Term
|
Definition
| Civil law assists individuals to recover property or enforce obligations owed to them. Criminal law is designed to suppress crime and punish offenders, and is largely enforced by the state. |
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Term
|
Definition
| Common law and equity (both based on case law), statue and EC law. |
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Term
|
Definition
| Acts of Parliament and delegated legislation, such as statutory instruments. |
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Term
|
Definition
Regulations - immediately applicable in member states.
Directives - requiring legislation by member states.
Decisions - addressed to particular membr states or individuals. |
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Term
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Definition
| Doctrine of judicial precedent: decisions arrived at in earlier cases are usually binding in relation to later cases. |
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Term
| Who is the defendandant in Black v White? |
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Definition
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Term
| What is meant by the doctrine of judicial precedent? |
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Definition
| Where a decision has been made it must be followed, where possible, in later cases. |
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Term
| What are the main features distinguishing common law from equity? |
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Definition
Flexibility
Completeness
Remedies
Time limits |
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Term
| For what reasons may a new Act of Parliament be passed? |
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Definition
Create new law - eg Sex Discrimination Act 1975
Authorise taxation - Finance Act 2008
Codify existing law derived from cases
Consolidate existing statutes |
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Term
| What is a statutory instrument? |
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Definition
| The main type of indirect legislation -the detailed appendices to an Act of Parliament effected by the relevant Minister in charge of the Department concerned. |
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Term
| Distinguish between regulations, directives and decisions as sources of EC law |
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Definition
Regulations - immediately applicable in member states.
Directives - requiring legislation by member states.
Decisions - addressed to particular membr states or individuals. |
|
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Term
| Distinguish between ratio decidendi and obiter dictum |
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Definition
Ratio decidendi - a statement of the law as it applies in the case. It is the legal reasoning behind the decision. This is the vital element of the case that will bind future judges.
Obiter Dictum - this is either a statement of law based on facts other than those that exist in the case at hand, or a part of the decision that does not agree with the judgment and so which is not a part of the ratio decidendi. As a result obiter dicta do not form part of the law and are not binding on future judges. However such statements may assist judges in the future if they are relevant and based on good sense. As such they are persuasive authority. |
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Term
| Outline the hierarchy of civil courts in England and Wales |
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Definition
ECJ
CFI
House of Lords
Court of Appeal (Civil Division)
High Court
Chancery Division / Family Division / Queen's Bench Division inc Commercial Court
Divisional Courts
County Courts / Maistrates' Courts (Domestic) / Tribunals |
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Term
| In what circumstances is a precedent not binding? |
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Definition
1) If it has been overruled by a higher court - this does not reverse the previous decision but it will change the law for future cases.
2) If it has been overruled by statute. An Act of Parliament is the highest legal authority.
3) If it was made per incuriam (through lack of care)
4) the facts of the earlier case can be materially distinguished from the fact of the case presently before the court. This will not apply just because the facts are not identical. A case will only be distinguished from one previosuly decided if the differences appear so significant that it would not be just and fair to apply the ratio decidendi in the later case.
6) the ratio decidendi is obscure and so cannot be clearly followed. This may apply where the judges in the same case reach the same conclusion but for different reasons, so that no single ratio emerges. |
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Term
| Bulmer v Bollinger (1974) |
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Definition
| Based on an an interpretation of Art 177 (234 EC) of the Treaty of Rome, the House of Lords is bound to refer any appeal for clarification on a point of EC law to the ECJ at Luxembourg should either party request it. |
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Term
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Definition
1) Is there a contract?
2) Is it enforceable?
3) When does it terminate?
4) What are the remedies for breach? |
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Term
| Definition of Freedom of Contract |
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Definition
| With some limitations, parties are free to contract on whatever terms they prefer. |
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Term
| Definition of Sanctity of Contract |
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Definition
| The agreed terms may not be interfered with. |
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Term
| Definition of bilateral contract |
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Definition
| Each party contracts to do something. |
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Term
| Definition of unilateral contract |
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Definition
| One party agrees to do something, whereas the other is free to act or not, as he chooses. |
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Term
|
Definition
Void - no contract
Voidable - exists unless and until it is avoided
Unenforceable - valid but its terms cannot be enforced |
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Term
| Essential elements of a legally binding contract |
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Definition
There are 5.
Agreement (Offer and Acceptance)
Consideration
Intention to create legal relations
Contractual capacity
Correct form |
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Term
| Distinguish between a contract and a social agreement |
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Definition
| A contract is an agreement between two or more parties which is intended to be enforceable by the law. A social agreement has no intention to create legal relations and if one friend does not carry out his side of the agreement he will not be taken to court by the other person in order to enforce the agreement. If the agreement is between two commerical enterprises it is presumed that there is an intention to enforce the agreement if one of the parties does not act in accordance with it. |
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Term
| What is the usual means by which a contract is terminated? |
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Definition
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Term
| Explain the principle of freedom of contract |
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Definition
| Parties are at liberty to make their own bargain, and the courts will not interfere with the terms they agreee upon. |
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Term
| What are the exceptions to the principle of freedom of contract? |
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Definition
Standard terms
Implied term
Exclusion clauses |
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Term
| What case is a classic case of unilateral contract? |
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Definition
| Carlill v. Carbolic Smoke Ball Company (1893) |
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Term
| What is meant by conversion? |
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Definition
| Wrongful detention of goods |
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Term
| What is meant by consideration? |
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Definition
| That which is exchanged between the parties to the contract. Each party mus suffer some kind of loss or 'detriment' in return for the benefit received (e.g. the payment of money in exchange of goods) |
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Term
| Which types of contract must be made in writing? |
|
Definition
Simple Contracts
1) Bills of exchange, such as cheques
2) Contracts of marine insurance
3) regulated consumer credit agreements, e.g. hire purchase agreements
4) transfers of shares in registered companies
5) legal assignments of debts
6) contracts for the sale or other disposition of land
Specialty contracts (in the form of a deed)
1) Conveyance of land
2) assignment of a lease (where the lease is for three years or more)
3) transfer of a ship
Contracts evidenced in writing even if made orally
1) contracts of guarantee |
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Term
| A contractual offer can be made to the world |
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Definition
| Carlill v. Carbolic Smokeball Company (1893) |
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Term
| What is meant by standard terms? |
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Definition
| Some contracts are made on standard terms. A person faced with a standard form contract may find difficulty in altering the terms; he must either take it or leave. E.g train ticket. |
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Term
| What is meant by implied terms? |
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Definition
| Where the parties have failed to express all the terms of their contract, the court may imply terms into the agreement based on the presumed but unexpressed intention of the parties. Sometimes, such terms are implied automatically because statute requires it. |
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Term
| What is meant by exclusion clauses? |
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Definition
| Clauses limiting the liaility of a party. They may not be allowable under the Unfair Contract Terms Act 1977 e.g. not allowable for a fairground operator to disclaim liability for personal injury caused to customers on a fairground ride. |
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Term
| What is meant by a void contract? |
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Definition
| A contract whcih has no legal effect on either party - it is as though no contract exists at all. Any property which is transferred under a void contract must be handed back to the transferor, as he remains the owner of it. If the transferee keeps the goods he could be sued by the real owner for wrongfully detaining the goods (conversion). |
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Term
| What is meant by a voidable contract? |
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Definition
| A contract that exists unless and until it is brought to an end (avoided) at the option of one of the parties, usually at the option of the innocent party. |
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Term
| What is meant by rescission? |
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Definition
| The act by which the innocent party avoids a voidable contract. |
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Term
| What is mean by an unenforceable contract? |
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Definition
| A valid contract but its terms cannot be enforced. If property is transferred under it, it cannot be recovered even form the other party to the contract. However if wither party refuses to carry out its part of the contract the court will not compel him to do so. e.g. contacts of guarantee are unenforceable unless evidenced in writing. |
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Term
| What is meant by agreement? |
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Definition
| Agreement arises when an offer and an acceptance of the offer take effect |
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Term
|
Definition
| A definite promise by the offeror to be legally bound on specific terms |
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Term
| What is meant by acceptance? |
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Definition
| Clearr and unconditional acceptance of the offer by the offeree, clearly given and not exhorted by duress or undue influence |
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Term
| What is meant by intention to create legal relations? |
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Definition
| If a dispute arises between the parties over the terms of the contract they will go to a court of law to decide the matter. |
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Term
| What is meant by contractual capacity? |
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Definition
| Each of the parties must be capable of being legally bound so 18 or over and of sound mind. |
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Term
| What is meant by correct form? |
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Definition
| Certain contracts must be in writing or evidenced in writing to be valid. |
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Term
| What is meant by specialty contracts? |
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Definition
| Contracts that are made in the form of a deed (a written, signed and witnessed document)e.g. conveyance of land, assignment of a lease (where the lease is for 3 years or more) and the transfer of a ship |
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Term
| What is meant by evidencing a contract? |
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Definition
| A contract of guarantee can be made orally but must be evidenced in writing in order to be enforceable. |
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Term
| What is meant by codified? |
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Definition
| TO set down decisions made in a formal way; by Act of Parliament, or statute. Judges then have the job of interpreting the statutes if the words of Parliament are not clear. |
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Term
| What is meant by civil law? |
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Definition
| A branch of law that assists individuals to recover property or enforce obligations owed to them, providing him with compensation for any loss he has suffered. |
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Term
| What is meant by criminal law? |
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Definition
| The branch of law designed to suprress crime and punish offenders, largely enforced by the state. It rarely has anything to do with compensation as it concentrates on wrongdoers to deter, punish, correct and reform them. |
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Term
| What is meant by the prosecution? |
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Definition
| The state as party in a criminal trial |
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Term
| What is meant by the accused or the defendant? |
|
Definition
| The party being prosecuted by the state in a criminal case. |
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Term
| What is meant by the claimant? |
|
Definition
| The individual bringing a civil action under civil law. |
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Term
| What is meant by the defendant (civil law)? |
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Definition
| The party being sued by the claimant in a civil case. |
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Term
| What is meant by litigation? |
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Definition
| The court hearing in a civil case. |
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Term
| What is meant by beyound reasonable doubt? |
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Definition
| This is the standard of proof in a criminal case that must be shown by the prosecution. |
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Term
| What is mean by on a balance of probilities? |
|
Definition
| The standard of proof that must be shown by a claimant in a civil case. |
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Term
| What is meant by the standard of proof? |
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Definition
| The level of evidence necessary to prevail in a case. The standard of proof is higher in a criminal case than in a civil case. |
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Term
| What is meant by an Act of Parliament or statute? |
|
Definition
| The highest source of UK law which supersedes both common law and equity. It is binding on everyone in the jurisdiction. |
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Term
| What is meant by delegated legislation? |
|
Definition
| Subordinate or indirect legislation made by bodies outside Parliament under power delegated by Parliament in order to save Parliament time to do the job that it was elected to do. |
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Term
| What is meant by regulations? |
|
Definition
| A type of EU legislation made by the Council of the EU and the European Commission under the treaties. Regulations are designed to achieve uniformity of law among the member states. They are of general application and have direct force of law in all member states without the need for further legislation.Regulations must be applied even if the member state has already passed legislation which conflicts with them. |
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Term
| What is meant by directives? |
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Definition
A type of EU legislation made by the Council of the EU and the European Commission under the treaties.
Directives seek to harmonise the law of member states. They are instructions to member states to bring their laws into line with EU law by a certain date. The member states are free to choose the methods by which the changes are implemented, such as by Act of Parliament or statutory instrument (e.g. the Directive on Unfair Terms in Consumer Contract Regulations 1999) |
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Term
| What is meant by decisions? |
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Definition
A type of EU legislation made by the Council of the EU and the European Commission under the treaties.
