Contract Law Flashcards
Partridge V Crittenden (1968)=
Originally a criminal case concerning the wild birds Act (1954) which made a criminal offense to sell wild birds.An advertisement was published by the defendant in which an advertised cox and henges 25 shilling each.The person was convicted because in breach of the act. He appealed and without denying the facts he appealed on the interpretation of the law by way of case stated Originally a criminal case concerning the wild birds Act (1954) which made a criminal offense to sell wild birds.An advertisement was published by the defendant in which an advertised cox and henges 25 shilling each.The person was convicted because in breach of the act. He appealed and without denying the facts he appealed on the interpretation of the law by way of case stated Originally a criminal case concerning the wild birds Act (1954) which made a criminal offense to sell wild birds.An advertisement was published by the defendant in which an advertised cox and henges 25 shilling each.The person was convicted because in breach of the act. He appealed and without denying the facts he appealed on the interpretation of the law by way of case stated Originally a criminal case concerning the wild birds Act (1954) which made a criminal offense to sell wild birds.An advertisement was published by the defendant in which an advertised cox and henges 25 shilling each.The person was convicted because in breach of the act. He appealed and without denying the facts he appealed on the interpretation of the law by way of case stated that there was no breach of the protection of wild birds act because an advertisement was not a sell nor an offer.that there was no breach of the protection of wild birds act because an advertisement was not a sell nor an offer.that there was no breach of the protection of wild birds act because an advertisement was not a sell nor an offer.that there was no breach of the protection of wild birds act because an advertisement was not a sell nor an offer.
R v Goldman (2001)=
The defendant’s conviction for an offence of attempting to incite another to distribute indecent photographs of children under 16 was safe because the defendant’s response to an advertisement was an offer capable of constituting incitement. An advertisement is not normally considered to be an offer BUT AN INVITATION TO TREAT.
Carlill v Carbolic Smoke Ball Co (1893)= Carlill v Carbolic Smoke Ball Co (1893)= Carlill v Carbolic Smoke Ball Co (1893)= Carlill v Carbolic Smoke Ball Co (1893)=
Newspaper published what seemed to be an advertisement in which they proposed a smoke ball as a sure protection against catching flue giving precise instructions as how to use it.Mrs Carlill saw it, read it thoroughly :“if you buy and use you will not catch the influenza.But should you catch it we will give you 100£”. The Court of Appeal held that Mrs Carlill was entitled to the reward as the advert constituted an offer of a unilateral contract which she had accepted by performing the conditions stated in the offer. The court rejected all the arguments put forward by the defendants for the following reasons:1. The statement referring to the deposit of £1,000 demonstrated intent and therefore it was not a mere sales puff.2. It is quite possible to make an offer to the world.3. In unilateral contracts there is no requirement that the offeree communicates an intention to accept, since acceptance is through full performance 4. Whilst there may be some ambiguity in the wording this was capable of being resolved by applying a reasonable time limit or confining it to anythose who caught flu while using the balls.
Dickinson v dodds
The defendant offered to sell his house to the claimant and promised to keep the offer open until Friday. On the Thursday the defendant accepted an offer from a third party to purchase the house. The defendant then asked a friend to tell the claimant that the offer was withdrawn. On hearing the news, the claimant went round to the claimant’s house first thing Friday morning purporting to accept the offer. He then brought an action seeking specific performance of the contract.Held:The offer had been effectively revoked. Therefore no contract existed between the parties. There was no obligation to keep the offer open until Friday since the claimant had provided no consideration in exchange for the promise.The offeror is free to withdraw the offer at any time before acceptance takes place unless a deposit has been paid.
Harvey v Facey(1893)
harvey sent telegram to facey which stated “ will you sell us bumper-hall ? Telegraph lowest cash-price answer paid”.Facey replied by telegram “lowest price for bumper hall 900£”.Harvey then replied “we agree to buy bumper hall pen for the sum if nine hundred pountds asked by you. Please send us your title deed in order we may get early posession”.The Privy Council held that there was no contract concluded between the parties. Facey had not directly answered the first question as to whether they would sell and the lowest price stated was merely responding to a request for information not an offer. There was thus no evidence of anintentionthat the telegram sent by Facey was to be an offer
Gibson v Manchester city council (1979)
Manchester City Councilwas being run by theConservative Party, which was running apolicy of selling council housesto the occupants. Mr. Gibson applied for details of his house price and mortgage terms on a form of the council. In February 1971, the treasurer replied,”The corporation may be prepared to sell the house to you at the purchase price of £2,725 less 20% = £2,180 (freehold)… This letter should not be regarded as a firm offer of a mortgage. If you would like to make formal application to buy your Council house please complete the enclosed application form and return it to me as soon as possible.”n March 1971, Mr Gibson completed the application form, except for the date which his lease was to end, and returned it to the council. In May, the Labour party came back to power and halted new sales. Mr Gibson was told that he could not complete the purchase. So Mr Gibson sued the council, arguing that a binding contract had already come into force.Manchester City Councilwas being run by theConservative Party, which was running apolicy of selling council housesto the occupants. Mr. Gibson applied for details of his house price and mortgage terms on a form of the council. In February 1971, the treasurer replied,”The corporation may be prepared to sell the house to you at the purchase price of £2,725 less 20% = £2,180 (freehold)… This letter should not be regarded as a firm offer of a mortgage. If you would like to make formal application to buy your Council house please complete the enclosed application form and return it to me as soon as possible.”n March 1971, Mr Gibson completed the application form, except for the date which his lease was to end, and returned it to the council. In May, the Labour party came back to power and halted new sales. Mr Gibson was told that he could not complete the purchase. So Mr Gibson sued the council, arguing that a binding contract had already come into force.Manchester City Councilwas being run by theConservative Party, which was running apolicy of selling council housesto the occupants. Mr. Gibson applied for details of his house price and mortgage terms on a form of the council. In February 1971, the treasurer replied,”The corporation may be prepared to sell the house to you at the purchase price of £2,725 less 20% = £2,180 (freehold)… This letter should not be regarded as a firm offer of a mortgage. If you would like to make formal application to buy your Council house please complete the enclosed application form and return it to me as soon as possible.”n March 1971, Mr Gibson completed the application form, except for the date which his lease was to end, and returned it to the council. In May, the Labour party came back to power and halted new sales. Mr Gibson was told that he could not complete the purchase. So Mr Gibson sued the council, arguing that a binding contract had already come into force.Manchester City Councilwas being run by theConservative Party, which was running apolicy of selling council housesto the occupants. Mr. Gibson applied for details of his house price and mortgage terms on a form of the council. In February 1971, the treasurer replied,”The corporation may be prepared to sell the house to you at the purchase price of £2,725 less 20% = £2,180 (freehold)… This letter should not be regarded as a firm offer of a mortgage. If you would like to make formal application to buy your Council house please complete the enclosed application form and return it to me as soon as possible.”n March 1971, Mr Gibson completed the application form, except for the date which his lease was to end, and returned it to the council. In May, the Labour party came back to power and halted new sales. Mr Gibson was told that he could not complete the purchase. So Mr Gibson sued the council, arguing that a binding contract had already come into force.Gibson v Manchester City Council[1979]UKHL 6is anEnglish contract lawcase in which the House of Lords strongly reasserted that agreement only exists when there is a clear offer mirrored by a clear acceptance.Gibson v Manchester City Council[1979]UKHL 6is anEnglish contract lawcase in which the House of Lords strongly reasserted that agreement only exists when there is a clear offer mirrored by a clear acceptance.Gibson v Manchester City Council[1979]UKHL 6is anEnglish contract lawcase in which the House of Lords strongly reasserted that agreement only exists when there is a clear offer mirrored by a clear acceptance.Gibson v Manchester City Council[1979]UKHL 6is anEnglish contract lawcase in which the House of Lords strongly reasserted that agreement only exists when there is a clear offer mirrored by a clear acceptance.
Shuey v US (1875)
secretary of war published offer of reward for information leading to arrest of criminals.Offer mode on 28th april , on the 21st nvovember offer revoked.The next year someone provided some informationsecretary of war published offer of reward for information leading to arrest of criminals.Offer mode on 28th april , on the 21st nvovember offer revoked.The next year someone provided some informationsecretary of war published offer of reward for information leading to arrest of criminals.Offer mode on 28th april , on the 21st nvovember offer revoked.The next year someone provided some informationsecretary of war published offer of reward for information leading to arrest of criminals.Offer mode on 28th april , on the 21st nvovember offer revoked.The next year someone provided some informationit was held that the withdrawal had been made through the same channel and the offer no longer held by the time the pliaitff had provided the information. If it can be shown he knew of the revocation the revocation would be effective
Timothy v Simpson (1834)=
Timothy saw a clothing item with a price tag , walked into the shop but the offerer said it was actually more expensive.Timothy replied that the law said that the item had to be sold at the price in the shop window. Timothy was arrested, put in custody but sued for breach of contractDisplays of goods in window shops are mere invitations to treat
Pharmaceutical Society of GB v Boots cash Chemists (1953
Boots introduced the then new self service system into their shops whereby customers would pick up goods from the shelf put them in their basket and then take them to the cash till to pay. The Pharmaceutical Society of Great Britain brought an action to determine the legality of the system with regard to the sale of pharmaceutical products which were required by law to be sold in the presence of a pharmacist. The court thus needed to determine where the contract came into existence.Goods on the shelf constitute an invitation to treat not an offer. A customer takes the goods to the till and makes an offer to purchase. The shop assistant then chooses whether to accept the offer. The contract is therefore concluded at the till in the presence of a pharmacist.
Payne v cave (1789)=
Mr Cave made the highest bid for Mr Payne’s goods at an auction. But then, Mr Cave changed his mind and he withdrew his bid before the auctioneer brought down his hammer.It was held that Mr. Cave, the defendant, was not bound to purchase the goods. His bid amounted to an offer which he was entitled to withdraw at any time before the auctioneer signified acceptance by knocking down the hammer. Note: The common law rule laid down in this case has now been codified in many countries in variations of the Sale of Goods Act, e.g. UK 1979 s57(2).Payne v Cave(1789) 3 TR 148 is an oldEnglish contract lawcase, which stands for the proposition that an auctioneer’s request for bids is not an offer but aninvitation to treat. The bidders make the offers which can be accepted by the auctioneer.Payne v Cave(1789) 3 TR 148 is an oldEnglish contract lawcase, which stands for the proposition that an auctioneer’s request for bids is not an offer but aninvitation to treat. The bidders make the offers which can be accepted by the auctioneer.Payne v Cave(1789) 3 TR 148 is an oldEnglish contract lawcase, which stands for the proposition that an auctioneer’s request for bids is not an offer but aninvitation to treat. The bidders make the offers which can be accepted by the auctioneer.Payne v Cave(1789) 3 TR 148 is an oldEnglish contract lawcase, which stands for the proposition that an auctioneer’s request for bids is not an offer but aninvitation to treat. The bidders make the offers which can be accepted by the auctioneer.
Harris v Nickerson (1873
The Defendant placed an advertisement inLondonpapers that certain items, including brewing equipment and office furniture, would be placed up for auction over three days inBury St. Edmunds. The Plaintiff obtained a commission to buy the office furniture and expended time and expense to travel to Bury St. Edmunds to bid for the office furniture. On the third day, the lots for the office furniture were withdrawn. The Plaintiff sued for loss of time and expense. The judge at first instance found in favour of the Plaintiff. Leave was given to appeal to theHigh Court.The Defendant placed an advertisement inLondonpapers that certain items, including brewing equipment and office furniture, would be placed up for auction over three days inBury St. Edmunds. The Plaintiff obtained a commission to buy the office furniture and expended time and expense to travel to Bury St. Edmunds to bid for the office furniture. On the third day, the lots for the office furniture were withdrawn. The Plaintiff sued for loss of time and expense. The judge at first instance found in favour of the Plaintiff. Leave was given to appeal to theHigh Court.The Defendant placed an advertisement inLondonpapers that certain items, including brewing equipment and office furniture, would be placed up for auction over three days inBury St. Edmunds. The Plaintiff obtained a commission to buy the office furniture and expended time and expense to travel to Bury St. Edmunds to bid for the office furniture. On the third day, the lots for the office furniture were withdrawn. The Plaintiff sued for loss of time and expense. The judge at first instance found in favour of the Plaintiff. Leave was given to appeal to theHigh Court.The Defendant placed an advertisement inLondonpapers that certain items, including brewing equipment and office furniture, would be placed up for auction over three days inBury St. Edmunds. The Plaintiff obtained a commission to buy the office furniture and expended time and expense to travel to Bury St. Edmunds to bid for the office furniture. On the third day, the lots for the office furniture were withdrawn. The Plaintiff sued for loss of time and expense. The judge at first instance found in favour of the Plaintiff. Leave was given to appeal to theHigh Court.Harris v Nickerson(1873) is anEnglish law caseconcerning the requirements ofoffer and acceptancein the formation of acontract. The case established that an advertisement that goods will be put up forauctiondoes not constitute anofferto any person that the goods will actually be put up, and that the advertiser is therefore free to withdraw the goods from the auction at any time prior to the auction..Harris v Nickerson(1873) is anEnglish law caseconcerning the requirements ofoffer and acceptancein the formation of acontract. The case established that an advertisement that goods will be put up forauctiondoes not constitute anofferto any person that the goods will actually be put up, and that the advertiser is therefore free to withdraw the goods from the auction at any time prior to the auction..Harris v Nickerson(1873) is anEnglish law caseconcerning the requirements ofoffer and acceptancein the formation of acontract. The case established that an advertisement that goods will be put up forauctiondoes not constitute anofferto any person that the goods will actually be put up, and that the advertiser is therefore free to withdraw the goods from the auction at any time prior to the auction..Harris v Nickerson(1873) is anEnglish law caseconcerning the requirements ofoffer and acceptancein the formation of acontract. The case established that an advertisement that goods will be put up forauctiondoes not constitute anofferto any person that the goods will actually be put up, and that the advertiser is therefore free to withdraw the goods from the auction at any time prior to the auction..
Barry v Davies 2001
The auctioneer withdrew goods from an auction (the goods had no reserve price) when abona fidebid of £200 was effective. The court held that an auctioneer is bound to sell to the highest bidder where there is no reserve price, and can’t withdraw the sale simply because the price is too low. A bid in an auction, the possibility of acceptance of the bid, unless the bid is withdrawn, and the benefit to the auctioneer of driving up the price bid is sufficientconsideration. The contract in an auction is between the buyer and the seller, not the buyer and the auctioneer, although the buyer has acollateral agreementwith the auctioneer.The auctioneer withdrew goods from an auction (the goods had no reserve price) when abona fidebid of £200 was effective. The court held that an auctioneer is bound to sell to the highest bidder where there is no reserve price, and can’t withdraw the sale simply because the price is too low. A bid in an auction, the possibility of acceptance of the bid, unless the bid is withdrawn, and the benefit to the auctioneer of driving up the price bid is sufficientconsideration. The contract in an auction is between the buyer and the seller, not the buyer and the auctioneer, although the buyer has acollateral agreementwith the auctioneer.The auctioneer withdrew goods from an auction (the goods had no reserve price) when abona fidebid of £200 was effective. The court held that an auctioneer is bound to sell to the highest bidder where there is no reserve price, and can’t withdraw the sale simply because the price is too low. A bid in an auction, the possibility of acceptance of the bid, unless the bid is withdrawn, and the benefit to the auctioneer of driving up the price bid is sufficientconsideration. The contract in an auction is between the buyer and the seller, not the buyer and the auctioneer, although the buyer has acollateral agreementwith the auctioneer.The auctioneer withdrew goods from an auction (the goods had no reserve price) when abona fidebid of £200 was effective. The court held that an auctioneer is bound to sell to the highest bidder where there is no reserve price, and can’t withdraw the sale simply because the price is too low. A bid in an auction, the possibility of acceptance of the bid, unless the bid is withdrawn, and the benefit to the auctioneer of driving up the price bid is sufficientconsideration. The contract in an auction is between the buyer and the seller, not the buyer and the auctioneer, although the buyer has acollateral agreementwith the auctioneer.Theremedyis the difference between the contract value, and the current market value of the goods under theSale of Goods Act 1979s51(3). The value in this case was £27,600.Theremedyis the difference between the contract value, and the current market value of the goods under theSale of Goods Act 1979s51(3). The value in this case was £27,600.Theremedyis the difference between the contract value, and the current market value of the goods under theSale of Goods Act 1979s51(3). The value in this case was £27,600.Theremedyis the difference between the contract value, and the current market value of the goods under theSale of Goods Act 1979s51(3). The value in this case was £27,600.
