Contract Law First Term Flashcards
What two cases explore the application of acceptance ‘subject to contract’?
RTS Flexible Systems Ltd v Molkere Alois Miller GmbH & Co KG (UK Production) and Air Studios (Lyndhurst) Ltd v Lombard North Central Plc
Who identified ‘invented consideration’?
Treitel
What two cases suggest that ‘undue’ means ‘unconscionable’ influence?
Allcard v Skinner and National Commercial Bank of Jamaica v Hew
Stevenson, Jacques & Co v McLean
Iron
What did Day Morris Associates say about acceptance by conduct?
Objective test of the reasonable person
In which case did Lord Mansfield tentatively express a view of consideration as redundant?
Pillans v Van Mierop
What policy reason did Atkin LJ give in Balfour v Balfour for refusing to recognise a contractual duty?
‘Agreements such as these are outside the realm of contracts altogether’
What did Danckwerts LJ say in Jones v Padavatton?
He found no difficulty in family members creating legally binding contracts in regard to family affairs but noted there is a ‘presumption against such an intention’
What is Rule 2 of privity?
Contract between B and X does not give B a right against A: A is not subject to the burden of the contract.
What is a case which supports the fact that claims in tort are exceptions to rule 1 of privity?
White v Jones
What was M Chen-Wishart’s ‘third way’ for undue influence in her article, ‘Undue Influence’?
It means both ‘too much’ and ‘unconscionable’ influence
What case gave that an offer is an ‘expression of willingness to contract on specified terms, made with the intention that it is to be binding’?
Grecoair Inc v Tilling
What is Rule 1 of privity?
Contract between A and X does not give B a right against A. B cannot take the benefit of it.
Which report of the Law Commission led to the C(RoTP)A?
Report No.121
What four factors for economic duress did Scarman lay down in Pao On v Lau Yiu Long?
Did C protest? Was there an alternative? Was C given independent and impartial advice? Did C try to avoid the contract afterwards?
Re Craig (deceased)
Housekeeper
What is another requirement for acceptance of an offer other than that given in Day Morris Associates?
Mirror image rule
What does Stevenson, Jacques & Co v McLean give for requests for further information?
Iron - vague correspondence without binding terms = a request for further information
What does Jorden v Money note about the problem with promises in estoppel?
Estoppel was not valid as it was based on a promise, not a representation of fact
What case in particular supports rule 2 of privity?
Hill v Tupper
What was the judgment in White v Jones?
The solicitor was liable as he should have known the will would affect the future of the intended beneficiaries
What did Viscount Haldane LC say about privity in Dunlop Pneumatic?
‘Our law knows nothing of a jus quaesitum tertio arising by way of contract’
Why did Lord Millett and Goff argue for broad ground in Alfred McAlpine Construction Ltd v Panatown Ltd?
X should have a remedy for A’s breach regardless
What two issues does McKendrick raise in Barton v Armstrong?
‘A’ reason, not ‘the’ reason and they rendered the deed ‘void’ instead of voidable
What promisor right does Alfred McAlpine Construction Ltd v Panatown Ltd support in privity cases?
Damages
What did the courts note in both Etridge No.2 and Barclays Bank plc v O’Brien?
The safeguards do not guarantee freedom from undue influence, but a balance needed to be struck somewhere
In what case did Lindley J say that the transaction must not be based on ‘ordinary motives on which ordinary men act’?
Allcard v Skinner
What does Coulls v Bagot’s Executor & Trustee Co Ltd (High Court Australia) note about consideration moving?
Joint promises are still valid for consideration moving so the wife had to be paid as a party to the document
Ratio in Entores Ltd v Miles Far East Corporation?
Acceptance must be communicated to the offeror
How does Cobbe v Yeoman’s Row Management Ltd outline principle 1 of proprietary estoppel?
B’s proprietary estoppel claim failed as A had not promise to act in a certain way
In what case did Dyson J say that ‘illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining’?
DSND Subsea Ltd v Petroleum Geo-Services AS
Who said that one should ‘look at the correspondence as a whole’ to see if they came to an agreement?