Decisions may be addressed to a member state, a company or an individual, and are binding on the addressee. |
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Term
| What is meant by stare decisis? |
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Definition
| To stand by a decision - This is the whole concept upon which the doctrine of judicial precedent is based. It reflects the view that it is not the function of the judge to make the law but to decide cases in accordance with existing rules and earlier precedents. |
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Term
|
Definition
| A clear and unequivocal statement of willingess (express or implied by conduct) to be legaly bound on comprehensive defined terms communicated to the offeree and still in force at the time of acceptance. It can be made to a particular person, a class of persons, or the whole world. |
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Term
|
Definition
| An offer is not valid unless it has been communicated |
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Term
|
Definition
Termination by
1) Revocation any time before acceptance
2) Rejection, including by counter-offer
3) Lapse of stated time / reasonable time or of stated condition
4) On offeree learning of death of offeror
5) On death of any offeror of personal services eg plumber |
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Term
| Offers must be distinguished from: |
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Definition
1) Invitation to treat
2) Statement of intention
3) Statement of price |
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Term
|
Definition
| An unconditional assent to all the terms of an offer. It may be oral, written or inferred from conduct. |
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Term
| Communication of acceptance |
|
Definition
| Acceptance is not valid unles it is communicated either by the offeree or by a reliable third party. It is only complete when the offeror has received and understood the acceptance. It may be implied from the construction of the contract that the offeror has dispensed with the requirement of communication of acceptance. |
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Term
|
Definition
| An offer to supply specified goods or services at a stated cost or rate. |
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Term
| Buyer's obligations when accepting a tender |
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Definition
| Depend on the terms of the invitation to tender. |
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Term
| Considering and accepting tenders |
|
Definition
| A buyer who invites tenders is not generally obliged to accept the lowest one received, or to accept any tender at all. However, he is obliged to give due consideration to any tenders received which comply with the stated requirements. |
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Term
|
Definition
| The use of standard terms by commercial concerns often leads to a battle of the forms. Usually such battles are decided in favour of the party who fires the last shot. |
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Term
| Can an offer be made by implication? |
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Definition
| Yes e.g filling with fuel at pump is implied offer to buy fuel. |
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Term
| Why did Clarke did not receive the promised reward in the case of R v Clarke (1927) |
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Definition
| He could not claim the reward becasue he was not aware of the offer at the time he gave the information. He had not acted 'in exchange for' the offer. |
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Term
|
Definition
| A counter-offer is where the offeree does not accept the offer unconditionally but imposes his own terms on the acceptance. This closes the original offer which is no longer capable of being accepted and the offeror in the original negotiations now becomes the offeree once the counter-offer has been made. The original offeree by making the counter-offer now becomes the offeror: Hyde v. Wrench (1840) |
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Term
| In what circumstances may an offer terminate by lapse? |
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Definition
1) If the offer is stated only to be open for a specific time period it will end after the expiration of this time.
2) If there is no specific period of time mentioned by the offeror the offer will lapse after a reasonable length of time. |
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Term
| What is an invitation to treat? |
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Definition
| Not an offer but an invitation to others to make an offer. It is part of the negotiations. |
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Term
| What are the consequences if an offeror stipulates a particular mode of acceptance? |
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Definition
1) Mandatory stipulation - no other form of acceptance will be valid.
2) Stipulation as request - any other equally advantageous form of acceptance is valid Yates Building v. R J Pullen & Sons (1975) |
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Term
| What is the basic postal rule established in Adams v. Lindsell? |
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Definition
| Acceptance will be complete and effective when the letter is posted or placed into the hands of the relevant postal authorities. |
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Term
| Explain the obligations of a buyer under a standing offer from a seller. |
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Definition
| There are no obligations until a call-up order is made against the offer and a contract is formed. Percival v. London County Council (1918) |
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Term
| Why is the battle of the forms often resolved in favour of the seller? |
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Definition
| The analysis of offer and counter-offer is sometimes said to favour the person who 'fires the last shot'. Usually it is the seller whois best placed to do this. the supplier ay deliver the goods along with a delivery note repeating his standard terms. When the buyer accepts and uses the goods he may well be deemed to have accepted the terms stated on the delivery note. This is especially so if the buyer attempts to take adantage of some other terms appearing on the seller's astandard form. For example, if the seller's terms include a discount for prompt payment and the buyer takes advantage of such discount when paying, this is supporting evidence that the seler's terms have been accepted. |
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Term
| Offer can be made to the whole wold |
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Definition
| Carlill v. Carbolic Smokeball Company (1893) |
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Term
| An offer must reach the person to whom it was mase. |
|
Definition
|
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Term
| Cross offers do not make a contract. |
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Definition
| 2 identical offers do not consitute offer and acceptance Tinn v Hoffman(1873) |
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Term
| An offer can be revoked at any time before it has been accepted by the offeree. |
|
Definition
| Dickinson v. Dodds (1876) |
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Term
| Revocation willnot take effect until it has been received and clearly understood by the offeree. |
|
Definition
| Byrne v. Van Tienhoven (1880) |
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Term
| The revocation can be communicated by the offeror or by a reliable third party. |
|
Definition
| Dickinson v. Dodds (1876) |
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Term
| With unilateral contracts the offer cannot be revoked once the offeree has begun to try and perform whatever act is necessary to constitute acceptance. |
|
Definition
| Errington v. Errington (1983) |
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Term
| An offer can be revoked any time beofre it is accepted even if the offereor has stated he will keep the offer open for a stated time. |
|
Definition
| Routledge v. Grant (1828) |
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|
Term
| Counter offer closes the original offer and the original offeror becomes the offeree. |
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Definition
|
|
Term
| Request for further details does not constitute a counter-offer. |
|
Definition
| Stevenson v. McLean (1880) |
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Term
| Display of goods in a shop is an invitation to treat. |
|
Definition
| Pharmaceutical Society of Great Britain v. Boots Cash chemists (1953) |
|
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Term
| Display of goods in a shop window is an invitation to treat. |
|
Definition
|
|
Term
| An advertisement to sell something is an invitation to treat (similarly, a catalogue or prospectus). |
|
Definition
|
|
Term
| A statement of intention is not an offer (eg advert for sale of furniture at auction) |
|
Definition
| Harris v. Nickerson (1873) |
|
|
Term
| A statement of price in answer to an enquiry is not an offer but merely the supply of information. |
|
Definition
|
|
Term
Auctions
Advertisement = ITT
Auctioneer standing up and referring to a lot = ITT
Bid from the floor = Offer
Fall of the auctioneer's gavel = acceptance of the last offer |
|
Definition
| British Car Acutions Ltd v. Wright (1972) |
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Term
| Agreement can be by conduct |
|
Definition
| Brogden v Metropoliton Railway (1877) |
|
|
Term
| If mode of acceptance is stipulated as a request (rather than as mandatory) then any other equally advantageous form of acceptance is valid |
|
Definition
| Yates Building v. R J Pulleyn & Sons ( 1975) |
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Term
| An offeror may not stipulate that silence shall amount to acceptance. |
|
Definition
| Felthouse v. Bindley (1863) |
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|
Term
| Acceptance will complete and effective when the letter is posted or placed into the hands of the relevant postal authorities. |
|
Definition
|
|
Term
| Letter must be properly stamped addressed and posted not just handed to a postman. |
|
Definition
| Re London and Northern Bank ex parte Jones (1900) |
|
|
Term
| Postal rule does not apply to telex |
|
Definition
| Entores v. Miles Far East Corporation (1955) |
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|
Term
| Standing offers can be revoked at any time unless there is a binding obligation to keep it open for a certain period of time. |
|
Definition
| Great Northern Railways v. Witham (1873) |
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|
Term
| A buyer is under no obligation to place any order under the standing offer but the seller is obliged to deliver any goods ordered. |
|
Definition
| Percival v. London County Council (1918) |
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|
Term
| Buyer is not obliged to order anything from the successful tenderer but is in breach of contract if he orders goods of the stated kind from anyone else. |
|
Definition
| Kier v. Whitehead Iron Co (1938) |
|
|
Term
| If the buyer states in the invitation to tender that he will accept the lowest tender then he is bound to do so. |
|
Definition
| Harvela Investments Ltd v. Royal Trust Company of Canada (1986) |
|
|
Term
| If referential bids will be considered this fact should be made known to all tenderers. |
|
Definition
| Harvela Investments Ltd v. Royal Trust Company of Canada (1986) |
|
|
Term
| Buyer must give consideration to all tenders that arrive by the stated deadline and that comply with the the requirements of the invitation to tender. |
|
Definition
| Blackpool & Fylde Aero Club Ltd v. Blackpool Borough Council (1990) |
|
|
Term
| Battle of the Forms in terms of offer and counter offer |
|
Definition
| Butler Machine Tool Co Ltd v. Ex-Cell-O Corporation (1979) (E prevailed) |
|
|
Term
| What is meant by rejection? |
|
Definition
| The offeree turns down the offer |
|
|
Term
| What is meant by counter-offer? |
|
Definition
| The offeree does not accept the offer unconditionally but imposes his own terms on the acceptance. |
|
|
Term
| What is meant by consensus ad idem? |
|
Definition
| Agreement on the same thing - ie what a contract must emobody in that acceptance is an unconditional assent to all the terms of an offer. |
|
|
Term
| What is meant by a collateral obligation? |
|
Definition
| A contractual obligation which is distinct from and independant of the main contract. |
|
|
Term
| What is meant by the battle of the forms? |
|
Definition
| The situation where one firm's standard terms of purchase differ from another firm's standard terms of sale. |
|
|
Term
| What is meant by quasi-contract? |
|
Definition
| The situation where because of very careful counter-offers, both sides could be shown not have accepted the other's terms. If goods have passed and been used but not paid for in such a case then under principles of equity buyer must pay what the goods are worth (quantum meruit). |
|
|
Term
| Is a quote an offer capable of acceptance? |
|
Definition
| Only if it is detailed and specific enough to be capable of acceptance simply by saying yes. If further clarification needed such 'in stock?' then probably invitation to treat and order will be purchase order. |
|
|
Term
| When will the postal rule apply? |
|
Definition
| When it is either the chosen, obvious or reasonable method of acceptance. |
|
|
Term
| When is acceptance by post the chosen method of acceptance? |
|
Definition
| when the offeror has stipulated that posting the acceptance is the only acceptable method. |
|
|
Term
| When is acceptance by post the obvious method of acceptance? |
|
Definition
1) In a standard business situation or 2) where the parties are communicating at a distance and the offeror requires a record of reply.