Hyde v Wrency (1840)
The defendant offered to sell a farm to the claimant for £1,000. The claimant in reply offered £950 which the defendant refused. The claimant then sought to accept the original offer of £1,000. The defendant refused to sell to the claimant and the claimant brought an action for specific performance.There was no contract. Where a counter offer is made this destroys the original offer so that it is no longer open to the offeree to accept
This has been distinguished from providing information in Stevenson v Mclean (1880)
The defendant held documents of title to certain quantities of iron and offered to sell them to the plaintiff for 40/- cash, indicating that the offer would be held open until the following Monday. The plaintiff was a broker and would only buy once they had lined up a buyer to take from them.On Monday at 9:42am P sent a telegram to D sounding out what flexibility there might be to negotiate before the days trading got under way. The market was unstable and P wanted to know the negotiating range.”Please wire whether you would accept 40 for delivery over 2 months, if not, longest time limit.”There was no response from D and P later purported to accept the original offer. D claimed that the acceptance was not effective as their telegram had rejected the offer by way of counter-offerThe defendant held documents of title to certain quantities of iron and offered to sell them to the plaintiff for 40/- cash, indicating that the offer would be held open until the following Monday. The plaintiff was a broker and would only buy once they had lined up a buyer to take from them.On Monday at 9:42am P sent a telegram to D sounding out what flexibility there might be to negotiate before the days trading got under way. The market was unstable and P wanted to know the negotiating range.”Please wire whether you would accept 40 for delivery over 2 months, if not, longest time limit.”There was no response from D and P later purported to accept the original offer. D claimed that the acceptance was not effective as their telegram had rejected the offer by way of counter-offerThe defendant held documents of title to certain quantities of iron and offered to sell them to the plaintiff for 40/- cash, indicating that the offer would be held open until the following Monday. The plaintiff was a broker and would only buy once they had lined up a buyer to take from them.On Monday at 9:42am P sent a telegram to D sounding out what flexibility there might be to negotiate before the days trading got under way. The market was unstable and P wanted to know the negotiating range.”Please wire whether you would accept 40 for delivery over 2 months, if not, longest time limit.”There was no response from D and P later purported to accept the original offer. D claimed that the acceptance was not effective as their telegram had rejected the offer by way of counter-offerThe defendant held documents of title to certain quantities of iron and offered to sell them to the plaintiff for 40/- cash, indicating that the offer would be held open until the following Monday. The plaintiff was a broker and would only buy once they had lined up a buyer to take from them.On Monday at 9:42am P sent a telegram to D sounding out what flexibility there might be to negotiate before the days trading got under way. The market was unstable and P wanted to know the negotiating range.”Please wire whether you would accept 40 for delivery over 2 months, if not, longest time limit.”There was no response from D and P later purported to accept the original offer. D claimed that the acceptance was not effective as their telegram had rejected the offer by way of counter-offerThis case should be distinguished fromHyde v Wrench(1840). In that case D had offered his estate for £1000. P offered to pay £950. When this was refused, P then purported to agree to pay the full £1000. P could not claim the estate, because his original counter-offer had put an end to D’s offer.Here, the telegram was not a counter-proposal, but a mere inquiry “which should have been answered” [morally or legally?]. It was not as a rejection of the offer.Pothierhas suggested a more subjective view. He has argued that if the offeror changes their mind (but does not communicate this) before acceptance, then at the moment of acceptance, there is no meeting of minds, and therefore no contract (Cooke v Oxley).However a more objective view is preferable. Once an offer is made, it is taken to be continuing each moment until accepted or withdrawn. The law will regard the intention evidenced in the offer as continuing, until notice of its revocation has been communicated to the other party. As stated inByrne v Van Tienhoven(1880)”an uncommunicated revocation is, for all practical purposes and in point of law, no revocation at all”.As no notice of withdrawal was given by the offeror, the P could regard it as a continuing offer, and their acceptance of it made the contract complete.This case should be distinguished fromHyde v Wrench(1840). In that case D had offered his estate for £1000. P offered to pay £950. When this was refused, P then purported to agree to pay the full £1000. P could not claim the estate, because his original counter-offer had put an end to D’s offer.Here, the telegram was not a counter-proposal, but a mere inquiry “which should have been answered” [morally or legally?]. It was not as a rejection of the offer.Pothierhas suggested a more subjective view. He has argued that if the offeror changes their mind (but does not communicate this) before acceptance, then at the moment of acceptance, there is no meeting of minds, and therefore no contract (Cooke v Oxley).However a more objective view is preferable. Once an offer is made, it is taken to be continuing each moment until accepted or withdrawn. The law will regard the intention evidenced in the offer as continuing, until notice of its revocation has been communicated to the other party. As stated inByrne v Van Tienhoven(1880)”an uncommunicated revocation is, for all practical purposes and in point of law, no revocation at all”.As no notice of withdrawal was given by the offeror, the P could regard it as a continuing offer, and their acceptance of it made the contract complete.This case should be distinguished fromHyde v Wrench(1840). In that case D had offered his estate for £1000. P offered to pay £950. When this was refused, P then purported to agree to pay the full £1000. P could not claim the estate, because his original counter-offer had put an end to D’s offer.Here, the telegram was not a counter-proposal, but a mere inquiry “which should have been answered” [morally or legally?]. It was not as a rejection of the offer.Pothierhas suggested a more subjective view. He has argued that if the offeror changes their mind (but does not communicate this) before acceptance, then at the moment of acceptance, there is no meeting of minds, and therefore no contract (Cooke v Oxley).However a more objective view is preferable. Once an offer is made, it is taken to be continuing each moment until accepted or withdrawn. The law will regard the intention evidenced in the offer as continuing, until notice of its revocation has been communicated to the other party. As stated inByrne v Van Tienhoven(1880)”an uncommunicated revocation is, for all practical purposes and in point of law, no revocation at all”.As no notice of withdrawal was given by the offeror, the P could regard it as a continuing offer, and their acceptance of it made the contract complete.This case should be distinguished fromHyde v Wrench(1840). In that case D had offered his estate for £1000. P offered to pay £950. When this was refused, P then purported to agree to pay the full £1000. P could not claim the estate, because his original counter-offer had put an end to D’s offer.Here, the telegram was not a counter-proposal, but a mere inquiry “which should have been answered” [morally or legally?]. It was not as a rejection of the offer.Pothierhas suggested a more subjective view. He has argued that if the offeror changes their mind (but does not communicate this) before acceptance, then at the moment of acceptance, there is no meeting of minds, and therefore no contract (Cooke v Oxley).However a more objective view is preferable. Once an offer is made, it is taken to be continuing each moment until accepted or withdrawn. The law will regard the intention evidenced in the offer as continuing, until notice of its revocation has been communicated to the other party. As stated inByrne v Van Tienhoven(1880)”an uncommunicated revocation is, for all practical purposes and in point of law, no revocation at all”.As no notice of withdrawal was given by the offeror, the P could regard it as a continuing offer, and their acceptance of it made the contract complete.
Butler machine tool co v ex cell o corporation (1969
The offer to sell the machine on terms provided by Butler was destroyed by the counter offer made by Ex-Cell-O. Therefore the price variation clause was not part of the contract. The contract was concluded on Ex-Cell-O’s terms since Butler signed the acknowledgement slip accepting those terms. Where there is a battle of the forms whereby each party submits their own terms the last shot rule applies whereby a contract is concluded on the terms submitted by the party who is the last to communicate those terms before performance of the contract commences.Where there is a battle of the forms whereby each party submits their own terms the last shot rule applies whereby a contract is concluded on the terms submitted by the party who is the last to communicate those terms before performance of the contract commences.Where there is a battle of the forms whereby each party submits their own terms the last shot rule applies whereby a contract is concluded on the terms submitted by the party who is the last to communicate those terms before performance of the contract commences.Where there is a battle of the forms whereby each party submits their own terms the last shot rule applies whereby a contract is concluded on the terms submitted by the party who is the last to communicate those terms before performance of the contract commences.
entores v miles far east corporation (1955)
The claimant sent a telex message from England offering to purchase 100 tons of Cathodes from the defendants in Holland. The defendant sent back a telex from Holland to the London office accepting that offer. The question for the court was at what point the contract came into existence. If the acceptance was effective from the time the telex was sent the contract was made in Holland and Dutch law would apply. If the acceptance took place when the telex was received in London then the contract would be governed by English law.To amount to an effective acceptance the acceptance needed to be communicated to the offeree. Therefore the contract was made in England.:“if the offerer was on the bank of a river and shouted his offer to the offeree on the other bank of the river and the offeree accepted but at the same time an airplane flew over there would be no formation of contract because the acceptance would have failed to be communicated
Taylor v Laird (1856
nTaylor v Laird (1856)the captain of a ship resigned during a voyage. The former captain provided navigation services for the remainder of the voyage even though this had not been requested by the owner of the ship. The former captain later claimed in the courts for proper remuneration for his services from the owner. The captain had not communicated his offer to provide such services. As such the owner did not have the opportunity to refuse or accept the offer as he had no knowledge of its existence. There was no binding contract.nTaylor v Laird (1856)the captain of a ship resigned during a voyage. The former captain provided navigation services for the remainder of the voyage even though this had not been requested by the owner of the ship. The former captain later claimed in the courts for proper remuneration for his services from the owner. The captain had not communicated his offer to provide such services. As such the owner did not have the opportunity to refuse or accept the offer as he had no knowledge of its existence. There was no binding contract.nTaylor v Laird (1856)the captain of a ship resigned during a voyage. The former captain provided navigation services for the remainder of the voyage even though this had not been requested by the owner of the ship. The former captain later claimed in the courts for proper remuneration for his services from the owner. The captain had not communicated his offer to provide such services. As such the owner did not have the opportunity to refuse or accept the offer as he had no knowledge of its existence. There was no binding contract.The court held that the claimant was not entitled to wages for the return journey on the basis that he had not entered into any contractual agreement with the defendant for the performance of his work as an ordinary crew member. The defendant had not received any communication or offer of work in this capacity from the claimant, and there was therefore no basis for a contract. The court reasoned that it would be unjust to hold a party bound by an offer which he had not been made aware of, and therefore had no opportunity to accept or reject; as such it is not possible in English contract law to accept an offer ‘in ignorance’.owners said there was no offer, no new contract. (went to help them by himself)The court held that the claimant was not entitled to wages for the return journey on the basis that he had not entered into any contractual agreement with the defendant for the performance of his work as an ordinary crew member. The defendant had not received any communication or offer of work in this capacity from the claimant, and there was therefore no basis for a contract. The court reasoned that it would be unjust to hold a party bound by an offer which he had not been made aware of, and therefore had no opportunity to accept or reject; as such it is not possible in English contract law to accept an offer ‘in ignorance’.owners said there was no offer, no new contract. (went to help them by himself)The court held that the claimant was not entitled to wages for the return journey on the basis that he had not entered into any contractual agreement with the defendant for the performance of his work as an ordinary crew member. The defendant had not received any communication or offer of work in this capacity from the claimant, and there was therefore no basis for a contract. The court reasoned that it would be unjust to hold a party bound by an offer which he had not been made aware of, and therefore had no opportunity to accept or reject; as such it is not possible in English contract law to accept an offer ‘in ignorance’.owners said there was no offer, no new contract. (went to help them by himself)
Felthouse v Bindley (1862)
uncle + nephew->uncle was interested in buying the horse et wrote to the nephew “if I hear no more about it I consider the horse mine”.Nephew didn’t answerbut sold the horse to a 3rd party.The uncle sued the owner for a tort of conversion.uncle + nephew->uncle was interested in buying the horse et wrote to the nephew “if I hear no more about it I consider the horse mine”.Nephew didn’t answerbut sold the horse to a 3rd party.The uncle sued the owner for a tort of conversion.uncle + nephew->uncle was interested in buying the horse et wrote to the nephew “if I hear no more about it I consider the horse mine”.Nephew didn’t answerbut sold the horse to a 3rd party.The uncle sued the owner for a tort of conversion.The court held that there had been no contract between plaintiff and nephew => necessity of communication. There was no contract. You cannot have silence as acceptance.The court held that there had been no contract between plaintiff and nephew => necessity of communication. There was no contract. You cannot have silence as acceptance.The court held that there had been no contract between plaintiff and nephew => necessity of communication. There was no contract. You cannot have silence as acceptance.
Wilkie v London passenger Transport Board (1947)
when passenger steps on bus he accepts offer the bus to move from one stop to the other.acceptance could be affected simply by contact
Adams v Lindsell (1818)=
The defendant wrote to the claimant offering to sell them some wool and asking for a reply ‘in the course of post’. The letter was delayed in the post. On receiving the letter the claimant posted a letter of acceptance the same day. However, due to the delay the defendant’s had assumed the claimant was not interested in the wool and sold it on to a third party. The claimant sued for breach of contract.The defendant wrote to the claimant offering to sell them some wool and asking for a reply ‘in the course of post’. The letter was delayed in the post. On receiving the letter the claimant posted a letter of acceptance the same day. However, due to the delay the defendant’s had assumed the claimant was not interested in the wool and sold it on to a third party. The claimant sued for breach of contract.The defendant wrote to the claimant offering to sell them some wool and asking for a reply ‘in the course of post’. The letter was delayed in the post. On receiving the letter the claimant posted a letter of acceptance the same day. However, due to the delay the defendant’s had assumed the claimant was not interested in the wool and sold it on to a third party. The claimant sued for breach of contract.There was a valid contract which came in to existence the moment the letter of acceptance was placed in the post box.This case established the postal rule. This applies where post is the agreed form of communication between the parties and the letter of acceptance is correctly addressed and carries the right postage stamp. The acceptance then becomes effective when the letter is posted.It was held that in the case of communication by post the contract is formed at the very moment the letter is put in the box. The offerer may well never receive it and still be bound so long as there is proof.There was a valid contract which came in to existence the moment the letter of acceptance was placed in the post box.This case established the postal rule. This applies where post is the agreed form of communication between the parties and the letter of acceptance is correctly addressed and carries the right postage stamp. The acceptance then becomes effective when the letter is posted.It was held that in the case of communication by post the contract is formed at the very moment the letter is put in the box. The offerer may well never receive it and still be bound so long as there is proof.There was a valid contract which came in to existence the moment the letter of acceptance was placed in the post box.This case established the postal rule. This applies where post is the agreed form of communication between the parties and the letter of acceptance is correctly addressed and carries the right postage stamp. The acceptance then becomes effective when the letter is posted.It was held that in the case of communication by post the contract is formed at the very moment the letter is put in the box. The offerer may well never receive it and still be bound so long as there is proof.
Household fire and carriage accident insurance (1879)=
Mr Grant applied for shares in the Household Fire and Carriage Accident Insurance Company. The company allotted the shares to the defendant, and duly addressed to him, posting a letter containing the notice of allotment. The letter was lost in the post and he never received the acceptance. Later the company went bankrupt, and asked Mr Grant for the outstanding payments on the shares, which he refused saying there was no binding contract. The liquidator sued. The question was whether Mr Grant’s offer for shares had been validly accepted and as such whether he was he legally bound to pay.A letter of revocation must reach the offeree, the acceptance must only be sent The mailbox rule does not apply to revocation; revocation sent by post does not take effect until received by offeree. An offer cannot be revoked after it has been accepted-> Byrone v Tienhoven (1880)A letter of revocation must reach the offeree, the acceptance must only be sent The mailbox rule does not apply to revocation; revocation sent by post does not take effect until received by offeree. An offer cannot be revoked after it has been accepted-> Byrone v Tienhoven (1880)A letter of revocation must reach the offeree, the acceptance must only be sent The mailbox rule does not apply to revocation; revocation sent by post does not take effect until received by offeree. An offer cannot be revoked after it has been accepted-> Byrone v Tienhoven (1880)
Byrne v Tienhoven (1880)
On October 1st Van Tienhoven mailed a proposal to sell 1000 boxes of tin plates to Byrne at a fixed price. On October 8th, Van Tienhoven mailed a revocation of offer, however that revocation was not received until the 20th. In the interim, on October 11th, Byrne received the original offer and accepted by telegram and turned around and resold the merchandise to a third party on the 15th. Byrne brought an action for non-performance.What is the relation between the postal acceptance rule and revocation?Lindley held that the revocation of the offer was not effective until it had been communicated to Byrne. While the postal rule remains good law for acceptance, he finds no support for the premise that revocation of an offer is also completed once it has been put in the mail. As a result, the revocation was not communicated to Byrne until the 20th, at which point the contract was already formed and thus the revocation is of no effect. To rule otherwise would be impractical for commercial realities.Revocation must be communicated to the offeree so that the offeree has knowledge of the revocation.Mere posting of a revocation is not sufficient communication.