Denning
What difficulty did Professor Birks note with the defendant-oriented conception of undue influence?
It insists on wrongdoing which shuts out relief where there is none (Allard v Skinner; Hammond v Osborn)
Why is there an element of subjectivism required for deciding on whether there is an agreement?
If both parties did not want a contract, it would be perverse to enforce one
What two cases show that acceptance must be in response to the offer?
Williams v Carwardine and R v Clarke (Australian case)
What does Lush J say can accrue to make valuable consideration?
A right, interest, profit or benefit
In what case did Lord Scott say that ‘an estoppel bars the object of it from asserting some facts/fact, or, sometimes, something that is a mixture of fact and law’?
Cobbe v Yeoman’s Row Management Ltd
What two cases suggest ‘undue’ means ‘too much’ influence?
Allcard v Skinner and Niersmans v Pesticcia
Rust v Abbey Life Assurance Co Ltd
Insurance policy
Ratio in Holwell Securities Ltd v Hughes?
‘Notice in writing’ specifically excluded the postal rule by requiring him to actually receive it
Ratio in Scriven Brothers & Co v Hindley & Co?
Mistake cause by/contributed to buy the plaintiff’s negligence, so found for the claimant to recover the cost
What case secured the postal rule?
Dunlop v Higgens
Why does Etridge No.2 make it harder for wins to establish undue influence?
No presumption and guarantee of a wife for husband can be accounted for on the nature of the relationship
In what case did Colman J reluctantly apply Roffey Bros?
South Caribbean Trading Ltd v Trafigura Beheer BV
What are the two ‘types’ of undue influence?
Presumed and actual
When banks have constructive notice of undue influence, what is the claimant allowed to do if they failed to put themselves on inquiry?
Set the transaction aside
Ratio in Rust v Abbey Life Assurance Co Ltd?
Conduct can give acceptance, e.g. failure to reject
Ratio in Lucy v Walwyn?
Executory contract which exchange a promise for a promise gives consideration
In what case did Gaudron J give that it is ‘a matter of logic’ to restrict cases of estoppel to matters of existing fact?
Walton Stores (Interstate) Ltd v Maher
What two cases show examples of a threatened breach of contract?
B & S Contracts and Design Ltd v Victor Green Publications Ltd and DSDN Subsea Ltd v Petroleum Geo-Services ASA
What is a letter of credit for?
To ensure B providing the services is paid by A
What dd Pollock CB say about privity in Hill v Tupper?
Debates whether ‘a new species of property can be created, or whether the alleged right merely exists in contract’ in regard to privity
What did Lord Cranworth LC say in Ramden v Dyson?
About building on someone’s land and owner knowing they own that land but not correcting him, and a court of equity blocking the owner from asserting title to the land consequently
What did Harvela Investments Ltd v Royal Trust Co of Canada conclude about collateral contracts of invitation to tender?
They imply no referential bids, typing the plaintiff into a unilateral contract
In what case did Denning try to abolish privity as ‘only a rule of procedure’?
Beswick v Beswick
What additional category of undue influence does Professor Birks think there should be to avoid the focus of defendant-oriented conceptions of undue influence requiring wrongdoing?
‘Innocent undue influence’
What was the ratio in Gibson v Manchester City Council?
Formal application specified ‘might be willing’ to sell the house so just an invitation to treat
Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd
Battle of Forms
In what article did Birks and Chin pull actual and undue influence apart?
‘On the Nature of Undue Influence’
What three different forms of estoppel did Coke identify?
Per rem judicatem, by matter in writing and by matter in pais
What is the statutory support for bills of exchange as an exception to requirement of consideration?
Bills of Exchange Act 1882, s.27(1)(b)
Allcard v Skinner
Nun
In National Commercial Bank of Jamaica v Hew, what did Lord Millett say to suggest undue means unconscionable influence?
‘Equity does not intervene unless… influence has been abused’
What was the ratio in Denton v Great Northern Railway Co?
