trawlers (1935) and the Super Servant Two (1990). Law reform (Frustrated contracts) Act 1943. Another issue is whether Kevin’s act amount to a breach (what are the terms of a contract) or whether they constitute frustration. In other words, is this a situation to which the principles in cases such as Maritime National Fish v Ocean Trawlers (1935) and The Super Servant Two (1990) apply? One possibility is that Kevin’s popularity plummets not because of his improprieties but because of his demotion to a lower division team.
Candidates also needed to consider the effect of the application of Law Reform (Frustrated Contract) Act 1943 to this situation. Will Loopy be able to recover the money already paid to Kevin? Has Kevin conferred a benefit upon Loopy through the sales already made before the news is made public?
Candidates need to established that Zesty has breached the contract by failing to deal with the subterranean rivers and springs on Wendy’s property Once the breach is establish, there is need to establish remedies available to Wendy and the extent to which the aw will recompense Wendy with damages. Wendy’s losses are twofold – the first set are those related to her annual garden party. Two sub-problem arise: these are non-financial losses arising from loss of enjoyment and this irrecoverable or can they be recovered (cases such as Addis v Gramophone Co. Ltd (1909), Jarvis v Swans Tour (1973), Ruxley Electronics and Construction Ltd v Forsyth (1996), Malik v BCCI (1991), and Hamilton Jones V David & Snape (2003). The second sub-problem is whether some of the losses pertaining to the garden party are too remote to be recovered (Hadley v Baxendale (1854), Victoria Laundry (Windsor) v Newman Industries (1949), The Heron II (1969) and H Parsons (Livestock) v Uttley Ingham (1978). It is also useful to mention whether contract between Wendy and Zesty conferred an enforceable benefit upon Wendy’s party guests under the Contracts (Right of Third Parties) Act 1999 or the principle of Jackson v Horizon Holidays. The second problem Wendy faces is the measures of damages recoverable with regard to the repairs of her property. It may be that she lost an amenity within the meaning of Ruxley Electronics and Construction Ltd v Forsyth (1996) but that she is unable to recover the cost of the repairs.
Consideration of the purpose behind an award of damages for a breach of contract and a comparison of the different purpose contract fulfil.
Recent cases of damages which has moved from Addis v Gramaphone & Co. such as Jarvis v Swan Tours (1973); Ruxlyy Electronics and Construction Ltd v Forsyth (1996); Malik v BCCI (1997); Farly v Skinner (2001), Watts v Morrow (1991) and Hamilton Jones v David & Snape (2003). Analysis of the central problem of whether or not the law of contract should, as a matter of principle, compensate for losses which were not commercial one in the context of non-commercial contract. Contracts Regulation (UTCCA) 1999 (which apply by reason of regulation 4 and 5 the interpretation place upon this by the House of Lords in Director-General of Fair Trading v First National Bank Plc (2002). The term is listed in the blacklist in Schedule 2, 1(a) in relation to death or personal or personal injury. The term is of no effect (Reg. 8). Term (ii), also is in apparent contravention of both the 1997 Act and 1999 Regulations. The term reserves right to Ultraclean to alter pick up time without notice - S.3(2) imposes a requirement of reasonableness on this term is also likely within 1(k) of the 1999 regulation thus not binding on the consumer. Term (iii) is similar in purpose to clause (ii); attempt to provide a different service that the one contracted for) and is covered by the same provision in the 1977 Act and 1999 regulations. Term (iv) would be valid under the 1997 Act only to the extent that it satisfies the requirement of reasonableness and fits within the list of unfair terms in Schedule 2, notably 1(1) and this not being upon a consumer. If Thomas has engaged Ultraclean to remove the laundry of his Dental Practice then the 1999 regulations would not apply because Thomas is no longer a consumer but a business (Reg. 4(1) and Reg. 3(1). The 1997 Act would still apply if the court determines that Thomas still deals as a consumer in regard to the clauses potentially within s.3(and the situation is not entirely clear here, see R&B Customs Brokers, Stevenson v Rogers, and Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004) or if the parties deals on Ultraclean’s written standard terms of business (St. Albans City District Council v International Computers Ltd (1996).
The nature of contract entered between Hack and Ida Were the terms set out in the question incorporated into the contract? On the basis of L’Estrange v Graucob, the answer appear to be yes. Were the terms relevant to the problem that later arose? If they are relevant were the term permitted under the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contract Regulation 1999. The later would be inapplicable because Hack seems to be acting in the course of a business. Is the unfair the Unfair Contract Terms Act 1977 applicable? Candidates need to consider the particular terms to establish this. Clause (i) appear incompatible with s.6 of UCTA and raises the question of whether Hack deals as a consumer or not – R & B Customs Brokers v UDT and Stevenson v Rogers. Hacks deals as a consumer, the act is not permissible. he is not dealing as a consumer, the clause is valid if reasonable. ause (ii) needs to be scrutinised for possible non-compliance with s.2(2). ause (iii) may be incompatible with s.3. ndidates needs assure themselves that either Hacks deals as a consumer or that the parties deals on Ida’s standard written terms of business and that clause is reasonable in the circumstances.
Marvin enter into two contracts in January and both were disrupted by events in February. The nature of events present fundamental different issues in contract law. Has the first contract been breached by them (e.g. Universal Cargo Carriers Corp v Cittati). If it has been breached what rights is Marvin entitled to – Damages for loss of employment because the purpose of the contract was employment (Jarvis v Swan Tours (1973); Jacksons vs Horizon Holidays (1975); Farley v Skinner (2001). Can Marvin recover damages on behalf of his guest (Pantown v Alfred McAlpine Construction Ltd (2002). Interaction of Marvin’s contract with the Noughts and his contract with Opeair Ltd. If the second contract has been frustrated, the first contract has to be frustrated because Noughts had to be flown to the Island on Openair flight. Principle relating to frustration (Davis Contractors Ltd v Fareham Urban District Council (1956); National Carriers Ltd V Panalpina (Northern Ltd (1981). Mere increase expense does not amount to frustration. But the increase is three times the original cost and the code is not in place at the required time. What were the right in the event that the contract would not be frustrated – are Openair action a form of economic duress (Pao On v Lau Yiu Long, North Ocean Shipping Co. Ltd v Hyndai Construction Co. Ltd, North Ocean Shipping Co. Ltd v Hyndai Construction Co. Ltd). If they refused to fly because of increase cost, this is breach of contract. The better view is to whether the contract is frustrated or not is that is that wit is or will be frustrated – Law Reform (Frustrated Contract) Act 1943
Various issues of illegality in the formation of a contract and the extent to which courts will enforce a contract despite the taint of illegality. Illegality is created by statute. Consider the purpose behind the statutory requirement. Following John Shipping v Rank, the issue to be considered in the purpose behind the statute. Is the statute intended to penalise conduct or prohibit contract? Definitely not to prohibit contract! The requirement to provide an invoice appears to regulate the conduct of business rather than the legality if business. The above will indicated that contracts which do not comply with this requirement are illegal as performed rather than as formed. Parts a & b deals with similar situations. Monty may be innocent of wrongdoing in that he inadvertently failed to supply Norman with the statutory invoice and was unaware of the illegality. In some circumstances, courts have allowed such contract to be enforced (cf Archbolds (Freightage) v Spanglett); in other cases, courts have not allowed the contract to be enforced (cf Re Mahmoud and Ispahani). Where statute does not specify the consequences of illegality on contract, the better view is that the effect should be determined by reference to the statute. Here it is arguable that the purposes of the statute would not be further by denying Monty the remuneration due under his agreement with Norman. Monty would be able to recover on a quantum valebat basis for the goods supplied (Mohammed v Alaga) but not if public policy would prevent such a restitutionary recovery (Awwad v Geraghty & Co.). Similar situation prevail upon the situation in part B. Part c raises a subtle difference because both parties appear to be aware of the need to supply an invoice and have agreed not to in this instanced. Both Paul and Monty are aware that the contract is illegal because it lacks the statutory invoice. Both are assenting to a performance that they know is illegal. The parties are in pari delicto and neither can sue on the contract. Monty cannot obtain the remuneration stipulated in the agreement. In part d: Quinn is apparently unaware that he invoice is required by law. The consideration in a) and b) are relevant. In this instance, Quinn appears to be an innocent party to the illegal contract. In part (e), Monty licence as expired and the contract is illegal as formed and thus unenforceable by either party.
One of the express terms in the contract is that Ultraclean will use certain types of soap powder. The law will imply a term into a contract that a contract for services is discharge with reasonable skill. Has Ultraclean succeeded in this endeavour by printing the terms on the reverse side of the collection slip. Such notice must be given before the time of the contract (Olley v Marlborough Court (1949) and it must be embodied in a document of ‘contractual force’ (Chapelton v Barry Urban District Council (1940) and appropriate notice of exclusion clause must be given (Parker v South Eastern Railway (1877) . Extra notice must be given of onerous or unusual terms (Spurling v Bradshaw (1956) and Interfoto Ltd v Stiletto Visual Programmes Ltd (1989) (terms iii and iv). It seems the exclusion clauses are incorporated into the contract. The law regulates contractual terms through Unfair Contract Terms Act (UCTA) 1977 and Unfair Terms in Consumer Contracts Regulation (UTCCA) 1999. The 1977 Act applies where a party attempts to exclude liabilities arising in the context of a business s.1. Term (i) cannot extend to personal injury or death caused by negligence by reason of s.2(1) and in the case of other loss or damage caused by negligence, liability can only be restricted to the extent that it is reasonable s.2(2). Term (i) contravenes Unfair Terms in Consumer Contracts Regulation (UTCCA) 1999 (which apply by reason of regulation 4 and 5 the interpretation place upon this by the House of Lords in Director-General of Fair Trading v First National Bank Plc (2002). The term is listed in the blacklist in Schedule 2, 1(a) in relation to death or personal or personal injury. The term is of no effect (Reg. 8). Term (ii), also is in apparent contravention of both the 1997 Act and 1999 Regulations. The term reserves right to Ultraclean to alter pick up time without notice - S.3(2) imposes a requirement of reasonableness on this term is also likely within 1(k) of the 1999 regulation thus not binding on the consumer. Term (iii) is similar in purpose to clause (ii); attempt to provide a different service that the one contracted for) and is covered by the same provision in the 1977 Act and 1999 regulations. Term (iv) would be valid under the 1997 Act only to the extent that it satisfies the requirement of reasonableness and fits within the list of unfair terms in Schedule 2, notably 1(1) and this not being upon a consumer. If Thomas has engaged Ultraclean to remove the laundry of his Dental Practice then the 1999 regulations would not apply because Thomas is no longer a consumer but a business (Reg. 4(1) and Reg. 3(1). The 1997 Act would still apply if the court determines that Thomas still deals as a consumer in regard to the clauses potentially within s.3(and the situation is not entirely clear here, see R&B Customs Brokers, Stevenson v Rogers, and Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004) or if the parties deals on Ultraclean’s written standard terms of business (St. Albans City District Council v International Computers Ltd (1996).
Consideration of terms of contract between Lag and Morgan and the permissibility of these terms under the law. The nature of the statements and advertising given by Ivana to James. Were they warranties of representation: Heilbut, Symons &Co. v Buckelton (1913). If they were warranties of breach of them sounds in damages. If they were misrepresentation liability attached to them only in the event that they were misrepresentations. Morgan ahs sought to exclude liability for any misrepresentation by clause (i). In this case s.3 of the Misrepresentation Act 1967 is applicable and such an exemption can only be made to the extent that is reasonable. Similar consideration to clause (ii). Clause (iii) appears to seek to exclude liability for any implied terms as to the condition of the vehicle. Because Morgan sells the car in the course of a business, s.14 of the Sale of Goods Act 1979 applies. By reasons of s.6(2) of the Unfair Contract Terms Act 1977, Morgan cannot exclude or restrict s.14 of the s.14 of the Sale of Goods Act 1979. Clause (iv) would not appear to be effective because it contravenes s.2(1) of the UCTA 1977 to the extent that it seek to exclude liability for personal injury or death. In the event that it seek to exclude liability for damage to property, this is permissible to the extent that the clause is reasonable: s.2(2). Clause (v) meets with the same conditions. While some of these clauses may withstand scrutiny under the UCTA 1977, they are unlikely, given the House of Lords’ decision in Director-General of Fair Trading v First National Bank Plc (2002), to withstand a challenge under the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999. If Lag dealt in the course of business, the 1999 regulation would not apply. Under the UCTA 1977, the matters covered in s.6(2) can only be excluded to the extent that they are reasonable. S.6(3) consideration as to the requirements of reasonability are thus necessary.
To start with, Charles made attempt to accept the offer, but his attempt appears unsuccessful since he failed to find Buddy, the lost dog. His purchase of £500 equipment fell short of the conditions specified in the offer – recovery on the lost.
Darwin on the hand found the dog the dog at a time when he was not aware of the offer. The question at the point is can there be a contract where there was offer matched by corresponding acceptance. Put differently, could Darwin perform a contract in the ignorance of an offer? The law appears to be ambiguous on this issue. In Williams v Cardawardine (1833) and Gibbons v Proctor (1891) the court answered yes in situation where the offeree performed what was required by the offeror. However in R v Clarke (1927) the court on the basis of the motive ruled performance did not amount to acceptance. Andrew revoked the offer on Thursday, through a medium which was radically different from the medium use to announce the offer. Was the revocation effective? The answer appears to be ‘no’ in view of the fact that revocation of an offer must be communicated to be effective as decided by the courts in these cases i.e. Byrne v Van Tienhoven (1880), Henthorn v Fraser (1892). Shuey v USA (1875). Revocation of Andrew’s offer in a newspaper advert must reach substantially the same audience as the offer. On balance it is more realistic to assume that Andrew’s revocation not adequate. If the offer was still subsisting and Darwin performed the act specified in the offer, Andrew is bound by the specified terms to give the reward. On the other hand If Andrew has successfully revoked his offer, Darwin cannot claim the reward as the offer has been revoked.
In the situation where Darwin’s duty is the village dog keeper, it is unlikely that would be any consideration to support a contract as Darwin only performed his legitimate duty. If Darwin could however show that he has none more than contractual duty, he could lay claim to the reward.
If B advertisement is to offer to contact with the first person to come forward. If it is a presentation in person C will succeed because A has not presented himself. If however the communication can be made over the phone or e-mail (something which will turn on the wording of the advertisement itself) then A should succeed in communicating his acceptance first and creating a binding contract before C’s communication has occurred. Manchester Diocesan Council for Education v Commercial and General Investments (1970) If the advertisement is silent on how one is to be the first come, consideration need to be given to what is reasonable in the circumstance. If a telephone number or e-mail are given, it seems likely that these are appropriate method as either system allow a person to determine with certainty who has communicated first in time, it should be clear who has accepted the offer first. In this instance the person is A and a contract is concluded with him before C. B needs to be advised that the resolution of the problem is determined by the wording of her advertisement, in particular, has she included her telephone number and e-mail address and thus held herself out as capable of communication on these grounds? If the China is worth more than three times the advertised price, this should not affect a concluded contract with A or C. The only possible ground for setting aside the contract here would be that there is some fundamental mistake which goes to the root of the contract: here the sale concerns the same china and the only possible misapprehension is the value of the china. Who should succeed in an action for breach of contract? On balance it seems likely that a court will not allow that B’s advertisement is an offer capable of acceptance unless it is clearly worded as such and clearly worded that presentation may occur by e-mail of telephone message because of the commercial inconvenience which can attend a determination that advertisement is an offer. Consequent A will be disappointed in his action because the contract was formed with C and A responded to an advertisement knowing that he might not be the first to come forward. A would not in any event, recover damages for disappointment on the basis of Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997). A would not in any event, recover damages for disappointment on the basis of Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997).
to accept this offer and Bigbytes have refused to allow the completion of this act. A consideration of the decisions in Luxor (Eastbourne) Ltd v Cooper (1940) on the one hand and Errington v Errington (1952) and Daulia Ltd v Four Milbank Nominees (1978) on the other hand is required. The issues present some difficulty in its resolution.
To receive extra amount there must be consideration – Stilk v Myrick (1809). Practical Benefit must be established to receive extra benefit – Williams v Roffey Bros & Nicholls (1991) and doubts on the case Re. Selectmove Ltd (1995) and South Caribbean Trading Ltd (SCT) v Trafigura Beeher BV 2004. To determine whether or not terms are certain, the principles established in such cases as Scammel v Ouston (1941) and Hillas v Arcos 1932 are important. It is necessary to consider whether or not Cruisers was estopped from claiming the full amount by reason enunciated by Lord Denning in Central London Property Trust Ltd v High Street House Ltd (1947). Can it be said that a promise intended to be binding was made and that Donald acted upon this promise (Donald has not opened the letter). Is it possible that Donald has attempted a variation of the contract by paying only half the price – Pinnel’s case and Foakes v Beer. Edwina had already sent three-quarters of the fee by the time she receives cruisers’ letter. Can it be said she has acted upon Cruisers’ promise or on her own behalf. In the case of Fiona, Cruisers initially fulfils the criteria necessary to bring the situation within the ambit of the principles established in Central London Property Trust Ltd v High Street House Ltd (1947). How can Cruisers end the arrangements – The Post Chaser (1982).
