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Law First Year > Contract Law - ACADEMICS > Flashcards

Contract Law - ACADEMICS Flashcards

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1
Q

Nolan

A

Offer and acceptance in instantaneous communication - much the same as telexes (postal rule not for telexes: Brikibon v Stahag-Stahl)

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2
Q

C Fried (outline)

A

Consideration is inconsistent with promissory view of contract

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3
Q

C Fried quote

A

Effect of ‘frustrating the projects of promisees after the fact and the potential projects of promisors’

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4
Q

Janet O’Sullivan

A

‘Defend the indefensible’ - Foakes v Beer still stands as £100 does not equal £200

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5
Q

M Chen-Wishart, two views on Williams v Roffey

A

‘Emperor’s New Clothes’ fiction and a ‘bird in the hand is worth two in the bush’

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6
Q

Treitel on consideration

A

‘Invented’

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7
Q

Atiyah on consideration

A

Distraction from real basis of liability - solely a reason to recognise an obligation, not a reason for enforcement

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8
Q

Denning on consideration

A

‘We are tending to regard any act done on the faith of a promise as sufficient consideration to support it’

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9
Q

Birks on estoppel

A

‘set equity on the path of supplementing the doctrine of consideration by extending the common law notion of estoppel’

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10
Q

Atiyah in estoppel

A

Could have implied a request into Combe v Combe but wouldn’t have been just

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11
Q

Lord Hailsham in Woodhouse v Nigerian Produce

A

Oxymoron and ‘problems of coherent exposition which have never been systematically explored’

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12
Q

Reid in Beswick v Beswick

A

Hoped HoL would legislate over privity but if not, HoL might take it upon themselves

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13
Q

Scarman in Woodar Investment v Wimpey on privity

A

Expressed regret that P still hadn’t legislated, 12 years after Beswick v Beswick, to remove this ‘unjust rule’

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14
Q

Lord Goff in White v Jones on privity

A

English contract is ‘deficient’ for ‘unnecessary doctrine of consideration’ and ‘stunted’ by a lack of ‘jus quaesitum tertio’

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15
Q

Steyn LJ in Darlington BC v Wiltshier Northern

A

‘No logical, doctrinal or policy reason’ for privity, and should be removed to protect the autonomy of the parties

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16
Q

Stevens on C(RoTP)A

A

Traditionally, narrow ground was confined to when loss/damage was caused to property foreseeably transferred, and the third party had not acquired contractual rights

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17
Q

SA Smith in duress

A

Two alternative elements to duress - plaintiff-based and defendant-based

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18
Q

McKendrick’s two issues with Barton v Armstrong

A

‘A’ reason, not ‘the’ reason (see now DSND; Kolmar Group; Huyton SA on ‘but for’) and made contract void, not voidable (The Evia Luck)

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19
Q

Burrows on duress

A

If to exploit a weakness, but not if reacting to frustration or bad bargain

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20
Q

Goff and Jones on duress

A

Skeate v Beale ‘no longer good law’ because ‘in direct conflict with the modern view of duress’

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21
Q

McKendrick on undue influence

A

Etridge makes it harder for wives and places a larger burden on solicitors

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22
Q

Birks on undue influence

A

Innocent undue influence, so wrongdoing is not required

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23
Q

Sir Kim Lewison

A

Should not use irrebutable presumptions unless the result is a ‘foregone conclusion’

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24
Q

Auchmuity

A

Test for UI focuses too much on business, failing to protect women (especially after Midland Bank v Shepherd)

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25
Q

AWB Simpson on Raffles v Wichelhaus

A

Hard to know if the court decided on latent ambiguity/no consesus ad idem as no reasons given

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26
Q

Chitty on Raffles v Wichelhaus

A

Unlikely the court would be unable to distinguish between one or another interpretations

27
Q

MacMillan on Bell v Lever Bros

A

‘Hard cases really do make bad law’ and ‘failed case of FMR’

28
Q

Beale on mistake

A

Alternative framework - if A, but for the mistake, different terms or no contract, and B knew of importance, then mistake. UNLESS as to value of performance or risk assumed.

29
Q

MacMillan on mistake in general

A

No reason to follow Cundy nowadays as legal basis has vanished and never supported Pollock’s theory that mistake vitiates consent - treat identity consistently with fraud and voidable.

30
Q

Michael Trebilcock

A

Kantian precept of ‘equal respect’ for MR, but specifically rejected in Smith v Hughes

31
Q

Collins on contracts of insurance

A

‘Bad faith use of the duty of good faith’

32
Q

Atiyah and Treitel on MR

A

S.3 of MA has enormous width, but now controlled by s.11 UCTA

33
Q

E Peden

A

‘Consisiently implied’ terms by law

34
Q

Rogers J on West Bromwich (but not from)

A

‘Inimical’ to contractual dispute resolution to approach it with a ‘finely tuned linguistic fork’

35
Q

Hoffman on West Bromwich (after)

A

Criticism and concern over WB may have ‘sound practical intuition’

36
Q

Collins in terms

A

Three justifications for implying terms: unexpressed intention, efficiency analysis and economic analysis

37
Q

Steyn in terms (writing extra-judicially)

A

Justification for implied terms is court’s view of the reasonable expectations of the parties

38
Q

Atiyah on terms

A

Value of a signature ‘would be greatly reduced if it could not be treated as a conclusive ground of contractual liability’

39
Q

M Chen-Wishart on UCTA

A

‘No obvious way to draw the line’ between what it reviewable and not under s.13(b) - ‘but for’ test of Smith v Eric is too wide and uncertain. Should limit to non-core terms only.