3) Also where the offer was by letter. |
|
|
Term
| When is acceptance by post the reasonable method of acceptance? |
|
Definition
| If an ordinary person looking at all the circumstances, would assume that to reply by post was the proper way. |
|
|
Term
|
Definition
| Posted letters and telegrams |
|
|
Term
| Postal rule does not apply to: |
|
Definition
| Telex, Fax, Email, Text message. |
|
|
Term
|
Definition
| One off or standing offer |
|
|
Term
| Consideration in simple contracts |
|
Definition
| A simple contract is not binding unless supported by consideration |
|
|
Term
| Consideration in specialty contracts |
|
Definition
| Specialty contracts (deeds) do not need to be supported by consideration |
|
|
Term
| Consideration value and adequacy |
|
Definition
| Consideration must be valuable but need not be adequate |
|
|
Term
| Consideration must be sufficient |
|
Definition
Not sufficient:
1) performance of existing duty imposed by law
2)performance of existing duty imposed by contract
3) past consideration |
|
|
Term
|
Definition
| Consideration must move from the promisee |
|
|
Term
|
Definition
| In general paymen of a lesser sum does not prevent the creditor from pressing for payment of the balance. However, in some circumstances this rule is overturned: eg accord and satisfaction, or a composition with creditors |
|
|
Term
| Doctrine of promisory estoppel |
|
Definition
| A creditor may be estopped from pursuing the unpaid amount if he has promised to waive it and the debtor has acted on this promise |
|
|
Term
| Define consideration - Currie v. Misa (1875) |
|
Definition
| some right, interest, profit or benefit accrruing to one party, or some forbearance, detriment, oss or responsibility given, suffered or undertaken by the other |
|
|
Term
| Define consideration Dunlop v. Selfridge (1915) |
|
Definition
| an act or forbearance (or the promise ofit) on the part of one party to a contract as the price of the promise made to him by the other party to the contract |
|
|
Term
| Distinguish between executed and executory consideration |
|
Definition
Executed - promise given in return for the performance of an act
Executory - exchange of promises to do something in the future (yet to be done) |
|
|
Term
| Consideration: difference between value and adequacy |
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Definition
Value - consideration with value has a monetary value
Adequacy - need not be a fair or balanced exchange as long as no fraud, duress or undue influence |
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Term
| Principle in Glasbrook v. Glamorgan CC (1925) |
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Definition
| If an act is performeed over and above that required by law or public duty that act is sufficient consideration for any promise to confer a benefit in return (Bobbies in the building) |
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Term
| Principle in Stilk v. Meyrick (1809) |
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Definition
| If a person is obliged to perform an act uneder an existing contract and the other party thn promises to pay him an additional sum of money to ensure that he finishes the work on time there will be no new contract in respect of the extra sum of money. |
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Term
| Summarise the details of Williams v. Roffey Bros (1990) |
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Definition
| Roffey engaged Williams for fixed price £20k for work on flats to be completed by fixed date. Work ran late.Roffey agreed to pay £10k extra to ensure completion on time. If work not completed on time Roffey would have suffered a penalty in his own contract with the owner of the flats. Court decided that both benefited from new contract even tho Williams not doing anything extra to the original contract. New consideration was enabling Roffey to avoid penalty sum not merely finishing the work on time. Promise to pay extra not extracted by fraud or pressure. Inequitable to go back on promise. |
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Term
| What is meant by the rule that consideration must move from the promisee? |
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Definition
| A person wishing to enforce the contract must show that he personally provided consideration. |
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Term
| What is the rule in Pinnel's case (1602) affirmed by HL in Foakes v. Beer (1884)? |
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Definition
| payment of a lessor sum in satisfaction of a greater sum cannot be any satisfaction for the whole sum. |
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Term
| Sunmmarise the detials of the Central London Property Trust Ltd v. High Trees House Ltd (1947)case |
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Definition
| CLPT reduced rent on building as during war not all flats could be let. By 1945 all flats let and CLPT claimed full rent for last 1/2 1945. |
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Term
| Some right, interest, profit or benefit acruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other |
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Definition
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Term
| Executed consideration case where a promise is made in return for the performance of an act |
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Definition
| Carlill v. Carbolic Smoke Ball Co Ltd (1893) |
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Term
| Consideration must have some value, however slight |
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Definition
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Term
| Consideration need not be adequate |
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Definition
| Chappell & Co v. Nestlé Co Ltd (1960) |
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Term
| A promise from feelings of natural love and affection is not legally enforceable |
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Definition
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Term
| Performance of an existing duty imposed by law will not amount to consideration |
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Definition
| Collins v. Godefroy (1831) |
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Term
| If an act is prformed over and above that required by law or public duty, that act is sufficient consideration |
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Definition
| Glasbrook Brothers Ltd v. Glamorgan County Council (1925) |
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Term
| If a person is obliged to perform an act under an existing contract and the other party promises yto pay him an additional sum of money to ensure that he finishes the work on time there will be no new contract in respect of the extra sum of money (no new consideration provided) |
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Definition
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Term
| Carrying out existing contractual duties but under changed circumstances (eg now in a dangerous situation) is consideration for an extra payment |
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Definition
| Hartley v. Ponsonby (1857) |
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Term
| Performance of an existing contractual obligation is sufficient consideration to support a promise from a third party |
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Definition
| Shadwell v. Shadwell (1860) |
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Term
| Carrying out existing contractual duties under conditions that confer additional benefit (eg so other party can avoid penaly sum) is consideration for an extra payment |
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Definition
| Williams v. Roffey Bros (1990) |
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Term
| If one party makes a promise in return for an act or promise which has already been performed unilaterally, the two promises are not a response to each other and do not support a contract |
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Definition
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Term
| A promise of payment in return for an act carried out some time in the past, at the request of the promisor, is enforceable by the promisee, provided that both parties contemplated throughout that some payment should be made |
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Definition
| Re Casey's Patents (1892) |
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Term
| A promisee cannot bring a successful action unless the consideration for the promise moved from him |
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Definition
| Tweddle v. Atkinson (1861) |
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Term
| Payment of a lesser sum in satisfaction of a greater sum cannot be any satisfaction for the whole sum. |
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Definition
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Term
| Lender can pursue interest if has not received consideration for promise not to claim interest |
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Definition
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Term
| If pressure is put on a claimant who is reluctant to accept there is no accord |
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Definition
| D&C Builders v. Rees (1966) |
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Term
| Payment by cheque instead of cash does not amount to consideration if it confers no benefit over and above payment in case |
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Definition
| D&C Builders v. Rees (1966) |
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Term
| A creditor who has agered to accept a smaller sum for a third party, in full satisfaction of a debtor's obligation to pay a larger sum, is prevented from claiming the balance of the debt from the debtor himself, since this would be a fraud on the third party |
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Definition
| Hirachand Punamchand v. Temple (1911) |
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Term
| Arrears which haev been waived are irrecoverable but future payments may be demanded in full. |
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Definition
| Central London Property Trust Ltd v. High Trees House Ltd (1947) |
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Term
| When does the rule in Pinnel's Case apply? (Payment of a lesser sum in satisfaction of a greater sum cannot be any satisfaction for the whole sum.) |
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Definition
1) Liquidated claims (claims for fixed amounts eg price of goods)not unliquidated amounts (eg damages for defective goods)
2) Undisputed claims - where claims is disputed in good faith the value is uncertain (unless this were so all legal actions compromised to avoid litigation could be reopened at a later stage) |
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Term
| What is meant by equitable estoppel? |
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Definition
A legal doctrine which protects a party who would suffer detriment if:
1) The defendant has done or said something to induce an expectation
2) The plaintiff relied (reasonably) on the expectation
3) and would suffer detriment if that expectation were false. |
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Term
| What is meant by the suspensory effect of promisory estoppel? |
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Definition
| The promisor can give notice to the promisee to revert back to the original contract. |
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Term
| How is equitable estoppel a shield not a sword? |
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Definition
| A defendant can use it as a defence to an action claiming the debt which the claimand promised to waive, but it cannot be used by a claimant to demand rights not supported by consideration |
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Term
| Legal intention in domestic situations |
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Definition
| Agreements presumed not to be legally binding but can be rebutted if the facts of the case so indicate |
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Term
| Legal intention in commercial situations |
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Definition
| Agreements presumed to be legally binding but can be rebutted if the facts of the case so indicate |
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Term
| Legal intention in collective agreements |
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Definition
| Agreements presumed not to be legally binding unless there is a written term to the contrary |
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Term
| Letter of intent contract status |
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Definition
| A firm doing work on the strength of a letter of nitent has no contract to rely on but may have a claim on a quantum meruit basis |
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Term
| Who has full contractual capacity? |
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Definition
| Individuals and companies |
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Term
| Who does not have full contractual capacity? |
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Definition
| Minors, the mentally disordered, drunkards and corporations acting ultra vires |
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Term
| Form of commercial contracts |
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Definition
| Commercial contracts do not have to be in a particular form |
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Term
| Rules on contract formation for electronic transactions |
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Definition
| Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) |
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Term
| What was the principle laid down in Balfour v Balfour (1919)? |
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Definition
| As it was a domestic agreement it was presumed that the parties did not intend to be legally bound |
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Term
| describe two cases illustrating exceptions to the usual rule that intention to create legal relations is normally assumed in commercial contexts |
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Definition
Jones v Vernon's Pools Ltd (1938) the plaintiff was not entitled to recover because the agreement was based on the honour of the parties (and thus not legally binding).
Rose and Frank Co v Crompton Bros (1925) The written agreement contained a clause that it was not entered into as a formal or legal agreement and would not be subject to legal jurisdiction in the courts but was a record of the purpose and intention of the parties to which they honourably pledged themselves, that it would be carried through with mutual loyalty and friendly co-operation. It was held that the sole agency agreement was not binding owing to the inclusion of the "honourable pledge clause". Regarding the orders which had been placed and accepted, however, contracts had been created and the defendants, in failing to execute them, were in breach of contract.
Edwards v Skyways (1964)The defendant argued that the use of the words "ex gratia" showed that there was no intention to create legal relations. It was held that this agreement related to business matters and was presumed to be binding. The defendants had failed to rebut this presumption. The court also stated that the words "ex gratia" or "without admission of liability" are used simply to indicate that the party agreeing to pay does not admit any pre-existing liability on his part; but he is certainly not seeking to preclude the legal enforceability of the settlement itself by describing the payment as "ex gratia". |
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Term
| Describe the principles arrived at in the case of British Steel Corporation Cleveland Bridge and Engineering Co Ltd (1984) |
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Definition
| Whether a Letter of Intent amounts to a binding contract will depend on the particular circumstances. Generally, however, a Letter of Intent will fail on the requirement for agreement on the essential terms. CBE had no claim for damages as no contract existed. BSC were entitled to claim a resasonable price (quantum meruit) for the nodes delivered. |
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Term
| In what circumstances may an individual lack contractual capacity? |
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Definition
| Minor, mental disorder, drunkard |
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Term
| What is meant by the term ultra vires? |
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Definition
| Beyond its powers as in when making a contract which is unconnected with those stated activities in the Memorandum of Association. |
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Term
| What are the 2 recent UK regulations relating to the formation of electronic contracts? |
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Definition
Electronic Signatures Regulations 2002
Electronic Commerce (EC Directive) Regulations 2002 |
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Term
| Car pool arrangement in which one party contributes to the running costs of another's vehicle does not rank as a contract |
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Definition
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Term
| In arrangements in a domestic or social context court presumes that the parties did not intend to be legally bound. |
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Definition
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Term
| An arangement in a domestic context can be rebutted if it is found to be a legally enforceable joint enterprises. The parties clearly intended to share any proze money. |
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Definition
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Term
Mrs Parker was the niece of Mrs Clarke. An agreement was made that the Parkers would sell their house and live with the Clarkes. They would share the bills and the Clarkes would then leave the house to the Parkers. Mrs Clarke wrote to the Parkers giving them the details of expenses and confirming the agreement. The Parkers sold their house and moved in. Mr Clarke changed his will leaving the house to the Parkers. Later the couples fell out and the Parkers were asked to leave. They claimed damages for breach of contract.
It was held that the exchange of letters showed the two couples were serious and the agreement was intended to be legally binding because (1) the Parkers had sold their own home, and (2) Mr Clarke changed his will. Therefore the Parkers were entitled to damages. |
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Definition
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Term
| The usual presumption that agreements between spouses living happily together are not legally enforceable does no apply when they are about to separate to have already separated |
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Definition
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Term
| In ordinary commerical dealings there is a strong presumption that the parties intended it to be legally binding. This presumptioncan be rebutted if a notratry intention is clearly expressed in the agreement itself |
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Definition
Rose and Frank Co Ltd v Crompton (1925)
Jones v Vernon's Pools Ltd (1938) |
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Term
| Use of the term ex gratia was only a denial of previous liability. It did not rule out an intention by the parties to eb legally bound, and in this case the employer's promise was enforceable. |
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Definition
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Term
| Working under a letter of intent is risky. Until terms have been formally agreed, or can be established with a degree of certainty, no binding contract exists and either party completing work under such circumstances does so at its peril. Reasonable price for work completed (quantum meruit) can be claimed |
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Definition
| British Steel Corporation v Cleveland Bridge and Engineering co Ltd (1984) |
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Term
| Before the date of incorporation a company does not exist as a legal personso cannot make contracts |
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Definition
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Term
| Electronic Signatures Directive 1999 implemented by |
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Definition
Electronic Communications Act 2000 and
Electronic Signatures Regulations 2002 |
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Term
| Digital signatures are legally valid |
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Definition
| Electronic Communications Act 2000 |
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Term
| Supervision of certification service providers |
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Definition
| Electronic Signatures Regulations 2002 |
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Term
| Liability of certification service providers in certain circumstances |
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Definition
| Electronic Signatures Regulations 2002 |
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Term
| Data protection requirements concerning certification service providers |
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Definition
| Electronic Signatures Regulations 2002 |
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Term
| Electronic Commerce Directive 2000 implemented by |
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Definition
| Electronic Commerce (EC Directive) Regulations 2002 |
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Term
Commercial emails must contain:
Geographical address
e-mail address
trade register in which registered and number
supervisory authority
regulator
CAT number
(if goods or services are being provided - clear statement of price and whether it includes tax and delivery costs) |
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Definition
| Electronic Commerce (EC Directive) Regulations 2002 Reg 6 |
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Term
Commercial communications must be clearly identifiable as such
and also promotions and communications |
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Definition
| Electronic Commerce (EC Directive) Regulations 2002 Reg 7 |
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Term
| Duty of sellers to check opt-out email registers |
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Definition
| Electronic Commerce (EC Directive) Regulations 2002 Reg 8 |
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Term
Info for web orders (not orders by email)
Before order is concluded buyer should be given info on:
technical steps to conclude the contract
whether the contract will be filed with the supplier and how it can be accessed
technical means for for identifying and correcting input errors before the order is placed
languages offered for conclusion of the contract |
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Definition
| Electronic Commerce (EC Directive) Regulations 2002 Reg 9 |
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Term
| Receipts to be issued for orders placed via a website |
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Definition
| Electronic Commerce (EC Directive) Regulations 2002 Reg 11 |
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Term
| in case of failure to provide the means for the buyer to identify and correct input errors in compliance with regs 6 to 9 and 11, the buyer shall have the right to rescind the contract |
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Definition
| Electronic Commerce (EC Directive) Regulations 2002 Reg 13 to 15 |
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Term
| Effect of statements made during negotiations |
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Definition
| May become terms or remain representations each with appropriate remedies |
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Term
| Terms of a contract may be |
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Definition
| expressly inserted or implied |
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Term
| Terms of an agreement can only be enforced if they are |
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Definition
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Term
| Terms may be be implied by |
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Definition
nature
business efficacy
Acts of Parliament
custom |
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Term
| Contract terms can be divided into |
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Definition
conditions
warranties
inniminate |
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Term
| Exclusion clauses are only enforceable if they satisfy |
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Definition
1) common law test
2) AND statutory test |
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Term
| Common law test for exclusion clauses is |
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Definition
1) they must be incorporated into the contract
2) they must be clear (vagueness construed contra proferentem) |
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Term
| Statutory test for exclusion clauses |
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Definition
Unfair Contract Terms Act 1977
1) never for death or personal injury
2) ELSE if reasonable |
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Term
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Definition
| to be answerable for a debt if the person with the primary liability defaults |
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Term
| a con tract of guarantee is enforceable if |
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Definition
| it is evidenced in writing |
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Term
| What liability exists in an indemnity? |
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Definition
|
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Term
| Is a letter of comfort a contract? |
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Definition
| No it is not legally binding just a statement of policy. |
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Term
| What is the importance of the difference between a representation and a term? |
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Definition
If term is untrue has remedies for breach of term and misrepresentation
If representation is untrue then only remedies for misrepresentation |
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Term
| What were the facts in the case of Dick Bently Productions Ltd v Harold Smith Motors Ltd(1965)? |
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Definition
| The dealer's statements became a term of the contrct of sale, for breach of which damages were recoverable. Teh special skill and knowledgeof the car dealer placed him in a stronger position thatn the purchaser. Consequently yhe court could more easily infer that the statements relating to the condition of the car formed the basis of a contractual term rather than a mere representation. |
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Term
| What are the four situations where the court will imply terms into a contract? |
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Definition
1) nature of the contract
2) business efficacy
3) Acts of Parliament
4) custom |
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Term
| What are hte difference between conditions and warranties? |
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Definition
Condition = vital term of the contract = remedy includes repudiation and damages for loss or affirm and damages for breach
Warranty = less important = remedies = damages for breach |
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Term
| Explain the distinction between Bettini v Gye (1876) and Poussard v Spiers (1876) |
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Definition
Bettini - non attendance at rehearsals was breach of warranty so no right to repudiate.