Required elements of actionable misrepresentation. Did the offeror say anything to induce the contract? Implicit statement – Spice Girls Ltd v Aprila World Service BV (2000). Operative mistake has the effect of vitiating a contract (Smith v Hughes). Affirmation of a contract in which bars rescission . Is the statement of an agent a misrepresentation? Bisset v Wilkonson; Smith v Land House Corporation. If Lewis is John’s Agent he can take action under Misrepresentation Act 1967 (but no ken as the Act applies only to another party to the contract). Lewis statement may also be actionable as a negligent misstatement within the ambit of Hedley Byrne v Heller The new judicial appointment commission was established under the constitution Reform Act 2005 and commenced operation in April 2006. Effect of a mistake as to the quality of the subject matter in a contract – Bell v Lever Bros. Whether mutual mistake in equity still exists was also relevant to the resolution of the problem (Sole v Butcher, Associated Japanese Bank v Credit du Nord, the Great Peace. Has the performance of the contract been frustrated and is the contract discharged) or was it mere frustration or increase expenses (Davis Contractors Ltd v Fareharm Urban District Council). Doctrine of mistake and frustration
PRIVITY OF CONTRACT AND RIGHTS OF THIRD PARIES
Linden Gardens v Lenesta Sludge Disposal (1994) 1 AC 85. Does Gorgon has performance interest in the contract which will be recognised by the courts (Panatown v Alfred McAlpine Construction Ltd (2000): Radford v DeFroberviller (19977). Common law exception to privity of contract (Darlington B.C. v Wiltshier) and Contract (Rights of Third Parties) Act 1999. s.1 expressly provided damages and it could be inferred that there is no intent to provide other benefits (Panatown v Alfred McAlpine Construction Ltd (2000) HL: Third party apparently suffering from a contract they were not a party to. If a loss is not too remote is recoverable (Hadley v Badendale and Jackson v Royal Bank of Scotland (2005) UKHL 3) Contract between Gongorn and Iffy to absolve iffy of any liability under the building contract. Can Heracles the third party maintain action against iffy. If the right exist in 1999 Act, the ability to vary the contract is determined by the original contract If Gongor and Iffy agreed in the original contract that this was possible without agreement to Heracles they can modify this contract by subsequent agreement in such a way as to remove any claim by Heracles. If the contract was silent s.2 of the 1999 act will apply
Incorporation of terms into a contract – Olley v Marlborough Court Hotel (1941), Chapleton v Barry UDC (1940), Thorton v Shoe Lane Parking (1971) and Parker v South Eastern Rly (1987). Terms are also implied into contract by reason of s.14 of the Sale of Goods Act 1979 (goods sold in the course of business should be of satisfactory quality. Breach of implied terms and whether express terms cover the breach. Unfair Terms in Consumers Contract Act 1977 (UCTA) [s.1 applies where one party deals in the course of a business or where the parties deal on one party’s standard written terms s.2) and Unfair Terms in Consumers Contract Regulations Act 1999 (UTCCR). Applications of ss. 6 and 12 of UCTAA 1997 and the relevant case law. A business cannot exclude the implied terms arising by operation of SOGA 1979 as against a consumer. Application of ss.2(2), 3, 11, 13, 24, Sch. 2 and the case laws interpreting the sections. 1999 (UTCCR) applied to unfair terms between a seller and supplier on the one hand and consumer on the other s.4(1). Unfair terms principles in Director-General of Fair trading v First National Bank Plc (2002) HL; UTCCR 1999 ss.4-6, Sch.2). Unfair terms are of no effect against a consumer s.8. For a consumer UTCCR 1999 is preferable, because express term are of no effect if unfair to UCTA 1997 which would allow the express terms to the extent that they are reasonable. Because Mary deals as a consumer, the express will not survive the scrutiny and cannot be used by the seller to bring action. Meaning of condition (e.g. Schuler v Wickman Machine Tool Sales (1974) Lombard North Central Finance v Butterworth (1987). If the term is a condition, the perfect produce can terminate the contract for breach the fact that they have not suffered is irrelevant. If the terms is a warranty or innominate, breach of it will only sound in damages and not damages. Term is an innominate term within the decision in Hong Kong Fir Shipping v Kawasaki (1962). Cehave v Bremer HG (The Hansa Nord) 1976 for innominate terms it appears the consequences are not sufficiently serious for termination of the contract.
PRINCIPLES FOR AWARD OF DAMAGES FOR BREACH OF CONTRACT
The basic measure of loss is the expectation loss Robinson v Harman (1884). The law seeks to compensate the claimant for his disappointment expectation; it is compensation for loss of a bargain. The English courts have begun to expand the kind of loss to include non-pecuniary matters such as loss of amenity, pain, distress and so forth (e.g. Ruxley Electronics and Contruction v Forsyth (1995), Farley v Skinner, Hamilton Jones v David & Snape (2003). Alternative basis for measuring damages on the reliance loss or loss of expenditure basis (e.g. Anglia Television v Reed (1972). Award for restitutionary losses e.g. an account of profit following House of Lords decision in Attorney General v Blake (2001). Controversy in Experience Hendrix LLC v PPX Enterprises Inc. 2003. The extent to which the recognition of restitutionary loss threatens to erode the traditional losses measured in terms of expectation and reliance. Nature of award of damages under s.2(1) of the Misrepresentation Act 1967 in the light of decision in Royscot Trust Ltd v Rogerson (1991) in terms of removal of possibility of claim of either negligent misstatement or fraudulent misrepresentation at common law. S.2(1) the claimant need only to establish that a misrepresentation has occurred and the burden of proof shifts to the defendant to establish that they had reasonable ground to believe that the statement was true up to the point of contracting. It is easier to establish a claim of misstatement under Hedley Byrne v Heller, which requires either a duty of care or an assumption of responsibility to be established by the claimant. The comparative ease is assisted by the decision in Royscot Trust v Rogersn which allows a claimant to receive damages measure as if the tort of deceit had been committed. There are reservations about an apparent generousity in the award express in a number of case since Royscot, but a recent decision in Forest International Gaskets Limited v Foster Marketing Limited (2005) the CA refused permission for the issue to be sent on appeal to the House of Lords
Discharge of contracts. Frustrating events. Clarity of organisation requires a) to consider each of the issues in relation to each of the particular contract or consider each of the contracts in the light of the issues. Relevant criteria established for the frustration of a contract by the case law (e.g. Davs Contractors Ltd v Fureham Urban District Council and National Carriers Ltd v Panalpina (Northern) Ltd [1981]. Destruction of the subject matter Taylor v Caldwell (1863). Bay Steam Boat Co v Hutton (1904): it is still possible to perform a significant element of the contracts and that they are therefore not frustrated. For Sam contract, the likelihood is frustration. Bay Steam Boat Co v Hutton (1904) and Krell v Henry (1903) to ascertain whether the existence of the island formed a foundation of the hall hire contract. If the viewing of the multimedia exhibition is an essential element of the overall experience within the meaning of Bay Steam Boat Co v Hutton then the contract with Q, R and 400 customers will not be frustrated. If viewing is only an ancillary element to the view of the island then the contracts will be frustrated. Contract with same is frustrated and it is necessary to examine the application of s.1(1), s.2(5) and the consequence of s.1. It seems the sum are payable to Sam. S.1(2) must be applied to determine the result of frustration. Gamerco SA v ICM/Fair Warning Agency (1995) would be appropriate. S.1(2) may be applied in the case if Q, R and 400 customers if the contracts have been frustrated. If the contracts have not been frustrated, the candidates will need to consider the consequences of a breach of contract, which will sound in damages.
CATEGORISATION OF TERMS IN CONTRACT: WARRANTIES, CONDITIONS OR INNOMINATE TERMS AND THE CONSEQUENCES FROM THE TERMS
Can the contract be terminated or does the breach sound only in damages). The extent to which candidates can establish that a particular term is so important that breach of them entitles the injured party to repudiate the contract (L Schulter v Wickman Machine Tool Sale (1974); Lambeth North Central v Butterworth [1987. Extend to which victim of a breach would not end a contract following the breach of or sufficiently serious innominate term – practical consideration will usually be of commercial nature [expectation of future business in other contracts, long-term relationship or an unwillingness to impede supply). Legal consideration will generally be considered with the claimant’s duty to mitigate his losses (British Westinghouse Electric Co. Ltd v Underground Electric Rys Co of London Ltd (1912) and Payzu v Saunders (1919). person is guilty of theft contrary to s.1 of the Theft Act 1968. s.9(1)(a) – Conditional intention. The question of intention to permanently deprive is a question for the jury to determine. s.6 generally applied to borrowing.
While it may be that Kevin has committed a misrepresentation in entering into the contract with Loopy on the basis of an implicit statement about an existing state of facts (Spice Girls Ltd v Aprilia World Services BV (2000). This is difficult to establish because it is by no means clear that Kevin’s improprieties have occurred before the contract or, if they have, that he is aware that this will have an effect upon the contract or that such a disclosure is imminent.
The central issue is whether or not the contract between Kevin and Loopy has been frustrated. Has there been a supervening event which renders the performance of contract impossible - Davis Contractors Ltd v Fareham Urban District Council (1956), National Carriers Ltd v Panalpina (Northern) Ltd (1981), Tsakiroglou & Co. v Noblee and Thorl (1962) and so forth. Breach of contract – principles in Marine National Fish v Ocean Trawlers (1935) and the Super Servant Two (1990). Law reform (Frustrated contracts) Act 1943. Another issue is whether Kevin’s act amount to a breach (what are the terms of a contract) or whether they constitute frustration. In other words, is this a situation to which the principles in cases such as Maritime National Fish v Ocean Trawlers (1935) and The Super Servant Two (1990) apply? One possibility is that Kevin’s popularity plummets not because of his improprieties but because of his demotion to a lower division team.
Candidates also needed to consider the effect of the application of Law Reform (Frustrated Contract) Act 1943 to this situation. Will Loopy be able to recover the money already paid to Kevin? Has Kevin conferred a benefit upon Loopy through the sales already made before the news is made public?
Candidates need to established that Zesty has breached the contract by failing to deal with the subterranean rivers and springs on Wendy’s property Once the breach is establish, there is need to establish remedies available to Wendy and the extent to which the aw will recompense Wendy with damages. Wendy’s losses are twofold – the first set are those related to her annual garden party. Two sub-problem arise: these are non-financial losses arising from loss of enjoyment and this irrecoverable or can they be recovered (cases such as Addis v Gramophone Co. Ltd (1909), Jarvis v Swans Tour (1973), Ruxley Electronics and Construction Ltd v Forsyth (1996), Malik v BCCI (1991), and Hamilton Jones V David & Snape (2003). The second sub-problem is whether some of the losses pertaining to the garden party are too remote to be recovered (Hadley v Baxendale (1854), Victoria Laundry (Windsor) v Newman Industries (1949), The Heron II (1969) and H Parsons (Livestock) v Uttley Ingham (1978). It is also useful to mention whether contract between Wendy and Zesty conferred an enforceable benefit upon Wendy’s party guests under the Contracts (Right of Third Parties) Act 1999 or the principle of Jackson v Horizon Holidays. The second problem Wendy faces is the measures of damages recoverable with regard to the repairs of her property. It may be that she lost an amenity within the meaning of Ruxley Electronics and Construction Ltd v Forsyth (1996) but that she is unable to recover the cost of the repairs.
Consideration of the purpose behind an award of damages for a breach of contract and a comparison of the different purpose contract fulfil.
Recent cases of damages which has moved from Addis v Gramaphone & Co. such as Jarvis v Swan Tours (1973); Ruxlyy Electronics and Construction Ltd v Forsyth (1996); Malik v BCCI (1997); Farly v Skinner (2001), Watts v Morrow (1991) and Hamilton Jones v David & Snape (2003). Analysis of the central problem of whether or not the law of contract should, as a matter of principle, compensate for losses which were not commercial one in the context of non-commercial contract. Contracts Regulation (UTCCA) 1999 (which apply by reason of regulation 4 and 5 the interpretation place upon this by the House of Lords in Director-General of Fair Trading v First National Bank Plc (2002). The term is listed in the blacklist in Schedule 2, 1(a) in relation to death or personal or personal injury. The term is of no effect (Reg. 8). Term (ii), also is in apparent contravention of both the 1997 Act and 1999 Regulations. The term reserves right to Ultraclean to alter pick up time without notice - S.3(2) imposes a requirement of reasonableness on this term is also likely within 1(k) of the 1999 regulation thus not binding on the consumer. Term (iii) is similar in purpose to clause (ii); attempt to provide a different service that the one contracted for) and is covered by the same provision in the 1977 Act and 1999 regulations. Term (iv) would be valid under the 1997 Act only to the extent that it satisfies the requirement of reasonableness and fits within the list of unfair terms in Schedule 2, notably 1(1) and this not being upon a consumer. If Thomas has engaged Ultraclean to remove the laundry of his Dental Practice then the 1999 regulations would not apply because Thomas is no longer a consumer but a business (Reg. 4(1) and Reg. 3(1). The 1997 Act would still apply if the court determines that Thomas still deals as a consumer in regard to the clauses potentially within s.3(and the situation is not entirely clear here, see R&B Customs Brokers, Stevenson v Rogers, and Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004) or if the parties deals on Ultraclean’s written standard terms of business (St. Albans City District Council v International Computers Ltd (1996).
The nature of contract entered between Hack and Ida Were the terms set out in the question incorporated into the contract? On the basis of L’Estrange v Graucob, the answer appear to be yes. Were the terms relevant to the problem that later arose? If they are relevant were the term permitted under the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contract Regulation 1999. The later would be inapplicable because Hack seems to be acting in the course of a business. Is the unfair the Unfair Contract Terms Act 1977 applicable? Candidates need to consider the particular terms to establish this. Clause (i) appear incompatible with s.6 of UCTA and raises the question of whether Hack deals as a consumer or not – R & B Customs Brokers v UDT and Stevenson v Rogers. Hacks deals as a consumer, the act is not permissible. he is not dealing as a consumer, the clause is valid if reasonable. ause (ii) needs to be scrutinised for possible non-compliance with s.2(2). ause (iii) may be incompatible with s.3. ndidates needs assure themselves that either Hacks deals as a consumer or that the parties deals on Ida’s standard written terms of business and that clause is reasonable in the circumstances.
Marvin enter into two contracts in January and both were disrupted by events in February. The nature of events present fundamental different issues in contract law. Has the first contract been breached by them (e.g. Universal Cargo Carriers Corp v Cittati). If it has been breached what rights is Marvin entitled to – Damages for loss of employment because the purpose of the contract was employment (Jarvis v Swan Tours (1973); Jacksons vs Horizon Holidays (1975); Farley v Skinner (2001). Can Marvin recover damages on behalf of his guest (Pantown v Alfred McAlpine Construction Ltd (2002). Interaction of Marvin’s contract with the Noughts and his contract with Opeair Ltd. If the second contract has been frustrated, the first contract has to be frustrated because Noughts had to be flown to the Island on Openair flight. Principle relating to frustration (Davis Contractors Ltd v Fareham Urban District Council (1956); National Carriers Ltd V Panalpina (Northern Ltd (1981). Mere increase expense does not amount to frustration. But the increase is three times the original cost and the code is not in place at the required time. What were the right in the event that the contract would not be frustrated – are Openair action a form of economic duress (Pao On v Lau Yiu Long, North Ocean Shipping Co. Ltd v Hyndai Construction Co. Ltd, North Ocean Shipping Co. Ltd v Hyndai Construction Co. Ltd). If they refused to fly because of increase cost, this is breach of contract. The better view is to whether the contract is frustrated or not is that is that wit is or will be frustrated – Law Reform (Frustrated Contract) Act 1943
Various issues of illegality in the formation of a contract and the extent to which courts will enforce a contract despite the taint of illegality. Illegality is created by statute. Consider the purpose behind the statutory requirement. Following John Shipping v Rank, the issue to be considered in the purpose behind the statute. Is the statute intended to penalise conduct or prohibit contract? Definitely not to prohibit contract! The requirement to provide an invoice appears to regulate the conduct of business rather than the legality if business. The above will indicated that contracts which do not comply with this requirement are illegal as performed rather than as formed. Parts a & b deals with similar situations. Monty may be innocent of wrongdoing in that he inadvertently failed to supply Norman with the statutory invoice and was unaware of the illegality. In some circumstances, courts have allowed such contract to be enforced (cf Archbolds (Freightage) v Spanglett); in other cases, courts have not allowed the contract to be enforced (cf Re Mahmoud and Ispahani). Where statute does not specify the consequences of illegality on contract, the better view is that the effect should be determined by reference to the statute. Here it is arguable that the purposes of the statute would not be further by denying Monty the remuneration due under his agreement with Norman. Monty would be able to recover on a quantum valebat basis for the goods supplied (Mohammed v Alaga) but not if public policy would prevent such a restitutionary recovery (Awwad v Geraghty & Co.). Similar situation prevail upon the situation in part B. Part c raises a subtle difference because both parties appear to be aware of the need to supply an invoice and have agreed not to in this instanced. Both Paul and Monty are aware that the contract is illegal because it lacks the statutory invoice. Both are assenting to a performance that they know is illegal. The parties are in pari delicto and neither can sue on the contract. Monty cannot obtain the remuneration stipulated in the agreement. In part d: Quinn is apparently unaware that he invoice is required by law. The consideration in a) and b) are relevant. In this instance, Quinn appears to be an innocent party to the illegal contract. In part (e), Monty licence as expired and the contract is illegal as formed and thus unenforceable by either party.
One of the express terms in the contract is that Ultraclean will use certain types of soap powder. The law will imply a term into a contract that a contract for services is discharge with reasonable skill. Has Ultraclean succeeded in this endeavour by printing the terms on the reverse side of the collection slip. Such notice must be given before the time of the contract (Olley v Marlborough Court (1949) and it must be embodied in a document of ‘contractual force’ (Chapelton v Barry Urban District Council (1940) and appropriate notice of exclusion clause must be given (Parker v South Eastern Railway (1877) . Extra notice must be given of onerous or unusual terms (Spurling v Bradshaw (1956) and Interfoto Ltd v Stiletto Visual Programmes Ltd (1989) (terms iii and iv). It seems the exclusion clauses are incorporated into the contract. The law regulates contractual terms through Unfair Contract Terms Act (UCTA) 1977 and Unfair Terms in Consumer Contracts Regulation (UTCCA) 1999. The 1977 Act applies where a party attempts to exclude liabilities arising in the context of a business s.1. Term (i) cannot extend to personal injury or death caused by negligence by reason of s.2(1) and in the case of other loss or damage caused by negligence, liability can only be restricted to the extent that it is reasonable s.2(2). Term (i) contravenes Unfair Terms in Consumer Contracts Regulation (UTCCA) 1999 (which apply by reason of regulation 4 and 5 the interpretation place upon this by the House of Lords in Director-General of Fair Trading v First National Bank Plc (2002). The term is listed in the blacklist in Schedule 2, 1(a) in relation to death or personal or personal injury. The term is of no effect (Reg. 8). Term (ii), also is in apparent contravention of both the 1997 Act and 1999 Regulations. The term reserves right to Ultraclean to alter pick up time without notice - S.3(2) imposes a requirement of reasonableness on this term is also likely within 1(k) of the 1999 regulation thus not binding on the consumer. Term (iii) is similar in purpose to clause (ii); attempt to provide a different service that the one contracted for) and is covered by the same provision in the 1977 Act and 1999 regulations. Term (iv) would be valid under the 1997 Act only to the extent that it satisfies the requirement of reasonableness and fits within the list of unfair terms in Schedule 2, notably 1(1) and this not being upon a consumer. If Thomas has engaged Ultraclean to remove the laundry of his Dental Practice then the 1999 regulations would not apply because Thomas is no longer a consumer but a business (Reg. 4(1) and Reg. 3(1). The 1997 Act would still apply if the court determines that Thomas still deals as a consumer in regard to the clauses potentially within s.3(and the situation is not entirely clear here, see R&B Customs Brokers, Stevenson v Rogers, and Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004) or if the parties deals on Ultraclean’s written standard terms of business (St. Albans City District Council v International Computers Ltd (1996).
