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Contract > Contract 1 > Flashcards

Contract 1 Flashcards

1
Q

3 requirements for a contract

A

Agreement (with offer accepted)

Intention to create legal relations

Consideration

(AIC)
(Alice Is Cold)

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2
Q

Bilateral vs unilateral contract?

A

Bilateral = promise in return for a promise
(promise to pay u)

Unilateral = promise in return for an act
(e.g. lost pet) (aka “if” contracts)

(promise vs perform)

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3
Q

What constitutes a valid agreement?

A

Offer accepted
All material terms agreed

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4
Q

What is the difference between offer and invitation to treat?

A

Invitation to treat - inviting negotiation
(e.g. “would you be interested in buying?”)

Can’t be accepted.

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5
Q

When can an offer NOT be accepted?

A

Once terminated

Due to rejection, revocation or lapse of time

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6
Q

Revocation must be ____

A

Communicated

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7
Q

Requirements for acceptance to be valid?

A
  • Unconditional
  • Communicated by words or conduct (nod/wink fine)
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8
Q

What is the postal rule?

A

Letter of acceptance binding when posted

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9
Q

Offer and acceptance at an auction?

A

Bids = offers
Hammers = acceptance

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10
Q

When is acceptance / revocation communicated to businesses?

A

When reasonable to expect it to be read

businesses - during normal office hours

(the courts love WLB!)

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11
Q

Elements of an offer?

A
  • Expression
    (words/conduct basis contract)
  • Intention
    (what reas person thought - e.g. sold 5k by accident but intended 6k)
  • Addressed
    (to person who will accept)
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12
Q

Is there a limit to how many people a contract can be addressed to?

A

No - can be whole of world.

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13
Q

Are goods on display offer or invitation to treat?

A

Invitation to treat

(i.e. to select the goods and put in trolley - you can change mind/cashier can refuse to sell - no obligations)

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14
Q

Are advertisements an offer or invitation to treat?

A

Usually invitation to treat

Otherwise issue if run out stock

Unless:
- adverts of reward - eg find my dog
- sometimes if shows intention bind (unilateral)

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15
Q

“Without reserve” meaning?

A

No minimum price that auctioneer must sell something at

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16
Q

Damages for breach in auction?

A

Loss expectation

(if have to pay more elsewhere, diff between that and price would have paid)

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17
Q

When will a tender be an offer instead of invitation to treat? What type of contract will be formed

A

Specifically promised to accept lowest tender; or

Impliedly promised to consider
(e.g. if submit on time)

Unilateral

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18
Q

Who can communicate acceptance?

A

Offeree or authorised agent

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19
Q

Acceptance of offer for unilateral contract will always be in what form?

A

Conduct

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20
Q

Can silence amount to acceptance?

A

Only if coupled with conduct clearly signifying acceptance

eg wink

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21
Q

What is a counter-offer and effect of that?

A

Adds conditions to acceptance

Destroys original offer and cycle starts again

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22
Q

What is battle of forms?

A

Two companies want their standard Ts and Cs

Last shot - last to send without rejection

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23
Q

Requirements for postal rule to apply

A
  1. reasonable to post
  2. properly addressed, stamped and posted
  3. postal rule not excluded
    (e.g. if specified how to accept)
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24
Q

If letter sent in post and postal rule DOESN’T apply, when is the offer made?

A

Received

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25
Q

ways offer can be terminated?

A
  • Express rejection
  • Withdrawal
  • Lapse of time
  • Counter-offer
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26
Q

Can you revoke an offer before acceptance IF promised to keep open for certain time?

A

Yes.

Unless offeree gave something in return for keeping offer open

(e.g. £1)

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27
Q

Unilateral contracts - when does acceptance and consideration taken place?

A

Commencement of act

(no need to communicate)

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28
Q

How can you revoke an offer made to world at large?

A

Publish notice of revocation in same place as offer

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29
Q

Postal rule does not apply to ______ ?

A

Revocation

(is just once received)

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30
Q

Can an authorised agent communicate revocation?

A

No - only acceptance

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31
Q

When will offer expire (lapse of time)?

A

The specified time

If not specified, reasonable time
(varies - e.g. perishable goods)

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32
Q

If unclear whether parties have agreed material terms, what should you consider?

(nb usually business)

A

same trade? trade usage? acted upon? mechanism for resolving uncertainty - ADR?

e.g.
agree hire purchase terms but no HP agreement , too vague

timber of fair specification - dealt w each other in past/in trade/partly performed - no uncertainty

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33
Q

Where is there (/is there not) intention to create legal relations?

A

Commercial (inc both individuals e.g. buying out of newspaper) - yes

Domestic (fam/friends) - no

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34
Q

When can intention to create legal relations be rebutted in commercial context?

A

Express statement that not legally binding

e.g. ‘binding in honour only’

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35
Q

When will no intention legal relations in domestic be rebutted?

A

Facts suggest otherwise - e.g. sum/closeness reli/arms length/express agreemnet

e.g.
divorce.
two friends joint business.
expressly agree.
selling house.

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36
Q

Executory vs executed consideration?

A

Executory = a promise

Executed = an act

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37
Q

What is sufficient consideration?

What is NOT?

A

Something APPROPRIATE in return.

Money, goods and services are fine.

Promise to refrain from swearing, gamblings, drinking and smoking fine.
(even if never done before)

Not:
- love and affection
- stop complaining about being disinherited

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38
Q

Is performance of a public duty sufficient consideration?

A

No

But EXCEEDING it is

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39
Q

Is past consideration sufficient consideration?

A

No

Unless:
- Was done at request;
- Mutual understanding would compensate; AND
- If promised in advance, would it have been enforceable?
(i.e. intention)

e.g.
- I asked Luke to survey house;
- Both believed I would pay him (even though never said); and
- AIC.

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40
Q

When can a contract be varied?

A

agreement, intention legal reps and consideration

(often fails at consideration)

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41
Q

Will there be valid consideration for a promise to pay more?

A

ONLY if:

  • exceeded contractual duty
    (e.g. work overtime);
    or
  • conferred practical benefit (unless duress)
    (e.g. avoid penalty clause)

Re potential duress cases:
- if agreed but received practical benefit, no duress

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42
Q

Rule in Pinnel’s case re part p of debt

A

debt cases:

agreement between creditor and debtor that creditor will accept part payment in full and final settlement will not be binding
(ie insufficient consideration)

but if you give something else other than part-payment (hawk/robe etc) then will be sufficient

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43
Q

Exception to rule in Pinnel’s case - when will part payment of debt be OK?

A

If they confer practical benefit other than the part-payment

(e.g. complete on time)

horse, hawk or robe - literally anything else

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44
Q

What is promissory estoppel?

A

Prevents debtor going back on promise to accept part payment (even if no consideration)

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45
Q

Limits to promissory estoppel?