Poussard - performing on the opening night was a condition of the contract so had right to repudiate |
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Term
| What is meant by an exclusion clause? |
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Definition
1) a clause that either totally excludes one party from the liability which would otherwise arise from some breach of contract
2) a clause which restricts liability for breach of contract |
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Term
| If a contract is signed when will an exclusion clause contained in that contract not be valid? |
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Definition
1) if that signature was induced by fraud or misrepresentation Curtis v Chemical Cleaning Co (1951)
2)If the exclusion clause fails the common law test
3) if the exclusion clause passes the common law test but fails the statutory test |
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Term
| What is the contra proferentum rule? |
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Definition
| If there is any doubt as to the clause's meaning and scope, the ambiguity will be resolved by interpreting the clause in a manner restricting the interests of the party who inserted it into the ocontract and who is now seeking to rely on it as a protection against his legal liability |
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Term
| What is meant by negligence? |
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Definition
1) any express or inplied term of a contract to take reasonable care
2) common law duty in the tort of negligence to take reasonable care |
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Term
| The buyer of hops asked whether sulphur had been used in their cultivation. He added that if it had he would not even bother to ask the price. The seller assured him that it had not. This assurance was held to be a condition of the contract. It was of such importance that, without it, the buyer would not have contracted. |
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Definition
| Bannerman v White (1861) CB(NS) 844 |
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Term
| The defendant told the plaintiff, who required a horse for stud purposes, that the animal was 'perfectly sound'. A few days later the price was agreed and, three weeks later, the plaintiff bought the horse. The statement was held to be a term of the contract, but here the defendant, who was the owner of the horse, would appear to have had special knowledge. |
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Definition
| Schawel v Reade [1913] 2 IR 64 |
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Term
| A statement was made by a motor dealer to a private purchaser that the car had done only 20,000 miles since being fitted with a replacement engine and gearbox. The car had actually done nearly 100,000 miles since then. The Court of Appeal unanimously held that the statement was a contractual term (a warranty). Lord Denning MR distinguished Oscar Chess v Williams and said that the car dealer was clearly in a better position than the buyer to know whether the representation was true. |
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Definition
| Dick Bentley Productions v Harold Smith Motors [1965] 2 All ER 65 |
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Term
A private seller of a car obtained �290 in part exchange on the basis that it was a 1948 model. It was in fact, a 1939 model. The registration book had been fraudulently altered by a previous owner, but the seller was innocent of this. The price of a 1939 model was considerably lower. The plaintiff motor dealer would still have been prepared to buy the car, but at a lower price had they known the true facts.
The Court of Appeal held, by a majority, that the statement was not a term of the contract. The main reason for this decision was that the seller had no special knowledge as to the age of the car, while the buyers were car dealers, and so in at least as good a position as the seller to know whether the statement was true. |
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Definition
| Oscar Chess v Williams [1957] 1 All ER 325 |
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Term
| An option to renew a lease 'at such rental as may be agreed upon between the parties' was held to be void for uncertainty as incomplete. |
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Definition
| King's Motors (Oxford) Ltd v. Lax [1969] 3 All ER 665 |
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Term
| Ouston placed an order for a truck on hire purchase terms, but as there were a number of possible hire purchase agreements it was impossible to determine exactly what terms were offered and accepted. The court ruled that no contract had come into existence |
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Definition
| Scammell v Ouston [1941] AC 251 |
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Term
a court has the option to infer terms in a Contract from the parties' previous dealings, rather than allow a contract to be voided. Courts do not usually like to do this if the wording or intention is vague, but it may be better than to allow a party to renege on a contract on a technicality.
The contract was to buy ``22,000 standards of softwood of fair specification''. The court ruled that ``fair specification'' was not sufficiently vague to void the contract, as the companies had done business before and each would have known the others' intentions. |
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Definition
| Hillas v Arcos (1932) 38 Com Cas 23 |
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Term
| A contract may be formed despite lack of complete certainty in the terms (practice indicated what was to be implied) |
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Definition
| Foley v Classique Coaches (1934) |
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Term
| A contract may be upheld despite uncertainty if meaningless clauses can be severed (usual conditions of acceptance apply) |
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Definition
| Nicolene v Simmonds (1953) |
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Term
| Nature of the contract - The condition of a council tower block deteriorated: there were defects in the stairs and lifts and internal rubbish chutes became blocked. The Irwins alleged a breach on the part of the council of its implied covenant for their quiet enjoyment of the property. The House of Lords held that it was an implied term of a lease of a maisonette in a Council block that the landlord should take reasonable care to keep the common parts of the block in a reasonable state of repair. The term was clearly not implied in fact: the "officious bystander" test was not satisfied; nor was the implication necessary to give business efficacy to the contract. The implication arose because the nature of the relationship made it desirable to place some obligation on the landlord as to the maintenance of the common parts of the premises. It amounted to the imposition of a legal duty, in spite of the fact that no term could be implied in fact. However, on the facts there had been no breach of the obligation |
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Definition
| Liverpool County Council v Irwin (1977) |
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Term
| Business efficacy - The owner of a wharf agreed to provide mooring facilities for 'The Moorcock'. The ship was damaged when it hit a ridge of rock at low tide. Although the defendants had no legal control over the river-bed, they could ascertain its state but they had not done so. The court held that honesty of business required an implied undertaking on the part of the wharf owner that it was a reasonably safe place to moor a ship. The wharf owner had broken his implied undertaking and was, therefore, liable in damages to the ship owner. |
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Definition
| The Moorcock (1889) 14 PD 64 |
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Term
Poussard was engaged to appear in an operetta from the start of its London run for three months. The plaintiff fell ill and the producers were forced to engage a substitute. A week later Poussard recovered and offered to take her place, but the defendants refused to take her back.
The court held that the defendant's refusal was justified and that they were not liable in damages. What chiefly influenced the court was that Poussard's illness was a serious one of uncertain duration and the defendants could not put off the opening night until she recovered. The obligation to perform from the first night was a condition of the contract. Failure to carry out this term entitled the producers to repudiate Poussard's contract. |
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Definition
| Poussard v Spiers (1876) 1 QBD 410 |
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Term
Bettini, an opera singer, was engaged by Gye to appear in a season of concerts. He undertook to be in London at least six days before the first concert for the purpose of rehearsals. He arrived three days late because of a temporary illness. He gave no advance notice and Gye refused to accept his services.
It was held that the plaintiff had been engaged to perform for a 15-week season and the failure to attend rehearsals could only affect a small part of this period. The promise to appear for rehearsals was a less important term of the contract. The defendant could claim compensation for a breach of warranty but he could not repudiate Bettini's contract. |
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Definition
| Bettini v Gye (1876) 1 QBD 183 |
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Term
Citrus pulp pellets for use in animal food had been sold for �100,000 under a contract which provided for "shipment to be made in good condition." Part of the goods had not been so shipped and in addition the market value in such goods had fallen at the delivery date. The buyers rejected the goods which were later resold pursuant to a court order and eventually reacquired by the original buyers for just under �34,000. The buyers then used the goods for the originally intended purpose of making cattle food, though the defective part of the goods yielded a slightly lower extraction rate than sound goods would have done.
The Court of Appeal held that rejection was not justified. The term as to shipment in good condition was neither a condition nor a warranty but an intermediate term; and there was no finding that the effect of its breach was sufficiently serious to justify rejection. The buyers seem to have tried to reject, not because the utility of the goods was impaired, but because they saw an opportunity of acquiring them at well below the originally agreed price. In these circumstances their only remedy was in damages: they were entitled to the difference in value between damaged and sound goods at the agreed destination. |
|
Definition
| Cehave NV v Bremer (The Hansa Nord) [1976] QB 44 |
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Term
The defendants repudiated the contract and claimed that the term as to seaworthiness was a condition of the contract, any breach of which entitled them to do so. The plaintiffs claimed damages for wrongful repudiation.
The Court of Appeal decided the term was neither a condition nor a warranty, and in determining whether the defendants could terminate the contract, it was necessary to look at the consequences of the breach to see if they deprived the innocent party of substantially the whole benefit he should have received under the contract. On the facts, this was not the case, because the charterparty still had a substantial time to run. The defendants could only claim damages. |
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Definition
| Hong Kong Fir Shipping [1962] 1 All ER 474 |
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Term
| Parties can agree once a clause has been breached whether it should be treated as a condition or a warranty |
|
Definition
| The Mihalis Angelos [1971] 1 QB 164 |
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Term
| If a person signs a contract, it is presumed that he intends to be bound by it whether or not he has read it, or understood it. |
|
Definition
| L'Estrange v Graucob (1934) |
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Term
| Exclusion clause not effective if accepted by false statement |
|
Definition
| Curtis v Chemical Cleaning&Dyeing (1951) |
|
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Term
| An onerous term in a contract must be brought to notice if it is to be incorporated |
|
Definition
| Interfoto v Stiletto (1989) |
|
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Term
| Exclusion clause only incorporated if drawn to the attention of the person it used against |
|
Definition
| Parker v South Eastern Railway (1877) |
|
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Term
| An Exclusion Clause that is not explictly written into a contract cannot be upheld unless the party it acts against had adequate notice (not just notice on bedroom door). |
|
Definition
| Olley v Marlborough Court (1949) |
|
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Term
| Exclusion clause only incorporated if drawn to the attention of the person it is used against (not just on a receipt) |
|
Definition
| Chapelton v Barry UDC (1940) |
|
|
Term
| Exclusion clause can be incorporated by prior dealing in business contract |
|
Definition
| Spurling v Bradshaw (1956) |
|
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Term
| Party relying on exemption to releive him from some or all of the consequences flowing from his breach of contract must prove that it was a term which when properly construed, covered the loss or damage suffered by the other party. |
|
Definition
| andrews bros v singer and co [1934] 1 KB 17 |
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|
Term
| Exclusion clause incorporated by course of dealing requires a measure of consistency (else contra proferentum) |
|
Definition
| Hollier v Rambler Motors (1972) |
|
|
Term
| To be reasonable the term must be fai and reasonable with regards to the circumstances (not just price of seed as seller could insure) |
|
Definition
| George Mitchell Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803 |
|
|
Term
valuer instructed by a Mortgagee was held to have a duty of care to a Mortgagor who was buying a property, and so could be liable in negligence when his valuation turned out to be a long way off the mark. An attempt to disclaim liability for negligence was only effective to the extent that it complied with the reasonableness test in the UnfairContractTermsAct1977.