Consideration of terms of contract between Lag and Morgan and the permissibility of these terms under the law. The nature of the statements and advertising given by Ivana to James. Were they warranties of representation: Heilbut, Symons &Co. v Buckelton (1913). If they were warranties of breach of them sounds in damages. If they were misrepresentation liability attached to them only in the event that they were misrepresentations. Morgan ahs sought to exclude liability for any misrepresentation by clause (i). In this case s.3 of the Misrepresentation Act 1967 is applicable and such an exemption can only be made to the extent that is reasonable. Similar consideration to clause (ii). Clause (iii) appears to seek to exclude liability for any implied terms as to the condition of the vehicle. Because Morgan sells the car in the course of a business, s.14 of the Sale of Goods Act 1979 applies. By reasons of s.6(2) of the Unfair Contract Terms Act 1977, Morgan cannot exclude or restrict s.14 of the s.14 of the Sale of Goods Act 1979. Clause (iv) would not appear to be effective because it contravenes s.2(1) of the UCTA 1977 to the extent that it seek to exclude liability for personal injury or death. In the event that it seek to exclude liability for damage to property, this is permissible to the extent that the clause is reasonable: s.2(2). Clause (v) meets with the same conditions. While some of these clauses may withstand scrutiny under the UCTA 1977, they are unlikely, given the House of Lords’ decision in Director-General of Fair Trading v First National Bank Plc (2002), to withstand a challenge under the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999. If Lag dealt in the course of business, the 1999 regulation would not apply. Under the UCTA 1977, the matters covered in s.6(2) can only be excluded to the extent that they are reasonable. S.6(3) consideration as to the requirements of reasonability are thus necessary.
LAW OF CONTRACT - GENERAL CASES4
GENERAL CASES – LAW OF CONTRACT
OFFER AND ACCEPTANCE/CONSIDERATION
1) Storer v Manchester City Council (1974) offer to sell council flats to sitting tenants – the court of appeal found a binding contract – All Storer has to do was to sign the document and return because all elements of the contract has been agreed.
2) Gibson v Manchester City Council (1979): The Council made an offer to Gibson that it might be prepared to sell. Gibson signed and returned it. The Court ruled that there had not been contract concluded because the Council has not made an offer capable of being accepted.
3) Partridge v Crittenden (1968): Generally advertisements are considered as invitation to threat, rather than offers because of commercial difficulties that would attend any other sort of construction.
4) Manchester Diocesan Council for Education v Commercial and General Investments (1970): Condition 4 stated that the person whose tender was accepted would be informed by letter sent to him at the address given in the letter. On 15 September 1964, the plaintiff wrote to the defendant company’s surveyors stating that the sale of the company had been approved, but it was not until 7 January 1965 that the plaintiff solicitors wrote to the defendant company at the address given in the tender giving formal notification of acceptance of its offer. It was decided that the offer in the tender had lapsed so that it was necessary to decide when the contract had been concluded.
5) Carlill v Carbolic Smoke Ball Co. (1893): A case of offer of £100 cash reward to whoever ever uses the carbolic smoke ball for three weeks and caught the virus. £1000 had been deposit with the Allied Bank. A woman used the ball a directed and caught the virus. The court found there was a unilateral offer of contract, the advertisement can be the offer. No communication of acceptance is required for unilateral offer. Unilateral offer is accepted by performing the required act.
6) Williams v Cardawardine (1833): The plaintiff gave the information necessary to receive an award because she thought she was dying. When shed didn’t die eventually and demanded the reward, it was held that she could recover the reward which she had been aware of it. Her motive in supplying the information was not material because she has acted on the offer.
7) Gibbons v Proctor (1891): The defendant offered reward of £25 for information leading to conviction of the perpetrator of a particular crime to Penn on 29th May. The plaintiff had already gave the information to through his superiors (Coppin and Lennan) which got to Penn on 30th. It was held one plaintiff was entitled to the reward of £25 as Coppin and Lennan were the plaintiff’s agent for purpose of conveying the information. The acceptance was the supply of information and at that time the plaintiff knew that a reward had been offered. Knowledge of the reward would generally not necessary in reward type case but should be required in the case of bilateral contract (Hudson 1968)
8) R v Clarke (1927): Clarke gave information on those who murdered two police officers after he was arrested for the offence. His attempt to claim the reward failed because the court found that he had not acted in good faith, or in reliance upon the offer, his only intention was to save himself.
9) Byrne v Van Tienhoven (1880), Henthorn v Fraser (1892); It was held in both cases that revocation of an offer must be communicated to be effective
10) Shuey v USA (1875): revocation of an offer in a newspaper advert must reach substantially the same audience as the offer.
11) Glasbrook Bros Ltd v Glamorgan C.C. (1925); Ward v Byham (1956). Is there any consideration to support a contract if Darwin’s public duty is to find dogs?
12) Stilk v Myrick (1809). On voyage to London two crewmen deserted and the capital promised the remaining crew that he would divide the wage of the two amongst them. The court held that they have not done extra to demand additional payment. Public policy. To receive extra amount there must be consideration –
13) Williams v Roffey Bros & Nicholls (1991): the Court of appeal held that although the plaintiff was doing no more than he was already obliged to as the defendant had obtained a benefit(completion of the work and inconvenience of getting another contractor to complete the building) in making the promise (in the absence of economic duress, there was variation in contractual terms and more structured benefit) The CA stated that the this did not overruled or contravene the principle in Stilk and Myrick (1809) Practical Benefit must be established to receive extra benefit .
14) Selectmove Ltd (1995) – the promise to pay an existing tax debt was not considered a good consideration.
15) Scammel v Ouston (1941) and Hillas v Arcos 1932 - The higher purchase contract. It was held that there was no enforceable contract because the terms of the agreement are vague and there will need to be further contract before an agreement could be reached
16) Central London Property Trust Ltd v High Street House Ltd (1947). The request to revert to old rent at the end of the war which was reduced by half during the WWII was held to be enforceable, since the war has ended the property could easily be let and it was not justified to pay the old rate.
17) Foakes v Beer (1884): where no consideration is provided for a promise not to take any proceedings on a debt judgement, the promise was unenforceable and the total debts is payable. The debtor had only done what he is legally bound to do.
18) Pinnel’s (1602) a promise to accept less under seal even where no consideration is provided was considered enforceable.
19) Roscorla v Thomas (1842), Re McArdle (1951), Pao On v Lau Yiu Long (1980): Problems with consideration – offer to make payment after the arrangement has commenced:
20) Balfour v Balfour (1919): It was held that agreement to pay £30 a month while husband and wife were married was not intended as a binding contract
21) Jones v Padavatton (1969); the attempt by a daughter to use the promise that the rent from the house would be used to finance her education to prevent her mother to claiming possession of a house. The agreement was held as not legally binding
22) Coward v MIB (1962): Both Coward, who was passenger on Cole motorbike were killed and the wife tried to claim insurance damages. It was held that the agreement was not intended to be legally binding.
23) Edmonds v Lawson (2000): A pupil barrister claim that her unpaid 12 month pupilage contract constitute a contract of employment so that she was a worker within the meaning of National Minimum Wage Act 1998. CA held there was a binding contract but she did not qualify as a worker under the provision of the Act . Formation of contract – Jeremiah and Familial)
24) L’Estrange v Graucob (1934): As the plaintiff had signed the written contract and had not been induced to do so by any misrepresentation, she was bound by its terms. It was wholly immaterial that she had not read the document and did not know its content. Cigarette vending machine case.
MISREPRESENTATION/MISTAKE
25) Spice Girls Ltd v Aprila World Service BV (2002): In certain circumstance conduct can be treated as statement Spice Girls Ltd v Aprilla World Service (2002) when they claim the group did not know and had no reasonable ground to belief that any member of the group had an intention to leave before a sponsorship agreement with motor scooter manufacture ended. The judge found evidence that a member of the group had indicated willingness to leave.
26) Smith v Hughes (1871): The plaintiff wanted to sell oak and showed the defendant who wanted to buy old oak a sample. The defendant rejected the oaks on the ground that they were not old. Operative mistake has the effect of vitiating a contract: The direction from the judge to the jury on new and the old oats case. The buyer relied on his judgement and did not make the age of the oak part of the contract. A party will not be easily relieved of a bad bargin.
27) Bisset v Wilkonson (1927): A statement by a seller that a piece of land could hold about 400 sheep was held an honest believe since he has never used the farm for ship. Honest belief.
28) Smith v Land House Corporation (1884): It was held that a statement by a seller that the tenant in hotel he was offering for sales was a most desirable tenant, whereas he was in arrears, was held an containing an implied assertion, since he was aware of the fact.
29) Bell v Lever Bros (1932): The Chairman and Vice Chairman of Bell subsidiary who signed disengagement compensation contract with Bell. Bell tried to annul the contract after discovering that they breach their employment contract by engaging in speculation for personal benefit. The HL held that a mistake as to the quality made by both parties does not render performance as originally agreed impossible. A mistake as to the quality made by both parties does not render performance as originally agreed impossible
30) Sole v Butcher (1950): The plaintiff and defendant agreed a rent of £250 for a flat. The plaintiff later discover that based on rent control the rent could not be raised more than £140 and sued for a refund. It was held that the party had conclude the agreement under common law mistake of fact and the contract is to be set aside to give the tenant the option of substituting it for one at the full rent which the law permitted. A mistake as to the quality made by both parties does not render performance as originally agreed impossible
31) Associated Japanese Bank v Credit du Nord (1989) – the guarantee in respect of non-existence four machines leased to Mr Benett. It was held that non-existence of the main contract rendered the accessory contract void ‘ab inito’.
32) Galloway v Galloway (1914): The court held that a divorce settlement under the assumption that the parties were married was unenforceable. This was because the man wife who was thought to be dead was still alive.
33) The Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (2002) – Mistake as to quality of the subject matter - Great Peace was hired to salvage Cape Providence. The two ships were 410 miles apart, but thought to be 35 miles. This was discovered after procuring a closer substitute ship the defendant refused to perform their contract with claimant asserting that the contract was void for mistake at law and voidable at equity. The CA held that the mistake was not fundamental and the difference could be covered in 22 hours.
34) Shogun Finance Ltd v Hudson (2005) HL (3:2); Ruled that a written agreement was made between the finance company and the real Mr. Patel not the rogue. This was however a nullity because it had been made without Mr. Patel’s authority. There was no contract between valid contract between the rogue and the finance company. Accordingly, the defendant was no protected by section 27 as he was not the ‘debtor’.
35) Dennant v Skinner (1948): The identity must be material to the formation of the contract
FRUSTRATION
36) Contractors Ltd v Fareharm Urban District Council (1956): The contract to build 78 houses in 8 months which extended to 20 months due to shortage of labour. It was held that the contract has not been frustrated but increased expenses.
37) Davs Contractors Ltd v Fureham Urban District Council and National Carriers Ltd v Panalpina (Northern) Ltd [1981] – C preferred analysis is that in certain situations, where there is a change in circumstance (not attributable to the fault of either party) which make performance of contract from original intention impossible, justice requires that the court should treat the contract as having come to an end – see National Carriers Ltd v Panalpina (Northern) Ltd (1981). The fact that the court will in some circumstance bring a contract to an end on the basis of frustration does not mean that the party original agreement will be ignored. It is possible for the parties to make provisions for this through ‘force majeure’ which the court will give effect to.
38) Taylor v Caldwell (1863) - Destruction of the subject matter. The contract for the hire of a Hall for series of music concert and the destruction of the hall by fire. The contract was discharge by frustration and it was subject to an implied condition that the party would be excused if the subject matter was destroyed.
39) Herne Bay Steam Boat Co v Hutton (1903): boat hired to tour the fleet and watch the King’s review was held not to be frustrated when the review was cancelled due to the King’s illness because the tour was still possible. it is still possible to perform a significant element of the contracts and that they are therefore not frustrated
40) Gamerco SA v ICM/Fair Warning Agency (1995): would be appropriate S.1(2) may be applied in the case if Q, R and 400 customers if the contracts have been frustrated
41) Scammel v Ouston (1941) and Hillas v Arcos 1932. The higher purchase contract. It was held that there was no enforceable contract because the terms of the agreement are vague and there will need to be further contract before an agreement could be reached
42) Archbolds (Freightage) v Spanglett; Held that the contract was not prohibited expressly or implied by statute, and therefore cannot be illegal at its inception. Since the plaintiff were unaware of the true facts and were innocent parties, they could recover damages for breach of contract. Van with C licence carrying v whisky which ended up being stolen due to negligence.
43) Re Mahmoud and Ispahani (1921)) Held that since the defendant has no licence to purchase or sell linseed oil, the contract with the plaintiff who had a licence to was illegal and unenforceable. in other cases, courts have not allowed the contract to be enforced
PRIVITY OF CONTRACT
44) Linden Gardens v Lenesta Sludge Disposal (1994) 1 AC 85: A & B contracted that property may at sometime be acquired by C on the footing that B should be able to enforce the contract to its full extent to for the benefit of C. The HL held found that the assignment of the benefit of the contract was invalid since it was in breach of a valid prohibition on assignment. As owner of the property it was the assignee who suffered damage as a result of breach of building contract, but technically contractual rights remained with the assignor who no longer owned the property and therefore suffer no loss.
45) Punatown v Alfred McAlpine Construction Ltd (2000): The approach was accepted initially and subsequently limited by House of Lords’ decision in. Following this decision the third party has a remedy of some sort against the promisor, the exception will not apply.
46) Radford v DeFroberviller (1977): It should be possible to seek and obtain compensation for genuine loss and not merely using a technical breach to secure uncovenanted profit.
47) Tweddle v Atkinson (1861) - Tweddle and Gay agreed to pay a sum of money to the plaintiff (tweddle son) in consideration of his marrying Guy’s daughter. Guys failed to pay and the plaintiff sought to enforce his promise after his death on his executor. The son could not enforce the contract despite the fact that the contract was for his benefit. At common law the parties to a contract cannot impose a burden on a third party, nor can they confer a benefit on a third party Twedlle v Atkinson (1861). This is unobjectionable. The circumstances in which justice calls for such a result are limited.
48) National Carriers Ltd v Panalpina (Northern) Ltd (1981): Held that two months interruption due to the closure of the only entrance to a warehouse by the local authority having regard to the period the lease would remain after the interruption ceased compared to the 10 years lease, defendant could not rely on frustration as a defence
49) Tsakiroglou & Co. v Noblee: Held the contract to ship Sudanese groundnut to Hamburg was not frustrated by the closure of the Suez Canal which will result in a longer route at a greater cost.
50) Maritime National Fish v Ocean Trawlers (1935): Held that the contract was not frustrated because the defendants’ own election had prevented this trawler from having a licence to fish. The defendant could only get three licence our of five and chose not to obtain a licence for the trawler hired.
51)
TERMS OF CONTRACT/INCORPORATION OF A CONTRACT
52) Olley v Marlborough Court Hotel (1949): the CA held that since a contract was made at the reception desk, the notice in the bedroom came too late and were not incorporated
53) Chapleton v Barry UDC (1940); HL held that the ticket was a mere voucher. Only the notice was capable of containing conditions and that made no mention of an exemption. The pile of deck was held to constitute a standing order and a contract was formed when a chair (which eventually gave way and injured the plaintiff) removed from pile.
54) Thorton v Shoe Lane Parking (1971): CA held that the notice came too late since the contract was concluded the moment the car drove up the machine at the defendant’s automatic garage.
55) Parker v South Eastern Rly (1987): CA held that the judge misdirected the jury as he did not ask whether the defendant has taken reasonable steps to give the defendant notice of the condition. Notice at the back of a receipt after payment was considered inadequate.
56) Director-General of Fair trading v First National Bank Plc (2002) HL; UTCCR 1999 ss.4-6, Sch.2) – The HL held that a term of a loan agreement which provided for interest to be paid at the contractual rate on sums owing both and after judgement did not fall within reg. 3(3)(b). It was an incidental term setting out the consequences of default by the borrower
57) Schuler v Wickman Machine Tool Sales (1974): The term that the agent must visit the major manufacturers certain times in a week. The condition that failure to make some the visit will lead to termination of the contract was considered unfair.
58) Lombard North Central Finance v Butterworth (1987) – CA held that clause 2(a) of a computer lease agreement made prompt payment a condition of the contract so that non-compliance entitles the plaintiff to terminate the contract and recover damages for loss of the transaction even breach itself was not regarded as giving rise to serious consequences.
59) Hong Kong Fir Shipping v Kawasaki (1962): CA held that although there was a breach of the charterparty because the ship was unseaworthy, seaworthiness was not a condition entitling the charter to terminate. The delay caused by the breakdowns and repairs was no so great as to frustrate the commercial purpose of the charter. Ship chartered for 24 months, the chief engineer was not competent and with 17 month left of the original contract, attempt being made to terminate.