Holwell v Hughes (1974
Dr Hughes granted Holwell Securities an option to purchase his house for £45,000. The option was to be exercisable ‘by notice in writing’ within 6 months. Five days before the expiry, Holwell posted a letter exercising the option. This letter was never received by Hughes. Holwell sought to enforce the option relying on the postal rule stating the acceptance took place before the expiry of the optionBy requiring ‘notice in writing’, Dr Hughes had specified that he had to actually receive the communication and had therefore excluded the postal rule
Tinn v Hoffman (1873)=
The defendant, Mr Hoffman wrote to the complainant, Mr Tinn with an offer to sell him 800 tons of iron for the price of 69s per ton. He requested a reply to this offer by post. On the same day, without knowing of this offer, Mr Tin also wrote to Mr Hoffman. He offered to buy the iron on similar terms. This case concerned the validity of these two cross offers.The issue in this case was whether there was a valid contract between Mr Tinn and Mr Hoffman for the sale of the iron. There was also the issue if acceptance had to be by post for it to be valid, as this was specified in the offer.if offeree gets quicker way to accept it will be valid even though it has not been made in stipulated manner.It was held in this case that there was no contract between Mr Tinn and Mr Hoffman for the iron. The cross offers were made simultaneously and without knowledge of one another; this was not a contract that would bind the parties for the iron. There is a difference between a cross offer and a counter offer. In order to form a valid contract, there must be communication that consists of an offer and acceptance. There was no acceptance by post, as had been stated in the offer. The court also said that while post had been indicated in the offer, another equally fast method would have been successful, such as a telegram or verbal message.
The Brimnes (1975)=
The telex was sent within business hours but read only the next morning. IS the contract formed when the communication is affected or when it could have been affected.The contract was formed when it could have been read and not when it was actually read.
Payne v cave (1789)=
Withdrew before the auctionner had struck the hammer downA counter-offer cancels the original offer .if unreasonable delay court may consider that the offer has lapsed
-> Ramsgate Victoria Hotel v Montefiore (1866)=
Offers to buy shares in the plaintiff’s company , he accepted to sell shares but 5 months later.The court held the offer had lapsed because of unreasonable delay.
Currie v Misa (1875)
A company named Lizardi & Co,then in good credit in the City, sold fourbills of exchangeto Mr Misa, drawn from a bank inCadiz. Mr Currie was the owner of the banking firm and the plaintiff bringing the action. The bills of exchange were sold on the 11th of February, and by the custom of bill, brokers were to be paid for on the first foreign post-day following the day of the sale. That first day was the 14th of February. Lizardi & Co. was much in debt to his banking firm, and being pressed to reduce his balance, gave to the banker a draft or order on Mr Misa for the amount of the four bills. This draft or order was dated on the 14th, though it was, in fact, written on the 13th, and then delivered to the banker. On the morning of the 14th the manager of Misa’s business gave a cheque for the amount of the order, which was then given up to him. Lizardi failed, and on the afternoon of the 14th the manager, learning that fact, stopped payment of the cheque.A company named Lizardi & Co,then in good credit in the City, sold fourbills of exchangeto Mr Misa, drawn from a bank inCadiz. Mr Currie was the owner of the banking firm and the plaintiff bringing the action. The bills of exchange were sold on the 11th of February, and by the custom of bill, brokers were to be paid for on the first foreign post-day following the day of the sale. That first day was the 14th of February. Lizardi & Co. was much in debt to his banking firm, and being pressed to reduce his balance, gave to the banker a draft or order on Mr Misa for the amount of the four bills. This draft or order was dated on the 14th, though it was, in fact, written on the 13th, and then delivered to the banker. On the morning of the 14th the manager of Misa’s business gave a cheque for the amount of the order, which was then given up to him. Lizardi failed, and on the afternoon of the 14th the manager, learning that fact, stopped payment of the cheque.A company named Lizardi & Co,then in good credit in the City, sold fourbills of exchangeto Mr Misa, drawn from a bank inCadiz. Mr Currie was the owner of the banking firm and the plaintiff bringing the action. The bills of exchange were sold on the 11th of February, and by the custom of bill, brokers were to be paid for on the first foreign post-day following the day of the sale. That first day was the 14th of February. Lizardi & Co. was much in debt to his banking firm, and being pressed to reduce his balance, gave to the banker a draft or order on Mr Misa for the amount of the four bills. This draft or order was dated on the 14th, though it was, in fact, written on the 13th, and then delivered to the banker. On the morning of the 14th the manager of Misa’s business gave a cheque for the amount of the order, which was then given up to him. Lizardi failed, and on the afternoon of the 14th the manager, learning that fact, stopped payment of the cheque.Currie v Misa(1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554, is anEnglish contract lawcase, which in the Exchequer Chamber contains a famous statement byLush Jgiving the definition ofconsideration in English law. Lush J said,A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other..Currie v Misa(1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554, is anEnglish contract lawcase, which in the Exchequer Chamber contains a famous statement byLush Jgiving the definition ofconsideration in English law. Lush J said,A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other..Currie v Misa(1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554, is anEnglish contract lawcase, which in the Exchequer Chamber contains a famous statement byLush Jgiving the definition ofconsideration in English law. Lush J said,A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other..
Hanson’s interpretation of Combe v Combe (1951)= there was no contract because the 2 parties had not connected their undertakings Hanson’s interpretation of Combe v Combe (1951)= there was no contract because the 2 parties had not connected their undertakings Hanson’s interpretation of Combe v Combe (1951)= there was no contract because the 2 parties had not connected their undertakings
A husband promised to make maintenance payments to his estranged wife but failed to do so. The wife brought an action to enforce the promise invoking promissory estoppel.The husband promised his wife during divorce instance a permanent allowance, when she could in fact have applied judicially for a maintenance order but she didn’t immediately. The husband stopped paying, she sued him for breach of contract (promise to pay v forbearance of her right to obtain a maintenance order)It was argued successfully that there was no contract because not explicitely connected+ no consideration +Her action failed. There was no pre-existing agreement which was later modified by a promise. The wife sought to use promissory estoppel as sword and not a shield.
Price v Easton (1833)=
William Price agreed with Easton to do some work for him. But WP requested that the payment should be made to his brother John Price because WP owed him money. E failed to pay the money to JP who sued him for breach of contractHe wasn’t successful because he wasn’t a party to the contract, he had not provided consideration for E’s promise to pay.
Scotson v Pegg (1861)=
A purchaser of some coal paid the defendant to carry and to unload the coal. The claimant was the supplier of the coal who had also paid the defendant to carry and unload the coal. The claimant brought an action to recover the money paid arguing the defendant was already under an existing duty to carry and unload the coal and thus provided no consideration.An existing contractual duty owed to a 3rd party to the contract can amount to valid consideration for a new promise. Consequently the claimant could not recover the sums paid and the defendant was entitled to get paid twice for doing the same thing.= the performance of an obligation by one party under another contract can be sufficient consideration on another contract with another party. An existing contractual duty owed to a 3rd party to the contract can amount to valid consideration for a new promise. Consequently the claimant could not recover the sums paid and the defendant was entitled to get paid twice for doing the same thing.= the performance of an obligation by one party under another contract can be sufficient consideration on another contract with another party. An existing contractual duty owed to a 3rd party to the contract can amount to valid consideration for a new promise. Consequently the claimant could not recover the sums paid and the defendant was entitled to get paid twice for doing the same thing.= the performance of an obligation by one party under another contract can be sufficient consideration on another contract with another party.
Eastwood v Kenyon (1840)=
Following the death of John Sutcliffe, his estate went to his only child called Sarah. Being an infant she came under the protection of the executor of the will who started spending money for the benefit of Sarah , to improve the realty out of his own pocket, even had to borrow money (140£).When Sarah came of age she promised that she would pay his debt. She married Mr Kenyon who very nicely repeated the promise. BUT they didn’t pay. Eastwood brought suit and lost because the promise was made when sarah was adult. Promises are not sufficient to found a contract.Consideration made in the past is no consideration at all +Moral obligation does not constitute consideration
Roscola v Thomas (1842)
An agreement for the purchase of a horse had been completed between buyer and seller. Following the completion of the contract, the seller made a warranty that the horse was “free from vice”. Upon delivery, it was discovered by the buyer that the horse was vicious in behaviour. The buyer consequently sued”It may be taken as a general rule, subject to exceptions not applicable to this case, that the promise must be coextensive with the consideration… a consideration past and executed will support no other promise than such as would be implied by law.”The Court found for the defendant because his promise was unsupported by consideration. The consideration for the soundness warranty had already been made through the original contract of sale, and so new consideration would have had to be provided in order for the warranty to have legal effect. This decision demonstrates the rule in English contract law that consideration contracted for in the past does not amount to good consideration for a present agreement. notable case in English contract law which demonstrates that past conduct is not sufficient consideration to support a contract.”It may be taken as a general rule, subject to exceptions not applicable to this case, that the promise must be coextensive with the consideration… a consideration past and executed will support no other promise than such as would be implied by law.”The Court found for the defendant because his promise was unsupported by consideration. The consideration for the soundness warranty had already been made through the original contract of sale, and so new consideration would have had to be provided in order for the warranty to have legal effect. This decision demonstrates the rule in English contract law that consideration contracted for in the past does not amount to good consideration for a present agreement. notable case in English contract law which demonstrates that past conduct is not sufficient consideration to support a contract.
Re (=about) v Mcartle
a wife and her 3 grown-up children lived together in a house. The wife of one of the children did some interior decoration and all the children promised to pay her 488£ and even signed a document. The work is done at T1 and the promise at T2 but the consideration has already been performed= not a considerationThe promise to make payment came after the consideration had been performed therefore the promise to make payment was not binding
Lampleigh v Braithwait (1615)=
James the 1st was king. B had killed someone with a sentence of the death-penalty. B asked L to ask for the king’s pardon and L got it. Afterwards they agreed that B in consideration of L obtaining the pardon would pay him a sum of money but he didn’t. James the 1st was king. B had killed someone with a sentence of the death-penalty. B asked L to ask for the king’s pardon and L got it. Afterwards they agreed that B in consideration of L obtaining the pardon would pay him a sum of money but he didn’t. Whilst the promise to make payment came after the performance and was thus past consideration, the consideration was proceeded by a request from the defendant which meant the consideration was valid. The defendant was obliged to pay the claimant £100.
Collins v Godefroy (1831)=
Godefroy promised to pay C if C would attend court and give evidence for G. A witness can declare himself freely C was not in this situation he had been served a subpoena, he was under a public obligation to attend court and if he didn’t was exposed to punishment.G’s action failedC was not in this situation he had been served a subpoena, he was under a public obligation to attend court and if he didn’t was exposed to punishment.G’s action failed
Glassbrook brothers v glamorgan county council (1925)
The defendant owners of a colliery asked the police to provide protection during a miner’s strike. The police provided the protection as requested and provided the man power as directed by the defendants although they disputed the level of protection required to keep the peace. At the end of the strike the police submitted an invoice to cover the extra costs of providing the protection. The defendants refused to pay arguing that the police were under an existing public duty to provide protection and keep the peaceIn providing additional officers to that required, the police had gone beyond their existing duty. They were therefore entitled to payment
Stilk v Myrick (1809
The claimant was a seaman on a voyage from London to the Baltic and back. He was to be paid £5 per month. During the voyage two of the 12 crew deserted. The captain promised the remaining crew members that if they worked the ship undermanned as it was back to London he would divide the wages due to the deserters between them. The claimant agreed. The captain never made the extra payment promised.The claimant was under an existing duty to work the ship back to London and undertook to submit to all the emergencies that entailed. Therefore he had not provided any consideration for the promise for extra money. Consequently he was entitled to nothing.
Exceptions:Hartley v Ponsonbuy (1857)= Exceptions:Hartley v Ponsonbuy (1857)=
number of men employed under contract, 36 men on board, 19 deserted. Thought he could use Stilk v Myrick and promised more money but he didn’t. The court said that the case had to be distinguished because before it was 1/6 but now more than ½ so the amount of work was really considerable and sufficient consideration for the extra-money promised
Pinnel’s case (1602)=
The claimant was owed £8 10 shillings. The defendant paid £5 2 shillings and 2p. The claimant sued for the amount outstanding.he claimant was entitled to the full amount even if they agreed to accept less. Part payment of a debt is not valid consideration for a promise to forebear the balance unless at the promisor’s request part payment is made either:before the due date, with a chattel, to a different destination
This rule has been confirmed in Foakes v Beer(1884)
Dr Foakes owed Mrs Beer £2,000 after she had obtained judgment against him in an earlier case. Dr Foakes offered to pay £500 immediately and the rest by instalments, Mrs Beer agreed to this and agreed she would not seek enforcement of the payment provided he kept up the instalments. No mention was made in this agreement of interest although judgment debts generally incurred interest. Dr Foakes paid all the instalments as agreed and Mrs Beer then brought an action for the interest.Dr Foakes was liable to pay the interest. The agreement reached amounted to part payment of a debt and under the rule in Pinnel’s case this was not good consideration for a promise not to enforce the full amount due. confirmed in Ferguson v davis (1996).Pinnel’s case ->Beer v Foakes (doctor case with interests)=part-payment is no consideration BUT the case is almost famous for the rule that part-payment on an earlier date than the date required at the request of the creditor or at the request of the creditor or in chattel (removable property =en nature pas en espèces) that would extinguish the debt, if the creditor asks to be paid elsewhere =a change in time, in place or in nature extinguishes the debt, will be considered good consideration. In Pinnel’s case the debitor had been asked to pay at another date by the creditor. The reason why the plea failed was that at the time there was an error in the following of the pleadings procedureDr Foakes was liable to pay the interest. The agreement reached amounted to part payment of a debt and under the rule in Pinnel’s case this was not good consideration for a promise not to enforce the full amount due. confirmed in Ferguson v davis (1996).Pinnel’s case ->Beer v Foakes (doctor case with interests)=part-payment is no consideration BUT the case is almost famous for the rule that part-payment on an earlier date than the date required at the request of the creditor or at the request of the creditor or in chattel (removable property =en nature pas en espèces) that would extinguish the debt, if the creditor asks to be paid elsewhere =a change in time, in place or in nature extinguishes the debt, will be considered good consideration. In Pinnel’s case the debitor had been asked to pay at another date by the creditor. The reason why the plea failed was that at the time there was an error in the following of the pleadings procedure
Ferguson v Davies (1996)
c. Foakes
Hirachand Punamchand v Temple (1911)
The claimants were money lenders in India. They lent money to the defendant Lieutenant Temple who was an army officer serving in India. The claimants sought return of the money from the claimant but were unable to get any response so they contacted his father. Some correspondence went between the claimant and the father’s solicitors. The claimants asked how much the father would be prepared to pay to settle the son’s accounts. An amount was agreed which was a substantial, amount although not the full amount due. The claimant promised to send the promissory note relating to the son’s debt to the father once they received payment. The father paid, but the claimant retained the promissory note and sued the son to enforce the balance.The payment made by the father was sufficient to discharge the full balance. Where the person making payment in return for discharging the debt owed by another this will amount to good consideration as the existing duty to make payment was not owed by them but a third party.
Bainbridge v Firmstone
the plaintiff at the request of the defendant allowed the latter to take his boilers and to weigh them in consideration of the promise to bring them back in the same state. The defendant dismantled the boilers completely and returned them in that state. The plaintiff sued and the defendant said there was no consideration for the promise to bring them back in the same state.The court held that the fact he had lent the boilers was good consideration for the promise made by the defendant to retrun the boilers in the original state
Thomas v Thomas (1842
Following Mr thomas’ death it was agreed that his wife could live in the house for 1£/year. The executors agreed in consideration of the deceased wishesThe court held that 1£ was sufficient consideration
White v Bluet
D complained about not getting as much money as siblings to father. F agreed and said if he didn’t complain anymore he would discharge D of liability in a promissory noteWas this a contract? Was their valid consideration?There must be valid consideration for a contract. Reciprocal exchange is a necessary element of consideration.No consideration – he is not giving anything in return for something the father was giving him.
→Reciprocal exchange is necessary for consideration.
Consideration is giving up something you are able to do and there is no prohibition against it.