The valuer's defence was that it was not reasonable for the claimant to rely on his valuation -- the claimant was buying a property, and should get an independent valuation. However, the House held that whether it was reasonable for the claimant to rely on the valuation had to be decided on the facts of the case. In the purchase of a modest house, the buyer might reasonably be expected to rely on the valuation of the lender's surveyor. If the property was at the more expensive end of the market, perhaps it would not be so reasonable. |
|
Definition
| Smith v Eric S Bush (1990) |
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|
Term
| The facts of the case are as follows, and were not disputed. PP contracted S to provide a night watchman for their factory. One might the watchman set fire to the factory and destroyed it. In its defence, Securicor relied on an exclusion clause disclaiming liability for damage caused by its employees. On the principles of Harbutt's it could be argued that a watchman's setting fire to the building he was watching was a fundamental breach of contract, which would invalidate the exclusion clause. However, the House of Lords ruled unanimously that the exclusion clause should stand. Between organization with rough parity of bargaining power, it was confirmed, the contract must be interpreted on the basis of the intentions of the parties. |
|
Definition
| Photo Productions v Securicor Ltd [1980] ALL ER 556 |
|
|
Term
| Clause was excluded from the regulations since it defined the subject matter of the contract, or concerned the adequacy of the price. |
|
Definition
| Director General of Fair Trading Ltd v First National Bank plc (2001) UKHL 52; (2002) 1 AC 481 |
|
|
Term
| A contract of guarantee must be evidenced in writing |
|
Definition
|
|
Term
| a person in buiness cannot exclude or restrict liability for death or personal injury resulting from negligence, by contract or any notice. |
|
Definition
| Unfair Contract Terms Act 1977 s2(1) |
|
|
Term
| a person in buiness cannot exclude or restrict liability negligence causing loss other than death or personal injury unless the exclusion clause is reasonable |
|
Definition
| Unfair Contract Terms Act 1977 s2(2) |
|
|
Term
| An unfair term is one which if contrary to the requirements of good faith causes a significant imbalance in the parties rights and obligations arising under the contract to the detriment of the consumer |
|
Definition
| Unfair Terms in consumer Contracts Regulations 1999 |
|
|
Term
Automatically unfair -
Terms excluding or limiting the liability of the seller or supplier for death or personal injury to a consumer resulting from act or ommission of the seller/supplier |
|
Definition
| Unfair Terms in consumer Contracts Regulations 1999 |
|
|
Term
Automatically unfair -
Terms requiring any consumer who fails to meet his obligation to pay a disproportionally high sum in compensation |
|
Definition
| Unfair Terms in consumer Contracts Regulations 1999 |
|
|
Term
Automatically unfair -
Terms excluding or hindering the consumer's right to take legal action, particularly requiring the consumer to take disputes to arbitration |
|
Definition
| Unfair Terms in consumer Contracts Regulations 1999 |
|
|
Term
| Difference between guarantee(primary/secondary liability)and indemnity (primary liability) |
|
Definition
|
|
Term
| Letter of comfort as statement of policy |
|
Definition
| Kleinwort Benson Ltd v Malaysia Mining Corporation Berhad (1989) |
|
|
Term
|
Definition
| A false statement of material fact made by one of the contracting parties before or at the time of entering into the contract which is intended to and does induce the other party to make the contract. |
|
|
Term
| Misrepresentation - void voidable or unenforceable? |
|
Definition
| voidable by the party misled |
|
|
Term
| Silence and misrepresentation |
|
Definition
| Silence does not usually constitute a misrepresentation, but there are exceptions to this rule eg uberrimae fidei |
|
|
Term
| Types of misrepresentation |
|
Definition
| fraudulent, negligent or innocent |
|
|
Term
|
Definition
| in general a contract is not vitieated by mistake hoever there are some cases where a mistake is operative in such cases the contract is void |
|
|
Term
|
Definition
Contract void, goods revert to original owner
Contract voidable, goods stay with new owner if contract not rescinded before resale |
|
|
Term
| duress/undue influence void, voidable or unenforceable |
|
Definition
| A contract concluded under duress or undue influence is voidable by the injured party. Duress includes economic duress. |
|
|
Term
| illegal contracts void, voidable or unenforceable |
|
Definition
| Generally void but party relying on the clause may be able to demonstrate that it is acceptable |
|
|
Term
| Restraint of trade contract status |
|
Definition
| illegal unless can show reasonable |
|
|
Term
| How does a statement of fact differ from a statement of intention or opinion? |
|
Definition
A statement of fact that is false is a misrepresentation
A statement of intention can be true or false a false statement of intention becomes a false fact and is misrepresentation
A statement of opinion if honestly held even if untrue is fine but if that opinion is not really held then it becomes a false fact and a misrepresentation. |
|
|
Term
| If a person is found liable for a negligent misrepresentation under what section fo the Misrepresentation Act 1967 can the misrepresentee claim for damages? |
|
Definition
s2(1) claim for damages
s2(2) court awards damages instead of recission |
|
|
Term
| In what four circumstances may the right to rescind a contract be lost? |
|
Definition
Affirmation
Lapse of time
Restitution is impossible
Intervention of innocent third party rights |
|
|
Term
| What is the meaning of operative mistake? |
|
Definition
| A mistake which common law recognises as being so fundamental as to destroy any intention on the part pf the person mistaken to be bound by the contract. |
|
|
Term
| What are the consequences of operative mistake? |
|
Definition
| The contract is void, the mistake nullifying the consent. |
|
|
Term
| Why was the ruling Bell v Lever Bros not regarded as being an example of operative mistake? |
|
Definition
| The mistake was to do with the quality of the subject matter not the subject matter itself. |
|
|
Term
| What does non est factum mean? |
|
Definition
| It is not my deed - used to denounce an agreement as completely different in nature from what was intended |
|
|
Term
| What are the consequences of a claim of non est factum? |
|
Definition
claimant has to prove three things:
1) signer mistaken as to object of the exercise for which the doc is required
2) signature obtained by a trick
3) mistake not caused by carelessness
If proven, then void for operative mistake. |
|
|
Term
| What is the status of a contract that has been entered into as a result of economic duress? |
|
Definition
| Voidable at option of coerced or injured party since that person does not freely consent to the agreement made. |
|
|
Term
| Describe the facts and the decision in Atlas Express v Kafco |
|
Definition
Kafco, a small company dealing in basketware, had secured a large contract from Woolworths and had obtained a large quantity of goods to fulfil it. They entered into a contract with Atlas, a national road carrier, to distribute the goods to Woolworths' shops. Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, estimating a minimum load of 400 cartons, quoted a price �1.10 per carton (total, �440). In fact, the first load contained only 200 cartons which the manager said was not viable unless Kafco agreed to pay a minimum of �440 per load. It was essential to Kafco's commercial survival that they should be able to meet delivery dates. It would have been difficult, if not impossible, to find alternative carriers to do so. Kafco agreed to the new terms but later refused to pay at the new rate.
It was held that Kafco were not bound by the new terms: economic duress had vitiated the new agreement and, in any case, there was no consideration for it. Tucker J found that the defendants' apparent consent to the agreement was induced by pressure which was illegitimate and he found that it was not approbated. |
|
|
Term
| List 3 types of contract in restraint of trade |
|
Definition
Employment - customers/trade secrets/competitor
Vendor of business/partner - compete
Solus agreement |
|
|
Term
| Give an example of contracts (other than covenants in restraint of trade) which are void at common law |
|
Definition
| - Oust the jurisdiction of the courts |
|
|
Term
| Examples of contracts which are illegal at common law |
|
Definition
- further a secually immoral purpose
- commit a crime or tort
- promote corruption in public affairs |
|
|
Term
| determine the factors tham may vitiate consent ot a contract |
|
Definition
duress
repudiation
misrpresentation
mistake
undue influence |
|
|
Term
| misrepresentation statement |
|
Definition
| express, implied but not silence |
|
|
Term
| The buyer of land asked the seller's solicitor if there were any restrictive covenants on the land and the solicitor said he did not know of any. He did not say that he had not bothered to read the documents. The court held that even though the statement was literally true it was a misrepresentation. There were restrictive covenants and the contract could be rescinded. |
|
Definition
| Nottingham Brick & Tile Co v Butler (1889) 16 QBD 778 |
|
|
Term
During the course of negotiations for the sale of a medical practice, the vendor made representations to the purchaser that it was worth �2000 a year. By the time when the contract was signed, they were untrue. The value of the practice had declined in the meantime (to �250) because of the vendor's inability to attend to it through illness. Lord Wright MR quoted:
"So again, if a statement has been made which is true at the time, but which during the course of negotiations becomes untrue, then the person who knows that it has become untrue is under an obligation to disclose to the other the change of circumstances."
Therefore, the failure of the vendor to disclose the state of affairs to the purchaser amounted to a misrepresentation. |
|
Definition
| With v O'Flanagan [1936] Ch 575 |
|
|
Term
The plaintiff purchased from the defendant two blocks of land for the purpose of sheep farming. During negotiations the defendant said that if the place was worked properly, it would carry 2,000 sheep. The plaintiff bought the place believing that it would carry 2,000 sheep. Both parties were aware that the defendant had not carried on sheep-farming on the land. In an action for misrepresentation, the trial judge said:
"In ordinary circumstances, any statement made by an owner who has been occupying his own farm as to its carrying capacity would be regarded as a statement of fact. This, however, is not such a case. In these circumstances the defendants were not justified in regarding anything said by the plaintiff as to the carrying capacity as being anything more than an expression of his opinion on the subject."
The Privy Council concurred in this view of the matter, and therefore held that, in the absence of fraud, the purchaser had no right to rescind the contract. |
|
Definition
| Bisset v Wilkinson [1927] AC 177 |
|
|
Term
The plaintiff shareholder received a circular issued by the directors requesting loans to the amount of �25,000 with interest. The circular stated that the company had bought a lease of a valuable property. Money was needed for alterations of and additions to the property and to transport fish from the coast for sale in London. The circular was challenged as being misleading in certain respects. It was alleged, inter alia, that it was framed in such a way as to lead to the belief that the debentures would be a charge on the property of the company, and that the whole object of the issue was to pay off pressing liabilities of the company, not to complete the alterations, etc. The plaintiff who had taken debentures, claimed repayment of his money on the ground that it had been obtained from him by fraudulent mis-statements.
The Court of Appeal held that the statement of intention was a statement of fact and amounted to a misrepresentation and that the plaintiff was entitled to rescind the contract. Although the statement was a promise of intent the court held that the defendants had no intention of keeping to such intent at the time they made the statement. |
|
Definition
| Edgington v Fitzmaurice (1885) 29 Ch D 459 |
|
|
Term
| The buyer of a gun did not examine it prior to purchase. It was held that the concealment of a defect in the gun did not affect his decision to purchase as, since he was unaware of the misrepresentation, he could not have been induced into the contract by it. His action thus failed. |
|
Definition
| Horsfall v Thomas [1862] 1 H&C 90 |
|
|
Term
| The purchasers of a mine were told exaggerated statements as to its earning capacity by the vendors. The purchasers had these statements checked by their own expert agents, who in error reported them as correct. Six months after the sale was complete the plaintiffs found the defendant's statement had been inaccurate and they sought to rescind on the ground of misrepresentation. It was held in the House of Lords that there was no misrepresentation, and that the purchaser did not rely on the representations. |
|
Definition
| Attwood v Small (1838) 6 CI&F 232 |
|
|
Term
| The plaintiff was induced to lend money to a company by (a) the statement of intent, and (b) his mistaken belief that he would have a charge on the assets of the company. He was able to claim damages for deceit even though he admitted that he would not have lent the money, had he not held this mistaken belief. |
|
Definition
| Edgington v Fitzmaurice (1885) 29 Ch D 459 |
|
|
Term
| In 1931 a dwelling house had been converted into five flats. In 1938 Flat No. 1 was let for three years at an annual rent of �140. In 1947 the defendant took a long lease of the building, intending to repair bomb damage and do substantial alterations. The plaintiff and defendant discussed the rents to be charged after the work had been completed. The plaintiff told the defendant that he could charge �250 for Flat 1. The plaintiff paid rent at �250 per year for some time and then took proceedings for a declaration that the standard rent was �140. The defendant contended that the flat had become a new and separate dwelling by reason of change of identity, and therefore not subject to the Rent Restriction Acts. This was held to be a statement of fact. (Note: this is a case on Mistake.) |
|
Definition
| Solle v Butcher [1950] 1 KB 671 |
|
|
Term
A special Act incorporating a tramway company provided that the carriages might be moved by animal power and, with the consent of the Board of Trade, by steam power. The directors issued a prospectus containing a statement that by this special Act the company had the right to use steam instead of horses. The plaintiff bought shares on the strength of this statement. The Board of Trade refused to consent to the use of steam and the company was wound up. The plaintiff brought an action for deceit.