60) Cehave v Bremer HG (The Hansa Nord) 1976: CA held that the term shipment in good condition did not give a rise to reject unless the breach went to the root of the contract since the entire cargo was used for the intended purposes as animal feed. Though entitled to damages, but not entitled to rejection. German seller and Dutch buyer of 12,000 tons of US Citrus pulp pellets. innominate terms it appears the consequences are not sufficiently serious for termination of the contract.
61) R&B Customs Brokers Co. Ltd v United Dominions Trust Ltd (1988); HL held that they had dealt as consumer since the use of the car in their business was not sufficient regularity. It was a third car. And clause 2(a) of SoGA 1979 did not apply
62) Stevenson v Rogers, (1999): CA A transaction would be made in the course of a business unless it was a purely private transaction
63) Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004) – Lamborghini car bought for the use of a director, it was held that the company was dealing as a consumer or if the parties deals on Ultraclean’s written standard terms of business (
64) St. Albans City District Council v International Computers Ltd (1995). Limitation of £100,000 placed on contract for the supply of software to produce data for poll tax candidates was held to be unreasonable when the software contained an error which cost the local council a lot of money. It was a standard term, the company has already insured the loss, and the company has the expertise, while the local council and its citizen would loose if held otherwise.
DAMAGES
65) Robinson v Harman (1848): The basic measure of loss is the expectation loss. The law seeks to compensate the claimant for his disappointment expectation; it is not compensation for loss of a bargain
66) Ruxley Electronics and Contruction v Forsyth (1995) – This has to do with the construction of a swimming pool that was not built to specification. He asked for the cost of constructing a new one, but the court award something. The English courts have begun to expand the kind of loss to include non-pecuniary matters such as loss of amenity, pain, distress and so forth.
67) Farley v Skinner (2001): The defendant suing for damages for the valuer not advising whether the property close to Gatwick airport was on flight part. CA held that since the client specifically asked for confirmation on this matter it was a major part of the contract and restored £10,000 damages awarded by the trial judge which the CA said the object f the contract was valuation and not provision of pleasure.
68) Anglia Television v Reed (1972) – CA held that the since the plaintiff had elected to claim their wasted expenditure instead of loss of profit, they could also recover pre contract expenditure as long as it was reasonable in the contemplation of the parties as the likely to be wasted if the contract was broken. An American actor who repudiated a contract for a leading role in a television appearance
69) C & P Haulage v Middleton (1983): The claimant cannot seek to recover his reliance losses where this would have the effect of allowing him to escape the consequence of a bad bargain.
70) Attorney General v Blake (2001): Award for restitutionary losses e.g. an account of profit following House of Lords decision. The former member of the intelligence services who became an agent for Moscow. Court allow account of profit for the book published on the account of his experience which was published in London
71) Royscot Trust Ltd v Rogerson (1991): Measure of damages under s.2(1) is tortuous in that the measure had to be the same as for fraudulent misrepresentation because of fiction of fraud. Car seller who inflated the prices for the financiers and the buyer fraudulently sold the car to another person. A claimant to receive damages measure as if the tort of deceit had been committed either negligent misstatement or fraudulent misrepresentation at common law. There are reservations about an apparent generousity in the award express in a number of case since Royscot, but a recent decision in Forest International Gaskets Limited v Foster Marketing Limited (2005) the CA refused permission for the issue to be sent on appeal to the House of Lords
72) L Schulter v Wickman Machine Tool Sale (1974); Condition that the sole distributor for the German panel press in UK must visit each of the motor manufacturer once a week. Failure to make a number of visits was considered by the House of Lords as not a condition in the sense that a single breach however, trivial would entitle the innocent party to terminate the contract.
73) Lombard North Central v Butterworth [1987): CA (Computer lease and area of payment) Extend to which victim of a breach would not end a contract following the breach of or sufficiently serious innominate term – practical consideration will usually be of commercial nature [expectation of future business in other contracts, long-term relationship or an unwillingness to impede supply)
74) British Westinghouse Electric Co. Ltd v Underground Electric Rys Co of London Ltd (1912): The injured party is prevented from recovering losses if he failed to take steps to mitigate his losses. Legal consideration will generally be considered with the claimant’s duty to mitigate his losses (
75) Payzu v Saunders (1919) – The contract for the supply of crepe de chime that was terminated for failure to pay as accept advance cash payment option following the failure to pay for supply within the stipulated period. Sometime the duty to mitigate will require the injured party to re-contract with the party in breach on slightly different terms.
76) Addis v Gramophone Co. (1909): represent the applicable the law that damages for distress will not be available in connection with the manner of a dismissal. Boardman v Copeland London Bureau Council (2001); Eastwood v Magnox Electric Plc: On balance it seems likely that a court will not allow that B’s advertisement is an offer capable of acceptance unless it is clearly worded as such and clearly worded that presentation may occur by e-mail of telephone message because of the commercial inconvenience which can attend a determination that advertisement is an offer. Consequent A will be disappointed in his action because the contract was formed with C and A responded to an advertisement knowing that he might not be the first to come forward. A would not in any event, recover damages for disappointment on the basis of
77) Malik v BCCI (1998); it was held that the claims for damages to reputation by former employees of BCCI which was run fraudulently by the employer are recoverable because their was an implied term that the employ would run his business so as not to jeopardise the future employment prospects of the employees.
78) Cooper v Phibbs (1987): A purchase by Yoric is an impossibility as he already owns the book Destroyed book-
79) Financings Ltd v Stimson (1962); If there is a breach the minimum payment clause will not apply. Failure to pay instalments is not a repudiatory breach and the owner can recover only for his loss occurring prior to termination (i.e. instalment arrears plus interest). Recovering for future losses would be similar in effect to enforcing the invalid penalty clause.
80) Heillbut, Symons & Co. v Buckleton (1913): There is no liability for innocent misrepresentation. Esso Petroleum Co. Ltd v Mardon (1976): There exist liability if he was proved to made misrepresentation negligently.
81) Addis v Gramaphone Co. Ltd (1909): The plaintiff was not allowed damages to cover the indignity he suffered because of the manner in which he was dismissed by the defendant. The House of Lords held that injured feelings were not compensatable for a breach of contract if the purpose of the contract was to alleviate distress – Heywood v Wellers (1976);
82) Hadley v Baxendale (1954) 9 Exch 341. Repair of shaft through a delivery company. The court held ability to use the shaft during the period of delay was not a damage reasonably foreseeable by the carriers. It was not within the normal contemplation of the carriers that the owner would be unable to operate the mill without that particular shaft. There are two limbs to the test of remoteness in Hadley v Baxendale – first is damages that will be foreseeable i.e. arising naturally. House of Lords held that what will determine which the damages will depend on the knowledge the parties are presumed to possess and the scope of the contractual duty
83) Victoria Laundry (Windsor) v Newman Industries (1949) – Supply of boiler for laundry business which was delayed. CA held that the loss of normal business profit was foreseeable but the loss of a lucrative dyeing contract was considered remote.
84) H Parsons (Livestock) v Uttley Ingham (1978) - Supply of storage hopper for storing pig nuts, the hopper was not properly installed and some pigs died from illness due to e coli resulting from eating foods spoilt by the hopper. It was held that the loss was not too remote.
85) Addis v Gramophone Co. (1909): The House of Lord held that damages for wrongful dismissal must not compensate for injured feeling; attempt was madein Johnson v Unisyss LTD (2001) HL to circumvent this, the House of Lords in Johnson v Gore woods & Co. (2002) approved the general principles in Addis that damages for breach of contract should not generally include damages for disappointment and distress (non-pecuniary loss)
86) Universal Cargo Carriers Corp v Cittati): In English law promissory estoppel may be poised as alternative to consideration, that situation has not yet been
87) North Ocean Shipping Co. Ltd v Hyndai Construction Co. Ltd): The owner promised to provide additional 10% instalment when the dollar devalued. Held in agreeing to increase the letter of credit, the company had undertaken an additional contractual obligation which rendered them liable to an increased detriment, and that this constituted consideration by the promise by the owner to increase the instalment payments.
88) Nisshin Shipping Co. Ltd v Cleaves & Co. Ltd If they are within the Act, they have a right to enforce a term of contract s.4. The brokers in nine shipping can enforce the contract since there was a clause that purport to confer benefit on them. They are entitled to enforce the commission clauses in their own right.
89) Thomas Witter Ltd v TBP Industries (1996). If they are within the Act, they have a right to enforce a term of contract s.4
90) Mohammed v Alaga: An innocent party may have some remedy if he can establish the existence of collateral undertaking by the other party to ensure that the contract is not illegal in exceptional circumstance. Mohamed, who introduced some Somalia refugee for a fee. The fee was however illegal under the Solicitors Practice rule. Quantum merit payment was allowed for translation and other services, but would not be given if public policy would prevent such a restitutionary recovery (where it failed in Awwad v Geraghty & Co.).Monty would be able to recover on a quantum valebat basis for the go.
91) Queensferry Ltd v Shand Construction Ltd (2000); Government of Zanzibar v British Aerospace (Lancaster House) Ltd (2000). Harvey v Facey (1893); Clifton v Palumbo (1944): National Carriers Ltd V Panalpina (Northern Ltd (1981); Pantown v Alfred McAlpine Construction Ltd (2002); Simpkins v Pays (1955): Clifton v Palumbo (1944); Hendrix LLC v PPX Enterprises Inc. 2003: The Post Chaser (1982): South Caribbean Trading Ltd (SCT) v Trafigura Beeher BV 2004: Car and Universal Finance Co. v Caldwell
CONTRACT LAW – RECENT CASES
Offer and Acceptance/Consideration
1) Northstar Land Ltd v Brooks (2006) ECWA Civ 756 - The CA of appeal rejected a claim that a promissory estoppel or agreement had arisen when the solicitor to the buyer contacted the solicitor to the seller on the day for the completion of the transaction and sought and extension. The solicitor for the seller said he would have to seek instructions from his clients and revert back to him. He never did. It was held that an agreement to extend time had not arisen, nor was there such a clear, unequivocal an unambiguous representation that was intended to affect the relation between the parties such that promissory estoppel arose.
2) Apple Corps Limited v Apple Computer Inc (2004) EWHC 768: CA held that in principle it was possible for a contract to be simultaneously formed in two or more places in considering whether a trade mark contract had been completed in a telephone conversation between and party in America and a party in London. (Apple Corps v Apple Computer 2006)The decisions in Brinkibon v Strabag (1993) and Entores v Miles Far East Corporation (1955) were considered.
3) Debenhans Retail Plc v Custom and Excise Commissioners (2004) EWHC 1570: Attempt by Debenhams to minimise the amount of VAT payable when customers used credit card. They introduced two contracts price paid for goods and the others for card handling charge with adequate notice to their customers. The CA held that there were no separate contracts and contract could not be made by assertion, because price displayed, singly till slip and difficulty in identifying any consideration passing from the card holding company to the customer. (Debenhams 2006).
4) South Caribbean Trading Ltd (SCT) v Trafigura Beeter BV (2004) EWHC 2676 Colman J doubted the correctness of decision in Williams v Roffrey Bros (1991) – He noted that the decision was inconsistent with the long standing tradition that consideration must move from the promisee. The reasoning in a tripartite agreement was used in a to a bipartite agreement.
5) West Bromwish Albion Football Club Ltd v El-Safty (2006) – CA declined to find any express contract between WBA and orthopaedic surgeon (E) regarding the medical treatment of one of WBA’s player (A). Any contract would be between A and E. FACT. WBA arranged a medical insurance for all its players and also arranged for A, an injured player, to have consultation with E. E negligently advised surgery. The surgery was performed and as a result A was never able to play again. WBA sued for damages under contract and tort for financial loss of not having the services of A due to E negligent conduct. (WBA 2005)
6) Sadler v Reynolds (2005) It was held that the onus was on the claimant to establish an intention to create a legal relationship when agreement was reached to ghost write a book but the onus was no as heavy as in purely social relationship. (Sadler 2005).
Terms of a Contract
7) Gow v Tui UK Ltd (t/a Crystal Holidays (2006) It was held that the industry practice was to hold that there was no contract when the agent provisionally accepted the customer’s offer and the agent’s invoice was the contractual document. Notice on the terms and conditions was sufficient to incorporate them into the contract as the customer was aware of them. (Gow 2006)
8) Bramhill v Edwards (2004) CA held that there was no implied term by reason of s.14(2) and there was no breach. Had there been an implied term there would have been a defence under s.14(2c) as the vehicle was bough ‘as seen’. In addition, there would be no damages because the purchaser were unable to establish if the extra two inches made any difference in value. FACT. A caravan was 102 inch instead of the 100 inches permitted in UK. The claimant argued that there was an implied term that the vehicle must be of satisfactory quality. (Bramhill 2004).
9) Crossley v Faithfully & Gould Holdings Ltd (2004) ECWA Civ 293 The CA declined to find that there was an implied term with the contract of employment which provided that an employer ought to take care of an employee’s economic well-being. The introduction of such term would place an intolerable burden upon employer. The employer lost long-term sickness benefit when he retired on his own (Crossley 2004)
10) Paragon Finance Plc v Pender (2005) EWCA Civ 760 The CA applied the decision in Paragon Finance Plc v Nash (2001) that there was an implied term in fact that interest rate were not to be set dishonestly, for an improper purpose, capriciously or arbitrarily) to a term which allowed the financed company to vary interest rates. On the fact of the case, there was no breach of the term so implied. (Paragon 20005)
The Regulation of Terms of Contract – UCTA 1977 & UTCCR 1999
11) Keen v Commerzbank AG (2006) EWCA Civ 1536 The CA held that a term of an employment contract relating to the payment of discretionary bonus did not fail within s.3 of the UCTA 1977. (Keen (2006)
12) Re. Cape Plc (2006) EWHC 1313 The Court held that a scheme of arrangement enter into under s.235(1)(a) of the Companies Act 1975 was not a contract or notice within s.2(1) of UCTA. (Re Cape 2006)
13) Balmord Group Ltd v Borealis (UK) Ltd (2006) EWHC The Court found that contract to supply first a Norwegian company and a Danish one were international contract and thus outside the ambit of UCTA 1977. (Balmord 2006)
14) Fleet Mobile Tyres Ltd v Stone (2006) EWHC) The Court held that the reasonable requirement s.11 of UCTA 1977 did not apply to entire agreement and waiver clauses as the section was only applicable where there had been actionable misrepresentation. Fleet Mobile Tyres (2006)
15) IFE Fund SA v Goldman Sachs International (2006) EWHC 2887 It was held that where a party had sent an information memorandum to another party stating that they had not verified the accuracy or completeness of the information in the information memorandum. This statement went to the scope of misrepresentation and does not constitute exclusion of liability under Misrepresentation Act 1967. (IFE Fund SA 2006)
16) Baybul v Ecole Riggs County Park (2006) The court held that UTCCR 1999 did not apply to terms implied at common law (Baybul 2006).
17) Taylor v Rive Drorte Music Ltd (2005) EWCA 1200 CA observed that it was correct in the circumstances of the case , for the trial judge to phrase the implied terms in the contract to a prohibition of the forbidden positive acts. An implied term which prohibits negative act would be onerous as it would require a positive action by a party. It was not possible to conclude that a reasonable person would agree to be bound by a potentially onerous term (Taylor 2005)
18) Munkenbeck & Marshall v Harold (20005) Judge Harvey QC held that the terms were unfair (onerous and unusual) and not enforceable despite the fact that they formed part of profession-wiide standard term (UTCCR 1999) (Munkenbeck 2005)
19) Bryen & Langley Ltd v Boston (2005) The CA found that a consumer could not complain about the term of a building contractor when the consumer’s agent had asked the contract to tender on those very terms. Lack of openness, fair dealing and good faith made claim under reg, 5 failed. (Bryen & Langley 2005)
20) Feldaroll Foundary Plc V Hernes Leasing London Ltd (2004) The CA held that R&B was concerned with meaning of ‘deals as a consumer’ with UCTA 1977 while Stevenson & Rogers was concerned with seller in the course of Business within the Sale of Goods Act 1979. The purpose of the Act was consumer protection and R&B was in harmony with the position because it sought to further the protection available to the buyers. (Feldaroll 2004)
21) Bairstow Eves London Central Ltd v Smith (2004) An agreement to pay estate agent commission of 3% was redudeced to 1.5% if paid within 10 days of completion. CA applied DG of Fair Trading v First National Bank 2001 and held that the clause was not within Reg. 6 (2) of UTCCRR 1999 (the term deals with the core of a contract and not adequacy of price). The term could be scrutinised under reg. 5. Reg. 6 should be restrictive, while liberal interpretation would erode the interpretation (Bairstow 2004)
22) Khatun & Ors v Newham LBC (2004) The CA held where a local council was statutorily obliged to provide accommodation UTCCR 1999 applied to the terms on which the council let the flats. European Court of Justice had ruled that only national court can determine whether a particular term was fair (Khatun & Ors 2004)
23) Commission of the European Communities v Kingdom of Spain (2004) The court considered whether Spain had implemented Art 5 by the directive that where there is a doubt as to the meaning of a term the most favourable term to the consumer will prevail. The court ruled that directive did not fully implement the regulation. It is restrictive E Fund SA 2006)
Contracts Made by Minor
24) Proform Sports Management Ltd v Proactive Sport Management Ltd (2001) It was footballer contract (minor) was not binding because it was not analogues to a contract of necessaries or employment contract of general benefits. (Proform Sports Management 2001)
Mistake
25) Halpen v Halpern (2006) – A mistake in Jewish law was found to be capable of being that that would avoid a contract. (Halpen 2006)
26) Kyle Bay Ltd (t/a/ Aston Night Club) v Underwriters (2006) Where one party made mistake, did not communicate the mistake to the other party, there was no common intention for reactivation, the mistake had not made the performance of the contract impossible, or radically different, rectification by the mistaken party was denied. (Kyle Bay 2006)
27) George Wimpey UK Ltd v VI Components Ltd (2005) Sale of land based on a complex formular. VIC redrafted the formular and ommited price for enhancement costing Wimpey £800,00. The court ruled that the mistake was not VICs who had no experience but corporate neglect by Wimpey for which VIC bore no legal responsibility and it was not inequitable to allow VIC to resist the claim of rectification. (George Wimpex 2005)
28) Brennan v Bolt Burdon (2004) CA held that the contractual promise of a legal claim could be void as a result of common mistake of law. It was a question of construction as to whether or not the mistake made the compromise impossible (Great Peace) where there was a doubt as to the law concerned, there was no doubt as to the law sufficient to render the contract void. (Brennan 2004)
29) GMAC Commercial Credit Development Ltd v Sandhu (2004) The court held that a written guarantee rendered meaningless by a mistake could be rectified. (GMAC 2004).