→If you give up a freedom that you have that does have value and should be considered consideration
→No consideration when you give up something that you aren’t legally entitled to do
Ward v Byham
An unmarried couple had a child together and lived together for five years. The father then turned the mother out of the house and sent the child to live with a neighbour and the father paid the neighbour £1 per week. The mother then got a job as a live in house keeper and wished to have the daughter live with her. The father agreed to allow the daughter live with the mother and agreed to pay her £1 per week provided she ensured the child was well looked after and happy. The father made payments but then when the mother remarried he stopped making payments. The mother brought an action to enforce the agreement. The father argued that the Mother was under an existing legal duty to look after and maintain the child and therefore was not providing any consideration for the promise to make payment.By promising to ensure the child was well looked after and happy she had gone beyond her existing legal duty and therefore had provided consideration. She was entitled to the payment
In select move v Inland Revenue 1995 if the principle ofWilliams v Roffey Bros Ltdis to be extended to an obligation to make payment, it would in effect leave the principle inFoakes v Beerwithout any application
When a creditor and a debtor who are at arm’s length reach agreement on the payment of the debt by instalments to accommodate the debtor, the creditor will no doubt always see a practical benefit to himself in so doing. In the absence of authority there would be much to be said for the enforceability of such a contract. But that was a matter expressly considered inFoakes v Beeryet held not to constitute good consideration in law.Foakes v Beerwas not even referred to inWilliams v Roffey Bros Ltd, and it is in my judgment impossible, consistently with the doctrine of precedent, for this court to extend the principle of Williams’s case to any circumstances governed by the principle ofFoakes v Beer. If that extension is to be made, it must be by the House of Lords or, perhaps even more appropriately, by Parliament after consideration by the Law Commission.
Central London Property trust v High tress house ldt 1947
High Trees leased a block of flats from CLP at a ground rent of £2,500. It was a new block of flats at the time the lease was taken out in 1937. The defendant had difficulty in getting tenants for all the flats and the ground rent left High Trees with no profit. In 1940 many of the flats were still unoccupied and with the conditions of the war prevailing, it did not look as if there was to be any change to this situation in the near future. CLP agreed to reduce the rent to £1,250 during the war years. The agreement was put in writing and High Trees paid the reduced rent from 1941. When the war was over the flats became fully occupied and the claimant sought to return to the originally agreed rent.The rent would be returned to the originally agreed price for the future only. CLP could not claim back the arrears accrued during the war years. This case is important as Denning J (as he then was) established the doctrine of promissory estoppel. Promissory estoppel prevented CLP going back on their promise to accept a lower rent despite the fact that the promise was unsupported by consideration.Denning J “In my opinion, the time has now come for the validity of such a promise to be recognised. The logical consequence, no doubt is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration”Lord Denning opened a whole new area of contract law because he asked; “Would HTH had to pay the difference had CLPT asked?”= obiter dicta (around the case, not binding). The answer was that CLPT was bound by its promise , that there was promissory estopple.
As precedent he gave Hughes v Metropolitan Railway company case 1877
A landlord gave 6 months to repair and should he fail tenant’s lease would be forfeited. In November the landlord started negotiations with the tenant but ended in dissent. In December the tenant still had not started the repairs and when the 6 months period came to remend the landlord started proceedings to recover possession of the premises. The time limit imposed for carrying out the repairs was suspended during the negotiations There was no explicit promise but a promise implied in the conduct of the landlord and his offer to negotiate the sell.
this doctrine stands from equity. He who comes to equity must do so with clean hands:->D&C Builders v Rees 1966
The claimants were successful. Mrs Rees could not rely on estoppel as there was no true agreement to accept less and because Mrs Rees had taken advantage of the builder’s position and mislead them as to her financial positionBut didn’t respect the equity principle. But she exerted economic duress on the company which came under the goods and services provision
The CA itself or the HofL would have to have the same reasoning as a ratio for a decision.Combe v Combe 1951
A husband promised to make maintenance payments to his estranged wife but failed to do so. The wife brought an action to enforce the promise invoking promissory estoppel.the court answered in was an equitable doctrine so one must abides to the maxim “equity is a shield and not a sword” (can defend yourself but not attack).Her action failed. There was no pre-existing agreement which was later modified by a promise. The wife sought to use promissory estoppel as sword and not a shield.
Rose &frank v Crampton and Brothers 1923
The claimants and defendants entered an agreement for the supply of some carbonised tissue paper. Under the agreement the claimants were to be the defendant’s sole agents in the US until March 1920. The contract contained an honourable pledge clause which stated the agreement was not a formal or legal agreement and shall not be subject to the jurisdiction of the courts in neither England nor the US. The defendants terminated the agreement early and the claimants brought an action for breachThe honourable pledge clause rebutted the presumption which normally exists in commercial agreements that the parties intend to be legally bound by their agreements. The agreement therefore had no legal affect and was not enforceable by the courts
Balfour v balfour 1918
Wife remained in England for health reason. Husband promised wife allowance, wife suedno consideration
Merritt v Merritt 1970
A husband left his wife and went to live with another woman. There was £180 left owing on the house which was jointly owned by the couple. The husband signed an agreement whereby he would pay the wife £40 per month to enable her to meet the mortgage payments and if she paid all the charges in connection with the mortgage until it was paid off he would transfer his share of the house to her. When the mortgage was fully paid she brought an action for a declaration that the house belonged to her.The agreement was binding. The Court of Appeal distinguished the case ofBalfour v Balfouron the grounds that the parties were separated. Where spouses have separated it is generally considered that they do intend to be bound by their agreements. The written agreement signed was further evidence of an intention to be bound.
Johns v Padavatton 1969
A mother promised to pay her daughter $200 per month if she gave up her job in the US and went to London to study for the bar. The daughter was reluctant to do so at first as she had a well paid job with the Indian embassy in Washington and was quite happy and settled, however, the mother persuaded her that it would be in her interest to do so. The mother’s idea was that the daughter could then join her in Trinidad as a lawyer. This initial agreement wasn’t working out as the daughter believed the $200 was US dollars whereas the mother meant Trinidad dollars which was about less than half what she was expecting. This meant the daughter could only afford to rent one room for her and her son to live in. The Mother then agreed to purchase a house for the daughter to live in. She purchased a large house so that the daughter could rent out other rooms and use the income as her maintenance. The daughter then married and did not complete her studies. The mother sought possession of the house. The question for the court was whether there existed a legally binding agreement between the mother and daughter or whether the agreement was merely a family agreement not intended to be binding.The agreement was purely a domestic agreement which raises a presumption that the parties do not intend to be legally bound by the agreement. There was no evidence to rebut this presumption
Parker v Clark 1960
Mrs P niece of Mrs C who had agreed they would sell their own house and come and live with the C who would leave the house to them, written down as well as the expenses which they shared confirming the agreement. The P sold their own house, Mr C changed his will. BUT the parties were no longuer on good terms and the C asked the P to leave , sued, claimed damages for breach of contractit was held that the exchange of letters, written part shown an intention and validated the contract.Ps were entitled to damages
Simpkins v Pays 1955
A Grandmother, granddaughter and a lodger entered into a weekly competition run by the Sunday Empire News. The coupon was sent in the Grandmothers name each week and all three made forecasts and they took it in turns to pay. They had agreed that if any of them won they would share the winnings between them. The grandmother received £250 in prize money and refused to share it with the other two. The lodger brought the action to claim one third of the prize money.There was a binding contract despite the family connection as the lodger was also party to the contract. This rebutted the presumption of no intention to create legal relations
Heilbut, Symons & Co v Buckleton[1912]UKHL 2is anEnglish contract lawcase, given by theHouse of Lordson misrepresentation and contractual terms. It held that a non-fraudulentmisrepresentationgave no right to damages. This was decided some time beforeHedley Byrne v Heller, wheredamagesfor negligent misrepresentation were introduced in English law, and it would today be regarded as wrongly decided.
During aneconomic boomin therubbertrade 1910 (at the end of theAmazon rubber boom), Heilbut, Symons & Co were merchants who were underwriting shares of what they claimed was a rubber business, called the Filisola Rubber and Produce Estates, Limited inMexico. Buckleton called up a manager at Heilbut to inquire about the shares. In response to the questions, the manager confirmed that they were “bringing out a rubber company”. Based on this statement, Buckleton purchased a large number of shares. The company turned out to have far fewer rubber trees than expected. The shares performed very poorly. Buckleton sued for breach ofwarrantyThe House of Lords held that no damages could be payable because it was not a fraudulent misrepresentation.Lord Moultonidentified two ways that the action could be successful. First, if the plaintiff could show fraudulent misrepresentation “or what is equivalent thereto, must be made recklessly, not caring whether it be true or not.” Second, if there was intent (animus contrahendi)[1]to be held to a promise then there may be acollateral contract, that would bind Heilbut to their representation. However, Lord Moulton stated that such collateral contracts would be rare, and on the facts none was found. Lord Moulton said”,It is, my Lords, of the greatest importance, in my opinion, that this House should maintain in its full integrity the principle that a person is not liable in damages for an innocent misrepresentation, no matter in what way or under what form the attack is made. In the present case the statement was made in answer to an inquiry for information. There is nothing which can by any possibility be taken as evidence of an intention on the part of either or both of the parties that there should be a contractual liability in respect of the accuracy of the statement. It is a representation as to a specific thing and nothing more.”
Reynolds v John Sadler (ghost writer
Agreement between the two that S would write R’s Rags to Riches biography and following disucssions S understood there was an agreement under which he would share any profit with R 50-50. R found another writer for the job and the book came out with the title that S had thought out and the opening chapter describing R using a helicopter to visit the orphanage was also his idea. S argued breach of contract when R hired other writer and breach of confidenceIt was held it was between social exchange and business agreements= special damages for loss of opportunity among less but none for breach of confidence
Ashbury Railway Carriage and Iron Co Ltd v Riche (1875)=Its importance has been diminished as a result of theCompanies Act 2006s 31, which allows for unlimited objects for which a company may be run. Furthermore, any limits a company does have in its objects clause has no effect whatsoever for people outside a company (s 39 CA 2006), except as a general issue of authority of the company’s agents.
Incorporated under theCompanies Act 1862, theAshbury Railway Carriage and Iron Company Ltd’s memorandum, clause 3, said its objects were “to make and sell, or lend on hire, railway-carriages…” and clause 4 said activities beyond needed a special resolution. But the company agreed to give Riche and his brother a loan to build a railway in Belgium. Later, the company refused the agreement. Riche sued, and the company pleaded the action wasultra vires.TheHouse of Lords, agreeing with the three dissentient judges in theExchequer Chamber, pronounced the effect of the Companies Act to be the opposite of that indicated byMr Justice Blackburn. It held that if a company pursues objects beyond the scope of the memorandum of association, the company’s actions areultra viresandvoid.Lord Cairns LCsaid,It was the intention of the legislature, not implied, but actually expressed, that the corporations, should not enter, having regard to this memorandum of association, into a contract of this description. The contract in my judgment could not have been ratified by the unanimous assent of the whole corporation.
Powell v Lee 1908
Plaintiff was told he had been selected a headmaster to discover he hadn’t and he sued for breach of contractthe person who had told him did not the authority to do so and it could not be considered as an official acceptance of his offer.
Peters v Flemming 1840
a gold ring and a watch chaine were necessaries for the son of a member of P. the plaintiff had supplied waist-coats to the value of 145£ while the student was at Cambridge. In this particular case, it appeared the father had already given his son several so it could not be put under the category of necessaries so the defendant did not have to pay the sum.
Fawcett v Smethurst 1914
in the case of a minor’s contract for necessaries the contract is valid on the condition that the terms be not harsh or onerous
Couturier v Hastie 1856
A cargo of corn was in transit being shipped from the Mediterranean to England. The owner of the cargo sold the corn to a buyer in London. The cargo had however, perished and been disposed of before the contract was made. The seller sought to enforce payment for the goods on the grounds that the purchaser had attained title to the goods and therefore bore the risk of the goods being damaged, lost or stolen.The court held that the contract was void because the subject matter of the contract did not exist at the time the contract was made. It is important to distinguish frustration from initial impossibility.
McRay v Commonwealth Disposal Comission 1950
Defendant sold an oil tanker described as Lying on a reaf near Papoua (?). They tried to recover the tanker but it turned out that in the end there was none and no such place. They brought an action for breach of contract, deceat and negligence.. Following C v H the trial courts held there was no contract, it was void. The HC of Australia came back to C v H and held that there has been a misunderstanding of it and that in this case things should be nalysed in terms of an implied condition precedent= the commission in their contract had implied that the tanker existed and in the position specified= breach of contract and damages were to be awarded.
Associated Japanese Bank V Credit du nord (1989)=
F made sale for 1M£ to AJB in a lease-back agreement= agreement by which one sales something with the understanding that the other party leases you that same thing (ex: you sale your car but agreement is that the other party leases it to you). Transaction was made in a dematerialized manner, the AJB made agreement without visiting other party and machinery. The AJB to assure itself guaranteed this agreement by the Credit du Nord and they did not visit the individual either. F made payments for the lease and then stopped, vanished. It was discovered that the machines had never existed. The AJB turned to the Credit du Nord for the guarantee and they said no. It was brought to court held that there was an implied condition that there was a lease as to existing machines.
Apv odido v Collins 2008= decision in response for application for summary judgement of the HC.
The claim was for 1M£. The HC’s job is to decide whether the defendant really does not have a chance of winning.C ran a firm specialized in selling property and became acquainted through professional contacts of mr Lee and in the course of their discussion Lee said he was in contact with Barckley Brothers owners of the Ritz Hotel in London.Lee said the BB were thinking of selling the ritz and the casino. C interested because wanted to sell back after ->Did C have the money to buy it? C wanted to have evidence that Lee could buy the thing himself and resell it to him (back-to-back sales). One day, C was gathering evidence he had the money and was expecting Lee to deliver the docs relating to the transactions but lee said someone else wanted to buy it and asked C to prove he was sure with a deposit of 1M£ which C did not have but he found someone in Holland “Apvodido”. C transferred it into Lee’s bank account in Dublin. The 27 boxes never came .The Dutchman asked collins his 1M£ back. Action was brought against Lee who was nothing else but a bankrupt truck-driver (not solvent) and against C. Everything revolved around clause 10 of their agreementHere they held that Collins could possibly win his case, sufficient precedents. C’s defense was that there was a common mistake made but the 2 parties + for the agreement to be effective there has to be the fulfillement on an implied condition precedent (=lee was indeed in position to carry it out and make the doc available). A’s defense was that they had no particular belief as to Lee and the other sale agreement + no mistake because the agreement between the 2 parties took into account the risk that f nothing happened MR C would have to pay the 1M£ back.
Cooper v Phibbs 1867
A nephew leased a fishery from his uncle. His uncle died. When the lease came up for renewal the nephew renewed the lease from his aunt. It later transpired that the uncle had given the nephew a life tenancy in his will. The lease was held to be voidable for mistake as the nephew was already had a beneficial ownership right in the fishery.This is an instance ofres sua. Normally where a contract is found to have been entered under a common mistake the contract will be rendered void as oppose to voidable. The lease was held to be voidable rather than void as the claim was based in equity as it related to beneficial ownership as oppose to legal ownership.This caused some uncertainty as to whether there was equitable relief for mistake which was wider than that which existed at common law. In particular Lord Denning argued that such a position of the law existed in Solle v Butcher.
Bell v Lever Brothers
Lever bros appointed Mr Bell and Mr Snelling (the two defendants) as Chairman and Vice Chairman to run a subsidiary company called Niger. Under the contract of employment the appointments were to run 5 years. However, due to poor performance of the Niger company, Lever bros decided to merge Niger with another subsidiary and make the defendants redundant. Lever bros drew up a contract providing for substantial payments to each if they agreed to terminate their employment. The defendants accepted the offer and received the payments. However, it later transpired that the two defendants had committed serious breaches of duty which would have entitled Lever bros to end their employment without notice and without compensation. Lever bros brought an action based on mistake in that they entered the agreement thinking they were under a legal obligation to pay compensationThe House of Lords held that this was only a mistake as to quality and did not render the contract essentially different from that which it was believed to be. The action therefore failed. It was held that in this case the mistake made by the 2 parties did not affect the very purpose of the agreement which was to get rid of them. The rest was simply a question of quality. It was only where the central purpose was affected that a contract could be deemed void for common mistake. Lord Atkings” A buys B’s horse, thinks the horse is sound and pays the price of it, would not have bought it if knew soundness. If B made no representation A is bound and cannot recover back the price” (unless warranty as to the soundness or unless there was a misrepresentation the contract is good).