It was held by the House of Lords that in an action for deceit, it is not enough to establish misrepresentation alone; something more must be proved to cast liability on the defendant. There is an essential difference between the case where the defendant honestly believes in the truth of a statement although he is careless, and where he is careless with no such honest belief. Fraud is established where it is proved that a false statement is made: (a) knowingly; or (b) without belief in its truth; or (c) recklessly, careless as to whether it be true or false. If fraud is proved, the motive of the person making the statement is irrelevant. It matters not that there was no intention to cheat or injure the person to whom the statement was made. The defendants were not fraudulent in this case. They made a careless statement but they honestly believed in its truth. |
|
Definition
| Derry v Peek (1889) 14 App Cas 337 |
|
|
Term
Hedley Byrne were a firm of advertising agents. They intended to advertise on behalf of Easypower Ltd. They wanted to know if Easypower were creditworthy, and asked their bank, the national Provincial, to find out. The National Provincial got in touch with Easypower's bankers, Heller & Partners. Heller told the National Provincial, "in confidence and without responsibility on our part," that Easypower were good for �100,000 per annum on advertising contracts. Hedley Byrne relied on this statement in placing orders on behalf of Easypower and, as a result, lost more than �17,000 when Easypower went into liquidation. They sought to recover this loss as damages.
In the House of Lords, Lord Pearce stated that a man may come under a special duty to exercise care in giving information or advice. Whether such a duty has been assumed must depend on the relationship of the parties. Was there such a special relationship in the present case as to impose on Heller a duty of care to Hedley Byrne as the undisclosed principals for whom National Provincial was making the inquiry? The answer to that question depends on the circumstances of the transaction. A most important circumstance is the form of the inquiry and of the answer. Both were plainly stated to be without liability. The words clearly prevented a special relationship from arising. |
|
Definition
| Hedley Byrne v Heller [1964] AC 465 |
|
|
Term
| The plaintiff bought a painting after an innocent misrepresentation was made to him that it was by 'J. Constable'. He did not discover this until five years later and claimed rescission immediately. The Court of Appeal held that the plaintiff had lost his right to rescind after such a period of time. His only remedy after that length of time was for damages only, a claim which he had not brought before the court. |
|
Definition
| Leaf v International Galleries [1950] 2 KB 86 |
|
|
Term
There was no duty in negligent mis-statement from a vendor's estate agent to a purchaser for that purchaser's financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ "On the Sunday, Mr. Scott knew, or ought to have known, that his representation was likely to be relied on by Mr. McCullagh. However, he also knew that Mr. McCullagh had the Lane Fox particulars which included both the relevant statement and the disclaimer. In my judgment, the result of this is that the element of proximity was negatived. A reasonable person, appreciating that the statement which he was proposing to rely upon was a statement contained in the particulars and the fact that those particulars also stated that ´all statements contained in these particulars as to this property are made without responsibility on the part of Lane Fox ...' would understand that there was no assumption of responsibility by Lane Fox. This understanding would be reinforced by paras 3, 4 and 5 of the disclaimer. In my judgment, the disclaimer puts the present case on all fours with the actual decision in Hedley Byrne as explained earlier." |
|
Definition
| McCullagh -v- Lane Fox and Partners Ltd [1996] 1 EGLR 35 |
|
|
Term
| A contract will not be set aside simply because one party has made a bad bargain as a result of his own mistake |
|
Definition
|
|
Term
| Res extincta renders a contract void |
|
Definition
| Coutourier v Hastie (1856) |
|
|
Term
| Mutual mistake as to quality does not undo contract |
|
Definition
| Bell v Lever Brothers (1932) |
|
|
Term
| A contract can be set aside when the parties are at cross-purposes in their negotiations |
|
Definition
| Raffles v Wichelhaus (1864) |
|
|
Term
| The defendant, having refused to sell some property to the plaintiff for �2,000, wrote a letter in which, as the result of a mistaken calculation, he offered to sell it for �1,250. The plaintiff accepted but the defendant refused to complete. Romilly MR refused a decree of specific performance. |
|
Definition
| Webster v Cecil (1861) 30 Beav 62 |
|
|
Term
| Mrs Gallie, a widow aged 78, had made a will leaving her house to her nephew, Parkin. Parkin's friend, Lee, was heavily in debt and discussed with Parkin how to raise money on the house. In Parkin's presence, Lee put before Mrs Gallie a document which he told her was a deed of gift of the house to Parkin. She did not read it because she had broken her spectacles. The deed was in fact a deed of sale of the house to Lee. Using this deed, Lee mortgaged the house to the Anglia Building Society, and borrowed �2,000. Lee defaulted on the payments and the building society brought an action for possession of the house. Mrs Gallie sued for a declaration that the deed was void--non est factum--and for the recovery of the title deeds. When she died, the action was taken over by her executrix, Saunders. The Court of Appeal and the House of Lords gave judgment for the building society. |
|
Definition
| Saunders v Anglia Building Society [1970] 3 All ER 961 |
|
|
Term
| Signature was non est factum as the document turned out to be something entirely dfferent to what has been led to expect. Signer had not been negligent as had made enquiries and had accepted explanation reasonably |
|
Definition
|
|
Term
| In order to obtain the equitable discretionary remedy of rectification, the written agreement between the parties must fail to reflect the actual agreement that was reached. It is the defects in the recording of a contract with which the courts are concerned, not the faults in the making of the agreement. |
|
Definition
| Josceleyne v Nissen (1970) |
|
|
Term
| duress to the person (violence) |
|
Definition
| Barton v Armstrong (1976) |
|
|
Term
| duress to the person (false improsinment) |
|
Definition
|
|
Term
| duress to the person (threatened violence to contracting party or immediate family) |
|
Definition
|
|
Term
| Duress to goods (threat against goods as opposed to body - not sufficient) |
|
Definition
|
|
Term
|
Definition
| Pau on v Lau Yiu Long (1979) |
|
|
Term
| If the consequences of carrying out the threat are sufficiently serious then it could amount to economic duress |
|
Definition
| UNIVERSE TANKSHIPS v ITWF (1982) |
|
|
Term
| Delay in rescinding a contract for duress may be seen as affirming the contract |
|
Definition
| NORTH OCEAN SHIPPING CO LTD v HYUNDAI (1979) (THE ATLANTIC BARON) |
|
|
Term
| Undue influence was found to have been exercised by a secretary companion over her elderly employer. |
|
Definition
| re Craig, Decd [1971] Ch 95 |
|
|
Term
| An assistant solicitor had already worked for his employer in humbler status for many years when, aged 27, he signed a covenant restricting his acting in competition with his employer within seven miles of Tamworth Town Hall for an unlimited time. He complained of the temporal restriction. Held: "What are the facts here? A boy of the age of 14 is taken from a humble employment in the office of the local co-operative society and he is trained in the office of a solicitor of position in this particular neighbourhood . . . Indeed I am of the opinion that it is in the public interest that a proper restrictive agreement of this kind between an established solicitor, possibly an elderly man, and a younger man should be allowed. It is in the public interest because otherwise solicitors carrying on their business without a partner would be extremely chary of admitting competent young men to their offices and to the confidential knowledge to be derived by frequenting those offices." |
|
Definition
|
|
Term
| Injunction awarded to prevent employee working in the area |
|
Definition
| Home Counties Daries v Skilton (1970) |
|
|
Term
| 25m radius of london excessive restraint of trade |
|
Definition
| Mason v Provident clothing (1913) |
|
|
Term
| Ususal methods by which a contract is discharged |
|
Definition
performance
agreements
breach
frustration |
|
|
Term
|
Definition
| full and exact performance |
|
|
Term
| Exceptions to full and exact performance |
|
Definition
separable (divisible) contracts
acceptance of partial performance
substantial performance |
|
|
Term
| time of performance as a contract condition |
|
Definition
|
|
Term
|
Definition
condition precedent
condition subsequent
(or could novate) |
|
|
Term
| Breach of contract categories |
|
Definition
|
|
Term
| Breach of a condition entitles the injured party to |
|
Definition
|
|
Term
| Breach of a warranty entitles the injured party to |
|
Definition
|
|
Term
| In anticipatory breach the injured party can |
|
Definition
| accept the breach immediately and treat the contract as discharged or can affirm the contract |
|
|
Term
| consequence of frustrated contract (exceptional circumstances) |
|
Definition
| both parties are excused further performance |
|
|
Term
| Statute governing frustrated contracts except those with force majeure clauses |
|
Definition
| Law Reform (Frustrated Contracts) Act 1943 |
|
|
Term
| A contract is discharged for performance when both parties have complied fully and exactly with the terms of the contract |
|
Definition
| Re Moore & Landauer (1927) |
|
|
Term
| If a single price has been agreed for performance of the contract no part of the price is payable unless and until the entire contract has been exactly performed |
|
Definition
|
|
Term
| when can a party to a severable contract who has not completed the whole contract claim payment? |
|
Definition
| if the individual contracts that make up the whole have been discharged eg by instalment then payment for that mini contract can be claimed |
|
|
Term
| What is meant y quantum meruit? |
|
Definition
| a claim for the value of works done or services rendered, rather than the full contract price |
|
|
Term
| is the doctrine of substantial performance a common law or equitable doctrine? |
|
Definition
| Equitable exception to rule of full performance |
|
|
Term
| Describe the facts and the decision in the case of Charles Rickards Ltd v Oppenheim (1950) |
|
Definition
| a Rolls Royce motor car was not built by the agreed delivery date, but new dates agreed. Eventually, Oppenheim gave written notice to Rickards stating that unless he received the car by a firm date, four weeks away, he would not accept it. The car was not delivered within the time specified and was not completed until some months later when Oppenheim refused to accept it. The Court of Appeal held that he was justified in doing so. After waiving the initial stipulation as to time, Oppenheim was entitled to give reasonable notice making time of the essence again, and on the facts the notice was reasonable. |
|
|
Term
| Distinguish between a a condition precedent and a condition subsequent |
|
Definition
Condition precedent is a term of contract preventing its taking effect unless a specified event occurs or a specified act is performed.
condition subsequent is a term of a contract permitting its discharge on the happening of a specified event or performance of a sepcified act eg giving notice of termination of employment |
|
|
Term
| will a breach of warranty ever entitle the innocent party to accept the breach and end the contact? |
|
Definition
| No but he can claim damages if he brings action within 6 years after the cause of action arises |
|
|
Term
| define frustration of contract |
|
Definition
| Where performance of a contract becomes impossible through the happening of a supervening event which occurred through no fault of either party |
|
|
Term
| what was decided in the case of Krell v Henry (1903)? |
|
Definition
| The plaintiff offered to rent out his rooms overlooking a street where processions to the royal coronation were going to take place. The defendant offered to pay £75 to rent the rooms in order to watch the processions. The defendant put down £25. The king got sick and the processions didn’t happen. The defendant refused to pay. The plaintiff sued for the remaining £50 and the defendant countersued for the £25 deposit. The trial court dismissed the plaintiff’s complaint and gave judgment for the defendant on his counterclaim. |
|
|
Term
| What is the position of a party eho has incurred expenses under a frustrated contact? |
|
Definition
| He can deduct them from any sums which have to be repaid, or claim them form any overdue sums, but if there are no such sums he cannot recover such expenses from the other party. |
|
|
Term
| Where a party to an entire contract is prevented by the promisee from performing all his obligations, then he can recover a reasonable price for what he has in fact done on a quantum meruit basis in an action in quasi-contract. |
|
Definition
|
|
Term
| in Sumpter v Hedges a man who completed building work that had been left incomplete by another was deemed not to have accepted the breach, because he had little choice by to complete it himself |
|
Definition
|
|
Term
| If substantially complete equitable remedy to get all price less damages for duties not completed |
|
Definition
|
|
Term
|
Definition
|
|
Term
|
Definition
| Charles Rickards Ltd v Oppenheim (1950) |
|
|
Term
|
Definition
| Bunge Corporation v Tradax (1981) |
|
|
Term
|
Definition
|
|
Term
|
Definition
| Hochster v De La Tour (1853) |
|
|
Term
|
Definition
| White & Carter v MacGregor (1961) |
|
|
Term
|
Definition
|
|
Term
|
Definition
|
|
Term
|
Definition
|
|
Term
|
Definition
| Re Shipton, Anderson & Co (1915) |
|
|
Term
Frustration includes an extensive interruption which alters performance. In this case the defendant contracted with the plaintiff to build a reservoir within six years. After two years the Minister of Munitions required the defendant to cease work and remove and sell its plant.
The plaintiff claimed the contract subsisted on the basis of a contract provision allowing a time extension in the event of any difficulties.