Misrepresentation
30) Customs & Excise Commissioner v Barclays Bank Plc (2006): The HL considered the decisions in Hedly Byrne v Heller (1964) and Henderson v Merritt Syndicates (1995) and held that the presence or absence of a voluntary assumption of responsibility did not provide the answers in all such cases
31) Conlon v Simms (2006) The court found that where there was a duty to disclose, as between prospective partner, and failure to disclose was fraudulent misrepresentation and damages would be available (Conlon 2006)
32) Six Continents Hotels Inc v Event Hotels GMBH (2006) The court held that misrepresentation which were not fraudulent were defeated by contractual term baring claims or proceedings based on discussions and agreement which occurred before the contract had been entered into. Because it did not cover fraudulent misrepresentation, it did not fall foul of Misrepresentation Act 1967. (Six Continents Hotels Inc 2006)
33) UCB Corporate Services Ltd v Thomason [2005] EWCA Civ 225: the Court of Appeal applied s.2(2) of the Misrepresentation Act 1967. The Court considered that the world ‘loss’ in the subsection included financial loss and was capable of including ‘detriment’. Loss was thus capable, in this instance, of including the lost chance of obtaining more money if the injured party had been told the truth.
34) Forest International Gaskets Limited v Fosters Marketing Limited [2005] EWCA Civ 700: the Court of Appeal [at paras.11–17] considered the possible measure of damages recoverable under s.2(1) of the Misrepresentation Act 1967. Having noted the academic and judicial criticism of Royscot v Rogerson (1991), the Court of Appeal stated that the decision had not been overruled and that there was nothing to indicate that it was. In this case, the difference between a measure of damages based upon negligence and a measure of damages based upon fraud amounted to only £28,500. This amount was too small to justify granting permission to appeal the case to the House of Lords to consider the issue of the appropriate measure of damages.
Duress and undue influence
35) Wadlow v Samuel (aka Seal) [2006] EWHC 1492: The Queen’s Bench was concerned with the issue of undue influence. A management agreement between the claimant and the defendant musician had been formed under undue influence. A settlement agreement between the two parties had been reached and was based, in part, upon the management agreement and allowed the claimant to continue to receive payments of commission. The settlement agreement had not been formed under undue influence. Royal Bank of Scotland v Etridge (no 2) was applied to determine the existence of undue influence; Yorkshire Bank v Tinsley was distinguished in that despite the voidability of the earlier management agreement, the settlement agreement was not voidable.
36) Yorkshire Bank Plc v Tinsley [2004] EWCA Civ 816, [2004] 1 WLR 2380, [2004] 3 All ER 463: was concerned with the voidability of a mortgage for undue influence. The Bank had provided a mortgage to T’s husband in 1988 to purchase business units. The mortgage was secured on the matrimonial home. Three years later, the mortgage was replaced by another. In 1994, as a part of divorce proceedings, the matrimonial home was exchanged for a flat for T. The Bank insisted on taking a charge over the flat to secure the husband’s business debts. When the husband failed to discharge the debt, the Bank sought a possession order against T. The Court held that since the earlier mortgage had been voidable against the husband and the Bank because of undue influence, the later mortgage replacing this earlier mortgage would also be voidable. This conclusion was not altered by the fact that there was no undue influence operative at the time of the subsequent mortgage. If the subsequent replacement mortgage had been made with a different lender, the different lender could not be deemed to be aware of matters which the original lender was (see paras.20–21 and 35 of the judgment).
37) Leeder v Stevens [2005] EWCA Civ 50: the Court found that presumed (evidential) undue influence was established on the facts of the case. The Court stated, in response to the argument that undue influence could not be established where the party who signed the deed was aware of what they were doing, that the test was not whether the party knew what she was doing but why she did it.
Privity of contract
38) Offer-Hoar v Larkstore Ltd [2006] EWCA Civ 1079: the Court of Appeal was concerned with a case which appeared to present a ‘black hole’, where loss arises as a result of a breach of contract but no one is able to recover substantial damages from the contract breaker. The potential black hole arose in the following circumstances. S, the owner of a building site intended for residential development, obtained a soil inspection report from T which stated that the land was suitable for the proposed development. The report contained no prohibition against assignment. The report had been obtained to satisfy a condition of the planning permission for the site. The site was offered for sale with planning permission. S used T’s report to satisfy the planning condition and sold the site to L. L used T’s report without T’s permission. L never had a contract with T. When L undertook the development work a landslide occurred which caused substantial damage to the properties owned by the five claimants in the action. Subsequently, a deed of assignment was entered into between S and L whereby S assigned to L all of its rights in and under T’s report together with any right to sue T in respect of breaches of its rights and obligations. The issue of a black hole was present because when T prepared its report, it was in breach of contract with S but any damages would have been nominal (the landslide had yet to occur). When the landslide did occur, S no longer owned the land and would not be able to recover more than nominal damages as it had not suffered loss. L, who had suffered loss, had no contract with T. The Court held, after considering the underlying rationale in the relevant cases, that L was entitled to recover substantial damages from T as a result of the assignment from S and its ownership of the site. The assignment was a delayed consequence of the earlier sale of the land.
39) Horn Linie GmbH & Co v Panamericana Formas e Impresos SA (The Hornbay) [2006] EWHC 373: the Court expressed some doubts about the application of the decision in The Mahkutai (1996) with regard to a jurisdiction clause.
40) Avraamides v Colwill [2006] EWCA Civ 1533: the Court of Appeal was concerned with the application of s.1(3) of the Contracts (Rights of Third Parties) Act 1999 to the following facts. B purchased a business run by A and, by agreement, accepted its outstanding liabilities. C was a dissatisfied customer of A’s and sued B on the basis of the A/B contract, C alleging that the contract conferred an enforceable benefit upon them. The Court held that s.1(3) of the Act required the contract to expressly identify the third party by name or class and that there had been no such identification here.
41) Laemthong International Lines Company Ltd v Artis and Others, (The Laemthong Glory) (No. 2) [2005] EWCA Civ 519: The Contracts (Rights of Third Parties) Act 1999 was briefly considered by the Court of Appeal. In this case the owners of a vessel chartered it to the charterers by a charter-party. The cargo of sugar was loaded and consigned to the receivers. The cargo arrived before the bill of lading and the sugar was delivered to the receivers in exchange for letters of indemnity (‘LOIs’): one LOI was issued by the charterers in favour of the owners and the second LOI was issued by the receivers to the charterers. The owners and the receivers had no direct contractual relationship and the owners sought to enforce the LOI against the receivers by relying on the Contracts (Rights of Third Parties) Act 1999. The Court upheld the finding of Cooke J that the terms of the LOI conferred a benefit upon the owners within the meaning of s.1(1)(b) of the 1999 Act. The Court also rejected the argument of the receivers that the owners could not ‘jump’ the chain of contractual indemnity arrangements made by the LOIs and enforce the LOI given by the receivers. The receivers based their argument on para.7.18 of the Law Commission’s report on Privity of Contract where the point is made that the reform is not intended to cut across a chain of contractual arrangements so that parties must sue their immediate contracting party and thus maintain the chain of contracts. The Court of Appeal agreed with Cooke J that the letters of indemnity had to be considered on their own terms and that] they were not within the examples of the commercial backgrounds provided by the Law Commission in its report.
42) Precis Plc v William M Mercer Ltd [2005] EWCA Civ 114: the Court of Appeal considered the application of the Contracts (Rights of Third Parties) Act 1999 in the following situation. P had considered making an offer for shares in SG. P and SG entered into a confidentiality agreement to allow P to acquire further information about SG. Pursuant to this agreement, SG provided P with an actuarial report prepared by WM on the state of SG’s pension fund. The report contained a discrepancy as to the state of SG’s pension fund deficit; the discrepancy was attributable to the negligent computational error of WM. Although the Court found that WM did not owe P a duty in circumstances where there was no pre-existing relationship between these two parties and the report had been drawn up for SG to review its contribution rate, it also found that had a duty been owed, WM could have relied upon the terms of the confidentiality agreement between SG and P by reason of the Contracts (Rights of Third Parties) Act 1999. The attempt of SG and P to later vary this agreement to prevent reliance by WM was of no effect because of s.2(1)(a) of the 1999 Act.
Illegality
43) Maccaba v Lichtenstein [2006] BPIR 994: the Court held that a contract legal in England was enforceable even though illegal in another jurisdiction.
44) Hill v Secretary of State for the Environment, Food and Rural Affairs [2005] EWHC 696: Hill was an undischarged bankrupt who managed a company contrary to the provisions of the Company Directors Disqualification Act 1986. Hill’s company entered into contracts with the government body (DEFRA) to conduct foot and mouth disease cleaning and disinfections. DEFRA refused to pay the sums promised for this work on the ground that the contracts were tainted with illegality. Hart J held that the company was entitled to be remunerated on a quantum meruit basis for the work done. If the company could not sue on its contracts, the very persons the legislation was designed to protect would be prejudiced.
45) Wheeler v Qualitydeep Ltd [2004] EWCA Civ 1085 :an employee with limited English had received payments. from her employer from which no deductions had been made for tax or national insurance contributions. The employment tribunal had found that the employee must have known that something was wrong. The Court of Appeal held that in these circumstances, it was necessary to establish not only that the employee was aware that something was wrong but also that she had actively participated in the illegal performance of the contract.
46) Vakante v Addey and Stanhope School [2004] EWCA Civ 1065, [2004] 4 All ER 1056: the Court of Appeal held that Vakante was unable to maintain a complaint against the defendant for, inter alia, dismissal and detriment on racial grounds. Vakante was a Croatian national who had applied for asylum; while his application proceeded he was prohibited by law from taking work. Despite this, he obtained a position with the defendant as a graduate trainee teacher. He also made fraudulent statements about his employment status in order to obtain state benefits. The Court found that the employment appeals tribunal had not erred in finding that Vakante’s complaints of racial discrimination were so bound up with his illegal conduct that to entertain the complaints would be to condone his illegal conduct. Vakante was solely responsible for his own illegal conduct which went to the base of his employment situation. The employment situation was illegal from beginning to end.
Performance and breach
47) Diab v Regent Insurance Co Ltd [2006] UKPC 29 : the Privy Council was of the opinion that until the repudiation of a contract by one party is accepted by the other party, the contract continues and must be complied with in all its terms to facilitate a claim under a contract of insurance. In particular, the time notification requirements upon the insured continued even when the insurer had repudiated the policy by denying the legitimacy of the putative claim.
48) R (on the application of Supportways Community Services Ltd) v Hampshire CC [2006] EWCA Civ 1035: the Court of Appeal declined to impose extra duties of review on a public authority in performance of a contract because they were a public authority. A claimant, suing a public authority for breach of contract, could not invoke public law simply because he was dissatisfied with the remedy provided to him by private law.
49) Gray v Marlborough College [2006] EWCA Civ 1262: the Court of Appeal was concerned with a claim brought by a father that the decision of an independent fee-paying school to remove his son from the school for unsatisfactory conduct was a breach of contract. The Court held that in such cases there was a symmetry between a contractually implied obligation of fairness in these cases and that derived from statute or general public law (which could assist in the determination of fairness or consultation with the parent). In the instant case, however, there were no grounds to find that the parent had not been fully and fairly consulted about his son’s performance.
50) London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493, [2005] 1 All ER 75: the Court of Appeal considered the possible breach of the implied duty of trust and confidence upon an employer under a contract of employment (Malik v BCCI (1998)). Where there have been a series of breaches of this term, the final breach, or the ‘final straw’ did not have to be characterised by unreasonable or blameworthy conduct. The ‘final straw’ did, however, have to contribute, even if only slightly, to a breach of the implied term of trust or confidence. Where an employer had previously breached the implied term and an employee had affirmed the contract and soldiered on, it was not for the employee to subsequently rely on these acts to justify constructive dismissal unless there is a later act which allows him to do so.
Damages
51) Reichman v Gauntlett (CA, The Times 4 January 2007): the Court of Appeal found that the landlord had no duty to mitigate his loss where he sued in debt for arrears of rent which had come due. This was not changed by the decision in White & Carter Councils v McGregor (1962).
52) WWF World Wide Fund for Nature (formerly World Wildlife Fund) v World Wrestling [2006] EWHC 184: the Court held that damages awarded according to the principle in Wrotham Park Estate Co v Parkside Homes(1974) were similar to the remedy of account but were not the same. The Wrotham remedy was compensatory and not restitutionary.
53) Wiseman v Virgin Atlantic Airways Ltd [2006] EWHC1566 and Artis v MFI UK Ltd [2006] 11 CL 84: Courts declined to allow non-pecuniary losses in cases with some connection to contracts for pleasure or enjoyment.
54) CMC Group Plc v Zhang [2006] EWCA Civ 408: concerned a clause in a claim settlement agreement between the two parties which stipulated that the payee would forfeit the entirety of his settlement in the event that the payee brought any legal action or even engaged in any derogatory or unfavourable communication with the payor. The Court of Appeal held that this was a penalty within the description given by Lord Dunedin in Dunlop Tyre v New Garage and Motor Co (1915) because even a trivial breach resulted in the payment of the entire sum.
55) Jackson v Royal Bank of Scotland [2005] UKHL 3: In breach of their obligation of confidence, the defendant, the claimant’s (an importer of goods into the UK) banker, released the amount of profit realised by the claimant to a principal customer of the claimant and the customer ceased doing business with the claimant and the claimant accordingly sued the defendant for damages arising from breach of contract. The House of Lords held that damages were available for the loss of repeat business with the principal customer and for the loss of opportunity to earn profits from their trade with the principal customer. In circumstances where no cut-off point for the trade with the principal customer was established, the House of Lords held that the decision of the trial judge to award damages on a reducing basis over a four-year period was not too speculative and was as good an estimate on the effect of the breach of contract upon the claimant’s damages as could be made in the circumstances.
56) McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281: was concerned with the issue of whether a clause was a penalty clause or liquidated damages. The test in Dunlop Pneumatic Tyre v New Garage & Motor (1915) was applied. It was noted that the estimate did not have to be the actual loss suffered. The court was predisposed to enforce an agreed damages clause where the agreement was made in a commercial context between two parties of equal bargaining power.
57) Eastwood v Magnox Electric Plc And McCabe v Cornwall CC [2004] UKHL 35, [2004] 3 WLR 322, [2004] 3 All ER 991: the House of Lords followed the decision in Johnson v Unisys Ltd [2001] UKHL 13 in holding that the breach of the implied term of trust and confidence in the employment relationship could not be used as the foundation for a claim at common law because Parliament had established a statutory code for unfair dismissal and the employee’s remedy for unfair dismissal was dealt with in the statute. Exceptionally, however, an employee might suffer loss from the employer’s failure to act properly in seeking dismissal. Financial loss flowing from suspension was such an instance, as was financial loss caused by psychiatric or other illness caused by pre-dismissal unfair conduct. In such cases, the employee had a common law claim which preceded and was independent of his statute-based unfair dismissal claim.
58) Dunnachie v Kingston upon Hull City Council [2004] UKHL 36, [2004] 3 WLR 310: the House of Lords found that the comments of Lord Hoffman in Johnson v Unisys which suggested a denial of damages in respect of the manner of dismissal were obiter
59) Hamilton Jones v David & Snape (a firm) [2003] EWHC 3147 (Ch); [2004] 1 All ER 657: applied the principles developed in Farley v Skinner and allowed the claimant to recover damages for mental distress suffered when the defendant solicitors breached their duty to her in not taking reasonable steps to prevent the claimant’s husband from removing their children from the United Kingdom.
60) Rolls-Royce Power Engineering Plc v Ricardo Consulting Engineers Ltd [2003] EWHC 2871 (TCC), [2004] 2 All ER (Comm) 129: the Court considered the difficult issue of where one party could recover damages in respect of loss suffered by another. The exception in Dunlop v Lambert and Panatown v McAlpine (2000) were applied. The third party had to be within the contemplation of the contracting parties or it had to be known to both parties at the time of contracting that one party contracted as a trustee at the time the contract was entered into.
61) Birse Construction Ltd v Eastern Telegraph Co Ltd [2004] EWHC 2512: the principles of Ruxley Electronics v Forsyth were applied in a situation in which a builder committed a number of defects in the building of a college for the owner. The owner did not attempt to correct the defects as he was selling the building. In this sale, no discount was given for these defects. In this circumstance, only nominal damages were allowed as it was unreasonable to award the cost of the cure since there was no intention to repair the defects and non financial loss had been suffered on the sale of the building. In addition, there was no loss of amenity as no effort had been made to correct the defects.
Equitable remedies
62) LauritzenCool AB v Lady Navigation Inc [2005] EWCA Civ 579 [2005] EWCA Civ 579: the Court of Appeal found that there was no general rule that injunctive relief would not be granted in respect of a contract for services if the practical effect would be to compel performance. Although the injunctive relief might compel performance, that would be irrelevant as long as the relief did not decree performance. In this instance, the contracts did not provide for very personal skills or talents and were commercial agreements between independent companies. The agreements did not specify named individuals.
63) Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2005] EWHC 2407: In this unusual case, Gray J held that injunctive relief would be available at the instance of the employee in a contract of employment in which the relationship of mutual trust and confidence had broken down. If the provisions of discipline proceedings were not upheld, the employee, a highly trained specialist, would never find work in the NHS.