Creation of a timetable is the making of an offer
Thornton v Shoe Lane Parking Ltd
Ticket machine
According to Mance J in Huyton SA v Peter Cremer GmbH & Co, what is the causation test for economic duress?
It must have ‘actually caused the making of the agreement’ as it would have been made differently/not at all without pressure
How did Birks and Chin describe actual undue influence in ‘On the Nature of Undue Influence’?
Equivalent of duress in equity
In what case did HoL reject the attempt of Denning to abolish privity?
Beswick v Beswick
What three broad things are need to prove presumed undue influence on presumptions and evidence?
A relationship of influence, the transaction calling for an explanation and any countervailing evidence
‘Office hours receipt rule’ applies to emails
Thomas v BPE Solicitors
Ratio in Household Fire and Carriage Accident Insurance Co Ltd v Grant?
The postal rule is still valid usually even if the letter never arrives
Name the four substances of a contract
Offer, acceptance, intention to create legal relations and consideration
Ratio in Errington v Errington?
Offeror cannot withdraw a promise of payment once another party has started performance of the terms
What two things, according to Etridge No.2, are required for a factual inference of undue influence?
Necessary to prove nature of relationship AND not explicable by ordinary motives
Fisher v Bell
Flick knives
Partridge v Crittenden
Live birds
What case gives the ‘coercion of the will theory’?
Pao On v Lau Yiu Long
What did Reid imply about the rule of privity in Beswick v Beswick?
He hoped P would legislate, but if not the HoL may take it upon themselves
What authority first established postal rule?
Adams v Lindsell
What does C Fried say to support one criticism of consideration?
He argues that consideration frustrates ‘the projects of promisees after the fact and the potential projects of promisors’
In what case did Lord Diplock say that commercial pressure exists wherever one party ‘is in a strong bargaining position than the other party’?
The Universe Sentinel
What case applied Carlill to show unilateral contract?
Bowerman v Association of British Travel Agents
What is cause of action estoppel?
When someone is estopped from denying a particular state of affairs decided in court
What was the ratio in Central London Property Trust Ltd v High Trees House Ltd?
Right is suspend for full rent until conditions changed completely
What was the ratio in Wilkie v London Passenger Transport Board?
There was an implied offer by the bus driving around and acceptance upon boarding, regardless of payment
Denny v Hancock
Magnificent trees
Ward v Byham
Baby happy
Who noted that a threatened breach of contract is illegitimate if done on bad faith (to exploit weakness) but not if it is just a ‘reaction to… frustration’ nor if it merely a ‘bad bargain’?
A Burrows in ‘The Law of Restitution’
In what case did Christopher Clarke J give a ‘but for’ causation test for economic duress?
Kolmar Group AG v Taxpo Enterprises Pty Ltd
Chwee Kin Keong v Digilandmail.com Pte Ltd
Commercial laser printers
Dimskal Shipping Co SA v ITWF (The Evia Luck)
Shipowners
Ratio in R v Clarke?
One needs to rely upon the offer rather than just know about it in order to accept
What did D Ibbetson say about privity?
It ‘ has been a feature of English law since at least the thirteenth century’
Ratio in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd apart from privity?
Selfridge made a gratuitous promise to fix a price as Dunlop gave no consideration to them
Combe v Combe
Annual maintenance
Ratio in Denny v Hancock?
Role of fault on seller so buyer allowed to escape contract
Ratio in Mathieson Gee (Ayshire) Ltd v Quigley?
No consensus to give contractual relationship as Mathieson offered equipment and Quigley accepted removal
In what case was it highlighted that the ‘rough and tumble of the pressures of normal commercial contracts’ does not amount to economic duress?
DSND Subsea Ltd v Petroleum Geo-Services ASA
Who said ‘that a third party could not enforce rights arising under a contract has been a feature of English law since at least the thirteenth century’?
D Ibbetson
Williams v Carwardine
Murderers
What does Lush J say can be suffered/undertaken to make valuable consideration?
Forbearance, detriment, loss or responsibility
Who highlighted the need for an absence of ‘real choice’ or ‘realistic alternative’ for an economic duress claim?