A
  • defence only
  • creditor can resume right to full payment going forward if reasonable notice
    (just can’t claim backwards - reasonable is on facts)
  • clean hands (debtor can’t taken advantage C’s financial difficulties)
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46
Q

Promissory estoppel requirements to apply

A

Promised not to enforce legal rights; and

Relied (despite proving no consideration); then

Estopped if inequitable

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47
Q

Do you need detrimental reliance for promissory estoppel?

A

No
(High Trees - they paid half rent instead of full and nothing else)

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48
Q

What would you use first - exception to Pinnel’s case or promissory estoppel?

A

Pinnel’s case

Promissory estoppel only if no consideration

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49
Q

What is the rule of privity?

A

Only parties to the contract have rights and liabilities under it

(this is the general rule)

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50
Q

When may a third party acquire the benefit of a contract?

A

C(RTP) Act

Contract expressly states; OR
Clearly intended they should be able to enforce it

EITHER WAY
must be identified by name or member of particular class
(e.g. Christmas gift receipt ask if buying for fam)

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51
Q

When may an authorised agent bind a principal to a contract?

A

Actual (express or implied) authority; OR

Authority arising via estoppel

(e.g. even tho pub manager told not to make purchases outside of ales - implied authority to buy cigars)

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52
Q

What is an ‘agent’ for purposes TP to contract?

Examples

A

Have ability or power to change legal relations of whom agent

so they are the party to contract on behalf of principal (who is the TP)

E.g.
- travel agents
- auctioneers
- company directors
- shop assistants

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53
Q

Who is a TP in law of agency?

A

Not someone standing outside contract w principal

They ARE party to that contract.

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54
Q

When may agent have APPARENT authority to form contract?

A

PRINCIPAL representing agent had authority (words or conduct)

Other party relied and acted upon
(e.g. entering contract)

e.g. shop assistant, showing people round, previously made purchases there

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55
Q

In contract between agent and another, does the agent have any liabilities/rights?

A

No - as long as authorised, it is between principal and other party

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56
Q

Are contracts between minors and others binding?

A

Generally no unless for:

necessary goods/services; or
for service and more beneficial than not

other party will still be bound

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57
Q

Will a person suffering from a mental impairment or drunk be bound by a contract?

A

Voidable if:
- did not comprehend nature of deal; AND
- o/party aware of that

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58
Q

Will a statutory corporation be bound by contracts outside its statutory powers?

A

No - if contract outside statutory powers will be ultra vires and void

(nb corps created by statute e.g. local authorities)

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59
Q

What do LLPs have capacity for in terms of entering contracts?

A

Unlimited

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60
Q

What counts as necessaries (for child entering contract)?

A

Extends beyond absolute essentials (eg. food/basic clothes)

Depends on social status and actual requirements

(its giving essential waitrose)

e.g. 16 y/o wealthy school boy buying expensive blazer - depends on if adequate supply of blazers etc

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61
Q

When may contract of service be sufficient to bind minor?

A

Benefits more than not

e.g. contracts of employment for experience such as apprenticeship

  • nb didn’t bind Wayne Rooney terminated contract before end of 2 years for football club as not for necessities.
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62
Q

Is an unincorporated association a valid contracting party?

A

No

e.g. a club

so can’t SUE individual member for it - only the person who made it / anyone who authorised

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63
Q

How much capacity to registered companies have to enter into contracts?

A

Unlimited beyond anything in company’s constitution

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64
Q

Will minors be bound by trading contracts?

A

No

(e.g. a 17 year old selling dancing shoes would not be bound)

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65
Q

How can EXPRESS terms be incorporated into a contract?

A

Any of:

  • Signature
  • Reasonable notice before, or at time of, the contract
  • Previous consistent course of dealing

(usually use latter two if not signed)

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66
Q

Three classifications of terms?

A

Warranties
Conditions
Innominate terms

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67
Q

Rights if CONDITION breached prima facie?

A

Terminate future performance of contract AND claim damages

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68
Q

Remedy where warranty is breached?

A

Damages only

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69
Q

Remedy for breach of innominate terms?

A

Wait to see what consequences is.

Terminate only if breach deprives substantially of whole intended benefit.

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70
Q

How may terms be implied?

A
  • Custom
  • Fact, based on presumed intention of parties
  • Law: certain terms implied into common contracts
  • Statute
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71
Q

What will court consider in determining if given reasonable notice as to INCORPORATE term into contract?
🏖️

A
  • Nature of document
    (reasonable person expect contractual? e.g. not if on back of ticket after paying for deckchair - assume receipt)🎫
  • Timing ⏰
    (can’t be AFTER contract)
  • Too onerous? 😰
  • Exemption clause legible? 🔍
  • If terms on back of doc, words on front e.g. ‘see terms overleaf?’ 🍀
    (would signify they are incorporated - had notice if overleaf)
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72
Q

When will a previous course of dealing allow a term to be deemed contractual?

A

Lots of regular dealings on exact same terms.

Even if provided Ts and Cs AFTER contract (e.g. invoice)

(e.g. 3-4 times per year for long period and sale note routinely handed Ts and Cs)

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73
Q

If contract not for necessities and therefore doesn’t bind minor, it will be _____ at their _____

A

voidable
option

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74
Q

Is a clause in contract preventing third parties enforcing their rights valid?

A

Yes - can only enforce if was parties intention so can expressly state in contract that didn’t intend it

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75
Q

Will a term be condition / warranty because they are named as such in contract?

A

Only if drafted by lawyers

If drafted by non-lawyer - look at circumstances and whether intended for breach to lead to termination

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76
Q

Example of terms which are judicially recognised as being conditions?

A

‘Expected ready to load’ clauses in contracts to hire ships

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77
Q

What should happen if a term is classified as a condition in the contract but breach so slight it would be unreasonable to terminate as a result?

A

Regard as innominate or intermediate term

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78
Q

When will term be implied by custom?

A

Reflects well-known and legally binding customs of a particular trade

Unless contradicts express term contract

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79
Q

When will term be implied by fact?

A

Parties not expressly agreed but contract unworkable without so presume implicitly agreed

(so obvs it goes w/o saying)

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80
Q

When will term be implied by law?

A

Law regards as a necessary for certain types contract

e.g. employment contract - implied duty to provide healthy and safe env’t and employee to provide honest and loyal service

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81
Q

Implied terms between B2B for sale and supply of goods

(SGA 1979)

A
  • has right to sell them
  • correspond w description
  • satisfactory quality to standard of reas person, considering price and description
  • if expressly/impliedly let know purpose, reas fit for that purpose - unless buyer does not or is unreas to rely on skill judgment seller
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82
Q

SGA 1979 B2B implied terms for supply/sale goods/services - what type of terms are (the ones we look at) classified as?

What’s the impact of this?