64) Farley v Skinner (No. 2) 2001 UKHL 49 (2002) AC 732: The House Of Lord Awarded damages (distress) for ‘loss of amenity’ on the basis that that the major or important object of the contract was to provide pleasure, relaxation or peace of mind. The breach of not giving accurate information on the fact that the house valued for acquisition purposes is located on a flight path causes a physical consequence and this causes inconvenience and distress, the result distress is consequent on the physical inconvenience and is recoverable within the scope of the exception if it falls within the remoteness principle. If the distress results in physical consequences there is no recovery of damages for the distress within the exception. Lord Scott: Damages for distress are recoverable if the distress is caused by physical inconvenience of if the breach prevents the claimant from obtaining the peace of mind he contracted for.
Walts-boro
Victoria Laundry case – agreed to sell the claimant two large boilers. Lost a good deal of business it was held that he lost of business was not remote, but the loss of big contract was too remote.
Simpson and London West Railway – trade samples, hold responsible.
Farley & Skinner
Miller: Duty to act, he cause fire and moved on.
Consents
Candy: Ice cube coins. He slut it into a machine and used the coin to work. He left behind paddle of water. I thought it was alright and it was not a mistake.
Dica and Gonzani – HIV Case
Brown & Wilson – lovely tattoo on the bottom - principles
Savage and Pamenta – Her husband mistress. She dropped the glass and injured. She was guilty for assault occasional bodily harm.
s.47 is constructive offence – the mens rea of a smaller offence is constructed to serious offences.
OFFER AND ACCEPTANCE/CONSIDERATION
1) Storer v Manchester City Council (1974) offer to sell council flats to sitting tenants – the court of appeal found a binding contract – All Storer has to do was to sign the document and return because all elements of the contract has been agreed.
2) Gibson v Manchester City Council (1979): The Council made an offer to Gibson that it might be prepared to sell. Gibson signed and returned it. The Court ruled that there had not been contract concluded because the Council has not made an offer capable of being accepted.
3) Partridge v Crittenden (1968): Generally advertisements are considered as invitation to threat, rather than offers because of commercial difficulties that would attend any other sort of construction.
4) Manchester Diocesan Council for Education v Commercial and General Investments (1970): Condition 4 stated that the person whose tender was accepted would be informed by letter sent to him at the address given in the letter. On 15 September 1964, the plaintiff wrote to the defendant company’s surveyors stating that the sale of the company had been approved, but it was not until 7 January 1965 that the plaintiff solicitors wrote to the defendant company at the address given in the tender giving formal notification of acceptance of its offer. It was decided that the offer in the tender had lapsed so that it was necessary to decide when the contract had been concluded.
5) Carlill v Carbolic Smoke Ball Co. (1893): A case of offer of £100 cash reward to whoever ever uses the carbolic smoke ball for three weeks and caught the virus. £1000 had been deposit with the Allied Bank. A woman used the ball a directed and caught the virus. The court found there was a unilateral offer of contract, the advertisement can be the offer. No communication of acceptance is required for unilateral offer. Unilateral offer is accepted by performing the required act.
6) Williams v Cardawardine (1833): The plaintiff gave the information necessary to receive an award because she thought she was dying. When shed didn’t die eventually and demanded the reward, it was held that she could recover the reward which she had been aware of it. Her motive in supplying the information was not material because she has acted on the offer.
7) Gibbons v Proctor (1891): The defendant offered reward of £25 for information leading to conviction of the perpetrator of a particular crime to Penn on 29th May. The plaintiff had already gave the information to through his superiors (Coppin and Lennan) which got to Penn on 30th. It was held one plaintiff was entitled to the reward of £25 as Coppin and Lennan were the plaintiff’s agent for purpose of conveying the information. The acceptance was the supply of information and at that time the plaintiff knew that a reward had been offered. Knowledge of the reward would generally not necessary in reward type case but should be required in the case of bilateral contract (Hudson 1968)
8) R v Clarke (1927): Clarke gave information on those who murdered two police officers after he was arrested for the offence. His attempt to claim the reward failed because the court found that he had not acted in good faith, or in reliance upon the offer, his only intention was to save himself.
9) Byrne v Van Tienhoven (1880), Henthorn v Fraser (1892); It was held in both cases that revocation of an offer must be communicated to be effective
10) Shuey v USA (1875): revocation of an offer in a newspaper advert must reach substantially the same audience as the offer.
11) Glasbrook Bros Ltd v Glamorgan C.C. (1925); Ward v Byham (1956). Is there any consideration to support a contract if Darwin’s public duty is to find dogs?
12) Stilk v Myrick (1809). On voyage to London two crewmen deserted and the capital promised the remaining crew that he would divide the wage of the two amongst them. The court held that they have not done extra to demand additional payment. Public policy. To receive extra amount there must be consideration –
13) Williams v Roffey Bros & Nicholls (1991): the Court of appeal held that although the plaintiff was doing no more than he was already obliged to as the defendant had obtained a benefit(completion of the work and inconvenience of getting another contractor to complete the building) in making the promise (in the absence of economic duress, there was variation in contractual terms and more structured benefit) The CA stated that the this did not overruled or contravene the principle in Stilk and Myrick (1809) Practical Benefit must be established to receive extra benefit .
14) Selectmove Ltd (1995) – the promise to pay an existing tax debt was not considered a good consideration.
15) Scammel v Ouston (1941) and Hillas v Arcos 1932 - The higher purchase contract. It was held that there was no enforceable contract because the terms of the agreement are vague and there will need to be further contract before an agreement could be reached
16) Central London Property Trust Ltd v High Street House Ltd (1947). The request to revert to old rent at the end of the war which was reduced by half during the WWII was held to be enforceable, since the war has ended the property could easily be let and it was not justified to pay the old rate.
17) Foakes v Beer (1884): where no consideration is provided for a promise not to take any proceedings on a debt judgement, the promise was unenforceable and the total debts is payable. The debtor had only done what he is legally bound to do.
18) Pinnel’s (1602) a promise to accept less under seal even where no consideration is provided was considered enforceable.
19) Roscorla v Thomas (1842), Re McArdle (1951), Pao On v Lau Yiu Long (1980): Problems with consideration – offer to make payment after the arrangement has commenced:
20) Balfour v Balfour (1919): It was held that agreement to pay £30 a month while husband and wife were married was not intended as a binding contract
21) Jones v Padavatton (1969); the attempt by a daughter to use the promise that the rent from the house would be used to finance her education to prevent her mother to claiming possession of a house. The agreement was held as not legally binding
22) Coward v MIB (1962): Both Coward, who was passenger on Cole motorbike were killed and the wife tried to claim insurance damages. It was held that the agreement was not intended to be legally binding.
23) Edmonds v Lawson (2000): A pupil barrister claim that her unpaid 12 month pupilage contract constitute a contract of employment so that she was a worker within the meaning of National Minimum Wage Act 1998. CA held there was a binding contract but she did not qualify as a worker under the provision of the Act . Formation of contract – Jeremiah and Familial)
24) L’Estrange v Graucob (1934): As the plaintiff had signed the written contract and had not been induced to do so by any misrepresentation, she was bound by its terms. It was wholly immaterial that she had not read the document and did not know its content. Cigarette vending machine case.
MISREPRESENTATION/MISTAKE
25) Spice Girls Ltd v Aprila World Service BV (2002): In certain circumstance conduct can be treated as statement Spice Girls Ltd v Aprilla World Service (2002) when they claim the group did not know and had no reasonable ground to belief that any member of the group had an intention to leave before a sponsorship agreement with motor scooter manufacture ended. The judge found evidence that a member of the group had indicated willingness to leave.
26) Smith v Hughes (1871): The plaintiff wanted to sell oak and showed the defendant who wanted to buy old oak a sample. The defendant rejected the oaks on the ground that they were not old. Operative mistake has the effect of vitiating a contract: The direction from the judge to the jury on new and the old oats case. The buyer relied on his judgement and did not make the age of the oak part of the contract. A party will not be easily relieved of a bad bargin.
27) Bisset v Wilkonson (1927): A statement by a seller that a piece of land could hold about 400 sheep was held an honest believe since he has never used the farm for ship. Honest belief.
28) Smith v Land House Corporation (1884): It was held that a statement by a seller that the tenant in hotel he was offering for sales was a most desirable tenant, whereas he was in arrears, was held an containing an implied assertion, since he was aware of the fact.
29) Bell v Lever Bros (1932): The Chairman and Vice Chairman of Bell subsidiary who signed disengagement compensation contract with Bell. Bell tried to annul the contract after discovering that they breach their employment contract by engaging in speculation for personal benefit. The HL held that a mistake as to the quality made by both parties does not render performance as originally agreed impossible. A mistake as to the quality made by both parties does not render performance as originally agreed impossible
30) Sole v Butcher (1950): The plaintiff and defendant agreed a rent of £250 for a flat. The plaintiff later discover that based on rent control the rent could not be raised more than £140 and sued for a refund. It was held that the party had conclude the agreement under common law mistake of fact and the contract is to be set aside to give the tenant the option of substituting it for one at the full rent which the law permitted. A mistake as to the quality made by both parties does not render performance as originally agreed impossible
31) Associated Japanese Bank v Credit du Nord (1989) – the guarantee in respect of non-existence four machines leased to Mr Benett. It was held that non-existence of the main contract rendered the accessory contract void ‘ab inito’.
32) Galloway v Galloway (1914): The court held that a divorce settlement under the assumption that the parties were married was unenforceable. This was because the man wife who was thought to be dead was still alive.
33) The Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (2002) – Mistake as to quality of the subject matter - Great Peace was hired to salvage Cape Providence. The two ships were 410 miles apart, but thought to be 35 miles. This was discovered after procuring a closer substitute ship the defendant refused to perform their contract with claimant asserting that the contract was void for mistake at law and voidable at equity. The CA held that the mistake was not fundamental and the difference could be covered in 22 hours.
34) Shogun Finance Ltd v Hudson (2005) HL (3:2); Ruled that a written agreement was made between the finance company and the real Mr. Patel not the rogue. This was however a nullity because it had been made without Mr. Patel’s authority. There was no contract between valid contract between the rogue and the finance company. Accordingly, the defendant was no protected by section 27 as he was not the ‘debtor’.
35) Dennant v Skinner (1948): The identity must be material to the formation of the contract
FRUSTRATION
36) Contractors Ltd v Fareharm Urban District Council (1956): The contract to build 78 houses in 8 months which extended to 20 months due to shortage of labour. It was held that the contract has not been frustrated but increased expenses.
37) Davs Contractors Ltd v Fureham Urban District Council and National Carriers Ltd v Panalpina (Northern) Ltd [1981] – C preferred analysis is that in certain situations, where there is a change in circumstance (not attributable to the fault of either party) which make performance of contract from original intention impossible, justice requires that the court should treat the contract as having come to an end – see National Carriers Ltd v Panalpina (Northern) Ltd (1981). The fact that the court will in some circumstance bring a contract to an end on the basis of frustration does not mean that the party original agreement will be ignored. It is possible for the parties to make provisions for this through ‘force majeure’ which the court will give effect to.
38) Taylor v Caldwell (1863) - Destruction of the subject matter. The contract for the hire of a Hall for series of music concert and the destruction of the hall by fire. The contract was discharge by frustration and it was subject to an implied condition that the party would be excused if the subject matter was destroyed.
39) Herne Bay Steam Boat Co v Hutton (1903): boat hired to tour the fleet and watch the King’s review was held not to be frustrated when the review was cancelled due to the King’s illness because the tour was still possible. it is still possible to perform a significant element of the contracts and that they are therefore not frustrated
40) Gamerco SA v ICM/Fair Warning Agency (1995): would be appropriate S.1(2) may be applied in the case if Q, R and 400 customers if the contracts have been frustrated
41) Scammel v Ouston (1941) and Hillas v Arcos 1932. The higher purchase contract. It was held that there was no enforceable contract because the terms of the agreement are vague and there will need to be further contract before an agreement could be reached
42) Archbolds (Freightage) v Spanglett; Held that the contract was not prohibited expressly or implied by statute, and therefore cannot be illegal at its inception. Since the plaintiff were unaware of the true facts and were innocent parties, they could recover damages for breach of contract. Van with C licence carrying v whisky which ended up being stolen due to negligence.
43) Re Mahmoud and Ispahani (1921)) Held that since the defendant has no licence to purchase or sell linseed oil, the contract with the plaintiff who had a licence to was illegal and unenforceable. in other cases, courts have not allowed the contract to be enforced
PRIVITY OF CONTRACT
44) Linden Gardens v Lenesta Sludge Disposal (1994) 1 AC 85: A & B contracted that property may at sometime be acquired by C on the footing that B should be able to enforce the contract to its full extent to for the benefit of C. The HL held found that the assignment of the benefit of the contract was invalid since it was in breach of a valid prohibition on assignment. As owner of the property it was the assignee who suffered damage as a result of breach of building contract, but technically contractual rights remained with the assignor who no longer owned the property and therefore suffer no loss.
45) Punatown v Alfred McAlpine Construction Ltd (2000): The approach was accepted initially and subsequently limited by House of Lords’ decision in. Following this decision the third party has a remedy of some sort against the promisor, the exception will not apply.
46) Radford v DeFroberviller (1977): It should be possible to seek and obtain compensation for genuine loss and not merely using a technical breach to secure uncovenanted profit.
47) Tweddle v Atkinson (1861) - Tweddle and Gay agreed to pay a sum of money to the plaintiff (tweddle son) in consideration of his marrying Guy’s daughter. Guys failed to pay and the plaintiff sought to enforce his promise after his death on his executor. The son could not enforce the contract despite the fact that the contract was for his benefit. At common law the parties to a contract cannot impose a burden on a third party, nor can they confer a benefit on a third party Twedlle v Atkinson (1861). This is unobjectionable. The circumstances in which justice calls for such a result are limited.
48) National Carriers Ltd v Panalpina (Northern) Ltd (1981): Held that two months interruption due to the closure of the only entrance to a warehouse by the local authority having regard to the period the lease would remain after the interruption ceased compared to the 10 years lease, defendant could not rely on frustration as a defence
49) Tsakiroglou & Co. v Noblee: Held the contract to ship Sudanese groundnut to Hamburg was not frustrated by the closure of the Suez Canal which will result in a longer route at a greater cost.
50) Maritime National Fish v Ocean Trawlers (1935): Held that the contract was not frustrated because the defendants’ own election had prevented this trawler from having a licence to fish. The defendant could only get three licence our of five and chose not to obtain a licence for the trawler hired.
51)
TERMS OF CONTRACT/INCORPORATION OF A CONTRACT
52) Olley v Marlborough Court Hotel (1949): the CA held that since a contract was made at the reception desk, the notice in the bedroom came too late and were not incorporated
53) Chapleton v Barry UDC (1940); HL held that the ticket was a mere voucher. Only the notice was capable of containing conditions and that made no mention of an exemption. The pile of deck was held to constitute a standing order and a contract was formed when a chair (which eventually gave way and injured the plaintiff) removed from pile.
54) Thorton v Shoe Lane Parking (1971): CA held that the notice came too late since the contract was concluded the moment the car drove up the machine at the defendant’s automatic garage.
55) Parker v South Eastern Rly (1987): CA held that the judge misdirected the jury as he did not ask whether the defendant has taken reasonable steps to give the defendant notice of the condition. Notice at the back of a receipt after payment was considered inadequate.
56) Director-General of Fair trading v First National Bank Plc (2002) HL; UTCCR 1999 ss.4-6, Sch.2) – The HL held that a term of a loan agreement which provided for interest to be paid at the contractual rate on sums owing both and after judgement did not fall within reg. 3(3)(b). It was an incidental term setting out the consequences of default by the borrower
57) Schuler v Wickman Machine Tool Sales (1974): The term that the agent must visit the major manufacturers certain times in a week. The condition that failure to make some the visit will lead to termination of the contract was considered unfair.
58) Lombard North Central Finance v Butterworth (1987) – CA held that clause 2(a) of a computer lease agreement made prompt payment a condition of the contract so that non-compliance entitles the plaintiff to terminate the contract and recover damages for loss of the transaction even breach itself was not regarded as giving rise to serious consequences.
59) Hong Kong Fir Shipping v Kawasaki (1962): CA held that although there was a breach of the charterparty because the ship was unseaworthy, seaworthiness was not a condition entitling the charter to terminate. The delay caused by the breakdowns and repairs was no so great as to frustrate the commercial purpose of the charter. Ship chartered for 24 months, the chief engineer was not competent and with 17 month left of the original contract, attempt being made to terminate.
60) Cehave v Bremer HG (The Hansa Nord) 1976: CA held that the term shipment in good condition did not give a rise to reject unless the breach went to the root of the contract since the entire cargo was used for the intended purposes as animal feed. Though entitled to damages, but not entitled to rejection. German seller and Dutch buyer of 12,000 tons of US Citrus pulp pellets. innominate terms it appears the consequences are not sufficiently serious for termination of the contract.
61) R&B Customs Brokers Co. Ltd v United Dominions Trust Ltd (1988); HL held that they had dealt as consumer since the use of the car in their business was not sufficient regularity. It was a third car. And clause 2(a) of SoGA 1979 did not apply
62) Stevenson v Rogers, (1999): CA A transaction would be made in the course of a business unless it was a purely private transaction
63) Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004) – Lamborghini car bought for the use of a director, it was held that the company was dealing as a consumer or if the parties deals on Ultraclean’s written standard terms of business (
64) St. Albans City District Council v International Computers Ltd (1995). Limitation of £100,000 placed on contract for the supply of software to produce data for poll tax candidates was held to be unreasonable when the software contained an error which cost the local council a lot of money. It was a standard term, the company has already insured the loss, and the company has the expertise, while the local council and its citizen would loose if held otherwise.