The House of Lords held that the contract was frustrated on the basis that if it were resumed after such interruption it would effectively be a different contract. |
|
Definition
| Metropolitan Water Board v Dick Kerr & Co Ltd (1918) |
|
|
Term
| contract not inpossible to perform just more expensive and therefore not frustrated |
|
Definition
| Tsakiroglou v Noblee Thorl (1960) |
|
|
Term
| Undue delay which caused extra expense did not amount to frustration |
|
Definition
| David Contractors v Fareham UDC (1956) |
|
|
Term
| a contract is not frustrated merely because one party hs expressly undertaken that he will do something which he later finds he cannot achieve (can't get export license) |
|
Definition
| Cassidy v Osuustukkukauppa (1957) |
|
|
Term
| If either party contributes to the occurrence of the event, they cannot claim that it amounts to a frustrating event. If there is a requirement that vessels with trawls be licensed, then if you have 5 vessels and only 3 licenses, then you cannot claim that your inability to use all the vessels, amounts to a frustrating event such as to excuse you from payment of the hire fee for the vessel. |
|
Definition
| Maritime National Fish v Ocean Trawlers (1935) |
|
|
Term
This case contrasts with another case where a person agreed to hire a boat to cruise round the fleet for the naval review during the Coronation proceedings. The King's illness meant that the review of the fleet was cancelled.
HELD - the contract was not frustrated. The person could still use the vessel to sail round the fleet. In this case, the review was not thought to be the basis of the contract. |
|
Definition
| Hutton v Herne Bay Steamboat Company Ltd (1903) |
|
|
Term
| Before the Law Reform (Frustrated Contracts ) Act 1943 common law position for frustration was that contract is void and money is recoverable |
|
Definition
|
|
Term
| remedies for breach of contract |
|
Definition
damages
specific performance
injunction
quantum meruit
action for the price |
|
|
Term
| consequence of liquidated damages clause |
|
Definition
Enforceable
determines the measure of damages as a genuine pre-estimate of the damages arising from specified breaches |
|
|
Term
| Distinguish between a liquidated damages clause and a penalty clause |
|
Definition
liquidated damages clause - enforceable - genuine pre-estimate of loss
penalty clause - not enforceable - penalty designed to coerce performance |
|
|
Term
|
Definition
| damages are only awarded in respect of losses reasonably forseeable . if the actual damages arising are too remote to have been foreseen they will not be compensated |
|
|
Term
|
Definition
| injured party is under obligation to mitigate his loss |
|
|
Term
|
Definition
| an equitable remedy under which the court orders the defendant to carry out his contractual obligatinos. Remedy not available as of right and in many cases court will decline to award it. |
|
|
Term
|
Definition
| order of court either requiring a person to do something or or forbidding him from doing something. Equitable remedy not available as of right |
|
|
Term
|
Definition
| equitable remedy in respect of payment for part performance |
|
|
Term
| what is the purpose of damages? |
|
Definition
| to put the injured party into the position he would have been in if the contract had been properly performed |
|
|
Term
| where a contract provides a clause which is a genuine attempt at estimating the loss what is this clause known as? |
|
Definition
| Liquidated damages clause |
|
|
Term
| what is the name of the case which set out the guidelines for making the distinction between a liquidated damages clause and a penalty clause? |
|
Definition
| Dunlop Pneumatic Tyre Co v New Garage (1915) |
|
|
Term
| Is damages a common law remedy or an equitable remedy? |
|
Definition
| Common Law remedy available by right. Equitable remedies include specific performance, injunction and quantum meruit |
|
|
Term
| State the rule in Hadley v Baxendale (1854) |
|
Definition
| The loss to be compensated should be such as may fairly and reasonably be considered either arising naturally ie according to the usual course of things, from the breach of contract, or such as may reasonably ne supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. |
|
|
Term
| Identify the 2 branches of the rule in Hadley v Baxendale (1854) |
|
Definition
| General damages and Special damages |
|
|
Term
| If a person cannot show actual loss as a result of a breach of contract what sort of damages will the court award? |
|
Definition
|
|
Term
| What equitable remedy will order the defendant to carry out the terms of the contract? |
|
Definition
|
|
Term
| Why will specific performance not be given in the case of a contract of employment? |
|
Definition
| Court will not compel an unwilling party to maintain continuous personal relations with another (contac public policy) and that it would require constand supervision |
|
|
Term
| If actual damages suffered are greater than the damages provided for can only claim for liquidated amount |
|
Definition
| Cellulose Acetate Silk Co v Widnes Foundry (1933) |
|
|
Term
| Tests for penalty or liquidated damages clauses |
|
Definition
| Dunlop Pneumatic Tyre Co v New Garage (1915) |
|
|
Term
| penalty clause - single sum payable whether breach trifling or serious |
|
Definition
|
|
Term
| Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. |
|
Definition
| Hadley v Baxendale (1854) |
|
|
Term
The plaintiff bought a house in Hampshire and his solicitor in breach of contract, negligently failed to notice that the house had a defective title.
Held: the solicitor was held liable for the amount by which the house's value had been lessened by the title not being good. However, the solicitor was not liable for the latter loss when the plaintiff shortly afterwards took up work in Lancashire and suffered added loss as the house was hard to resell. The solicitor could not have anticipated that the plaintiff would move. |
|
Definition
|
|
Term
| delaying party liable for loss of normal foreseeable profit but not of rloss of profit on govt contracts as not foreseeable |
|
Definition
| Victoria Laundry v Newman Industries (1949) |
|
|
Term
| wehre parties cotemplate the type of damage which may follow a breach of contract they will be liable for damage of that type even where its extent was not foreseen. Liable for harm to pigs but not for consequent loss from lost sales as too remote |
|
Definition
| H Parsons Livestock v Uttley Ingham & co (1978) |
|
|
Term
| if the claimant suffers no actual loss then only awarded nominal damages |
|
Definition
| Surrey County Council v Bredero Homes Ltd (1993) |
|
|
Term
| just and equitable that the defendant should retain no benefit from his breach of contract (autobiography) |
|
Definition
| Attorney General v Blake (2000) |
|
|
Term
| inability to evaluate losses not sufficient reason for refusing any compensationa t all even though almost a guess |
|
Definition
|
|
Term
| compensation will not be awarded for any damage incurred which the claimant had a reasonable opportunity to avoid |
|
Definition
|
|
Term
| court will grant an injunction to restrain a party from comitting a breach of contract ie injunction not to take electricity supply from other company |
|
Definition
| Metropolitan electric Supply v Ginder (1901) |
|
|
Term
| an injunction will not be granted if same effect as specific performance and SP would be denied |
|
Definition
| Page One records Ltd v Britton (1967) |
|
|
Term
| Court will uphold a covenant not to perform services elsewhere at least as long as defendant can still earn a livelihood Bette Davis |
|
Definition
| Warner Bros Pictures Inc v Nelson (1936) |
|
|
Term
| Court will uphold a covenant not to perform services elsewhere at least as long as defendant can still earn a livelihood |
|
Definition
|
|
Term
| More work than asked for in the contract need not be paid |
|
Definition
| Gilbert & Partners v Knight (1968) |
|
|
Term
| distinguish between unliquidated and liquidated damages |
|
Definition
liquidated - identified in contract as genuine pre-estimate of loss
unliquidated - not so identified - court estimates and awards |
|
|
Term
| Question of remoteness of damages |
|
Definition
| what losses should be icluded in the claim? |
|
|
Term
| Question of measure of damages |
|
Definition
| what level of damages will compensate the party claiming? |
|
|
Term
| Distinguish between general and special damages |
|
Definition
general - that which arises naturally in the usual course of things
special - that which does not occur naturally in the usual course of things but both parties could foresee when the contract was made as the likely result of breach (abnormal loss) |
|
|
Term
| What is the available market rule? |
|
Definition
applies to contracts for sale of goods where breach is either
1) buyer wrongfully refusing to accept goods or
2) seller wrongfully refusing to deliver goods.
by s51 Sale of Goods Act 1979, if an available market existis, the damages are deemed to be the difference between the contract price and the available market price as at the date of the breach. An available market exists where goods of that type can be freely bought or sold at prices fixed by supply and demand. |
|
|
Term
| How does the courts construe a penalty clause? |
|
Definition
Assumed a penaly clause if:
1) sum stipulated is extravagent or unconscionable
2) or single sum is payable on the occurrence of one or more breches, some trifling others serious
3) or a sum is payable for the breach where the breach is non0-payment of money and the sum stipulated is larger than the non-payment |
|
|
Term
| Disadvantages of litigation |
|
Definition
costly
subject to delays
public |
|
|
Term
| Advantages of arbitration compared to litigation |
|
Definition
inexpensive
swift
private
parties can choose individual or org to resolve any dispute
less conforntational
onestop process avoiding endless appeals |
|
|
Term
| Main statutory regulation concerning arbitration based on principle of minimising court interference in arbitration process |
|
Definition
|
|
Term
| dis/advantages of mediation |
|
Definition
| quicker and cheaper than arbitration but not usually binding on the parties |
|
|
Term
| What is adjudication and how is it usually used? |
|
Definition
| adversarial form of ADR used mainly in construction contracts where its use is mandated by the Housing Grants, Construction and Regeneration Act 1996 |
|
|
Term
| International Chamber of Commerce |
|
Definition
| plays a pivotal role in the resolution of international trade disputes |
|
|
Term
| What is the overriding objective of the Civil Procedure Rules? |
|
Definition
| to enable the court to deal with cases justly |
|
|
Term
| What is the small claims procedure? |
|
Definition
| arbitration service within county court structure for use by consumers for sums up to £5k |
|
|
Term
| What is the principle of party autonomy? |
|
Definition
parties in dispute are given max autonomy to decide how arbitration should be conducted. Choices:
1) how many arbitrators should hear their case
2) what procedures should be adopted
3) what powers arbitrators should have
4) whether appeals can be made to the courts on points of law |
|
|
Term
| the parties to a contract have a completely free hand in deciding the terms of any arbitration. True or False? |
|
Definition
| False - Schedule 1 of Arbitration Act 1996 has a few provisions that for reasons of public policy cannot be overridden |
|
|
Term
| In what circumstances may an arbitrator lose his immunity from being sued? |
|
Definition
| if it appears he has acted in bad faith |
|
|
Term
| What are the main difficulties arising in the use of mediation? |
|
Definition
1) ADR clauses in standard contracts may not be enforceable
2) unlike arbitration results of an ADR process are not binding.