Solle v Butcher 1949=
P rented flat. Neither D or P knew it was rent controlled. P actually recommended rentYou can set a mutual mistake aside in equity if it is fundamental – TEST: is the mistake sufficiently fundamental?2 ways to deal with it – common law (Bell) and equity (Solle).Mistake which renders K void:Bell v Lever – once a K has been made then the K is good unless and until it is set aside for failure of some condition on which the existence of the K depends, or for fraud, or on some equitable ground=>Neither party can rely on own mistake to nullify it, even if fundamental. Mistake which renders K voidable (equitable jurisdiction) + This was done in court of equity – could relieve a party from the consequence of his own mistake, so long as it could do so w/o injustice to 3rd parties +A K will be set aside if the mistake of one party has been induced by a material misrepresentation of the other, even though not fraudulent or fundamental=>Or if one party, knowing that the other is mistaken about the terms of an offer, or the identity of the person by whom it is made, lets him remain in delusion and concludes the K on mistaken term.Judgment for D on terms that P must elect between rescission and paying the full rent
Great Piece shipping ldt v Tsavliris ldt
ship called the Providence was sailing across the indian ocean towards China and in the course of the voyage came into difficulty with a serious risk for the life of the seaman. The captain called the company specialized in salvaging ships in difficulty and they decided initially to deposition the ship through another company and decided to send something to fetch the ship. Then they found that there was the great piece ship that was apparently not too far (35 miles) from the providence so they contacted GP and made an arrangement for the ship to be chartered in order to try and save the providence from sinking and the man from dying. It turns out there was a mistake because GP was actually 410 miles away (and not 35). The salvaging company cancelled the agreement but not immediately because another ship might be able to come. They finally cancelled the arrangement with GP but they had a contract for min. of 5 days (80000$ to pay provided by cancellation clause). Was the common mistake as to the distance such a sufficient mistake as to strike the very heart of the contract?Was it a fundamental mistake?It swept aside the equitable doctrine the result being that the common mistake should strike at something fundamental making it impossible to performWas the common mistake as to the distance such a sufficient mistake as to strike the very heart of the contract?Was it a fundamental mistake?It swept aside the equitable doctrine the result being that the common mistake should strike at something fundamental making it impossible to performWas the common mistake as to the distance such a sufficient mistake as to strike the very heart of the contract?Was it a fundamental mistake?It swept aside the equitable doctrine the result being that the common mistake should strike at something fundamental making it impossible to performWas the common mistake as to the distance such a sufficient mistake as to strike the very heart of the contract?Was it a fundamental mistake?It swept aside the equitable doctrine the result being that the common mistake should strike at something fundamental making it impossible to performWas the common mistake as to the distance such a sufficient mistake as to strike the very heart of the contract?Was it a fundamental mistake?It swept aside the equitable doctrine the result being that the common mistake should strike at something fundamental making it impossible to performWas the common mistake as to the distance such a sufficient mistake as to strike the very heart of the contract?Was it a fundamental mistake?It swept aside the equitable doctrine the result being that the common mistake should strike at something fundamental making it impossible to perform
Raffles v Wichelhaus (1864)
The parties entered a contract for the sale of some cotton to be shipped by ‘The Peerless’ from Bombay. The Peerless had a sailing from Bombay in October and in December. The defendant thought that it was the October sailing and the claimant believed it was the December sailing which had been agreed.The court applied an objective test and stated that a reasonable person would not have been able to state with certainty which sailing had been agreed. Therefore the contract was void as there was noconsensus ad idem.No agreement to the same thing, a reasonable mistake from the pofv of the reasonable man= contract was deemed to be void, to have never existed. Frager is one the philosophers of langage who is often mentioned in this context.
Scleriven v Handle
Lot A contained hemp and this lot had the same shipping mark (SL) as lot B and the custom was for Lots to be sold as containing the same thing. Auctionner accepted the offer but mistake on the part of the defendant who thought the two boxes contained hemp while one contained tow. Seeing that it was customary for two lots to countain the same kind of goods and that the had the same shipping marks, that it was reasonnbale for the defendant to have presumed they both contained the same thing = contract was void
Hartog v Colin & Shields 1939
is an importantEnglish contract lawcase regardingunilateral mistake. It holds that when it is obvious that someone has made a mistake in the terms of an offer, one may not simply “snap up” the offer and be able to enforce the agreement.is an importantEnglish contract lawcase regardingunilateral mistake. It holds that when it is obvious that someone has made a mistake in the terms of an offer, one may not simply “snap up” the offer and be able to enforce the agreement.is an importantEnglish contract lawcase regardingunilateral mistake. It holds that when it is obvious that someone has made a mistake in the terms of an offer, one may not simply “snap up” the offer and be able to enforce the agreement.is an importantEnglish contract lawcase regardingunilateral mistake. It holds that when it is obvious that someone has made a mistake in the terms of an offer, one may not simply “snap up” the offer and be able to enforce the agreement.is an importantEnglish contract lawcase regardingunilateral mistake. It holds that when it is obvious that someone has made a mistake in the terms of an offer, one may not simply “snap up” the offer and be able to enforce the agreement.is an importantEnglish contract lawcase regardingunilateral mistake. It holds that when it is obvious that someone has made a mistake in the terms of an offer, one may not simply “snap up” the offer and be able to enforce the agreement.
Smith v hughes 1871
The claimant had purchased a quantity of what he thought was old oats having been shown a sample. In fact the oats were new oats. The claimant wanted the oats for horse feed and new oats were of no use to him. The seller was aware of the mistake of the claimant but said nothing. The claimant brought an action against the seller based on mistake and misrepresentation.both actions failed. The action based on misrepresentation failed as you cannot have silence as a misrepresentation. The defendant had not mislead the claimant to believe they were old oats. The action based on mistake failed as the mistake was not as to the fundamental terms of the contract but only a mistake as to quality.
Cundy v Lindsay 1878
A rogue, Blenkarn, hired a room at 37 Wood street, Cheapside. This was in the same street that a highly reputable firm called Blenkiron & Son traded. The rogue ordered a quantity of handkerchiefs from claimant disguising the signature to appear as Blenkiron. The goods were dispatched to Blenkiron & co 37, Wood street but payment failed. Blenkarn sold a quantity the handkerchiefs on to the defendant who purchased them in good faith and sold them on in the course of their trade. The claimants brought an action based in the tort of conversion to recover the value of the handkerchiefs. The success of the action depended upon the contract between the Blenkarn and the claimant being void for mistake. If the contract was void, title in the goods would not pass to the rogue so he would have no title to pass onto the defendants. Ownership of the goods would remain with the claimant.The contract was void for unilateral mistake as the claimant was able to demonstrate an identifiable existing business with whom they intended to contract with.
Kings’norton metal company v edridge, Merrett (1897
1897A rogue ordered goods from the claimant using a printed letter head a claiming to be a company called Hallum & co with offices in Belfast Lile and Ghent. In fact no such company existed. The claimant sent out the goods on credit. The rogue sold the goods on to the defendants who purchased them in good faith. The rogue then disappeared without paying for the goods. The claimants brought an action for conversion of the goods based on their unilateral mistake as to identity.1897A rogue ordered goods from the claimant using a printed letter head a claiming to be a company called Hallum & co with offices in Belfast Lile and Ghent. In fact no such company existed. The claimant sent out the goods on credit. The rogue sold the goods on to the defendants who purchased them in good faith. The rogue then disappeared without paying for the goods. The claimants brought an action for conversion of the goods based on their unilateral mistake as to identity.1897A rogue ordered goods from the claimant using a printed letter head a claiming to be a company called Hallum & co with offices in Belfast Lile and Ghent. In fact no such company existed. The claimant sent out the goods on credit. The rogue sold the goods on to the defendants who purchased them in good faith. The rogue then disappeared without paying for the goods. The claimants brought an action for conversion of the goods based on their unilateral mistake as to identity.1897A rogue ordered goods from the claimant using a printed letter head a claiming to be a company called Hallum & co with offices in Belfast Lile and Ghent. In fact no such company existed. The claimant sent out the goods on credit. The rogue sold the goods on to the defendants who purchased them in good faith. The rogue then disappeared without paying for the goods. The claimants brought an action for conversion of the goods based on their unilateral mistake as to identity.1897A rogue ordered goods from the claimant using a printed letter head a claiming to be a company called Hallum & co with offices in Belfast Lile and Ghent. In fact no such company existed. The claimant sent out the goods on credit. The rogue sold the goods on to the defendants who purchased them in good faith. The rogue then disappeared without paying for the goods. The claimants brought an action for conversion of the goods based on their unilateral mistake as to identity.1897A rogue ordered goods from the claimant using a printed letter head a claiming to be a company called Hallum & co with offices in Belfast Lile and Ghent. In fact no such company existed. The claimant sent out the goods on credit. The rogue sold the goods on to the defendants who purchased them in good faith. The rogue then disappeared without paying for the goods. The claimants brought an action for conversion of the goods based on their unilateral mistake as to identity.the contract was not void for mistake as they could not identify an existing company called Hallum & co with whom they intended to contract. The mistake was only as to the attributes of the company. The contract was voidable for misrepresentation but that would not stop title passing to the rogue and the defendants therefore acquired good title to the goods.
Philipps v Brooks
rogue purchased some items from the claimant’s jewellers shop claiming to be Sir George Bullogh. He paid by cheque and persuaded the jewellers to allow him to take a ring immediately as he claimed it was his wive’s birthday the following day. He gave the address of Sir George Bullogh and the jewellers checked the name matched the address in a directory. The rogue then pawned the ring at the defendant pawn brokers in the name of Mr. Firth and received £350. He then disappeared without a trace. The claimant brought an action based on unilateral mistake as to identityThe contract was not void for mistake. Where the parties transact face to face the law presumes they intend to deal with the person in front of them not the person they claim to be. The jewellers were unable to demonstrate that they would only have sold the ring to Sir George Bullogh.-> Contract was not void but voidable. BUT since this has been shifted into equity one of the things which could prevent L from recovering the car would be the doctrine of laches (time)= what did prevent L from recovering his car was excessive delay.
Ingram v little (1961)
Two sisters Hilda and Elsie Ingram sold their car to a rogue calling himself Mr. Hutchinson. They agreed a price for cash, but when the rogue offered a cheque Elsie said the deal was off. She wanted cash or no sale. The rogue then gave them his full name and address and Hilda went to the post office, which was two minutes down the road, to check the details out. When she returned she informed Elsie that the details checked out and the sisters agreed to let Mr. Hutchinson take the car. The cheque was dishonoured and the car was sold on to Mr. Little. The sisters brought an action to recover the car. The contract was void for mistake. The Court of Appeal held that the sisters only intended to deal with Mr. Hutchinson at the address given because they were not willing to offer a sale for payment by cheque from anyone else. This case has received widespread criticism and has not been followed since.
Lewis v Avery (1972)
The claimant sold his mini cooper to a rogue claiming to be the actor Richard Greene (who played Robin Hood in a series at the time). The rogue showed the claimant a Pinewood studio pass which had Richard Greene’s name and an address on it. The claimant then let him take the car with the log book in exchange for a cheque for £430 which was later dishonoured. The rogue sold the car on to Mr Avery for £200 claiming to be the claimant. The claimant sought return of the car on the grounds that the contract was void for mistake.The contract was not void for mistake. The case of Ingram v Little was criticised by all of the judges although not formally overruled. The presumption that the parties intend to deal with the person in front of them was not displaced.
-> Lake v Simmons 1927
plaintiff’s sees entering into jewellery shop a women who demanded to look at pearl necklace (Esmi Ellison) and who had brought jewelery before from this shop. Said “My husband van der borgh is desirous to offer a pearl necklace. Would you mind if I took these two to show him”. Entrsuted her with the pearls. She sold these necklaces to a 3rd party and kept the proceeds of the crime. He did not sue the person to whom he had sold these jewels but he turned to the insurance and it makes an exception to the possibility of being refunded because the pwner of goods had entrusted the goods to a trickster.plaintiff’s sees entering into jewellery shop a women who demanded to look at pearl necklace (Esmi Ellison) and who had brought jewelery before from this shop. Said “My husband van der borgh is desirous to offer a pearl necklace. Would you mind if I took these two to show him”. Entrsuted her with the pearls. She sold these necklaces to a 3rd party and kept the proceeds of the crime. He did not sue the person to whom he had sold these jewels but he turned to the insurance and it makes an exception to the possibility of being refunded because the pwner of goods had entrusted the goods to a trickster.plaintiff’s sees entering into jewellery shop a women who demanded to look at pearl necklace (Esmi Ellison) and who had brought jewelery before from this shop. Said “My husband van der borgh is desirous to offer a pearl necklace. Would you mind if I took these two to show him”. Entrsuted her with the pearls. She sold these necklaces to a 3rd party and kept the proceeds of the crime. He did not sue the person to whom he had sold these jewels but he turned to the insurance and it makes an exception to the possibility of being refunded because the pwner of goods had entrusted the goods to a trickster.plaintiff’s sees entering into jewellery shop a women who demanded to look at pearl necklace (Esmi Ellison) and who had brought jewelery before from this shop. Said “My husband van der borgh is desirous to offer a pearl necklace. Would you mind if I took these two to show him”. Entrsuted her with the pearls. She sold these necklaces to a 3rd party and kept the proceeds of the crime. He did not sue the person to whom he had sold these jewels but he turned to the insurance and it makes an exception to the possibility of being refunded because the pwner of goods had entrusted the goods to a trickster.plaintiff’s sees entering into jewellery shop a women who demanded to look at pearl necklace (Esmi Ellison) and who had brought jewelery before from this shop. Said “My husband van der borgh is desirous to offer a pearl necklace. Would you mind if I took these two to show him”. Entrsuted her with the pearls. She sold these necklaces to a 3rd party and kept the proceeds of the crime. He did not sue the person to whom he had sold these jewels but he turned to the insurance and it makes an exception to the possibility of being refunded because the pwner of goods had entrusted the goods to a trickster.plaintiff’s sees entering into jewellery shop a women who demanded to look at pearl necklace (Esmi Ellison) and who had brought jewelery before from this shop. Said “My husband van der borgh is desirous to offer a pearl necklace. Would you mind if I took these two to show him”. Entrsuted her with the pearls. She sold these necklaces to a 3rd party and kept the proceeds of the crime. He did not sue the person to whom he had sold these jewels but he turned to the insurance and it makes an exception to the possibility of being refunded because the pwner of goods had entrusted the goods to a trickster.The courts held that this term “entrusted” being uncertain had to be interpreted contra proferrentem (against the person who had proffered it). He couldn’t have entrusted the jewels to a thief but to someone he did not believe to be a thief
non est factum= l’estrange v graucob
he claimant purchased a cigarette vending machine for use in her cafe. She signed an order form which stated in small print ‘Any express or implied, condition, statement of warranty, statutory or otherwise is expressly excluded’. The vending machine did not work and the claimant sought to reject it under the Sale of Goods Act for not being of merchantable quality.In signing the order form she was bound by all the terms contained in the form irrespective of whether she had read the form or not. Consequently her claim was unsuccessful.
Notthingham brick v Butler (1889)
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.
With v O’flanagan (1936)
The claimant purchased a medical practice from the defendant. The claimant was induced to buy the practice by the defendant’s statement that the practice took £2,000 per annum. This statement was true at the time it was made. However, subsequently the defendant became ill and many patients went elsewhere. By time the sale was completed the practice was virtually worthlessWhere a statement is rendered false by a change in circumstances there is a duty to disclose the change. A failure to do so will result in an actionable misrepresentation.
contracts of utmost good faith (uberriame fidei)= this concerns contract of insurance where disclosure of relevant information is mandatory:Lambert V Cooperative insurance society 1975
in 1963 Mrs Lambert signed an insurance policy to cover her own and her husbands chattels including jewelry. None were asked if convicted for offense in the past but the husband had been for stealing cigarettes and had been fined 25£. The company then issued the policy stipulating that it would be void if there was any omission of any material fact. Husband was convicted for conspiracy to steal. In 1972 items were stolenMrs L made a claim for compensation and the claim was repudiated on the grounds that she had not disclosed the info related to her husband’s first and second conviction. Wife sued the insurance company but lost .