DAMAGES
65) Robinson v Harman (1848): The basic measure of loss is the expectation loss. The law seeks to compensate the claimant for his disappointment expectation; it is not compensation for loss of a bargain
66) Ruxley Electronics and Contruction v Forsyth (1995) – This has to do with the construction of a swimming pool that was not built to specification. He asked for the cost of constructing a new one, but the court award something. The English courts have begun to expand the kind of loss to include non-pecuniary matters such as loss of amenity, pain, distress and so forth.
67) Farley v Skinner (2001): The defendant suing for damages for the valuer not advising whether the property close to Gatwick airport was on flight part. CA held that since the client specifically asked for confirmation on this matter it was a major part of the contract and restored £10,000 damages awarded by the trial judge which the CA said the object f the contract was valuation and not provision of pleasure.
68) Anglia Television v Reed (1972) – CA held that the since the plaintiff had elected to claim their wasted expenditure instead of loss of profit, they could also recover pre contract expenditure as long as it was reasonable in the contemplation of the parties as the likely to be wasted if the contract was broken. An American actor who repudiated a contract for a leading role in a television appearance
69) C & P Haulage v Middleton (1983): The claimant cannot seek to recover his reliance losses where this would have the effect of allowing him to escape the consequence of a bad bargain.
70) Attorney General v Blake (2001): Award for restitutionary losses e.g. an account of profit following House of Lords decision. The former member of the intelligence services who became an agent for Moscow. Court allow account of profit for the book published on the account of his experience which was published in London
71) Royscot Trust Ltd v Rogerson (1991): Measure of damages under s.2(1) is tortuous in that the measure had to be the same as for fraudulent misrepresentation because of fiction of fraud. Car seller who inflated the prices for the financiers and the buyer fraudulently sold the car to another person. A claimant to receive damages measure as if the tort of deceit had been committed either negligent misstatement or fraudulent misrepresentation at common law. There are reservations about an apparent generousity in the award express in a number of case since Royscot, but a recent decision in Forest International Gaskets Limited v Foster Marketing Limited (2005) the CA refused permission for the issue to be sent on appeal to the House of Lords
72) L Schulter v Wickman Machine Tool Sale (1974); Condition that the sole distributor for the German panel press in UK must visit each of the motor manufacturer once a week. Failure to make a number of visits was considered by the House of Lords as not a condition in the sense that a single breach however, trivial would entitle the innocent party to terminate the contract.
73) Lombard North Central v Butterworth [1987): CA (Computer lease and area of payment) Extend to which victim of a breach would not end a contract following the breach of or sufficiently serious innominate term – practical consideration will usually be of commercial nature [expectation of future business in other contracts, long-term relationship or an unwillingness to impede supply)
74) British Westinghouse Electric Co. Ltd v Underground Electric Rys Co of London Ltd (1912): The injured party is prevented from recovering losses if he failed to take steps to mitigate his losses. Legal consideration will generally be considered with the claimant’s duty to mitigate his losses (
75) Payzu v Saunders (1919) – The contract for the supply of crepe de chime that was terminated for failure to pay as accept advance cash payment option following the failure to pay for supply within the stipulated period. Sometime the duty to mitigate will require the injured party to re-contract with the party in breach on slightly different terms.
76) Addis v Gramophone Co. (1909): represent the applicable the law that damages for distress will not be available in connection with the manner of a dismissal. Boardman v Copeland London Bureau Council (2001); Eastwood v Magnox Electric Plc: On balance it seems likely that a court will not allow that B’s advertisement is an offer capable of acceptance unless it is clearly worded as such and clearly worded that presentation may occur by e-mail of telephone message because of the commercial inconvenience which can attend a determination that advertisement is an offer. Consequent A will be disappointed in his action because the contract was formed with C and A responded to an advertisement knowing that he might not be the first to come forward. A would not in any event, recover damages for disappointment on the basis of
77) Malik v BCCI (1998); it was held that the claims for damages to reputation by former employees of BCCI which was run fraudulently by the employer are recoverable because their was an implied term that the employ would run his business so as not to jeopardise the future employment prospects of the employees.
78) Cooper v Phibbs (1987): A purchase by Yoric is an impossibility as he already owns the book Destroyed book-
79) Financings Ltd v Stimson (1962); If there is a breach the minimum payment clause will not apply. Failure to pay instalments is not a repudiatory breach and the owner can recover only for his loss occurring prior to termination (i.e. instalment arrears plus interest). Recovering for future losses would be similar in effect to enforcing the invalid penalty clause.
80) Heillbut, Symons & Co. v Buckleton (1913): There is no liability for innocent misrepresentation. Esso Petroleum Co. Ltd v Mardon (1976): There exist liability if he was proved to made misrepresentation negligently.
81) Addis v Gramaphone Co. Ltd (1909): The plaintiff was not allowed damages to cover the indignity he suffered because of the manner in which he was dismissed by the defendant. The House of Lords held that injured feelings were not compensatable for a breach of contract if the purpose of the contract was to alleviate distress – Heywood v Wellers (1976);
82) Hadley v Baxendale (1954) 9 Exch 341. Repair of shaft through a delivery company. The court held ability to use the shaft during the period of delay was not a damage reasonably foreseeable by the carriers. It was not within the normal contemplation of the carriers that the owner would be unable to operate the mill without that particular shaft. There are two limbs to the test of remoteness in Hadley v Baxendale – first is damages that will be foreseeable i.e. arising naturally. House of Lords held that what will determine which the damages will depend on the knowledge the parties are presumed to possess and the scope of the contractual duty
83) Victoria Laundry (Windsor) v Newman Industries (1949) – Supply of boiler for laundry business which was delayed. CA held that the loss of normal business profit was foreseeable but the loss of a lucrative dyeing contract was considered remote.
84) H Parsons (Livestock) v Uttley Ingham (1978) - Supply of storage hopper for storing pig nuts, the hopper was not properly installed and some pigs died from illness due to e coli resulting from eating foods spoilt by the hopper. It was held that the loss was not too remote.
85) Addis v Gramophone Co. (1909): The House of Lord held that damages for wrongful dismissal must not compensate for injured feeling; attempt was madein Johnson v Unisyss LTD (2001) HL to circumvent this, the House of Lords in Johnson v Gore woods & Co. (2002) approved the general principles in Addis that damages for breach of contract should not generally include damages for disappointment and distress (non-pecuniary loss)
86) Universal Cargo Carriers Corp v Cittati): In English law promissory estoppel may be poised as alternative to consideration, that situation has not yet been
87) North Ocean Shipping Co. Ltd v Hyndai Construction Co. Ltd): The owner promised to provide additional 10% instalment when the dollar devalued. Held in agreeing to increase the letter of credit, the company had undertaken an additional contractual obligation which rendered them liable to an increased detriment, and that this constituted consideration by the promise by the owner to increase the instalment payments.
88) Nisshin Shipping Co. Ltd v Cleaves & Co. Ltd If they are within the Act, they have a right to enforce a term of contract s.4. The brokers in nine shipping can enforce the contract since there was a clause that purport to confer benefit on them. They are entitled to enforce the commission clauses in their own right.
89) Thomas Witter Ltd v TBP Industries (1996). If they are within the Act, they have a right to enforce a term of contract s.4
90) Mohammed v Alaga: An innocent party may have some remedy if he can establish the existence of collateral undertaking by the other party to ensure that the contract is not illegal in exceptional circumstance. Mohamed, who introduced some Somalia refugee for a fee. The fee was however illegal under the Solicitors Practice rule. Quantum merit payment was allowed for translation and other services, but would not be given if public policy would prevent such a restitutionary recovery (where it failed in Awwad v Geraghty & Co.).Monty would be able to recover on a quantum valebat basis for the go.
91) Queensferry Ltd v Shand Construction Ltd (2000); Government of Zanzibar v British Aerospace (Lancaster House) Ltd (2000). Harvey v Facey (1893); Clifton v Palumbo (1944): National Carriers Ltd V Panalpina (Northern Ltd (1981); Pantown v Alfred McAlpine Construction Ltd (2002); Simpkins v Pays (1955): Clifton v Palumbo (1944); Hendrix LLC v PPX Enterprises Inc. 2003: The Post Chaser (1982): South Caribbean Trading Ltd (SCT) v Trafigura Beeher BV 2004: Car and Universal Finance Co. v Caldwell
CONTRACT LAW – RECENT CASES
Offer and Acceptance/Consideration
1) Northstar Land Ltd v Brooks (2006) ECWA Civ 756 - The CA of appeal rejected a claim that a promissory estoppel or agreement had arisen when the solicitor to the buyer contacted the solicitor to the seller on the day for the completion of the transaction and sought and extension. The solicitor for the seller said he would have to seek instructions from his clients and revert back to him. He never did. It was held that an agreement to extend time had not arisen, nor was there such a clear, unequivocal an unambiguous representation that was intended to affect the relation between the parties such that promissory estoppel arose.
2) Apple Corps Limited v Apple Computer Inc (2004) EWHC 768: CA held that in principle it was possible for a contract to be simultaneously formed in two or more places in considering whether a trade mark contract had been completed in a telephone conversation between and party in America and a party in London. (Apple Corps v Apple Computer 2006)The decisions in Brinkibon v Strabag (1993) and Entores v Miles Far East Corporation (1955) were considered.
3) Debenhans Retail Plc v Custom and Excise Commissioners (2004) EWHC 1570: Attempt by Debenhams to minimise the amount of VAT payable when customers used credit card. They introduced two contracts price paid for goods and the others for card handling charge with adequate notice to their customers. The CA held that there were no separate contracts and contract could not be made by assertion, because price displayed, singly till slip and difficulty in identifying any consideration passing from the card holding company to the customer. (Debenhams 2006).
4) South Caribbean Trading Ltd (SCT) v Trafigura Beeter BV (2004) EWHC 2676 Colman J doubted the correctness of decision in Williams v Roffrey Bros (1991) – He noted that the decision was inconsistent with the long standing tradition that consideration must move from the promisee. The reasoning in a tripartite agreement was used in a to a bipartite agreement.
5) West Bromwish Albion Football Club Ltd v El-Safty (2006) – CA declined to find any express contract between WBA and orthopaedic surgeon (E) regarding the medical treatment of one of WBA’s player (A). Any contract would be between A and E. FACT. WBA arranged a medical insurance for all its players and also arranged for A, an injured player, to have consultation with E. E negligently advised surgery. The surgery was performed and as a result A was never able to play again. WBA sued for damages under contract and tort for financial loss of not having the services of A due to E negligent conduct. (WBA 2005)
6) Sadler v Reynolds (2005) It was held that the onus was on the claimant to establish an intention to create a legal relationship when agreement was reached to ghost write a book but the onus was no as heavy as in purely social relationship. (Sadler 2005).
Terms of a Contract
7) Gow v Tui UK Ltd (t/a Crystal Holidays (2006) It was held that the industry practice was to hold that there was no contract when the agent provisionally accepted the customer’s offer and the agent’s invoice was the contractual document. Notice on the terms and conditions was sufficient to incorporate them into the contract as the customer was aware of them. (Gow 2006)
8) Bramhill v Edwards (2004) CA held that there was no implied term by reason of s.14(2) and there was no breach. Had there been an implied term there would have been a defence under s.14(2c) as the vehicle was bough ‘as seen’. In addition, there would be no damages because the purchaser were unable to establish if the extra two inches made any difference in value. FACT. A caravan was 102 inch instead of the 100 inches permitted in UK. The claimant argued that there was an implied term that the vehicle must be of satisfactory quality. (Bramhill 2004).
9) Crossley v Faithfully & Gould Holdings Ltd (2004) ECWA Civ 293 The CA declined to find that there was an implied term with the contract of employment which provided that an employer ought to take care of an employee’s economic well-being. The introduction of such term would place an intolerable burden upon employer. The employer lost long-term sickness benefit when he retired on his own (Crossley 2004)
10) Paragon Finance Plc v Pender (2005) EWCA Civ 760 The CA applied the decision in Paragon Finance Plc v Nash (2001) that there was an implied term in fact that interest rate were not to be set dishonestly, for an improper purpose, capriciously or arbitrarily) to a term which allowed the financed company to vary interest rates. On the fact of the case, there was no breach of the term so implied. (Paragon 20005)
The Regulation of Terms of Contract – UCTA 1977 & UTCCR 1999
11) Keen v Commerzbank AG (2006) EWCA Civ 1536 The CA held that a term of an employment contract relating to the payment of discretionary bonus did not fail within s.3 of the UCTA 1977. (Keen (2006)
12) Re. Cape Plc (2006) EWHC 1313 The Court held that a scheme of arrangement enter into under s.235(1)(a) of the Companies Act 1975 was not a contract or notice within s.2(1) of UCTA. (Re Cape 2006)
13) Balmord Group Ltd v Borealis (UK) Ltd (2006) EWHC The Court found that contract to supply first a Norwegian company and a Danish one were international contract and thus outside the ambit of UCTA 1977. (Balmord 2006)
14) Fleet Mobile Tyres Ltd v Stone (2006) EWHC) The Court held that the reasonable requirement s.11 of UCTA 1977 did not apply to entire agreement and waiver clauses as the section was only applicable where there had been actionable misrepresentation. Fleet Mobile Tyres (2006)
15) IFE Fund SA v Goldman Sachs International (2006) EWHC 2887 It was held that where a party had sent an information memorandum to another party stating that they had not verified the accuracy or completeness of the information in the information memorandum. This statement went to the scope of misrepresentation and does not constitute exclusion of liability under Misrepresentation Act 1967. (IFE Fund SA 2006)
16) Baybul v Ecole Riggs County Park (2006) The court held that UTCCR 1999 did not apply to terms implied at common law (Baybul 2006).
17) Taylor v Rive Drorte Music Ltd (2005) EWCA 1200 CA observed that it was correct in the circumstances of the case , for the trial judge to phrase the implied terms in the contract to a prohibition of the forbidden positive acts. An implied term which prohibits negative act would be onerous as it would require a positive action by a party. It was not possible to conclude that a reasonable person would agree to be bound by a potentially onerous term (Taylor 2005)
18) Munkenbeck & Marshall v Harold (20005) Judge Harvey QC held that the terms were unfair (onerous and unusual) and not enforceable despite the fact that they formed part of profession-wiide standard term (UTCCR 1999) (Munkenbeck 2005)
19) Bryen & Langley Ltd v Boston (2005) The CA found that a consumer could not complain about the term of a building contractor when the consumer’s agent had asked the contract to tender on those very terms. Lack of openness, fair dealing and good faith made claim under reg, 5 failed. (Bryen & Langley 2005)
20) Feldaroll Foundary Plc V Hernes Leasing London Ltd (2004) The CA held that R&B was concerned with meaning of ‘deals as a consumer’ with UCTA 1977 while Stevenson & Rogers was concerned with seller in the course of Business within the Sale of Goods Act 1979. The purpose of the Act was consumer protection and R&B was in harmony with the position because it sought to further the protection available to the buyers. (Feldaroll 2004)
21) Bairstow Eves London Central Ltd v Smith (2004) An agreement to pay estate agent commission of 3% was redudeced to 1.5% if paid within 10 days of completion. CA applied DG of Fair Trading v First National Bank 2001 and held that the clause was not within Reg. 6 (2) of UTCCRR 1999 (the term deals with the core of a contract and not adequacy of price). The term could be scrutinised under reg. 5. Reg. 6 should be restrictive, while liberal interpretation would erode the interpretation (Bairstow 2004)
22) Khatun & Ors v Newham LBC (2004) The CA held where a local council was statutorily obliged to provide accommodation UTCCR 1999 applied to the terms on which the council let the flats. European Court of Justice had ruled that only national court can determine whether a particular term was fair (Khatun & Ors 2004)
23) Commission of the European Communities v Kingdom of Spain (2004) The court considered whether Spain had implemented Art 5 by the directive that where there is a doubt as to the meaning of a term the most favourable term to the consumer will prevail. The court ruled that directive did not fully implement the regulation. It is restrictive E Fund SA 2006)
Contracts Made by Minor
24) Proform Sports Management Ltd v Proactive Sport Management Ltd (2001) It was footballer contract (minor) was not binding because it was not analogues to a contract of necessaries or employment contract of general benefits. (Proform Sports Management 2001)
Mistake
25) Halpen v Halpern (2006) – A mistake in Jewish law was found to be capable of being that that would avoid a contract. (Halpen 2006)
26) Kyle Bay Ltd (t/a/ Aston Night Club) v Underwriters (2006) Where one party made mistake, did not communicate the mistake to the other party, there was no common intention for reactivation, the mistake had not made the performance of the contract impossible, or radically different, rectification by the mistaken party was denied. (Kyle Bay 2006)
27) George Wimpey UK Ltd v VI Components Ltd (2005) Sale of land based on a complex formular. VIC redrafted the formular and ommited price for enhancement costing Wimpey £800,00. The court ruled that the mistake was not VICs who had no experience but corporate neglect by Wimpey for which VIC bore no legal responsibility and it was not inequitable to allow VIC to resist the claim of rectification. (George Wimpex 2005)
28) Brennan v Bolt Burdon (2004) CA held that the contractual promise of a legal claim could be void as a result of common mistake of law. It was a question of construction as to whether or not the mistake made the compromise impossible (Great Peace) where there was a doubt as to the law concerned, there was no doubt as to the law sufficient to render the contract void. (Brennan 2004)
29) GMAC Commercial Credit Development Ltd v Sandhu (2004) The court held that a written guarantee rendered meaningless by a mistake could be rectified. (GMAC 2004).
Misrepresentation
30) Customs & Excise Commissioner v Barclays Bank Plc (2006): The HL considered the decisions in Hedly Byrne v Heller (1964) and Henderson v Merritt Syndicates (1995) and held that the presence or absence of a voluntary assumption of responsibility did not provide the answers in all such cases
31) Conlon v Simms (2006) The court found that where there was a duty to disclose, as between prospective partner, and failure to disclose was fraudulent misrepresentation and damages would be available (Conlon 2006)
32) Six Continents Hotels Inc v Event Hotels GMBH (2006) The court held that misrepresentation which were not fraudulent were defeated by contractual term baring claims or proceedings based on discussions and agreement which occurred before the contract had been entered into. Because it did not cover fraudulent misrepresentation, it did not fall foul of Misrepresentation Act 1967. (Six Continents Hotels Inc 2006)
33) UCB Corporate Services Ltd v Thomason [2005] EWCA Civ 225: the Court of Appeal applied s.2(2) of the Misrepresentation Act 1967. The Court considered that the world ‘loss’ in the subsection included financial loss and was capable of including ‘detriment’. Loss was thus capable, in this instance, of including the lost chance of obtaining more money if the injured party had been told the truth.