If parties have no incentive to settle, they will not do so unless they see it to be in their own self-interest |
|
|
Term
| Which dispute resolution process is regulated by the Housing Grants, Construction and Regeneration Act 1996? |
|
Definition
| Adjudication - mainly used in construction contracts |
|
|
Term
| what are the advantages of arbitration cited by the ICC? |
|
Definition
1) final and binding nature of arbitral awards
2) wide international acceptance
3) neutrality of forum |
|
|
Term
| A clause preventing any right to begin court proceedings until arbitration has taken place |
|
Definition
|
|
Term
| H/L refused to grant an interlocutory order requiring continued performance of a construction contract, since such an order would largely pre-empt the substantive decision of the agreed arbitrators |
|
Definition
| Balfour Beatty v Channel Tunnel group (1993) |
|
|
Term
Court will admit an appeal on a point of law arising out of an arbitrator's award if it is satisfied either that:
1) decision of arbitrator is obviously wrong
2) or that the question is one of general public importance AND the decision of the arbitrator is at least open to serious doubt
3) AND that it is just and proper in all the circumstances for it to determine the matter |
|
Definition
| Antaios Compania v Salen Rederiena (1985) |
|
|
Term
| in what circumstances may a court admit an appeal on a point of law arising out of an arbitrator's award? |
|
Definition
appeal may be made under s69(1) Arbitration Act 1996 but will only be admitted if court is satisfied either that:
1) decision of arbitrator is obviously wrong
2) or that the question is one of general public importance AND the decision of the arbitrator is at least open to serious doubt
3) AND that it is just and proper in all the circumstances for it to determine the matter |
|
|
Term
| sale of goods contracts subject to |
|
Definition
normal contract rules
sale of goods Act 1979 as amended |
|
|
Term
|
Definition
| contracts of sale and agreements to sell |
|
|
Term
| SOG 1979 as amended does not govern |
|
Definition
contracts of
hire
hp
work and materials |
|
|
Term
|
Definition
title
seller must have right to sell
buyer must be able to enjoy quiet possession |
|
|
Term
|
Definition
Description
goods must correspond with description |
|
|
Term
| s14(2) SOG 1979 as amended |
|
Definition
|
|
Term
| s14(3) SOG 1979 as amended |
|
Definition
|
|
Term
|
Definition
Sample
bulk must match sample |
|
|
Term
|
Definition
| implied terms of 1977 Act cannot be excluded from comsumer contracts |
|
|
Term
|
Definition
| implied terms from 1977 Act can onlly be excluded from other contracts if satisfy test requirement for reasonableness |
|
|
Term
|
Definition
| a person who buys or agrees to buy goods under a contract for the sale of goods |
|
|
Term
|
Definition
| a person who sells or agrees to sell goods under a contract for the sale of goods |
|
|
Term
| define an agreement to sell |
|
Definition
| a contract of sale where the transfer of property in the goods is to take place at some time in the future. |
|
|
Term
| Does a contract for conditional sale fall under the provision othe 1979 Act? |
|
Definition
| Yes as is for sale of goods |
|
|
Term
| what is a contract for work and materials? |
|
Definition
| contract where substance of the contract is the buying of a skill rather than the buying of a product. Not a sale of goods. SOG 1979 as amended does not apply |
|
|
Term
| distinguish between specific and unascertained goods |
|
Definition
Goods where at the time the contract was made
1) specific goods identified and agreed upon
2) unascertained goods - not identified and agreed upon eg defined byu description applicable to all goods of the same class or foods forming an unidentified part of a specific whole |
|
|
Term
| describe the facts and ratio of Rowland v Divall |
|
Definition
| seller had no right to sell the car, buyer had used the car but got her money back nemo dat non quod habet |
|
|
Term
| describe the difference between satsifactory quality and merchantable quality |
|
Definition
| SQ higher standard eg freedom from minor defects |
|
|
Term
| what are the implied conditions in a contract for sale by sample? |
|
Definition
that the bulk will correspond with the sample in quality;
(c) that the goods will be free from any defect, making their quality unsatisfactory, which would not be apparent on reasonable examination of the sample. |
|
|
Term
| What are the 5 guidelines laid down by sch 2 UCTA 1977 in relation to the reasonablesness test? |
|
Definition
(a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;
(b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;
(c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
(d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
(e) whether the goods were manufactured, processed or adapted to the special order of the customer. |
|
|
Term
| car repair is work and materials |
|
Definition
| Stewart v Reavell's (1952) |
|
|
Term
| Sale of goods - price is money not other goods |
|
Definition
| Esso Petroleum v Customs & Excise (1976) |
|
|
Term
| if seller has no right to sell then full refund |
|
Definition
|
|
Term
| infringement of patent affects rights to sell. Can reject goods or claim damages for reduced value |
|
Definition
| Niblett v Confectioners' Materials Co (1921) |
|
|
Term
| Patent published after sale stops buyer's quiet enjoyment and seller still liable |
|
Definition
| Microbeads AG v Vinhurst Road Markings Ltd (1975) |
|
|
Term
| goods must meet description or can reject |
|
Definition
|
|
Term
| can still be sale by description if goods selected by buyer |
|
Definition
|
|
Term
| sellers description if goods not seen by buyer |
|
Definition
|
|
Term
| Can reject functional car becasue of minor faults |
|
Definition
|
|
Term
| sound goods contaminated by mix preventing use can be rejected |
|
Definition
| Wilson v Rickett cockerell & Co Ltd (1954) |
|
|
Term
| buyer can still expect reasonable quality of 2nd hand goods |
|
Definition
| Shine v General Guarantee (1988) |
|
|
Term
| Goods must be fit at time of sale and not need further processing eg washing |
|
Definition
| Grant v Australian Knitting Mills (1936) |
|
|
Term
| don't need to specify use for goos purchased if use is common purpose - hwb |
|
Definition
|
|
Term
| if particular purpose must notify seller - allergic to harris tweed |
|
Definition
| griffiths v peter conway ltd 1939 |
|
|
Term
| test of sample is reasonable examination not thorough examination - catapault |
|
Definition
|
|
Term
| sale by description and sample must pass both tests |
|
Definition
|
|
Term
| rules governing transfer of property |
|
Definition
s16 SGA 1979 as amended - property cannot pass until goods have been ascertained
s17(1) SOG 1979 as amended
property passes when parties intend it to pass |
|
|
Term
| where intention of parties on when trasnfer of property occurs is not clear |
|
Definition
5 rules s18
Rule 1.—Where there is an unconditional contract for the sale of specific goods in a deliverable state the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.
Rule 2.—Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until the thing is done and the buyer has notice that it has been done.
Rule 3.—Where there is a contract for the sale of specific goods in a deliverable state but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until the act or thing is done and the buyer has notice that it has been done.
Rule 4.—When goods are delivered to the buyer on approval or on sale or return or other similar terms the property in the goods passes to the buyer:—
(a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction;
(b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of that time, and, if no time has been fixed, on the expiration of a reasonable time.
Rule 5.—(1) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods then passes to the buyer; and the assent may be express or implied, and may be given either before of after the appropriation is made.
(2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is to be taken to have unconditionally appropriated the goods to the contract.
(3) Where there is a contract for the sale of a specified quantity of unascertained goods in a deliverable state forming part of a bulk which is identified either in the contract or by subsequent agreement between the parties and the bulk is reduced to (or to less than) that quantity, then, if the buyer under that contract is the only buyer to whom goods are then due out of the bulk—
(a) the remaining goods are to be taken as appropriated to that contract at the time when the bulk is so reduced; and
(b) the property in those goods then passes to that buyer.
(4) Paragraph (3) above applies also (with the necessary modifications) where a bulk is reduced to (or to less than) the aggregate of the quantities due to a single buyer under separate contracts relating to that bulk and he is the only buyer to whom goods are then due out of that bulk. |
|
|
Term
| When does Bailment occur? |
|
Definition
| when bailee has possession of bailor's goods but not property in the goods. Bailee has duty to take reasonable care of goods. |
|
|
Term
|
Definition
s20 SOG 1979 as amended
in general risk passes at the same time as property. Exceptions are mostly concerned with delay or fault by either party |
|
|
Term
| general rule on transfer or title |
|
Definition
|
|
Term
| exceptions to nemo dat rule |
|
Definition
estoppel
ale under voidable title
sale by seller in possession
sale by a buyer in possession
sale by a mercantile agent
sale of a motor vehicle on HP
sale under special powers |
|
|
Term
|
Definition
actual
constructive
symbolic |
|
|
Term
|
Definition
as specified in the contract
or suppplier's place of business
or supplier's residence
or some other place (specific goods) |
|
|
Term
| why is it important to determine when property in goods passes? |
|
Definition
becasue
1) normally risk passes at the same time and risk needs to be managed eg through insurance
2) if goods are to be resold then need title (owner = property)
3) owner's rights are different to possessor's rights when goods are damaged
4) differencein remedies that can be claimes of action for price
5) in case of bankruptcy in the supply chain |
|
|
Term
| what are the 2 governing principles when the property in goods passes? |
|
Definition
s16 property cannot pass until goods have been ascertained
s17(1) property passes when parties intend it to pass |
|
|
Term
| Explain the 5 rules of s18 |
|
Definition
used when parties intentions are not clear as to when property passes
1) unconditional contract for sale of specific goods in a deliverable state -property passes at the time of the contract
2) in a acontract for specific goods where seller has do to do something to the goods to put them into a deliverable state the property passes when this has been done and the buyer notofed
3) in a contract for specific goods in a deliverable state where the seller has to wigh, test or measure them to ascertain price, property passes when this has been done and buyer notified
4) where goods are delivered on sale or return the property passes when either buyer signifies approval or acceptance to the seller or adopts the transaction in some way OR if hhe retains the goods without rejecting them within a fixed or reasonable time
5) if the contract is for unascertained or future goods sold by description, the property passes when goods of that description and in a deliverable state are unconditionally appropriated to the transaction by one party with the assent of the other |
|
|
Term
| What where the facts and decision in the case of Carlos Federspiel v Charles Twigg (1957) |
|
Definition
| bikes and trikes were paid for, crated and addressed before seller went into liquidation. Not considered to be unconditionally appropriated as crate had not been put on ship and seller could have changed his mind about where to send them. Appropriation involves delivery (actual or constructive) and none here. If crate has been destroyed by fire buyer would not have been happy to claim property then. Buyers ruled to be unsecured creditors. |
|
|
Term
| in what circumstances may a abailment arise |
|
Definition
| whenever property and possession do not coincide |
|
|
Term
| what is the general rule on passing risk? |
|
Definition
| normally passes with property from seller to buyer unless otherwise agreed |
|
|
Term
| What were the facts and the decision in the case of Stern v Vickers? |
|
Definition
| if passing of property is delayed by the buyer he bears the risk of deterioration during the period of delay. sale of turps was part of larger bulk, delivery warrant issued to buyer but not presented to warehouseman. unascertained so property could not pass (s16 SGA 1979 as amended) but still at risk of buyer |
|
|
Term
| explain meaning of nemo dat rule |
|
Definition
| nemo dat quod no habet one cannot give what one does not have - a seller cannot transfer a better title to the goods better than what he has |
|
|
Term
| list the main exceptions to the nemo dat rule |
|
Definition
estoppel
sale under voidable title
sale by seller in possession
sale by buyer in possession
sale by a mercantile agent
sale of a motor vehicle on HP
sale under special powers |
|
|
Term
| explain estoppel in relation to nemo dat rule |
|
Definition
s21(1) where goods are sold by a person who is not their owner, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.
3 tests
1) the original owner must have made a representation (by statement or conduct) that the seller was entitled to sell the goods
2) representation must have been made intentionally or negligently
3) representation must have misled the innocent purchase
if pass test original owner is estopped and buyer has good title |
|
|
Term
| explain sale under voidable title in relation to nemo dat rule |
|
Definition
A sells to B but has been tricked
A can avoid the contract by informing the police but before he does so B sells goods to C. C has good title. If contract had been avoided then C would not have had title and A could have recovered goods. |
|
|
Term
| explain sale by seller in possession in relation to nemo dat rule |
|
Definition
1) seller sells goods once but doesn't hand over goods or documents of title
2) seller sells goods second time
3) seller delivers goods to 2nd purchaser
4)2nd purchaser has good title as long as acting in good faith and has no notice of the previous sale
5) 1st purchaser can sue seller for breach of contract
(s24) |
|
|
Term
| explain sale by buyer in possession in relation to nemo dat rule |
|
Definition
(s25)
1) a purchaser can obtain good title to goods when he buys from a seller who was himself the buyer of the goods on a previous sale and obtained possession (but not yet ownership) of them as long as 2nd purchaser acting in good faith and has no notice of the first purchaser's defective title as against the original seller even though the first purchaser had no title to give to him at the time of the second contract of dale
2) original seller can sue the first purchaser
3) this exception does not apply where the first purchaser bought under a conditional sale agreement |
|
|
Term
| explain sale by mercantile agent in relation to nemo dat rule |
|
Definition
an owner may authorise an agent to sell goods on his behalf. A sale by an agent acting within his authority will bind his principal. a person may purport to have authority to act as agent when has no authority.
purchaser will not get good title.
if agent is a mercantile agent (person in business selling goods on behalf of others) person acts as mercantile agent where he has authority either to sell goods or to consign goods or to raise money on the security of goods
purchaser will get good title
provided conditions
s2 Factors Act 1889
any sale, pledge or other disposition of goods in the ordinary course of business by a mercantile agent in possession of goods or documents of title to goods with the consent of the owner shall be as valid as if he were expressly authorised by the owner of goods, provided that the person taking the goods acts in good faith and has no notice that the agent did not have authority
must be in possession of goods
or documents of title to the goods
vehicle logbook only tells you holder not owner
with the consent of the owner
and the goods must be entrusted to him as a mercantile agent
also
Stadium Finance v Robbins (1962)
sale must be in ordinary course of business
complied with |
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Term
| explain sale of a motor vehicle on Hire Purchase in relation to nemo dat rule |
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Definition
Part III Hire Purchase Act 1964
1) hirer in a HP agreement does not have ownership of the goods during the lifetime of the agreemen
2)has no right to dispose of them
3)where such disposal occurs the finance company still owns the goods and has the right to recover them
Hire Purchase Act 1964 s27
1)exception for motor vehicles
2) first private purchaser to acquire the vehicle in good faith will acquire good title
3) whether purchased from hirer or though intermediate trader/financier 4) Act does not apply to lease cars, company cars, business purchasers |
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Term
| explain sale under special powers in relation to nemo dat rule |
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Definition
sales under common law or statutory powers
non owners are allowed to sell goods in their possession to recover debts
pawnbroker can sell pledged goods if loan remains unpaid beyond agreed time
purchaser gets good title
sale by court order
High court can sell goods that are subject to dispute but for which there is a good reason for immediate disposal, such as the goods are deteriorating
sales in market overt
old exception no longer applies |
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Term
| How may a constructive delivery occur? |
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Definition
1) seller remains in possession but consents to hold goods for buyer
2) buyer was alerady in possession of them eg as bailee, and he simply startes to hold them on his own account
3)a third party such as a warehouseman is in possession and he consents to hold for the buyer instead of for the seller |
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Term
| explain the facts and the decision in the Maple Flock Case |
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Definition
| 1/75 defective instalment too small ratio to breach and possibility of repeat for buyer to treat contract as repudiated |
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