Gordon v selico 1985
The claimant purchased a long lease of a flat from the first defendant and of which the second defendant was the managing agent. The flats were already in poor repair at the time of the purchase and subsequently the second defendant made no attempts to fulfil its maintenance obligations. The building was ultimately found to be badly affected by dry rot and the local authority served a dangerous structure notice. The claimant sought damages for deceit on the basis that a contractor had fraudulently hidden details of the dry rot at the time of the purchase when carrying out work ordered by the second defendant on the first defendant’s behalf. This claim was successful at first instance and the judge also found that the defendants were both in breach of their maintenance obligations under theHousing Act 1974. The defendants did not appeal on the basis that there had been no deceit, but rather that this should not be imputed on them.The claimant purchased a long lease of a flat from the first defendant and of which the second defendant was the managing agent. The flats were already in poor repair at the time of the purchase and subsequently the second defendant made no attempts to fulfil its maintenance obligations. The building was ultimately found to be badly affected by dry rot and the local authority served a dangerous structure notice. The claimant sought damages for deceit on the basis that a contractor had fraudulently hidden details of the dry rot at the time of the purchase when carrying out work ordered by the second defendant on the first defendant’s behalf. This claim was successful at first instance and the judge also found that the defendants were both in breach of their maintenance obligations under theHousing Act 1974. The defendants did not appeal on the basis that there had been no deceit, but rather that this should not be imputed on them.The claimant purchased a long lease of a flat from the first defendant and of which the second defendant was the managing agent. The flats were already in poor repair at the time of the purchase and subsequently the second defendant made no attempts to fulfil its maintenance obligations. The building was ultimately found to be badly affected by dry rot and the local authority served a dangerous structure notice. The claimant sought damages for deceit on the basis that a contractor had fraudulently hidden details of the dry rot at the time of the purchase when carrying out work ordered by the second defendant on the first defendant’s behalf. This claim was successful at first instance and the judge also found that the defendants were both in breach of their maintenance obligations under theHousing Act 1974. The defendants did not appeal on the basis that there had been no deceit, but rather that this should not be imputed on them.The claimant purchased a long lease of a flat from the first defendant and of which the second defendant was the managing agent. The flats were already in poor repair at the time of the purchase and subsequently the second defendant made no attempts to fulfil its maintenance obligations. The building was ultimately found to be badly affected by dry rot and the local authority served a dangerous structure notice. The claimant sought damages for deceit on the basis that a contractor had fraudulently hidden details of the dry rot at the time of the purchase when carrying out work ordered by the second defendant on the first defendant’s behalf. This claim was successful at first instance and the judge also found that the defendants were both in breach of their maintenance obligations under theHousing Act 1974. The defendants did not appeal on the basis that there had been no deceit, but rather that this should not be imputed on them.The claimant purchased a long lease of a flat from the first defendant and of which the second defendant was the managing agent. The flats were already in poor repair at the time of the purchase and subsequently the second defendant made no attempts to fulfil its maintenance obligations. The building was ultimately found to be badly affected by dry rot and the local authority served a dangerous structure notice. The claimant sought damages for deceit on the basis that a contractor had fraudulently hidden details of the dry rot at the time of the purchase when carrying out work ordered by the second defendant on the first defendant’s behalf. This claim was successful at first instance and the judge also found that the defendants were both in breach of their maintenance obligations under theHousing Act 1974. The defendants did not appeal on the basis that there had been no deceit, but rather that this should not be imputed on them.the misrepresentor had not said anything but had covered up in the course of negociations for the sale of his property, had covered up areas that were rotting with paint =positive action can amount fraudulent misrepresentation.The Court of Appeal dismissed the defendants’ appeal, but on different grounds from those found at first instance. The second defendant had become a party to the contractor’s fraudulent misrepresentation as a result of its controlling shareholding in the property, and the authority for this was conferred on the second defendant by the first. The defendants were therefore liable for this fraudulent misrepresentation. The defendants were also found to be in breach of their maintenance obligations under the lease. The court ordered damages in respect of both areas of the claim together with the making of orders for specific performance to be worked out by the Chief Chancery Master.
Spice girl v Aprilia world service 2000
he claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been promised. The girls acknowledged that Geri had said she would leave, but insisted that no real intention to leave had existed.Generally, a person who is about to enter into an agreement is under no duty to disclose material facts which he knows but which the other party does not know. Here the group knew that the other party was relying upon a representation, and could not discharge the requirement to show that they did not know of its falsity, and were liable in damages to the defendant.
Wilkinson 1927
The claimant purchased a piece of farm land to use as a sheep farm. He asked the seller how many sheep the land would hold. The seller had not used it as a sheep farm but estimated that it would carry 2,000 sheep. In reliance of this statement the claimant purchased the land. The estimate turned out to be wrong and the claimant brought an action for misrepresentation.The Privy Council held that the statement was only a statement of opinion and not a statement of fact and therefore not an actionable misrepresentation. The claimant’s action was therefore unsuccessful
Esso Petroleum v Mardon
M wished to run petrol station as a tenant and in the course of negociation they said there could be 2000 gallons by the third year.The Court of Appeal held that there was no action for misrepresentation as the statement was an estimate of future sales rather than a statement of fact. However, the claimant was entitled to damages based on either negligent misstatement at common law or breach of warranty of a collateral contract.
Horsfall v Thomas 1862
he claimant purchased a gun which had a concealed defectHis action for misrepresentation failed as he hadn’t inspected the gun before purchasing it. Therefore the misrepresentation did not induce him to enter the contract as he was unaware of it
statements as to the future:Edgington v Fitzmaurice (1985)
The claimant purchased some shares in the defendant company. The company prospectus stated the shares were being offered in order to raise money to expand the company. In fact the company was experiencing financial difficulty and the money raised from the sale of the shares was going to be used to pay the company debts.Despite the fact that the statement related to a statement of future intent, it was an actionable misrepresentation as the defendant had no intention of using the money to expand the company
If true inducement relied on the misrepresentees own further investigation=attwood v small 1838
the sellors of a mine gave exaggerated statement as to the yield (profit). But the buyer sent his own expert and it was shown that it was in reliance of his own expert’s representation that he bought the mineno misrepresentation because no reliance on the seller’s statement
there is reliance even if the misrepresentor gives the other the opportunity to discover the truth but he does not take advantage of that opportunity-> Redgrave v Hurd 1881
A solicitor purchased into the partnership in the solicitors’ firm. He was told the partnership had an income of £300 per year and was given the opportunity to look at the accounts. He declined the offer to check the accounts and took them at their word. In fact the income was only £200 per yearHe was entitled to rescind the contract as he relied on the statement. The fact that he had declined the offer to check the books reinforced rather than negated that reliance.
Hedley byrne v Heller & Partners 1964
Hedley Byrne were advertising agents placing contracts on behalf of a client on credit terms. Hedley Byrne would be personally liable should the client default. To protect themselves, Hedley Byrne asked their bankers to obtain a credit reference from Heller & Partners (‘H&P’), the client’s bankers. The reference (given both orally and then in writing) was given gratis and was favourable, but also contained an exclusion clause to the effect that the information was given ‘without responsibility on the part of this Bank or its officials’. Hedley Byrne relied upon this reference and subsequently suffered financial loss when the client went into liquidationThe court found that H&P’s disclaimer was sufficient to protect them from liability and Hedley Byrne’s claim failed. However, the House of Lords ruled that damage for pure economic loss could arise in situations where the following four conditions were met:(a) a fiduciary relationship of trust & confidence arises/exists between the parties;(b) the party preparing the advice/information has voluntarily assumed the risk;(c) there has been reliance on the advice/info by the other party, and(d) such reliance was reasonable in the circumstances
Barclays Bank v O Brien[1994] 1 AC 180 House of Lords
Mr O’Brien was a chartered accountant and he also had a shareholding in a company in which he was an auditor. The company was experiencing financial difficulty and the bank wished to find security for the company debts. Mr O’Brien offered the matrimonial home as security. He told his wife that the charge was limited to £60,000 and that it was only to last for a few weeks. Initially the wife refused to sign but was later persuaded to sign as the husband told her that the company would fail if she did not and that her son, who also had an interest in the company, would lose his home. In fact the charge was not limited in the amount or time. The wife agreed to sign the charge. The manager of the bank had left sent the documents to their local branch with instructions that the wife was to be advised of the full extent of the liability and that the wife should be advised to take independent advice before signing. However, the bank clerk got the wife to sign and failed to carry out the instructions. The bank sought to enforce the charge and the wife raised undue influence and misrepresentation in her defence to have the charge set aside.
The wife was successful with regards to misrepresentation. The charge was set aside as the bank had constructive notice of the misrepresentation and failed to take reasonable steps to ensure that the charge had been obtained without influence or that Mrs O’Brien was aware of the full extent of liability.The defence based on undue influence failed because the wife was held to exercise independence of thought on financial matters and was used to dealing with the family finances whilst her husband was working away.
Chapel co ltd v nestle
Nestle ran a sales promotion whereby if persons sent in 3 chocolate bar wrappers and a postal order for 1 shilling 6d they would be sent a record. Chappel owned the copyright in one of the records offered and disputed the right of Nestle to offer the records and sought an injunction to prevent the sales of the records which normally retailed at 6 shillings 8d. Under s.8 of the Copyright Act 1956 retailers were protected from breach of copyright if they gave notice to the copyright holders of the ordinary retail selling price and paid them 6.25% of this. Nestle gave notice stating the ordinary selling price was the 1 shilling 6d and three chocolate bar wrappers. The question for the court was whether the chocolate bar wrappers formed part of the consideration. If they did it was impossible to ascertain the value they represented and therefore Nestle would not have complied with their obligation to give notice of the ordinary retail selling price. If the wrappers were a mere token or condition of sale rather than constituting consideration, then the notice would be valid and Nestle could sell the recordsThe wrappers did form part of the consideration as the object was to increase sales and therefore provided value. The fact that the wrappers were simply to be thrown away did not detract from this. Therefore Chappel were granted the injunction and Nestle could not sell the records as they had not complied with the notice requirements under s.8.
Williams v Bailey 1866
Mr Bayley’s son forged his father’s signature on promissory notes and gave them to Mr Williams. Mr Williams threatened Mr Bayley that he would bring criminal prosecution against his son unless he granted an equitable mortgage to get back the notes.House of Lords upheld the cancellation of the agreement, on account of undue influence. The agreement was cancelled on the ground that he was influenced by threat.
Saunders v Edwards (1987)
The Claimant purchased the lease in a flat from the Defendant. They colluded to undervalue the flat and overvalue various items in the flat in order to reduce the stamp duty payable. Later the Claimant brought an action for misrepresentation in that the Defendant had stated the sale included the lease of a roof garden. The question for the court was whether the fraud on the Inland Revenue barred the Claimant from pursuing the claim.The fraud on the Inland Revenue was independent of and unconnected to the action brought by the Claimant.Lord Bingham:“the courts are to adopt a pragmatic approach to these problems seeking where possible to see that genuine wrongs are righted so long as the Court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn….Where issues of illegality are raised, the courts have to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct.”
Williams v Roffey 1990
The defendants were building contractors who entered an agreement with Shepherds Bush Housing Association to refurbish a block of 27 flats. This contract was subject to a liquidated damages clause if they did not complete the contract on time. The defendants engaged the claimant to do the carpentry work for an agreed price of £20,000. 6 months after commencing the work, the claimant realised he had priced the job too low and would be unable to complete at the originally agreed price. He approached the defendant who had recognised that the price was particularly low and was concerned about completing the contract on time. The defendant agreed to pay the claimant an additional £575 per flat. The claimant continued work on the flats for a further 6 weeks but only received an additional £500. He then ran out of money and refused to continue unless payment was made. The defendant engaged another carpenter to complete the contract and refused to pay the claimant the further sums promised arguing that the claimant had not provided any consideration as he was already under an existing contractual duty to complete the work.Consideration was provided by the claimant conferring a benefit on the defendant by helping them to avoid the penalty clause. Therefore the defendant was liable to make the extra payments promised.W sued and R said that W had taken advantage=economic duress= no consideration. You would expect the courts to find in favor of R. BUT W won because of practical benefits . When one considers W v R in the second agreement W gets more money but R gets the assurance that he will avoid the penalty for not delivering the block on time.
Allcard v Skinner 1887
Miss Allcard was introduced by the Revd Mr Nihill to Miss Skinner, a lady superior of a religious order named “Protestant Sisters of the Poor”. She had to observe vows ofpovertyandobedience. Three days after becoming a member, Miss Allcard made a will bequeathing all property to Miss Skinner, and passed on railwaystockthat she came into possession of in 1872 and 1874. She then claimed the money back after she left the sisterhood.Miss Allcard was introduced by the Revd Mr Nihill to Miss Skinner, a lady superior of a religious order named “Protestant Sisters of the Poor”. She had to observe vows ofpovertyandobedience. Three days after becoming a member, Miss Allcard made a will bequeathing all property to Miss Skinner, and passed on railwaystockthat she came into possession of in 1872 and 1874. She then claimed the money back after she left the sisterhood.Miss Allcard was introduced by the Revd Mr Nihill to Miss Skinner, a lady superior of a religious order named “Protestant Sisters of the Poor”. She had to observe vows ofpovertyandobedience. Three days after becoming a member, Miss Allcard made a will bequeathing all property to Miss Skinner, and passed on railwaystockthat she came into possession of in 1872 and 1874. She then claimed the money back after she left the sisterhood.Miss Allcard was introduced by the Revd Mr Nihill to Miss Skinner, a lady superior of a religious order named “Protestant Sisters of the Poor”. She had to observe vows ofpovertyandobedience. Three days after becoming a member, Miss Allcard made a will bequeathing all property to Miss Skinner, and passed on railwaystockthat she came into possession of in 1872 and 1874. She then claimed the money back after she left the sisterhood.Miss Allcard was introduced by the Revd Mr Nihill to Miss Skinner, a lady superior of a religious order named “Protestant Sisters of the Poor”. She had to observe vows ofpovertyandobedience. Three days after becoming a member, Miss Allcard made a will bequeathing all property to Miss Skinner, and passed on railwaystockthat she came into possession of in 1872 and 1874. She then claimed the money back after she left the sisterhood.Lindley LJ, held that she was unduly influenced but barred bylachesfrom getting restitution. And in any case she would only have been able to recover as much of the gift as remained in the defendant’s hands after some of it had been spent in accordance with her wishes.[1]Lindley LJ, held that she was unduly influenced but barred bylachesfrom getting restitution. And in any case she would only have been able to recover as much of the gift as remained in the defendant’s hands after some of it had been spent in accordance with her wishes.[1]Lindley LJ, held that she was unduly influenced but barred bylachesfrom getting restitution. And in any case she would only have been able to recover as much of the gift as remained in the defendant’s hands after some of it had been spent in accordance with her wishes.[1]Lindley LJ, held that she was unduly influenced but barred bylachesfrom getting restitution. And in any case she would only have been able to recover as much of the gift as remained in the defendant’s hands after some of it had been spent in accordance with her wishes.[1]Lindley LJ, held that she was unduly influenced but barred bylachesfrom getting restitution. And in any case she would only have been able to recover as much of the gift as remained in the defendant’s hands after some of it had been spent in accordance with her wishes.[1]
Brocklehurst 1978= presumed undue influence resulting from the relationship of trust
. B was a man who lived alone and became friendly with the owner of local garage and they liked to shoot rabbit. He gave the garage owner rights to shoot on the property after his own death. Contested by heirs because undue influence. . It was argued that B was not the kind of person over whom undue influence could be exercised. The evidential assumption was rebutted as Sir Brocklehurt was said to be a “strong-minded, autocratic and eccentric” individual.
Hubbard v Martin
another old man would be visited by a lady and her 2 daughters, in 1997 he made a will where he left his estate to a neighbor and this lady. The neighbor died and the lady ceased to come and visit the old men. In 2009 he rewrote his will leaving the estate to the polish cleanerIt is not sufficient to say there the terms of the will is consistent with the hypothesis that there has been undue influence you have to show that it not consistent to any other hypothesis
Armstrong
A former chairman threatened B with death if he did not agree to buy his shares in the company. He agreed not just because of the duress but also because he thought there was a good prospect fr the shares to gain value. It turned out they did not so he brought action against A .Duress requires to be the only factor having induced the plaintiff to endure the contract
Skeate v Beale 1840
A landlord was owed money by a tenant. He seized goods owned by the tenant and threatened to sell them immediately unless the tenant entered an agreement for repayment of the sums owned. The tenant agreed to the repayment terms but then sought to have the agreement set aside for duress.Duress to goods will not suffice to render a contract voidable.