A

Conditions

Strict liability (fault not req)

Prima facie breach - get refund as well as damages (subject to bars)

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83
Q

Bars to rejecting goods under SGA 1979 (implied terms B2B supply sale goods services)

A

A) Accepted goods (eg suggested acceptance to o/s or kept beyond reas time); OR

B) Breach so slight unreasonable to reject

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84
Q

Meaning of strict liability

A

Seller not need to be at fault for issue. Reason for issue irrelevant. Liable anyway.

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85
Q

When does the other statute re sale of goods implying terms to contracts apply - i.e. what type of work does it apply to? SGSA 1982

A

For a service/work (e.g. furniture removal)

And those involving supply of work and material (e.g. to supply and fit new kitchen)

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86
Q

What CONDITIONS are implied under SGSA and what type contracts apply to?
(work/services/materials one)

A

(remember SGSA is for service contracts AND services involving supply materials eg fit new kitchen)

ONLY where service contract involves supply goods

  • Right to transfer ownership in goods
  • Goods correspond description
  • Satisfactory quality
  • If let know purpose goods and reas rely skill/knowledge, fit for the purpose

(strict liability / prima facie etc - see OneNote)

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87
Q

What innominate terms are there under SGSA and what types of contract for?

(SGSA covers work/materials/service)

A

(a) Work and materials, and (b) service contracts

B2B

  • Reas care and skill
  • Reas timeframe
  • Reas cost
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88
Q

B2C Consumer Rights Act - what implied terms for sale and supply of goods under goods/services contract?

A

All under SOGA/SOGAS

Including:
- Satisfactory quality
- If make purpose known and reas relies on skill/knowledge
- Correspond description
- Right to sell/transfer

And for sale AND supply of goods:
- reas care/skill, sum and cost

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89
Q

Re making known purpose of goods under SGA/SGSA/CRA, how can this be done?

A

Express or implied

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90
Q

What terms under CRA apply only to goods and services and service contracts?

(i.e. not sale of goods as well)

A
  • Reas care and skill
  • Reas sum
  • Reas timeframe
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91
Q

What is liability standard under:
1. SOGA
2. SGSA
3. CRA?

A
  1. SOGA
    = always strict
    (because all conditions)
  2. SGSA
    supply materials via service = strict
    services only = not strict
    (and innominate)
  3. CRA = always strict
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92
Q

What remedies does consumer have for breach re GOODS under CRA?

A
  1. Short-term right to reject and full refund
  2. Right to repair or replace if apt
  3. Right to price reduction or final right to reject and get partial refund reflecting C’s use of goods

(do in stages - 1. but if timeframe run out, 2. right to repair, if inapt, go to 3)

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93
Q

Can you claim damages as well as claiming under CRA re GOODS? Would you?

A

Yes

Would do if CRA didn’t fully compensate (e.g. partial refund)

(nb would be via common law, not CRA)

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94
Q

Time limit for short-term rights under CRA re GOODS?

A

30 days to reject non-perishable goods

After bought, delivered and where apt, installed

Perishable goods - time limit no longer than time reas expect to last

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95
Q

Time limit to rights OTHER than short-term rights under CRA re GOODS? Exceptions?

A

If goods don’t conform to contract anytime within 6 months of date of delivery, taken as not confirming to contract on that day

Unless perishable goods or can prove goods DID conform to contract on the day (difficult to)

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96
Q

What remedy can consumer enforce under CRA for service contracts?

A

Repeat performance if reas or price reduction

But if breached term to perform in reas time, only right to appropriate price reduction

(fair cos what’s point in repeating if done right)

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97
Q

Three hurdles for exemption clauses to pass?

A
  1. Must be incorporated as term of contract
  2. Purport to exclude liability for the particular breach and loss
  3. Relevant statutory control under UCTA or CRA
98
Q

When can third parties rely on an exemption clause?

A

If named or otherwise identified as a member of a class intended to benefit from it

99
Q

What are the two common law tests re exemption clauses?

(not fair and reasonable)

A
  1. incorporation
  2. construction
    (exclude or limit)
100
Q

What is the common law incorporation test (re exclusion clauses)?

A
  1. Signature
  2. Reasonable notice, before or at time of contract, considering:
    - contractual nature of doc
    - onerous?
    - legible?
    - where clause is on the doc
    - timing (before or at time of contract)
  3. Previous consistent course dealings (on same terms)
101
Q

What is the construction test for exclusion clauses to apply?

A

Consider if clause intended to exclude or limit liability for the specific breach and loss

Any ambiguity read against one trying to rely on it (contra proferentum)

Must be VERY clear not liable

102
Q

Which statutes govern exclusion clauses in which types of contracts?

A

UCTA - B2B

CRA - B2C

103
Q

What are the three potential outcomes of UCTA on exemption clause?

Including when exemption clause will have no effect?

A
  1. Prevents D from excluding or restricting liability AT ALL. i.e. for:
    - ownership title
    - death and PI due to negligence
  2. No effect on the exemption clause so D can rely on it
  3. Subjects clause to reasonableness test
104
Q

What is the reasonableness test for B2B exemption clauses?

A

Clause must have been fair and reasonable to include in contract

Judging from time of contract, considering circumstances knew or ought to have known

105
Q

What specific exemption clauses are particularly relevant to reasonableness test?

A
  1. Loss or damage caused by negligence
  2. Breach of statutory implied terms relating to goods
  3. Breach express term in standard written terms of person seeking to exempt liability
    (i.e. where using standard terms of person relying)
106
Q

If business have agreed to reduce price of goods based on seller accepting exemption clause, what impact will that have on reasonableness test?

A

More likely to pass

107
Q

4 main guidelines for court in assessing whether an exemption clause is reasonable B2B?

A

Consider everything, including:

  1. Bargaining power?
    (e.g. 2 big businesses)
  2. Inducement to agree / no other option but to accept?
    (less likely)
  3. Should known about clause ?
    e.g. trade custom / previous dealings / clearly stated
  4. Reasonable at time of contract to expect compliance practicable

NB: insurance is for LIMITATIONS

108
Q

2 additional guidelines in assessing reasonableness of limitation clauses in B2B contracts
(as well as applying guidelines relating to exemptions)

A
  1. Resources expect available to D to meet the liability if arose
  2. how easily D could have taken out insurance
109
Q

Diff between excluding/restricting breach of liability under CRA for sog and sogas?

A

Sales contracts - cannot exclude or restrict

Sales and services:
- can’t exclude
- can restrict ONLY satisfactory quality

i.e. prevent arising in first place

110
Q

Which right or rights can be restricted under CRA?

What does this mean?

A

Reasonable care and skill

Prevents right arising in first place

e.g. painter make putting down plastic carpet the customer’s responsibility

never liable so never breach

NB: says in textbook can’t restrict time or cost if would prevent getting remedy
- we have not got the time to bother with that intricate point - just presume can’t restrict.

111
Q

As per CRA, term will not be valid if?