34) Forest International Gaskets Limited v Fosters Marketing Limited [2005] EWCA Civ 700: the Court of Appeal [at paras.11–17] considered the possible measure of damages recoverable under s.2(1) of the Misrepresentation Act 1967. Having noted the academic and judicial criticism of Royscot v Rogerson (1991), the Court of Appeal stated that the decision had not been overruled and that there was nothing to indicate that it was. In this case, the difference between a measure of damages based upon negligence and a measure of damages based upon fraud amounted to only £28,500. This amount was too small to justify granting permission to appeal the case to the House of Lords to consider the issue of the appropriate measure of damages.
Duress and undue influence
35) Wadlow v Samuel (aka Seal) [2006] EWHC 1492: The Queen’s Bench was concerned with the issue of undue influence. A management agreement between the claimant and the defendant musician had been formed under undue influence. A settlement agreement between the two parties had been reached and was based, in part, upon the management agreement and allowed the claimant to continue to receive payments of commission. The settlement agreement had not been formed under undue influence. Royal Bank of Scotland v Etridge (no 2) was applied to determine the existence of undue influence; Yorkshire Bank v Tinsley was distinguished in that despite the voidability of the earlier management agreement, the settlement agreement was not voidable.
36) Yorkshire Bank Plc v Tinsley [2004] EWCA Civ 816, [2004] 1 WLR 2380, [2004] 3 All ER 463: was concerned with the voidability of a mortgage for undue influence. The Bank had provided a mortgage to T’s husband in 1988 to purchase business units. The mortgage was secured on the matrimonial home. Three years later, the mortgage was replaced by another. In 1994, as a part of divorce proceedings, the matrimonial home was exchanged for a flat for T. The Bank insisted on taking a charge over the flat to secure the husband’s business debts. When the husband failed to discharge the debt, the Bank sought a possession order against T. The Court held that since the earlier mortgage had been voidable against the husband and the Bank because of undue influence, the later mortgage replacing this earlier mortgage would also be voidable. This conclusion was not altered by the fact that there was no undue influence operative at the time of the subsequent mortgage. If the subsequent replacement mortgage had been made with a different lender, the different lender could not be deemed to be aware of matters which the original lender was (see paras.20–21 and 35 of the judgment).
37) Leeder v Stevens [2005] EWCA Civ 50: the Court found that presumed (evidential) undue influence was established on the facts of the case. The Court stated, in response to the argument that undue influence could not be established where the party who signed the deed was aware of what they were doing, that the test was not whether the party knew what she was doing but why she did it.
Privity of contract
38) Offer-Hoar v Larkstore Ltd [2006] EWCA Civ 1079: the Court of Appeal was concerned with a case which appeared to present a ‘black hole’, where loss arises as a result of a breach of contract but no one is able to recover substantial damages from the contract breaker. The potential black hole arose in the following circumstances. S, the owner of a building site intended for residential development, obtained a soil inspection report from T which stated that the land was suitable for the proposed development. The report contained no prohibition against assignment. The report had been obtained to satisfy a condition of the planning permission for the site. The site was offered for sale with planning permission. S used T’s report to satisfy the planning condition and sold the site to L. L used T’s report without T’s permission. L never had a contract with T. When L undertook the development work a landslide occurred which caused substantial damage to the properties owned by the five claimants in the action. Subsequently, a deed of assignment was entered into between S and L whereby S assigned to L all of its rights in and under T’s report together with any right to sue T in respect of breaches of its rights and obligations. The issue of a black hole was present because when T prepared its report, it was in breach of contract with S but any damages would have been nominal (the landslide had yet to occur). When the landslide did occur, S no longer owned the land and would not be able to recover more than nominal damages as it had not suffered loss. L, who had suffered loss, had no contract with T. The Court held, after considering the underlying rationale in the relevant cases, that L was entitled to recover substantial damages from T as a result of the assignment from S and its ownership of the site. The assignment was a delayed consequence of the earlier sale of the land.
39) Horn Linie GmbH & Co v Panamericana Formas e Impresos SA (The Hornbay) [2006] EWHC 373: the Court expressed some doubts about the application of the decision in The Mahkutai (1996) with regard to a jurisdiction clause.
40) Avraamides v Colwill [2006] EWCA Civ 1533: the Court of Appeal was concerned with the application of s.1(3) of the Contracts (Rights of Third Parties) Act 1999 to the following facts. B purchased a business run by A and, by agreement, accepted its outstanding liabilities. C was a dissatisfied customer of A’s and sued B on the basis of the A/B contract, C alleging that the contract conferred an enforceable benefit upon them. The Court held that s.1(3) of the Act required the contract to expressly identify the third party by name or class and that there had been no such identification here.
41) Laemthong International Lines Company Ltd v Artis and Others, (The Laemthong Glory) (No. 2) [2005] EWCA Civ 519: The Contracts (Rights of Third Parties) Act 1999 was briefly considered by the Court of Appeal. In this case the owners of a vessel chartered it to the charterers by a charter-party. The cargo of sugar was loaded and consigned to the receivers. The cargo arrived before the bill of lading and the sugar was delivered to the receivers in exchange for letters of indemnity (‘LOIs’): one LOI was issued by the charterers in favour of the owners and the second LOI was issued by the receivers to the charterers. The owners and the receivers had no direct contractual relationship and the owners sought to enforce the LOI against the receivers by relying on the Contracts (Rights of Third Parties) Act 1999. The Court upheld the finding of Cooke J that the terms of the LOI conferred a benefit upon the owners within the meaning of s.1(1)(b) of the 1999 Act. The Court also rejected the argument of the receivers that the owners could not ‘jump’ the chain of contractual indemnity arrangements made by the LOIs and enforce the LOI given by the receivers. The receivers based their argument on para.7.18 of the Law Commission’s report on Privity of Contract where the point is made that the reform is not intended to cut across a chain of contractual arrangements so that parties must sue their immediate contracting party and thus maintain the chain of contracts. The Court of Appeal agreed with Cooke J that the letters of indemnity had to be considered on their own terms and that] they were not within the examples of the commercial backgrounds provided by the Law Commission in its report.
42) Precis Plc v William M Mercer Ltd [2005] EWCA Civ 114: the Court of Appeal considered the application of the Contracts (Rights of Third Parties) Act 1999 in the following situation. P had considered making an offer for shares in SG. P and SG entered into a confidentiality agreement to allow P to acquire further information about SG. Pursuant to this agreement, SG provided P with an actuarial report prepared by WM on the state of SG’s pension fund. The report contained a discrepancy as to the state of SG’s pension fund deficit; the discrepancy was attributable to the negligent computational error of WM. Although the Court found that WM did not owe P a duty in circumstances where there was no pre-existing relationship between these two parties and the report had been drawn up for SG to review its contribution rate, it also found that had a duty been owed, WM could have relied upon the terms of the confidentiality agreement between SG and P by reason of the Contracts (Rights of Third Parties) Act 1999. The attempt of SG and P to later vary this agreement to prevent reliance by WM was of no effect because of s.2(1)(a) of the 1999 Act.
Illegality
43) Maccaba v Lichtenstein [2006] BPIR 994: the Court held that a contract legal in England was enforceable even though illegal in another jurisdiction.
44) Hill v Secretary of State for the Environment, Food and Rural Affairs [2005] EWHC 696: Hill was an undischarged bankrupt who managed a company contrary to the provisions of the Company Directors Disqualification Act 1986. Hill’s company entered into contracts with the government body (DEFRA) to conduct foot and mouth disease cleaning and disinfections. DEFRA refused to pay the sums promised for this work on the ground that the contracts were tainted with illegality. Hart J held that the company was entitled to be remunerated on a quantum meruit basis for the work done. If the company could not sue on its contracts, the very persons the legislation was designed to protect would be prejudiced.
45) Wheeler v Qualitydeep Ltd [2004] EWCA Civ 1085 :an employee with limited English had received payments. from her employer from which no deductions had been made for tax or national insurance contributions. The employment tribunal had found that the employee must have known that something was wrong. The Court of Appeal held that in these circumstances, it was necessary to establish not only that the employee was aware that something was wrong but also that she had actively participated in the illegal performance of the contract.
46) Vakante v Addey and Stanhope School [2004] EWCA Civ 1065, [2004] 4 All ER 1056: the Court of Appeal held that Vakante was unable to maintain a complaint against the defendant for, inter alia, dismissal and detriment on racial grounds. Vakante was a Croatian national who had applied for asylum; while his application proceeded he was prohibited by law from taking work. Despite this, he obtained a position with the defendant as a graduate trainee teacher. He also made fraudulent statements about his employment status in order to obtain state benefits. The Court found that the employment appeals tribunal had not erred in finding that Vakante’s complaints of racial discrimination were so bound up with his illegal conduct that to entertain the complaints would be to condone his illegal conduct. Vakante was solely responsible for his own illegal conduct which went to the base of his employment situation. The employment situation was illegal from beginning to end.
Performance and breach
47) Diab v Regent Insurance Co Ltd [2006] UKPC 29 : the Privy Council was of the opinion that until the repudiation of a contract by one party is accepted by the other party, the contract continues and must be complied with in all its terms to facilitate a claim under a contract of insurance. In particular, the time notification requirements upon the insured continued even when the insurer had repudiated the policy by denying the legitimacy of the putative claim.
48) R (on the application of Supportways Community Services Ltd) v Hampshire CC [2006] EWCA Civ 1035: the Court of Appeal declined to impose extra duties of review on a public authority in performance of a contract because they were a public authority. A claimant, suing a public authority for breach of contract, could not invoke public law simply because he was dissatisfied with the remedy provided to him by private law.
49) Gray v Marlborough College [2006] EWCA Civ 1262: the Court of Appeal was concerned with a claim brought by a father that the decision of an independent fee-paying school to remove his son from the school for unsatisfactory conduct was a breach of contract. The Court held that in such cases there was a symmetry between a contractually implied obligation of fairness in these cases and that derived from statute or general public law (which could assist in the determination of fairness or consultation with the parent). In the instant case, however, there were no grounds to find that the parent had not been fully and fairly consulted about his son’s performance.
50) London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493, [2005] 1 All ER 75: the Court of Appeal considered the possible breach of the implied duty of trust and confidence upon an employer under a contract of employment (Malik v BCCI (1998)). Where there have been a series of breaches of this term, the final breach, or the ‘final straw’ did not have to be characterised by unreasonable or blameworthy conduct. The ‘final straw’ did, however, have to contribute, even if only slightly, to a breach of the implied term of trust or confidence. Where an employer had previously breached the implied term and an employee had affirmed the contract and soldiered on, it was not for the employee to subsequently rely on these acts to justify constructive dismissal unless there is a later act which allows him to do so.
Damages
51) Reichman v Gauntlett (CA, The Times 4 January 2007): the Court of Appeal found that the landlord had no duty to mitigate his loss where he sued in debt for arrears of rent which had come due. This was not changed by the decision in White & Carter Councils v McGregor (1962).
52) WWF World Wide Fund for Nature (formerly World Wildlife Fund) v World Wrestling [2006] EWHC 184: the Court held that damages awarded according to the principle in Wrotham Park Estate Co v Parkside Homes(1974) were similar to the remedy of account but were not the same. The Wrotham remedy was compensatory and not restitutionary.
53) Wiseman v Virgin Atlantic Airways Ltd [2006] EWHC1566 and Artis v MFI UK Ltd [2006] 11 CL 84: Courts declined to allow non-pecuniary losses in cases with some connection to contracts for pleasure or enjoyment.
54) CMC Group Plc v Zhang [2006] EWCA Civ 408: concerned a clause in a claim settlement agreement between the two parties which stipulated that the payee would forfeit the entirety of his settlement in the event that the payee brought any legal action or even engaged in any derogatory or unfavourable communication with the payor. The Court of Appeal held that this was a penalty within the description given by Lord Dunedin in Dunlop Tyre v New Garage and Motor Co (1915) because even a trivial breach resulted in the payment of the entire sum.
55) Jackson v Royal Bank of Scotland [2005] UKHL 3: In breach of their obligation of confidence, the defendant, the claimant’s (an importer of goods into the UK) banker, released the amount of profit realised by the claimant to a principal customer of the claimant and the customer ceased doing business with the claimant and the claimant accordingly sued the defendant for damages arising from breach of contract. The House of Lords held that damages were available for the loss of repeat business with the principal customer and for the loss of opportunity to earn profits from their trade with the principal customer. In circumstances where no cut-off point for the trade with the principal customer was established, the House of Lords held that the decision of the trial judge to award damages on a reducing basis over a four-year period was not too speculative and was as good an estimate on the effect of the breach of contract upon the claimant’s damages as could be made in the circumstances.
56) McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281: was concerned with the issue of whether a clause was a penalty clause or liquidated damages. The test in Dunlop Pneumatic Tyre v New Garage & Motor (1915) was applied. It was noted that the estimate did not have to be the actual loss suffered. The court was predisposed to enforce an agreed damages clause where the agreement was made in a commercial context between two parties of equal bargaining power.
57) Eastwood v Magnox Electric Plc And McCabe v Cornwall CC [2004] UKHL 35, [2004] 3 WLR 322, [2004] 3 All ER 991: the House of Lords followed the decision in Johnson v Unisys Ltd [2001] UKHL 13 in holding that the breach of the implied term of trust and confidence in the employment relationship could not be used as the foundation for a claim at common law because Parliament had established a statutory code for unfair dismissal and the employee’s remedy for unfair dismissal was dealt with in the statute. Exceptionally, however, an employee might suffer loss from the employer’s failure to act properly in seeking dismissal. Financial loss flowing from suspension was such an instance, as was financial loss caused by psychiatric or other illness caused by pre-dismissal unfair conduct. In such cases, the employee had a common law claim which preceded and was independent of his statute-based unfair dismissal claim.
58) Dunnachie v Kingston upon Hull City Council [2004] UKHL 36, [2004] 3 WLR 310: the House of Lords found that the comments of Lord Hoffman in Johnson v Unisys which suggested a denial of damages in respect of the manner of dismissal were obiter
59) Hamilton Jones v David & Snape (a firm) [2003] EWHC 3147 (Ch); [2004] 1 All ER 657: applied the principles developed in Farley v Skinner and allowed the claimant to recover damages for mental distress suffered when the defendant solicitors breached their duty to her in not taking reasonable steps to prevent the claimant’s husband from removing their children from the United Kingdom.
60) Rolls-Royce Power Engineering Plc v Ricardo Consulting Engineers Ltd [2003] EWHC 2871 (TCC), [2004] 2 All ER (Comm) 129: the Court considered the difficult issue of where one party could recover damages in respect of loss suffered by another. The exception in Dunlop v Lambert and Panatown v McAlpine (2000) were applied. The third party had to be within the contemplation of the contracting parties or it had to be known to both parties at the time of contracting that one party contracted as a trustee at the time the contract was entered into.
61) Birse Construction Ltd v Eastern Telegraph Co Ltd [2004] EWHC 2512: the principles of Ruxley Electronics v Forsyth were applied in a situation in which a builder committed a number of defects in the building of a college for the owner. The owner did not attempt to correct the defects as he was selling the building. In this sale, no discount was given for these defects. In this circumstance, only nominal damages were allowed as it was unreasonable to award the cost of the cure since there was no intention to repair the defects and non financial loss had been suffered on the sale of the building. In addition, there was no loss of amenity as no effort had been made to correct the defects.
Equitable remedies
62) LauritzenCool AB v Lady Navigation Inc [2005] EWCA Civ 579 [2005] EWCA Civ 579: the Court of Appeal found that there was no general rule that injunctive relief would not be granted in respect of a contract for services if the practical effect would be to compel performance. Although the injunctive relief might compel performance, that would be irrelevant as long as the relief did not decree performance. In this instance, the contracts did not provide for very personal skills or talents and were commercial agreements between independent companies. The agreements did not specify named individuals.
63) Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2005] EWHC 2407: In this unusual case, Gray J held that injunctive relief would be available at the instance of the employee in a contract of employment in which the relationship of mutual trust and confidence had broken down. If the provisions of discipline proceedings were not upheld, the employee, a highly trained specialist, would never find work in the NHS.
64) Farley v Skinner (No. 2) 2001 UKHL 49 (2002) AC 732: The House Of Lord Awarded damages (distress) for ‘loss of amenity’ on the basis that that the major or important object of the contract was to provide pleasure, relaxation or peace of mind. The breach of not giving accurate information on the fact that the house valued for acquisition purposes is located on a flight path causes a physical consequence and this causes inconvenience and distress, the result distress is consequent on the physical inconvenience and is recoverable within the scope of the exception if it falls within the remoteness principle. If the distress results in physical consequences there is no recovery of damages for the distress within the exception. Lord Scott: Damages for distress are recoverable if the distress is caused by physical inconvenience of if the breach prevents the claimant from obtaining the peace of mind he contracted for.
Walts-boro
Victoria Laundry case – agreed to sell the claimant two large boilers. Lost a good deal of business it was held that he lost of business was not remote, but the loss of big contract was too remote.
Simpson and London West Railway – trade samples, hold responsible.
Farley & Skinner
Miller: Duty to act, he cause fire and moved on.
Consents
Candy: Ice cube coins. He slut it into a machine and used the coin to work. He left behind paddle of water. I thought it was alright and it was not a mistake.
Dica and Gonzani – HIV Case
Brown & Wilson – lovely tattoo on the bottom - principles
Savage and Pamenta – Her husband mistress. She dropped the glass and injured. She was guilty for assault occasional bodily harm.
s.47 is constructive offence – the mens rea of a smaller offence is constructed to serious offences.
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