Maskell v Horner 1915
The defendant demanded money from the claimant by way of a ‘toll fee’ for his market stall. The defendant had no legal basis for demanding this money. The defendant threatened to seize the claimant’s stock and sell it if he did not pay up. The claimant paid the toll fee for a considerable period of time and then brought an action for money had and received to recover the money paid under duress.The claimant was entitled to recover the sums paid in the law of restitution. This decision is out of line with the law on duress of goods in contract law and is considered by some as demonstrating that the position taken in contract law should be revised.
Pym v Campbell 1856
ym and Campbell signed a written agreement wherein Campbell agreed to purchase three-eighths of the profits to accrue from Pym’s new invention. The invention did not receive the requisite approval from one of Campbell’s engineers and, accordingly, Campbell refused to pay Pym the purchase price. Pym sued for breach of contract. However, Campbell claimed that the agreement was conditional upon the approval of the invention, presenting oral evidence of party negotiations to that effect.The Court held that, as a general rule of law, the terms contained within a signed written contract are conclusive and cannot be varied by parol evidence. Thus, parol evidence cannot introduce an addition to or variation from the terms of a written contract between the Parties. However, in this case, the Court held that the general parol evidence rule is not applicable as the question did not concern the construction of the terms of a contract but rather whether there was any agreement at all. Thus, parol evidence that sought to show that the agreement was never entered into was admissible. On the facts, the Court held that there was overwhelming evidence from the oral negotiations between the Parties that, prior to signing the written document, the Parties came to a mutual understanding the prospective purchase was not intended to be an agreement until the invention was approved by the engineers. As there was no approval, there was no agreement and Campbell was not obliged to pay Pym.
City and Westminster properties v mudd 1959= is anEnglish contract lawcase, regarding theparol evidencerule
The lease said the tenant could use No 4New Cavendish Street, London, for business purposes only. Mr Mudd, the tenant was an antique dealer. He had been assured he could live in the back room of the shop and using the basement a living space as a wartime arrangement since 1941. The written agreements followed from 1943 and excluded using the premises to live since 1947. In 1957, after some changes of landlord and caution of surveyors, the new landlord tried to eject Mr Mudd. Mr Mudd refused to leave and was brought to court->reasonable notice?
Smith v Wilson 1832
it was said that according to a local custom (not part of the agreement but parole evidence) that 1000 rabbits meant 1200
Burgess v wickham 1836
It was held that a person who takes out a policy of marine insurance can show that the insurer knew the ship to be unseaworthy, and so negative the usual implied warranty of seaworthiness.if there is an implied term than parole evidence can be cited to show that the other party knew that the implied term was not applicable. It was held that a person who takes out a policy of marine insurance can show that the insurer knew the ship to be unseaworthy, and so negative the usual implied warranty of seaworthiness.if there is an implied term than parole evidence can be cited to show that the other party knew that the implied term was not applicable. It was held that a person who takes out a policy of marine insurance can show that the insurer knew the ship to be unseaworthy, and so negative the usual implied warranty of seaworthiness.if there is an implied term than parole evidence can be cited to show that the other party knew that the implied term was not applicable. It was held that a person who takes out a policy of marine insurance can show that the insurer knew the ship to be unseaworthy, and so negative the usual implied warranty of seaworthiness.if there is an implied term than parole evidence can be cited to show that the other party knew that the implied term was not applicable.
Regazzoni v Sethia
under indian law a trade with SA was illegal and for public policy reasons out of respect for india the English court held that an English contract to ship goods from Italy to SA was unenforceable
Beroes v insurance company 1957 ->
The policy interpreted litteraly provided the company would pay the 50000£ even if the person killed himself. The insurance company refused to pay and the person’s executor claimed payment and lost because it amounted to providing consideration for the commital of an offensea person who had insurred his life for 50000£ , just a few minutes before the insurance policy would have been invalidated for non payment of renewal shot himself.
Contracts against contra bonas mores (good moral conduct)= the law has mostly focused on sexual morality= Pearce v Brooks 1866->
a prostitute hired a carriage to operate in her trade, when she didn’t want to anymore they sued her, contract held to be illegal because enabled her to commit an offense
Salisbury v Salisbury 2007
no relationship between what was held to be consideration->In 1988 S & S divorced but remained on good terms , came to agreement without going to court for allowance of 12000£ +2400£ for child.In 1991 after further talks S wrote will in which he bequeathed her 100000£ on condition that she had not undertaken proceedings in court for allowance. The husband remarried and when he died the executors refused to pay her the money justifying it by the fact that it amounted to ousting the jurisdiction of the court.Amounted to buying the wife’s possibility of going to court. The lawyers said the two were disconnected, the fact that she did not go to court was a condition precedent for a gift of will. (ex: if you break your leg I will give you 100000£).
Prejudicial to marriage= not illegal but contrary to public policy= Lowe v Peers
The defendant promised mrs Lowe that he would not marry anyone but herself and if he did he agreed to pay 1000£.She sued him but lost because contrary to public policy, you can’t limit marriage by providing monetary consideration
Mahmoud v Ispahani
The lease said the tenant could use No 4New Cavendish Street, London, for business purposes only. Mr Mudd, the tenant was an antique dealer. He had been assured he could live in the back room of the shop and using the basement a living space as a wartime arrangement since 1941. The written agreements followed from 1943 and excluded using the premises to live since 1947. In 1957, after some changes of landlord and caution of surveyors, the new landlord tried to eject Mr Mudd. Mr Mudd refused to leave and was brought to court.
Shaw v Groom
by lax a landlord was bound to provide his tenant with a rent book. The tenant stopped paying the rent because the landlord had not provided it. It was held by the court to be peripheral and not to justify contract to be null and void
Sanders v Edwards
The Claimant purchased the lease in a flat from the Defendant. They colluded to undervalue the flat and overvalue various items in the flat in order to reduce the stamp duty payable. Later the Claimant brought an action for misrepresentation in that the Defendant had stated the sale included the lease of a roof garden. The question for the court was whether the fraud on the Inland Revenue barred the Claimant from pursuing the claim.The fraud on the Inland Revenue was independent of and unconnected to the action brought by the Claimant.
Patel v mirza 2014=
P could not obtain assistance from the court because insider trading is an offense (ex turpi causa= from the turpitude of the cause). BUT on appeal it was held that he did have a right of action because he had withdrawn because M was not able to get insider information.
Ashmore v Dawson
In 1967 the plaintiffs, Ashmore, Benson, Pease & Co, manufactured tube tanks. The defendants, AV Dawson, a haulage company, agreed to carry the plaintiff’s equipment by lorry. With the knowledge of the plaintiff’s transport manager, the defendants loaded their vehicle in excess of the weight permitted by theRoad Traffic Act 1960,s.64(2). The vehicle toppled over during the journey, and the plaintiffs sued in negligence for £2,225 in damage caused to the equipment by the defendant’s driving. At first instance the trial judge found in favour of the plaintiffs and awarded damages. The defendants appealed.The defendant hauliers claimed that the contract was void for illegality. They argued that the equipment had been loaded by the plaintiff’s own servants and the load had exceeded the law with the plaintiff’s knowledge and assistance. They also claimed that the plaintiff’s transport manager had insisted the tubes be carried by lorry even though they knew this would exceed the legal weight limit. Therefore, the parties had a common design in an unlawful purpose.The Court of Appeal reversed the trial judge’s decision. It held that the contract was void for illegality. Although the contract itself was not illegal, it had been performed in a manner that was illegal with the knowledge and agreement of the plaintiff. If a party enters into a lawful contract and it is agreed that contract is to be carried out unlawfully, that party cannot recover damages for its breach.
Without signature= on condition there has been reasonable and sufficient notice of theexclusion of liability clause which must be found in a contractual doc ->Parker v Southeast railway 1877
plaintiff left bag in coat room and received a paper ticket which said “see back=the company will not be responsible for package exceeding the value of 110£”.He lost it .it was not a contractual doc and on one side it only said “see back” so it could have been because there was a nice pictureIt is a famousEnglishcontract lawcase onexclusion clauseswhere the court held that an individual cannot escape a contractual term by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer. It is a famousEnglishcontract lawcase onexclusion clauseswhere the court held that an individual cannot escape a contractual term by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer. It is a famousEnglishcontract lawcase onexclusion clauseswhere the court held that an individual cannot escape a contractual term by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer. It is a famousEnglishcontract lawcase onexclusion clauseswhere the court held that an individual cannot escape a contractual term by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer.
Parker v Southest railway 1877
Mr. Parker left a bag in the cloakroom ofCharing Cross railway station, run by theSouth Eastern Railway Company. On depositing his bag and paying two pence he received a ticket. On the front it said “see back”. On its back, it stated that the railway was excluded from liability for items worth £10 or more. Mr. Parker failed to read the clause as he thought the ticket was only a receipt of payment. However, he admitted that he knew the ticket contained writing. Mr. Parker’s bag, which was worth more than £10, was lost. He sued the company. The question of law put to the court was whether the clause applied to Mr. Parker. At trial the jury found for Mr. Parker as it was reasonable for him not to read the ticket.Mr. Parker left a bag in the cloakroom ofCharing Cross railway station, run by theSouth Eastern Railway Company. On depositing his bag and paying two pence he received a ticket. On the front it said “see back”. On its back, it stated that the railway was excluded from liability for items worth £10 or more. Mr. Parker failed to read the clause as he thought the ticket was only a receipt of payment. However, he admitted that he knew the ticket contained writing. Mr. Parker’s bag, which was worth more than £10, was lost. He sued the company. The question of law put to the court was whether the clause applied to Mr. Parker. At trial the jury found for Mr. Parker as it was reasonable for him not to read the ticket.Mr. Parker left a bag in the cloakroom ofCharing Cross railway station, run by theSouth Eastern Railway Company. On depositing his bag and paying two pence he received a ticket. On the front it said “see back”. On its back, it stated that the railway was excluded from liability for items worth £10 or more. Mr. Parker failed to read the clause as he thought the ticket was only a receipt of payment. However, he admitted that he knew the ticket contained writing. Mr. Parker’s bag, which was worth more than £10, was lost. He sued the company. The question of law put to the court was whether the clause applied to Mr. Parker. At trial the jury found for Mr. Parker as it was reasonable for him not to read the ticket.amousEnglishcontract lawcase onexclusion clauseswhere the court held that an individual cannot escape a contractual term by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer.amousEnglishcontract lawcase onexclusion clauseswhere the court held that an individual cannot escape a contractual term by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer.amousEnglishcontract lawcase onexclusion clauseswhere the court held that an individual cannot escape a contractual term by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer.
Chapelton v Barry 1940
The claimant hired a deck chair from Barry UDC for use on the beach. There was a notice on the beach next to the deck chairs stating that the deck chairs could be hired at 2d for three hours and also ‘respectfully requested’ the public to obtain tickets issued by the chair attendants. The claimant obtained a ticket and put it in his pocket without reading it. In fact there was an exclusion clause printed on the ticket excluding the council’s liability for personal injury caused in using the deck chair. The claimant was injured when he sat on the chair. The fabric of the deck chair split away from the frame. He brought an action against the council and they sought to rely on the exclusion clause contained in the ticket.The exclusion clause was not incorporated into the contract. A reasonable person would regard the ticket as nothing more than a receipt and would not expect it to contain contractual terms. Furthermore, the wording of the notice suggested that a person could obtain the deck chair and get a ticket later. The notice constituted an offer and collecting the chair would amount to acceptance. It would not be open to the council to introduce new termsafter the contract had been formed.
Olley v Marlborough court 1949
The claimant booked into a hotel. The contract was made at the reception desk wherethere was no mention of an exclusion clause. In the hotel room on the back of the door a notice sought to exclude liability of the hotel proprietors for any lost, stolen or damaged property. The claimant had her fur coat stolenThe notice was ineffective. The contract had already been made by the time the claimant had seen the notice. It did not therefore form part of the contract.
Spurling v Bradshaw (1956)
The defendant used the services of a warehouse to store goods on a regular basis. Each time he delivered goods to the warehouse he was asked to sign an invoice which contained an exclusion clause. This invoice came after the contract had been agreed. On one occasion he stored some barrels of orange juice and again signed the invoice. When he went to pick them up, however, some of the barrels were empty and one contained dirty water. Consequently he refused to pay for the storage. The claimant warehouse owners brought an action for the agreed price of storage relying on the exclusion clause to demonstrate that they were not liable for the damage to the goods. The defendant argued the clause had not been incorporated into the contract as he signed the document after the contract was made.The clause was incorporated through previous dealings. The defendant would have been aware of the term from the previous contracts and therefore it did form part of the contract. The claimant was entitled to payment and the defendant had no right to claim compensation for the damage to the orange juice.
Adler v Dickson (1954)
The defendants were the master and boatswain of the P&O passenger liner Himalaya. The plaintiff was a passenger who was injured when an insecure gangway slipped and he fell 16ft to the wharf. The plaintiff had a contract with P&O which excluded liability for such an injury: ‘passengers . . Are carried at passengers’ entire risk’ and ‘The company will not responsible for and shall be exempt from all liability in respect of any injury whatsoever of or to the person of any passenger . . Whether such injury shall occur on land, on shipboard or elsewhere . . And whether the same shall arise from or be occasioned by the negligence of the company’s servants . . In the discharge of their duties, or while a passenger is embarking or disembarking, or whether by the negligence of other persons directly or indirectly in the service of the company, or otherwise by the act of God . . Dangers of the seas . . Or by accidents . . or any acts, defaults, or negligence of the master, mariners . . Company’s agents or servants of any kind under any circumstances whatsoever.’ The defendants sought to rely on that clause. The master had directed that the clause succeeded as a defence.The defendants were liable. They owed the plaintiff a duty of care in tort. They should have seen that the gangway was properly secured. The defendants’ contractual duty was to their employers but they also owed a duty of care in the law of tort to those who were liable to be affected by any carelessness on their part which was foreseeably capable of causing injury to such persons. It was their conduct which had given rise to the situation (the inadequately secured gangway) which was the situation which caused the plaintiff’s injury. The contract was between the company and the passenger, and the company had not contracted as agents for their servants. The defendants were not able to take advantage of the clause.
Scruttons v Midland silycones 1962
shipping company agreed to ship chemicals and the contract of carriage had limited liability of carrier to an amount /package. It was damaged by employer of company and they claimed the protection of the limitation clause. It was held that under privaty of contract the exemption which protected the carriers did not protect the employers working for them
Baldry v Marshall 1925
The plaintiff asked the defendants, who were motor dealers, to supply a car that would be suitable for touring purposes. The defendants recommended a Bugatti, which the plaintiff bought. The written contract excluded the defendant’s liability for any “guarantee or warranty, statutory or otherwise”. The car turned out to be unsuitable for the plaintiff’s purposes, so he rejected it and sued to recover what he had paid.The Court of Appeal held that the requirement that the car be suitable for touring was a condition. Since the clause did not exclude liability for breach of a condition, the plaintiff was not bound by it.
photoproductions ltd v Securior transport ltd
employee of transport company started a fire to warm himself and accidently caused the destruction of the factory. S was sued by Pp refred to clause that said it wouldn’t be responsible for faults of employee unless could have been avoided by due diligence. Denning said that this exclusion of liability clause could protect ST in case of breach of warranty but not in such a case when something fundamental (destruction of factory). The HofL overurlled it and considered that the attempt to make this into rule of law was to be swept aside and in similar cases it had to be a question of interpretation. The case is remembered for two principal reasons:- firstly, the explicit rejection of the doctrine of fundamental breach under English law (and hence, by extension, for much of thecommon lawworld); and- secondly, it is remembered as the high-water mark of the disputes between the Lord Denning led Court of Appeal and an increasingly unamused House of Lords, who strongly disapproved of Denning’s attempts to remould the law in a manner that he perceived to fit the justice of the situation before him.
Smith v Eric Bush 1989
A survey report of the claimant’s house carried out by the defendant failed to advise on some structural damage to the property which resulted in the chimney breast collapsing. There was no contractual relationship between the claimant and defendant as the mortgage company arranged the survey and the claimant made payment to the mortgage company. The contract between the claimant and the mortgage company contained a clause exempting the surveyor from liability. In considering if such a clause was reasonable under the Unfair Contract Terms Act 1977 the court took into account the fact that it was a modest house to be used as the family home and concluded that it was an unreasonable clause and therefore ineffective.The House of Lords held that it might be reasonable for a surveyor to exclude liability if the property was of higher value or to be used for investment or business purposes.