A

(prevents them from pursuing remedy under CRA)

  1. Exclude or restrict right / remedy
  2. Subjecting remedy, right or enforcement to restrictive or onerous condition
  3. Put at disadvantage for pursuing or excludes / restricts rules of evidence or procedure

(applies for them all!)

112
Q

Are all B2B clauses subject to reasonableness test?

A

Yes

(but e.g. PI - if isn’t relevant a clause exc liability, will be liable (contra preferentum) so don’t need to apply it)

113
Q

When could you bring claim against employee of a company you are suing?

A

Tort of negligence (but not breach of contract)

Since contract is w the company

114
Q

What damages will claimant receive if they have suffered no loss?

A

Nominal

115
Q

What is the aim of damages?

A

Put claimant in position would have been in if contract properly performed, as far as money can

116
Q

What types of loss are hardest to recover, and when can they be recovered?

A

Distress/disappointment

Where main purpose contract was provide pleasure or peace of mind

e.g. wedding or holiday

117
Q

When will loss not be too remote?

A

Natural/inevitable consequence of the breach;
or
D knew at time of contract of special circumstances making loss a likely consequence of the breach

(e.g. can recover for cancelled joinery contracts but not for loss of profit on a special contract with a stately home)

118
Q

What are usual measure of loss for damages?

A

Difference between value and cost of cure

nb have been awarded loss amenity where was no difference and cost of cure deemed out of proportion to loss

119
Q

What steps must claimant take to mitigate their loss?

A

reasonable

120
Q

How is expectational loss measured?

A

Compare position after breach with where would have been if properly performed

(see examples on OneNote)

121
Q

When would you use reliance loss instead of expectational?

A

Didn’t know what to expect.

Instead is for what HOPED would materialise.

Saying what they hoped would materialise too speculative so can’t claim expectational.

E.g.
forced abandon play after D pulled out and couldn’t get substitute. did not know what profit would have made so couldn’t have claimed expectational loss.

122
Q

Damages for expectational loss?

A

Wasted expenses incurred

e.g.
directors fees and production costs

123
Q

Different types of losses

A

Pecuniary - can measure in money

Vs

Non-pecuniary - physical inconvenience, pain and suffering

124
Q

If found not too remote, should extent of loss be considered?

(e.g. illness was in contemplation but rare infection causing death wasn’t)

A

No

Recovery not limited because the degree of physical injury or damage wasn’t anticipated

Thin skull rule i guess.

125
Q

Outcome if a claimant fails to take reasonable steps to mitigate their loss

A

Can’t claim any part of damages which was due to their failure to mitigate

126
Q

Who has burden of showing claimant failed to mitigate loss?

A

Defendant

127
Q

What is the position if a claimant has taken steps to mitigate their loss but failed to reduce it or increased it?

A

If they have acted REASONABLY (reasonable steps), can still claim for all parts of their loss

128
Q

How will damages be quantified for defective goods vs services

A

all putting in position as if properly performed - just diff circumstances:

goods USUALLY difference in value
(between goods received and expected)

service USUALLY cost of cure (i.e. reinstatement)
- e.g. repairing fridge

BUT sometimes get loss of amenity if this is seen as true loss (swimming pool - next card - tehe)

129
Q

When may you get loss of amenity instead of cost of cure/diff in value
(as otherwise on facts would be entitled to)?

A

Unreasonable considering the value of damages compared to the benefit to be obtained
(loads of money for slightly deeper pool which not critical)

Instead you get loss of amenity
if represents the ‘true loss’

Usually if thing lost is meant to provide pleasure / amenity

If something more mundane but curing still unreasonable, may get nothing !

(swimming pool case)

130
Q

What may parties do to avoid need to bring claim for damages?

Advantage of this to innocent party?

A

Clause in contract stating amount compensation paid if particular breach

Inter alia - not go to court and therefore prove extent of loss, just that breach occurred

131
Q

When does distinction between specified (liquidated) and penalty clause matter?

A

Parties not agreed to abide by clause so clause to decide whether specified or penalty (as penalty unenforceable)

132
Q

Explain what a specified damages clause is and how it operates?

What is it often also known as?

A

Genuine attempt to pre-estimate loss likely caused by breach

Receive the SPECIFIED amount regardless if actual loss suffered is higher or lower
(usual rules not apply)

Liquidated damages clause

133
Q

How can u identify a penalty clause?

A

Attempt to pressure party to perform because sum stipulated is extravagant or disproportionately high

Consider:

  1. Extortionate compared to ordinary damages?; and
  2. Was it penal? Just bcos not pre-set loss, doesn’t mean penal.

Was conduct unconscionable or extravagant?
Detriment out proportion to legitimate interest of innocent party

e.g. car park even tho not suffered loss from overstaying motorists, legitimate interest in receiving income to meet costs of car park

134
Q

Impact of penalty clause in proceedings?

A

Unenforceable - court free to assess damages in usual way using usual principles (damages, remoteness and mitigation DRM)

135
Q

Contractual remedies aside from damages

Which are equitable?

A
  • Debt
  • Specific performance
  • Injunction

(latter two)

136
Q

When would court award equitable remedy for contractual breach?

A

Damages inadequate

137
Q

Action for agreed sum (i.e. debt action) - what must be proved?

A

Just that money to be owed and date for payment passed

^ means must have fulfilled their side of bargain

NO need to prove loss or remoteness.

138
Q

Property example where might want to use specific performance?

A

Buyer exchanged contracts but seller wanting to back out

(so order requiring seller to transfer to her)

139
Q

What areas of law would u usually get / not get SP for under contract law?

A

Usually for sale of land

Not for :
-sale of goods
(just get goods elsewhere which are the same)

  • for service e.g. employment (if reliable broken down likely inappropriate force work together)
140
Q

Equitable remedies are always ____

A

Discretionary

141
Q

When will specific performance be awarded (i.e. what court must be satisfied of)?

A

Just and equitable to do so

Also whether claimant acted equitably

Cause disprop hardship to D?

142
Q

Can an injunction be awarded where would have effect of forcing D to do something which couldn’t do under SP?

(e.g. work for the claimant)

A

No

E.g. The Troggs - effect of preventing from not employing another to act as manager would be that have to employ manager - work together - which can’t get SP for

143
Q

Aim of restitution?

A

Prevent one party being unjustly enriched at other’s expense

By restoring to position was in before that unjust enrichment

e.g. paid £500 for goods, never delivered, could recover £500

(but not always available just cos unjust enrichment)

144
Q

circumstances where restitution available?

A
  1. total failure (if buyer)
  2. breach contract or contract never formed but started work (and not paid) (supplier)
  3. negotiation damages
145
Q

When would there be a total failure of consideration?

A

If payer paid payee under contract

total failure of consideration if not done ANYTHING supposed to under contract

(e.g. don’t deliver anything or turn up to do service)

146
Q

What would you get if total failure consideration?