40
Q

Law Com Report No.204 on UCTA and UTCCR

A

Merge them, one reasonableness test, increase protection for consumer to ALL non-core terms, regardless of negotiation, and non-core, non-negotiated for micro-businesses

41
Q

M Chen-Wishart on UTCCR

A

‘Little scope for terms not deemed to be part of the “main subject matter” or “price or remuneration”’

42
Q

‘Anthropomorphic construction of justice, the reasonable man’

A

Per Lord Radcliffe in Davis Contractors v Fareham

43
Q

Andrew Kull

A

Subscribes to ‘no excuses’ rule of contracts (Paradine v Jane)

44
Q

Alan Sykes

A

Tendency for factors to lean against frustration - would abolish it as strict liability is simple, predictable and certain

45
Q

MacMillan on frustration

A

Not cemented until the frustration cases (Krell v Henry)

46
Q

Treitel on frustration

A

Law has moved from absolute contracts to ‘the modern doctrine of discharge by supervening event’. Critcises Denning in Eugenia - provision first, then foreseeability (to allow for situations like Met Water Board v Dick Kerr) and does not go past unforeseen events. Distinction between Krell and Herne Bay.

47
Q

Professor Ibbetson on frustration

A

‘Rules of law behind a facade of party intention’, in reference to implied term in Taylor v Caldwell

48
Q

McKendrick on frustration (Contract Law, not Restitution, LA etc)

A

Sea Angel warns against over-refinement of foreseeability - Treitel argues for ‘any person of ordinary intelligence would regard as likely to occur’

49
Q

Treitel on foreseeability requirement of F

A

Treitel argues for ‘any person of ordinary intelligence would regard as likely to occur’

50
Q

McKendrick (restitution essay)

A

Praises Goff in BP for seeing LR(FC)A as for ‘prevention of the unjust enrichment’. Thinks s.1(2) will lead to all or nothing cases. Criticises s.1(3) for end-product analysis - no distinction betwen services without an end product and product being destroyed.

51
Q

McKendrick conclusion in restitution essay on F

A

‘Undoubted improvement upon the CL rules’ in LR(FC)A by removing ‘total failure of C’ from Fibrosa Spolka, but ‘grave deficiencies’ still exist

52
Q

Board of Trade in 1918

A

Examined CL when there are increased costs but no frustration (e.g. Davis Contractors), but preferred certainty and sanctity of contract so did nothing

53
Q

Professor Brownsword on performance and breach

A

In Hansa Nord, the courts took a stand against ‘bad faith’ and ‘economic opportunism’. Should focus on motivations for termination instead; fairer and more direct in cases like HN.

54
Q

McKendrick on performance and Breach

A

Brownsword’s approach increases costs, not all difficulties are removed (e.g. both in bad faith; Mihalis Angelos) and why should C need to act fairly?

55
Q

Q Liu

A

Reform wholly unreasonable test with one that weighs wastefulness against sanctity of contract - performance interest in contract price may be outweighed by wastefulness

56
Q

Lord Hobhouse in A-G v Blake

A

Error often made is to refer to compensation as ‘relating to a loss as if there has to be some identified physical or monetary loss’

57
Q

Friedmann on Ruxley v Forsyth

A

Shouldn’t be called a ‘defeated expectation loss’ as he had a right to the performance.

58
Q

Fuller and Perdue

A

Championed reliance interest, arguing damages usually protect it alone. Included loss of opportunity in reliance, bringing it closer to pI

59
Q

Friedmann on remedies

A

F&P’s label is misleding, defends primacy of PI and states reliance is not a contract interest at all (with Atiyah, but see the mamola challenger)

60
Q

Professor Edelman in remedies: damages

A

Disgorgement damages (Blake) and restitutionary damages (Wrotham Park v Pakside Homes)

61
Q

Coote on remedies: damages

A

In cases like Ruxley , law has failed to recognise the value of the right to performance itself, so not protecting PI at all

62
Q

Schwartz

A

specific performance should be a general right; there is a strong incentive against it as D is reluctant to perform and may be hostile

63
Q

Burrows on SP

A

Mitigation rule does not apply so C not encouraged to minimise loss. Greater infringement of liberty to carry out C involuntarily, but voluntarily agreed to C

64
Q

Smith on SP

A

Forced performance is ‘self-defeating’ - bonds from voluntary obligations can only be released by voluntary performance (nonsense)

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