Contract Law - ACADEMICS Flashcards
Nolan
Offer and acceptance in instantaneous communication - much the same as telexes (postal rule not for telexes: Brikibon v Stahag-Stahl)
C Fried (outline)
Consideration is inconsistent with promissory view of contract
C Fried quote
Effect of ‘frustrating the projects of promisees after the fact and the potential projects of promisors’
Janet O’Sullivan
‘Defend the indefensible’ - Foakes v Beer still stands as £100 does not equal £200
M Chen-Wishart, two views on Williams v Roffey
‘Emperor’s New Clothes’ fiction and a ‘bird in the hand is worth two in the bush’
Treitel on consideration
‘Invented’
Atiyah on consideration
Distraction from real basis of liability - solely a reason to recognise an obligation, not a reason for enforcement
Denning on consideration
‘We are tending to regard any act done on the faith of a promise as sufficient consideration to support it’
Birks on estoppel
‘set equity on the path of supplementing the doctrine of consideration by extending the common law notion of estoppel’
Atiyah in estoppel
Could have implied a request into Combe v Combe but wouldn’t have been just
Lord Hailsham in Woodhouse v Nigerian Produce
Oxymoron and ‘problems of coherent exposition which have never been systematically explored’
Reid in Beswick v Beswick
Hoped HoL would legislate over privity but if not, HoL might take it upon themselves
Scarman in Woodar Investment v Wimpey on privity
Expressed regret that P still hadn’t legislated, 12 years after Beswick v Beswick, to remove this ‘unjust rule’
Lord Goff in White v Jones on privity
English contract is ‘deficient’ for ‘unnecessary doctrine of consideration’ and ‘stunted’ by a lack of ‘jus quaesitum tertio’
Steyn LJ in Darlington BC v Wiltshier Northern
‘No logical, doctrinal or policy reason’ for privity, and should be removed to protect the autonomy of the parties
Stevens on C(RoTP)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
SA Smith in duress
Two alternative elements to duress - plaintiff-based and defendant-based
McKendrick’s two issues with Barton v Armstrong
‘A’ reason, not ‘the’ reason (see now DSND; Kolmar Group; Huyton SA on ‘but for’) and made contract void, not voidable (The Evia Luck)
Burrows on duress
If to exploit a weakness, but not if reacting to frustration or bad bargain
Goff and Jones on duress
Skeate v Beale ‘no longer good law’ because ‘in direct conflict with the modern view of duress’
McKendrick on undue influence
Etridge makes it harder for wives and places a larger burden on solicitors
Birks on undue influence
Innocent undue influence, so wrongdoing is not required
Sir Kim Lewison
Should not use irrebutable presumptions unless the result is a ‘foregone conclusion’
Auchmuity
Test for UI focuses too much on business, failing to protect women (especially after Midland Bank v Shepherd)
AWB Simpson on Raffles v Wichelhaus
Hard to know if the court decided on latent ambiguity/no consesus ad idem as no reasons given
Chitty on Raffles v Wichelhaus
Unlikely the court would be unable to distinguish between one or another interpretations
MacMillan on Bell v Lever Bros
‘Hard cases really do make bad law’ and ‘failed case of FMR’
Beale on mistake
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.
MacMillan on mistake in general
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.
Michael Trebilcock
Kantian precept of ‘equal respect’ for MR, but specifically rejected in Smith v Hughes
Collins on contracts of insurance
‘Bad faith use of the duty of good faith’
Atiyah and Treitel on MR
S.3 of MA has enormous width, but now controlled by s.11 UCTA
E Peden
‘Consisiently implied’ terms by law
Rogers J on West Bromwich (but not from)
‘Inimical’ to contractual dispute resolution to approach it with a ‘finely tuned linguistic fork’
Hoffman on West Bromwich (after)
Criticism and concern over WB may have ‘sound practical intuition’
Collins in terms
Three justifications for implying terms: unexpressed intention, efficiency analysis and economic analysis
Steyn in terms (writing extra-judicially)
Justification for implied terms is court’s view of the reasonable expectations of the parties
Atiyah on terms
Value of a signature ‘would be greatly reduced if it could not be treated as a conclusive ground of contractual liability’
M Chen-Wishart on UCTA
‘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.
Law Com Report No.204 on UCTA and UTCCR
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
M Chen-Wishart on UTCCR
‘Little scope for terms not deemed to be part of the “main subject matter” or “price or remuneration”’
‘Anthropomorphic construction of justice, the reasonable man’
Per Lord Radcliffe in Davis Contractors v Fareham
Andrew Kull
Subscribes to ‘no excuses’ rule of contracts (Paradine v Jane)
Alan Sykes
Tendency for factors to lean against frustration - would abolish it as strict liability is simple, predictable and certain
MacMillan on frustration
Not cemented until the frustration cases (Krell v Henry)
Treitel on frustration
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.
Professor Ibbetson on frustration
‘Rules of law behind a facade of party intention’, in reference to implied term in Taylor v Caldwell
McKendrick on frustration (Contract Law, not Restitution, LA etc)
Sea Angel warns against over-refinement of foreseeability - Treitel argues for ‘any person of ordinary intelligence would regard as likely to occur’
Treitel on foreseeability requirement of F
Treitel argues for ‘any person of ordinary intelligence would regard as likely to occur’
McKendrick (restitution essay)
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.
McKendrick conclusion in restitution essay on F
‘Undoubted improvement upon the CL rules’ in LR(FC)A by removing ‘total failure of C’ from Fibrosa Spolka, but ‘grave deficiencies’ still exist
Board of Trade in 1918
Examined CL when there are increased costs but no frustration (e.g. Davis Contractors), but preferred certainty and sanctity of contract so did nothing
Professor Brownsword on performance and breach
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.
McKendrick on performance and Breach
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?
Q Liu
Reform wholly unreasonable test with one that weighs wastefulness against sanctity of contract - performance interest in contract price may be outweighed by wastefulness
Lord Hobhouse in A-G v Blake
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’
Friedmann on Ruxley v Forsyth
Shouldn’t be called a ‘defeated expectation loss’ as he had a right to the performance.
Fuller and Perdue
Championed reliance interest, arguing damages usually protect it alone. Included loss of opportunity in reliance, bringing it closer to pI
Friedmann on remedies
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)
Professor Edelman in remedies: damages
Disgorgement damages (Blake) and restitutionary damages (Wrotham Park v Pakside Homes)
Coote on remedies: damages
In cases like Ruxley , law has failed to recognise the value of the right to performance itself, so not protecting PI at all
Schwartz
specific performance should be a general right; there is a strong incentive against it as D is reluctant to perform and may be hostile
Burrows on SP
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
Smith on SP
Forced performance is ‘self-defeating’ - bonds from voluntary obligations can only be released by voluntary performance (nonsense)