A

Restitution

i.e. recover the money paid

Any remainder not covered under restitution - damages claim

e.g. give back the £500 paid but if cost £550 to get replacement, damages claim for the £50

147
Q

Effect of restitution?

A

Recover any money paid under contract
so
Restore position before breach

148
Q

When can you usually get restitution for work done or goods supplied?

What are they entitled to?

(ie supplier)

A
  1. contract broken
    - started doing work or delivered goods
    - not paid
    - either damages or restitution
    - restitution is reasonable sum
  2. contract never formed
    - started work before finalised e.g. lengthy negotiations
    - reas sum
    (as in after negotiations decided not to go through with contract, but you already started performing)
149
Q

Can you get compensatory damages as well as restitutionary damages?

A

Only total failure consideration (buyer)

Not if contract broken/never formed (supplier) or negotiation

(e.g. paid £500, £50 for new one, damages claim for £50)

this isn’t gods work - defo can have both for total failure and defo have to choose for broken. couldn’t have damages and negotiation cos no contracvt i don’t think

150
Q

What amount will court award for diff types of restitution?

A

1.Total failure = amount paid
2.Provided goods/services but contract broke/never formed = reasonable sum
3. negotiation = hypothetical reasonable amount would have paid for negotiation fee

151
Q

Difference between remedies awarded in restitution vs traditional contractual damages

Inc examples sub-categories of restitutional damages

A

Restitutionary not about loss to claimant but gains at their expense, sometimes even if don’t reflect/fully compensate loss to Cl

e.g.
Account of profits
Negotiating damages

152
Q

What is account of profits?

A

Exceptional circumstances

Get profits D has made from breach

e.g. AG v Blake spy autobiography case

  • Crown suffered no financial loss
  • So not compensatory (as no loss) or restitutionary (as gain not AT EXPENSE of C)
  • But should still receive profits from publication
153
Q

What are negotiating damages and what type of remedy is it?

A

No calculable financial loss other than opportunity to negotiate release fee and would be unfair to allow D to take full benefit of their breach

E.g. made loads from breaching restrictive covenant by building on land. injunction but still diminished value. lost chance to negotiate fee for relaxing covenant. awarded 5% profit - which was amount reas demanded in return for relaxing covenant.

Restitutionary

And instead of damages

154
Q

What is a contract of guarantee?

A

Guarantor guarantees that if debtor doesn’t pay back money owed, they will instead

In return, discharge debt

e.g. parent guarantees to bank if kid goes into overdraft

155
Q

Formalities for contracts of guarantee?

A

Evidenced in writing

  • does not need to be written contract, but must be some written evidence of transaction
  • evidence must be from before creditor seeks enforcement
  • if relying on evidence other than written contract, must be signed by guarantor

(doesnt need to have specific purpose of enforcing contract - could be serious of documents linked by reference)

If formalities not followed, contract of guarantee is VOID x

156
Q

What is purpose of indemnity in contract?

A

Primary obligation to pay for a known loss / liability arising under the contract

e.g. selling contaminated land, either negotiate reduction in price or indemnity that will pay back clean up costs

157
Q

Formalities for an indemnity in contract law?

A

don’t need to be evidenced writing

e.g. could literally go into a shop and say let him have the goods I’ll make sure you’re paid - that’s a personal undertaking to pay and an indemnity in case don’t

158
Q

How can a contract be terminated?

A

Discharge following repudiator breach
(condition or serious innominate)

Frustration

By performance

159
Q

Options when breach of innominate term?

A

REPUDIATORY BREACH:

  1. Contract discharged or affirmed AND damages; or
  2. Just damages

NOT REPUDIATORY i.e. not v serious
1. damages only

I overcomplicated this

160
Q

When is termination permitted?

A

Breach of condition

Serious breach of innominate term

161
Q

Effect of termination?

When will termination be impossible?

A

Both parties discharged of FUTURE contractual obligations

(e.g. both to pay and to carry out any other work)

Means that if NO future obligations, termination impossible

162
Q

What is frustration in contract?

A

Something out of ordinary frustrates intentions of parties

Parties excused from future performance

Any losses should be borne out by parties

163
Q

What constitutes frustration?

A

Supervening event or change of circumstances which:
1. makes performance impossible or radically different;
2. unexpected; and
3. occurred w/o fault

164
Q

Main categories where performance would radically different as to frustrate contract?
(if other reqs satisfied)

A

(a) Government intervention
(b) Unavailability of a specific person crucial to the contract
(e.g. king ill before coronation🤢)
(c) Illegality
(d) Destruction of the subject matter
(e.g. fire🔥)
(e) Non-occurrence of a fundamental event

Always will be Q of degree

165
Q

Kind of things that indicate contract won’t be frustrated due to degree?

A
  • Length of disruption
    (e.g. 18 months of 10 yr lease couldn’t access warehouse - not sufficiently grave)
  • Replacement of person who is not available to perform contract and not radically diff/can be done by that person
    e.g. t swift with s gmz
  • Not the sole purpose of contract
    (e.g. hire ship to view a royal fleet, which is cancelled, but day’s cruise still possible so not radically diff)
166
Q

Considerations re if delay frustrates a contract?

A
  • any contractual provisions for the consequences of the delay
    (do that instead of frustrate)
  • likely length of delay relative to duration of contract
    (E.g. WW1 - not temp)
  • any deadline in contract; AND
  • whether performance resumed is radically diff from the contract

(nb usually breach and therefore damages for delay)

167
Q

Examples delay may not frustrate contract?

A

E.g.

Suez Canal - even tho longer and more expensive route to get there cos closed,
not frustrated unless route specified in contract or goods/value disrupted by it taking longer

14 month delay in completing building contract due to labour shortages - just more expensive and difficult - not radically diff and could have foreseen delay

fish & chips at inn - unless stated must go this way, just more expensive and difficult - not frustrated

168
Q

For a contract to be frustrated, something unexpected must have happened

Explain this requirement

A

Could the parties have foreseen it?

E.g. delayed goods due to road closure

Should make provision so excused where unexpected happens - situ then becomes governed by contract and no need for frustration

E.g. force majeure clause

NB: Can never provide for illegality in contract (i.e. protecting selves from liability for illegality)

169
Q

Will contract be frustrated if valid force maj clause?

A

Nope

no need to rely on frustration cos contract not require performance provided clause satisfied UCTA

remember with frustration u go off contract provisions where there are any

170
Q

Can illegality be provided for in contract?

A

no

171
Q

For a contract to be frustrated, the thing must be beyond either party’s control

Explain this requirement for frustration

A

Can’t be frustrated if was at choice or fault of party alleging frustration

i.e. shouldn’t be excused for your fault

E.g. decision to use a boat for one contract, then sunk, couldn’t use for existing contract - own fault for using for other contract so not frustrated

172
Q

Consequences of frustration?