Societe generale v Geys
Raphael Geys’s contract withSociété Généraleallowed for payment upon termination, three months of written notice, and incorporated the staff handbook that said in s.8.3 he could be dismissed immediately, and the contract would terminate, if pay in lieu of notice was made. On 29 November 2007, he had a meeting and was dismissed in breach of contract. He was escorted from the building. On 18 December 2007, he received the pay in lieu in his bank account, and was sent a payslip that included details of “in lieu pay”. He was not given a separate notice, or that the right to terminate the contract had in fact been exercised. Mr Geys’s solicitors wrote on 2 January that Geys was affirming the contract. On 4 January 2008, Société Générale gave notice that the payment was in lieu of notice. Mr Geys brought proceedings.The Supreme Court held (Lord Hope, Lady Hale, Lord Wilson and Lord Carnworth in the majority) that Mr Geys’s contract was not automatically terminated with Société Générale’s wrongful repudiation. The contract would only end if the other party elected to accept such a repudiation.[1]If it automatically terminated, this would potentially reward the party who wrongfully repudiated the contract on the termination date it chose. In many cases, provisions of a unilaterally repudiated contract would survive and be enforceable, such as covenants against competition or disciplinary procedure clauses.[2]The staff handbook, s.8.3, made no difference to the fact that an employee had to be notified of termination. Société Générale had not given clear notice to Geys about the payment. It was only on 6 January, when Geys received Société Générale’s letter of 4 January, that the contractual right to terminate under the pay in lieu of notice method was validly exercised. Only then did Gey’s employment with Société Générale come to an endj
Since Unfair contract terms Act the argument is that since it protects the consumer the restrictive approach to liability clauses should be turned away from because legis already protects weaker party and that when dealing with B2B contracts one should reaffirm freedom of contract:Lister v Romford ice-cold storage test
while was driving lory backwards injured negligently his own father. The father sued the respondent held to be vicariously liable. The responsants sued the son. The HofL gave judgement for the respondents saying the employee must carry out his work with reasonable care and skill.
The landlord tenant relationship ->Liverpool city council v Irwin
council tower block had deteriorated considerably , defects in the stairs The court held they had to make sure it was in good order
Shuller v Wickman tools 1974
Schuler were manufacturers of certain tools and Wickman were a sales company granted the sole right to sell certain tools manufactured by Schuler. A term of the contract between the parties was described in the contract as being a condition and provided that Wickman would send a sales person to each named company once a week to solicit sales. This imposed an obligation to make 1,400 visits in total. Wickman failed to make some of the visits and Schuler terminated the contract for breach of condition.Despite the fact the contract had expressly stated the term was a condition, the House of Lords held that it was only a warranty.
Poussard v Spiers 1876
Madame Poussard entered a contract to perform as an opera singer for three months. She became ill five days before the opening night and was not able to perform the first four nights. Spiers then replaced her with another opera singerMadame Poussard was in breach of condition and Spiers were entitled to end the contract. She missed the opening night which was the most important performance as all the critics and publicity would be based on this night.
Bettini v Gye 1876
Bettini agreed by contract to perform as an opera singer for a three month period. He became ill and missed 6 days of rehearsals. The employer sacked him and replaced him with another opera singerBettini was in breach of warranty and therefore the employer was not entitled to end the contract. Missing the rehearsals did not go to the root of the contract.
Honk kong Fir shipping v Kawasaki 1962
A ship was chartered to the defendants for a 2 year period. The agreement included a term that the ship would be seaworthy throughout the period of hire. The problems developed with the engine of the ship and the engine crew were incompetent. Consequently the ship was out of service for a 5 week period and then a further 15 week period. The defendants treated this as a breach of condition and ended the contract. The claimants brought an action for wrongful repudiation arguing the term relating to seaworthiness was not a condition of the contract.The defendants were liable for wrongful repudiation. The court introduced the innominate term approach. Rather than seeking to classify the term itself as a condition or warranty, the court should look to the effect of the breach and ask if the breach has substantially deprived the innocent party of the whole benefit of the contract. Only where this is answered affirmatively is it to be a breach of condition. 20 weeks out of a 2 year contract period did not substantially deprive the defendants of whole benefit and therefore they were not entitled to repudiate the contract.
Investors Compensation Scheme Ltd. v West Bromwich Building Society
Investors received negligent advice from their financial advisers, solicitors and building societies, includingWest Bromwich Building Society(‘West Bromwich BS’). They had claims intortand for breach of statutory duty. The investors had been encouraged by financiers to enter “Home Income Plans”, which meant mortgaging their properties to get cash that they would put into equity linked bonds. They lost money when house prices and stocks fell. Under theFinancial Services Act 1986section 54 theSecurities and Investments Boardstarted the Investors Compensation Scheme Ltd,[1]where investors could be directly compensated for their losses, and ICS would try recoup the cost by suing the building societies on everyone’s behalf. Accordingly, to get the compensation investors signed a contract to assign their claims to ICS. But in section 3(b) of the claim form the assignment excluded ‘Any claim (whether sounding inrescissionforundue influenceor otherwise) that you have or may have against the West Bromwich Building Society’, so that investors could still sue on some claims individually. While ICS Ltd was suing, West Bromwich BS argued that ‘or otherwise’ meant that claims fordamages,as well asrescission, had not been assigned. ICS Ltd argued that the clause actually meant that claims for damages had been assigned, because ‘or otherwise’ referred to rescission based claims other than undue influence, but not damages.Investors received negligent advice from their financial advisers, solicitors and building societies, includingWest Bromwich Building Society(‘West Bromwich BS’). They had claims intortand for breach of statutory duty. The investors had been encouraged by financiers to enter “Home Income Plans”, which meant mortgaging their properties to get cash that they would put into equity linked bonds. They lost money when house prices and stocks fell. Under theFinancial Services Act 1986section 54 theSecurities and Investments Boardstarted the Investors Compensation Scheme Ltd,[1]where investors could be directly compensated for their losses, and ICS would try recoup the cost by suing the building societies on everyone’s behalf. Accordingly, to get the compensation investors signed a contract to assign their claims to ICS. But in section 3(b) of the claim form the assignment excluded ‘Any claim (whether sounding inrescissionforundue influenceor otherwise) that you have or may have against the West Bromwich Building Society’, so that investors could still sue on some claims individually. While ICS Ltd was suing, West Bromwich BS argued that ‘or otherwise’ meant that claims fordamages,as well asrescission, had not been assigned. ICS Ltd argued that the clause actually meant that claims for damages had been assigned, because ‘or otherwise’ referred to rescission based claims other than undue influence, but not damages. frequently-cited English contract law case which laid down that a contextual approach must be taken to the interpretation of contracts.Lord Hoffmann set out five principles, so that contract should be construed according to:what a reasonable person having all the background knowledge would have understood; where the background includes anything in the ‘matrix of fact’ that could affect the language’s meaning; but excluding prior negotiations, for the policy of reducing litigation;where meaning of words is not to be deduced literally, but contextually;on the presumption that people do not easily make linguistic mistakes
Cutter v Powell (1795)
The claimant’s husband agreed by contract to act as a second mate on the ship the ‘Governor Parry’ on a return voyage to Jamaica. The voyage was to take eight weeks and he was to be paid on completion. A term in the contract stated:”Ten days after the ship ‘Governor Parry,’ myself master, arrives at Liverpool, I promise to pay to Mr. T. Cutter the sum of thirty guineas, provided he proceeds, continues and does his duty as second mate in the said ship from hence to the port of Liverpool. Kingston, July 31st, 1793.” Six weeks into the voyage the claimant’s husband died. The claimant sought to claim a sum to represent the six weeks work undertaken.The wife’s action failed. Payment was on condition that he worked the ship to Liverpool, since he did not fulfil this condition the widow was entitled to nothing.
Re Moore v Landauer (1921)
A contract for the sale of 3,100 tins of peaches described the tins as being packed in cases of 30. When they arrived the tins were packed in cases of 24 although the agreed overall number of tins was suppliedThe purchaser was entitled to reject the goods as they were not as described
Sumpter v Hedgens 1898
The claimant agreed to build two houses and stables for the defendant. It was agreed that £565 would be payable on completion. The claimant commenced performance and then ran out of money and was unable to complete. He had performed just over half of the contract. The defendant completed the work himself. The claimant sought to recover £333 representing the value of the work he had completed. He argued that in completing the work himself, the defendant had thereby accepted partial performance and prevented the claimant from completing the contractThe claimant’s action failed. The court held that the defendant had no choice but to accept partial performance as he was left with a half completed house on his land.Argument that he should be paid on a quantum merit basis = should have been evidence of new contract to be paid on that basis while the past one was an entire contract
Roberts v Havelock 1832
. A shipwright agreed to repair a ship. The contract did not expressly state when payment was to be made. He chose not to go on with the work. It was held that the shipwright was not bound to complete the repairs before claiming some payment. Divisible contract because there was no explicit statement that it was entire. S did part of the work but abandoned it on the way.It was held he had a right to paiement on a quantum merit basis.=> done by interpretation of the contract, when no express mention that contract is entire then it is generally held to be divisable.
One party can also expressly accept partial performance as discharge of the obligation of the contract. It must be possible to infer from the circumstances that such a new agreement has been made.-> Christy v Row (1808)
the plaintiff was transporting coal for the defendant. The coal was going from England to Germany but he was unable to deliver the coal to the port stated in the contract due to war. The defendant asked for the coal to be delivered to a different port which he did. The defendant then refused to pay and the plaintiff sued. The plaintiff was successful as the defendant had by his request accepted partial performance.
Planche v Colburn (1831
the plaintiff had contracted with a defendant to write a book on “costume and ancient armour” and was to receive 100£ on the completion of that book. He carried out the research but before he had finished writing it the publishers interrupted the publication of the series in which it was to appearIt was held that the plaintiff could obtain reasonable payment on a quantum merit basis because complete performance had been prevented by the promisee.
Dakin v Lee (1916)
The defendants promised to build a house according to specification and failed to carry out exactly all the specifications, for example, concrete not four feet deep as specified, wrong joining of certain rolled steel joists and concrete not properly mixed.The Court of Appeal held that the builders were entitled to recover the contract price, less so much as ought to be allowed in respect of the items found to be defective
Bolton v Mahadeva (1972)=
The claimant installed central heating in the defendant’s home. The agreed contract price was £560. The defendant was not happy with the work and refused to pay. Defects in the work amounted to £174. The action by the claimant to enforce the payment failed since the court held there was no substantial performance
Startup v M’cDonalds (1843)=
A contract stated that 10 tons of oil were to be delivered to the defendant within the last 14 days of March. The claimant delivered the oil at 8.30pm Saturday March 31st. The defendant refused to accept the delivery because of the lateness of the hour.The claimant had tendered performance within the agreed contractual period and was thus entitled to damages for non acceptance.->This case was “overruled “ by Sales of Goods Act 1971 under which it is stipulated that tender of delivery can be treated as ineffectual unless made at a reasonable hourThe claimant had tendered performance within the agreed contractual period and was thus entitled to damages for non acceptance.->This case was “overruled “ by Sales of Goods Act 1971 under which it is stipulated that tender of delivery can be treated as ineffectual unless made at a reasonable hour
Paradine v Jane (1648
Lease binding the 2 parties, the defendant at one stage failed to pay the rent (eve of the Commonwealth during civil war because from 1648 until 1960 was a republic). His defense was that enemy of king and kingdom, alien had invaded the land. Prince Rupert was described as alien who had prevented the defendant from using the premises. Court said he was still liable because he should have written that in case of unforeseeable event he should not have to pay.Defendant must pay the required rent to the Plaintiff. The law creates a duty, however, the law will excuse him of performance if the party was disabled to perform without any default in him and he has no other available remedy. When a party by his own contract creates a duty upon himself, he is bound to make it good notwithstanding accident because he could have provided against it in the contract.Here, the rent is a duty created by the parties, and the Defendant must make it good, notwithstanding interruption by enemies, for the law would not protect him beyond his agreement. The Defendant lessee must run the burden of casual losses and cannot place the burden on the Plaintiff lessor. Therefore, the Defendant here remains liable for the unpaid rent.
Taylor v Caldwell (1863)
The claimant hired out a music hall in Surrey for the purpose of holding four grand concerts. The claimant went to great expense and effort in organising the concerts. However, a week before the first concert was due to take place the music hall was destroyed by an accidental fire. The claimant sought to bring an action for breach of contract for failing to provide the hall and claiming damages for the expenses incurred.The claimant’s action for breach of contract failed. The contract had been frustrated as the fire meant the contract was impossible to perform.
Condor v Baron knights (1966)
A 16 year old agreed by contract to play the drums for the defendant band for 7 nights per week for 5 years. The claimant suffered a mental breakdown and was told by his doctor that he should not perform more than 4 nights per week. The band dismissed him. He brought a claim for wrongful dismissal.The claimant’s action was unsuccessful as his medical condition made it impossible for him to perform his contractual obligations and the contract was thus frustrated.
Krell v Henry
The defendant hired a flat on Pall Mall for the sole purpose of viewing King Edward VII’s coronation procession. The price agreed was £75 for two days. The defendant paid £25 deposit. Due to illness of the King the coronation was cancelled. Consequently, the defendant did not use the flat. The claimant sought to claim the outstanding £50.The contract was frustrated as cancellation of the procession deprived it of its commercial purpose. The claimant’s action for breach of contract was thus unsuccessful
Herne steamboat v Hutton
hired steamboat from herne which would be carrying passagers to cruise around the fleet and see the naval review. The naval review was postponed and Hutton refused to pay for the steam ship. Court held there was not frustration because Hutton could use steamship for other purpose even though royal naval review had been postponed
Maritime National Fish v Ocean Trawlers (1935)
The claimant owned five fishing vessels one of which was chartered to the defendants. The fishing vessels were all fitted with otter trawler nets. New legislation was introduced requiring licences to be held by those using otter trawl nets. The claimant applied for five licences but was only granted three. He had to name which vessels the licence would be used on. He named his own vessels and excluded the vessel which the defendant was using. This meant that the defendant was unable to use the vessel for fishing. The claimant sued the defendant for the price of hire and the defendant in his defence stated the defendant had committed a breach in not providing a licence so he was not obliged to pay for the cost of hire. The claimant argued there was no breach as the failure to provide a licence was a frustrating event in that the decision to grant licences rested with the secretary of state.The contract was not frustrated since the claimant had chosen to keep the three licences granted for himself rather than using one to fulfil his contractual obligation. He had therefore induced the frustrating event and was therefore in breach of contract.
Shanklin pier v Detel products 1951
The Plaintiffs were owners of a pier in Shanklin on the Isle of Wight. They entered into a contract with contractors to have the pier repaired and painted. Under the contract the plaintiff had the express right to alter the contract. The Defendant company director approached the Plaintiffs with a new painting product for the pier. After much persuasion, the Plaintiffs amended their contract with the Contractors to allow for the paint in the renovation. After several months, the paint flaked off and did not last. The Plaintiffs brought a claim for damages-> Whether the Plaintiff was entitled to bring a claim against the Defendant company, who was not party to the contract to undertake renovations.The Defendant was found to be liable given he had provided an express warranty over the paint to the Plaintiffs, who in consideration of the warranty caused the contractor to buy the paint from the Defendant also and suffer the same damage, by reason of a breach of warranty. It was held that if the contract for the direct sale and purchase had been made between the Plaintiff and the Defendant (with no involvement of a contractor), then the same warranty for the paint would be intended to exist and be implied. The Judge saw no reason as to why the same warranty should not be enforceable and extend between the Plaintiff and the Defendant. The Plaintiff was entitled to recover damages.
Les affreteurs réunis v Leopold Walford (1990)
Leopold Walford (Walford) acted as brokers for a charterparty. Les Affreteurs were owners of a ship. A time charterparty was effected between the shipowners and the Lubricating and Fuel Oils Company as charters. Walford charged a 3% commission which was specified in the charterparty contract which was agreed to in 1916 and was a continuation of an early agreement on similar terms. In 1917, after Les Affreteurs’ ship was recommissioned, the charterparty expired. Les Affreteurs refused to pay Walford’s commission, holding that commission was only payable in respect of hire duly earned under the charterparty->Whether Walford could claim commission from the contract which had expired and after the ship was recommissioned.The appeal by Les Affreteurs was dismissed. Les Affreteurs were found have been relying on custom, in that the brokerage was payable only out of the hire as earned. The French agreement was held to be incorporated in the charterparty and thus, the agreements were not separate and to be read and interpreted as one. The charterparty contract between the owners and the charters was relevant to the brokers (which had also long been custom). The case ofHarley & Co v Nagata(1917) 23 Com Cas 121, was applied. Charters were entitled to bring action as trustees of the brokers where they were directly party to the contract. Therefore, allowing a third party to sue for an entitled commission.