A

Contract automatically terminated by law

neither party has option re terminating

Released future obligations

Money - see separate queue card
(baso can recover amounts paid, don’t need pay anything else, incurred expenses and just sum valuable benefit)

173
Q

What will be payable on frustration?

A
  1. Anything already paid
    (eg deposit/first instalment/full amount)
    - and dont have to pay anything else due
  2. May deduct incurred expenses from other side off that ^
    - discretion court
    - can’t award more than the amount due at date of frustration or the expenses incurred - whichever is lowest
    - e.g. as requested, built bunks. ship burnt down. £600 due by date frustration. £800 for bunks. max can recover is £600.
  3. Just sum for valuable benefit
    - eg if still got a week of your holiday - pay the other party to reflect that
174
Q

If falls outside of frustration doctrine, it is governed by ___ ?

A

Contract itself

(and is a breach of contract)

175
Q

What is doctrine of complete performance?

Not just when will performance be completed. WHat is the effect.

A

a supplier is not entitled to the price unless and until performance is precise and exact

(subject to exceptions)

176
Q

Exceptions to doctrine of complete performance?

A

∘ Divisible obligations
∘ Substantial performance
∘ Wrongful prevention
∘ Voluntary acceptance of part performance

177
Q

What is the phrase and explain it where diff stages of house rooms lol (there are other examples lol)?

A

DIVISBLE OBLIGATIONS

EXCEPTION TO COMPLETE PERFORMANCE

Parties agreed specific payment for each distinct part or stage of contract.

Each part or stage then treated as separate contract so once completed contractor entitled full payment.

e.g. decorate house, each room separate cost and pay when each room completed, paint kitchen then abandon, only entitled to pay for the kitchen

178
Q

What is substantial performance?

A

EXCEPTION TO DOCTRINE OF COMPLETE PERFORMANCE

If contractor completed agreed work but slightly defective, entitled to price less cost of putting right the defect

Slightly defective means not more than 1/14 (7.13%) contract price to rectify

e.g.
Jack does the door but doesn’t get it quite right, bit of a gap for toad to get in. But substantially right.
Entitled to be paid but knock off the price to repair, which is 7% of PP.

179
Q

What is wrongful prevention?

Does anyone get anything?

A

EXCEPTION TO COMPLETE PERFORMANCE

Wrongfully prevented from completing performance.

Bcos terminated when no right todo so

Party who has been wrongfully prevented entitled to damages OR restitution for work already performed.

(oh how the tables turn the supplier gets something!)

e.g.:
tell to stop cutting down trees after 2 trees cos changed mind
- wrongful prevention and breached contract by telling to stop
- entitled damages or reas sum for work already done

e.g.
- half-way through dismissed as work seriously defective
- not wrongful prevention cos SGSA - justified in dismissing and will have got work done for nothing
(bcos valid termination)

180
Q

Voluntary acceptance of part payment as an exception to complete performance

Explain

A

If supplier of goods or services partly performs contractual obligations and other party VOLUNTARILY accepts

Supplier is entitled reasonable sum for what done

but non-defaulting party must have had genuine choice re whether to accept

If no choice, won’t have to pay for anything

E.g. 65s - you’ve eaten it now
(but if u’ve eaten it down whilst tell u nothing else in and starving and no other cafes or supermarkets open maybe not)

E.g. hairdressers - ye that’s realy nice thank u x

181
Q

For a false preliminary statement to be actionable it must either amount to

A

Misrepresentation or breach of contract term

(NOT a sales puff - i.e. extravagant sales talk not meant to be believed)
- chippy in lds “best fish and chips in the world !!!”

(if term, pursue remedies for that - if rep, misrep)

182
Q

FIRST STEP for deciding whether a preliminary statement is a term or representation?

A

Intention of the parties

If intention unclear, court follows guidelines

183
Q

Guidelines court in determining representation or term

A
  • relative skill and knowledge
    (expert to non-expert = term)
  • whether other party said fact check me on that babes
    (if so, rep - or if said don’t verify, term)
  • timing of statement
    (lapse between statement and contract = rep)
  • if written contract, was statement included in it?
    (if so, term)
  • did innocent party stress importance of the statement?
    (if so, term)

(See OneNote for examples)

184
Q

Definition of misrepresentation

A

Untrue statement
(not misleading)

of fact

made by one party to a contract

to the other contracting party

which induced the other to enter contract

185
Q

What constitutes an untrue statement for purpose of misrepresentation?

A

Oral, writing, conduct
(e.g. Spice Girls - participating in TV advert suggests together)

Generally not by silence. But **MAY ** be if:
1. Fiduciary reli - e.g. solicitor/client
2. Reli utmost good faith - e.g. travel insurance
3. Half-truth - i.e. misleading - e.g. ‘one lady owner’ but had male owners
4. True when made but don’t disclose change

186
Q

Explain requirement that misrepresentation must be a statement of fact

A

Can’t be statement of opinion or future intention

But fact if:
- LIES about intention; or
- States opinion which is not reasonably based in facts

e.g. sells property, tells u the tenant is desirable, they are actually in arrears, consider statement of fact

187
Q

Can you bring misrepresentation claim if misrepresented statement is not from other party to contract?

A

No

But may be able to bring claim in tort for negligent misstatement or deceit

e.g. their mate says don’t worry they aren’t planning to build on there

188
Q

Misrepresentation - statement must induce contract

Explain

A

Means representee must rely on the statement

Doesn’t need to be only inducement - just at least a reason for it

eg appointed their OWN expert to verify representation and had relied solely on that expert - not a representation

189
Q

Types of misrepresentation

A
  1. Fraudulent
  2. Negligent
  3. Innocent

(remedy varies based on culpability)

190
Q

When is a fraudulent misrepresentation made?

Can it be restricted?

A

Made with:
- Know or belief that it is false; or
- Recklessly, not caring whether true or false

Can be difficult to prove

Burden of proof on Claimant

e.g.
- I will sell you Merak and stop working at Holly’s

191
Q

Damages for fraudulent misrepresentation?

A

Tort of deceit

How much would have got if misrep was true

Damages extend to ALL consequential losses
-i.e. remoteness not considered at all

E.g. hairdresser
- seller told of false intent to stop working at his other salon in same town
- unexpected competition and sold at loss
- put back in position as if no mirep
- would have bought diff salon, so received difference in profit actually made and would have made if statement true
- (ie as if he bought a diff salon)
(loss of bargain)

192
Q

What counts as negligent misrepresentation?

A

Carelessly made statements

Belief held honestly BUT NOT reasonably

193
Q

which misrep has weird bop

what must they prove

A

negligent

D has burden

Must prove made statement on reasonable grounds

(Cl only has to establish misrepresentation and loss - then D proves honest and reasonable)

e.g. Howard Marine v Ogden - checked Lloyd’s Register which was wrong but not the ship’s documents - liable.

194
Q

Damages negligent misrepresentation?

A

Same as fraudulent

i.e. tortious principles to put in position as if misrep never happened, all consequential losses recoverable and don’t need to prove remoteness/

(since fraudulent difficult to prove, often better for negligent)

195
Q

What is innocent misrepresentation?

What could u recover?

A

If misrepresentor can establish had reasonable grounds to believe statement true

No damages available

However may be able to rescind (if not barred)

196
Q

General effect of ANY misrepresentation on a contract

(aside from damages)

A

Makes contract voidable
(i.e. have choice to rescind or affirm)

197
Q

Can you get rescission (opted to set aside a voidable contract) AND damages for misrep?

A

Only for fraudulent or negligent

198
Q

Aim of rescission (aside from ending contract)

A

BOTH parties restored into pre-contractual position

e.g. if it was Shaz and Pedro, would mean no contract, we get our car back, Pedro gets his money back, we don’t have to pay or do anything else, neither does he

^ checked this is all right

199
Q

What type of remedy is rescission and impact of this on when it is awarded?

A

Equitable

Judge’s discretion

200
Q

When will rescission be barred?

APPLIES WHENEVER RESCISSION IS REMEDY, INC:
Including:
- misrep
- repudiatory breach innominate
- breach condition
- undue influence

A
  1. Innocent party chose to affirm contract
    - did nothing
  2. Undue delay ⏰
    see sep card as differes fraud and others
  3. Innocent purchaser acquired interest in subject matter before rescission

(makes sense - as the ownership hadn’t reverted back to original seller at this point - so second seller had right to sell)

(Before rescinded, Pedro sold, rescission barred. new purchaser keeps/we get no car/pedro gets damages
(AFTER rescinded, Pedro sold, sorry new purchaser that is no longer yours!)

  1. Impossible to restore goods or property

(e.g. compromise agreement, got new job, can’t rescind agreement as would re-employ so performing two jobs at once)

201
Q

Explain when undue delay will act as bar to rescission?

i.e. when does time start to tick

A

Runs from date SHOULD have discovered the misrepresentation
- e.g. when Pedro had opportunity to do AA inspection

Except for fraudulent - then it runs from when ACTUALLY discovered
- e.g. when Pedro goes to garage

202
Q

Remedy for duress and undue influence

What intitial steps to take?

A

voidABLE
- NOT damages.

Notify o/s if want to rescind

Can apply to court for order to rescind if o/s refuses comply

203
Q

What is economic duress?

could come up in PoC

A

illegitimate threat

causing compulsion or lack of practical choice

and was a factor (even if not only factor)

in inducing enter contract or variation

204
Q

What kind of things do NOT constitute economic duress?

A

Threat to:
1. take business elsewhere
e.g. Bths checkout when discover price of Komuch
2. sell to a competitor
e.g. Vinted
3. inc price when renegotiating
e.g. Sue cleaning
4. not give a discount in the future
girl on ebay about AA skirt

EVEN if gives no practical choice e.g. inc price and no other suppliers

Must be improper / illegitimate
e.g. threat to breach contract or commit a tort

205
Q

Court guidelines re illegitimate pressure to establish economic duress?

A
  • Actual or threatened breach of contract;
  • Threat made in bad faith; ⛪️ or
  • Victim protested at time 🪧

^ inc threat physical violence

distinguish rough and tumble of commercial bargaining

206
Q

What is position if agree to pay more for performance of an existing contractual duty which conferred practical benefit was made under duress?

How does rescission apply where variation?

A

If that promise to pay more was made under duress, the promise will be voidable

But only the later variation which is affected by the duress will be rescinded

E.g. told that won’t deliver machinery unless pay an extra £50, no choice so agrees, delivers on time, if no bars apply - rescind that variation so innocent keeps machinery (as was agreed in contract) and have to repay the £50

207
Q

what is undue influence?

A

influence beyond what is regarded as acceptable (superego!); OR

other party in position to influence another and takes unfair advantage of that

208
Q

Two types of undue influence (and explain)

A

Actual undue influence - proved on facts

Presumed undue influence:
- position of trust and confidence; and
- transaction calls for explanation

209
Q

Remedy for undue influence?

A

Rescission

Usual bars apply

No remedy of damages

210
Q

Who has evidential burden to show undue influence?

A

Actual - person alleging it

Presumed - shifts so other person has to disprove it

211
Q

Explain actual undue influence

A

(can’t presume so you must prove it ACTUALLY existed)

Proved on facts

e.g. elderly lady afraid of both her nephew and court. So when he told to sign at threat court action, unable to refuse. Supported by witness. was actual duress

e.g. can’t prove presumed because husb and wife on facts, could suggest actual if she didn’t want to remortgage but he persuaded her to

212
Q

Can the threat for undue influence be legal?

A

Yes
e.g. threat taking court action

(unlike duress)

213
Q

When will there be (and not be) a relationship of trust and confidence for presumed undue influence?

A

certain categories

e.g:
solicitor/client - doctor/patient 👨‍💼👩‍⚕️
Parent/child under 18 👶
Religious advisers/followers 🙏

NOT husband and wife - would have to be proved (actual)

Can establish on facts/all evi available
- e.g. reli unequal, opportunities for abuse

e.g. young unknown singer and manager

e.g. NOT husb / wife
- one doesn’t work but manages finances
- other works
(bcos aware of/understands finances etc)

214
Q

When will a transaction call for an explanation for purposes of undue influence?

A

Not easy to explain just by relationship between them

Usually party enters contract that is not for their benefit or exposes them to risk

215
Q

How may you rebut presumption undue influence?

A

innocent party taken independent advice

216
Q

When may a third party be accused of undue influence?

Effect?

A

Had actual or constructive notice of other party’s undue influence over another

^ i.e. put on inquiry

Means contract is voidable

Would lose security if loan.

e.g. lender uses matrimonial home as security for loan against creditor, wife gives surety, but only signed because husband told to/not aware of risks.

217
Q

When will a TP creditor have constructive notice of undue influence?

A
  • it ought to have been put ‘on inquiry’
    (calls for explanation)
    i.e. debtor and surety non-commercial reli and loan not for their joint benefit

AND

  • did not take reasonable steps to ensure that the surety was aware of implications
218
Q

How can a TP creditor take reasonable steps if on inquiry of undue influence?

What if they wouldn’t take the advice?

A
  1. private meeting with surety to explain risks and advise that take independent advice; or
  2. tend to just insist (sometimes pay for) legal advice instead of option 1
  • several attempts but didn’t take advice, couldn’t enforce cos should have required or not taken the security.
  • once got legal advice, creditor gets certificate and any cause of action will be against solicitor and not impact the security
219
Q

If creditor stopped from enforcing security due to being tainted with undue influence, what options are left for them?

A

Debt action against the debtor for sum owed

(hard to enforce obvs)

220
Q

When will contract be deemed affirmed?

(so bar to rescission)

A

Affirmed contract if when they pay the extra money, they are no longer under duress or pressure

So the action of paying is affirmation

e.g.
not affirmed if pay but had to before delivered or refuse to pay when becomes due

221
Q

Three types of mistake

A

Common
(both made it)

Cross-purpose
(although one party asserts contract exists, can’t objectively resolve ambiguity)

Unilateral
(only one is mistaken)

222
Q

Mistake must be ____ for contract law to care

A

Fundamental and precedes contract

223
Q

Explain cross-purpose mistake

A

Cross-purpose is an ambiguous word which I struggle to objectively resolve

Can’t objectively resolve contractual ambiguity so it is void.

e.g.
2 ships same name
both sailed from Bombay - one in Oct & one in Dec.
Seller action against buyer for not delivering cotton from ship that sailed in December.
Buyer argued that contract ambiguous and believed the ship they wanted to send cotton on was the October one.
(not our fault - contract just too unclear re which ship it should go on)
Objective analysis - no way to resolve the ambiguity. So found in favour of buyer so contract void.

223
Q

remedies misrep and mistake

A

misrep = voidABLE and maybe damages if neg/fraud
- go for first as options.

mistake = void
never existed. no bars.

224
Q

Limitations on common mistake

A
  • will not operate if one party at fault
  • contract must not make express provision on the matter
  • mistake must be fundamental (ie performance impossible or radically diff)
225
Q

What will constitute common mistake? Inc examples

A

Both parties made same fundamental mistake so void.

Often where both mistaken subject matter
e.g. neither realised but car destroyed on fire

Not usually fundamental if mistaken quality subject matter

e.g. entered settlement agreement on basis complied with employment contract. both parties forgot that had breached. would have allowed to terminate w/o compensation. not fundamental enough.

226
Q

What is a unilateral mistake?

A

“must be shown that you were mistaken as to their identity, and their identity was of fundamental importance to the contract.

Only one person mistaken

Usually as to identity other party

Only where genuine mistake and identity vital importance to contract

Anything less - including creditworthiness - NOT suffice.

e.g. unrepeatable Blenkarn at 37 Wood Street, reputable Blenkiron 123 Wood Street, made signature look like Blenkiron - void for mistake

227
Q

Misrepresentation vs mistake - which would you go for?

A

Misrep then mistake usually cos u have options - voidable AND sometimes damages - but obvs varies on facts

Would go mistake if rescission barred

(e.g. rogue sold to bona fide purchaser, may be able to use mistake so void and as if never sold
whereas in misrep would be barred from rescission due to innocent TP)

228
Q

When you have sold to a rogue who has sold to bona fide purchaser, could you rely on mistake (unilateral re identity) to make the original contract void?

(since rescission for misrepresentation barred)

A

(yes if can show common mistake, no bars rescission here)

Rarely if met purchaser F2F

If dealings exclusively written and intend deal another, may be void

(and the other requirements)

e.g. claimed to be a celeb produced id etc, court held the seller was still more concerned with creditworthiness than identity - which is an attribute - so tough luck

229
Q

Indication of mistake / not mistake?

A
  1. Face-to-face 🥴🤪
    - strong presumption not mistake / intend deal person in front of them
  2. Exclusively WRITTEN dealings ✏️
    - consider who innocent party intended to contract with
    - no presumption like F2F
    - may be void for mistake
  3. vital have particular attribute? 👗
    - so if don’t, offer not addressed to them
    void cos could not be a contract w THEM
    e.g. commission painting by famous person
  4. likely void (mistake) if pretending to be someone who actually exists and is known to party
    - e.g. a registered company
    - since suggests not addressed to rogue but someone else = can’t be a contract - thought dealing with someone else.
230
Q

General rule on effect of illegal contracts?

A

Unenforceable / void / no recovery benefits

231
Q

When is a contract void for illegality?

A

Formation, purpose or performance commits a legal wrong

Can be from start or in way performed

Usually only void for way performed if both parties aware performance was illegal

eg delivery contract not void because driver was speeding

232
Q

Explain whether contract will be void if illegality occurs in way contract performed?

What if one party did not know about the illegal performance?

A

formed legally and illegality incidental to performance and not aware (e.g. speeding fine) = not void

performance was illegal and other party did not know =
innocent can enforce, illegal performer cannot.

both aware performance illegal = void.
eg contract killing

233
Q

Example contracts can be illegal under statute

A

contracts which have effect of restricting, preventing or distorting trade within UK

234
Q

Example of contracts which can be illegal at common law?

Court considerations re restrictive covenants?

A

usually cos contrary public policy or morality

eg sexually immoral. seek challenge court’s jurisdiction

Covenants restricting trade PRIMA FACIE void e.g.:
- employment contracts - competitors
- sale and purchase agreement stopping setting up business nearby

but enforceable if:
- legitimate business interest to protect
e.g. non-solicit (clients), non-poach (employees) and non-compete (business)
; AND
- reasonable in terms of area, duration, scope and prohibited activities
(and who they are - more fair if v senior)

(See OneNote example)

235
Q

If restrictive covenant re trade (eg employment contract restrictive covenant) is deemed reasonable (and so not void illegality) - what recourse available for party who imposed it?

A

Injunctive relief to prevent or curtail a breach; or

Damages for loss

236
Q

Remedy for mistake

A

Void

Not voidABLE or damages. Not about options. It just doesn’t exist. Contract was never there.

237
Q

Would it be a breach of contract if after entered into the contract, refused to do something due to own beliefs?

(eg bake cake with gay rights slogan)

A

No - failure to perform will not be illegal just because fundamental breach

Entitled refuse - otherwise would breach human rights

(nb in that case they did refund)

Not refusing BECAUSE customer gay etc

238
Q

silly little summary on the various implied terms

A

SOGA
B2B
- right to sell
- correspond description
- satisfactory qual
(reas person standard - considering price and other circumstances)
- fit for purpose
(if made known unless unreas)
^ conditions, strict liability - unless accepted or minor

SGSA
B2B
(e.g. supply and fit kitchen)
(e.g. furniture removal contract)

re goods - same as above - all conditions
re service:
- reas cost, timeframe and care/skill
^ innominate terms

CRA
all of the above, incorporation under one Act
- goods:
1. 30 days to reject and refund
(perishable - reas expect to last)
(if don’t conform within 6 months, assumed never did - except perishables or can prove otherwise)
2. replace or repair
3. price reduction or partial refund reflecting use

  • services:
    care/skill: repeat performance or price reduction
    (considering what seems appropriate/desirable)
    time: price reduction
239
Q
A
240
Q

Is remoteness and con meg needed PoC fraudulent and negligent miser

A

No

the same generous rules for recovery are available in negligent misrepresentation claims, with no limits for remoteness or contributory negligence.

Contract (2 decks)

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