Christopher Clarke J in Kolmar Group AG v Taxpo Enterprises Pty Ltd
Midland Bank v Shepherd
Excludes husband and wife from Class 2(A)
What is agreement formulated of?
Offer and acceptance
R v Clarke
Two policemen
What is economic duress?
A illegitimately pressurises B to enter into a contract by threatening them in a way that will damage their economic interest
What is the effect on solicitors by the judgment in Etridge No.2?
Banks on inquiry to ensure wife has received advice, so solicitors have more obligations
What section of the C(RoTP)A governs for variation of a contract when a third party is involved?
Section 2
At what paragraph did UCB reject the principle in Aboody that if regardless of undue influence they would have entered the contract anyway, there is no defence of duress?
91
What type of duress does Dimskal Shipping Co SA v ITWF (The Evia Luck) depict?
Economic duress
When is there an exception to an advert being solely an invitation to treat?
If there is extreme enticement/clearly showing money (Carlill)
According to Christopher Clarke J in Kolmar Group AG v Taxpo Enterprises Pty Ltd, what is the causation test for economic duress?
‘But for’ cause
Who noted that ‘we are tending to regard any act done on the faith of a promise as sufficient consideration to support it’?
Denning in Modern Law Review
Who gave a list of relationships which carry irrebutable presumptions?
Lord Nicholls in Etridge No.2
Who argued that irrebutable presumptions should not be given to particular kinds of relationships?
Sir Kim Lewison in ‘Under the Influence’
Mathieson Gee (Ayshire) Ltd v Quigley
Pond silt
What type of duress does Astley v Reynolds depict?
Duress to goods
What is a land law exception to privity and relevant case?
Covenants (restrictive) - Tulk v Moxhay
Judgment in Musumeci v Winadell Pty Ltd?
There was a practical benefit for the leasors in keeping the shop open and having a full shopping centre, which gave consideration for varying the lease
What case is an example of duress to goods?
Astley v Reynolds
What is duress to goods?
Refusing to give back goods until owner enters a contract
What do the two cases of Re Craig and Re Brocklehurst support?
The advantages of the a ‘but for’ principle arising out of Aboody for UI
What did Devlin J say in Parker v Clark about judgment?
Ridiculous to believe that the younger Clarks could refuse to give the house to the Parkers
Ratio in Combe v Combe?
Promissory estoppel is only a defence, and Denning stated that as her forbearance was not at the request of her husband, it was not good consideration
What test of causation does Lord Goff give for economic duress in The Evia Luck?
‘A significant cause’
Brinkibon v Stahag-Stah on instantaneous means of communication (not telexes)
Outside office hours, so receipt only upon reopening of office
What do all three types of duress have in common?
The same, single analytical structure requiring you to show both illegitimate pressure and causation
What is ‘invented consideration’?
When B’s action is not the ‘price for A’s promise’ but is nonetheless considered consideration
Ratio in Balfour v Balfour?
Not reasonable to believe that he intended to be bound ‘come what may’
White v Jones
Solicitor
Shadwell v Shadwell
Uncle promise
Why is The New York Star not technically an example of carriage of goods by sea being an exception to privity?
They found a direct contract
Hackett v CPS
Deaf, reliant on criminal son
Who gave three requirements for past consideration to be good and in what case?
Lord Scarman in Pao On v Lau Yiu Long
Henkel v Paper
Rifles
Who noted that a restriction of estoppel to matter of existing fact is ‘a matter of logic’?
Gaudron J
What is Barclays Bank plc v O’Brien technically not outlining the role of third parties in undue influence?
Because it was a misrepresentation case
What two cases support principle 1 of promissory estoppel?
Hughes v Metropolitan Railway Co and Hickman v Haynes
What section of the BoE Ac 1882 notes that valuable consideration for a bill of exchange can be constituted by a pre-existing debt/liability
S.27(1)(b)
Re London & Northern Bank
Letter must be properly stamped and addressed
Who said that ‘illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining’?
Dyson J in DSND Subsea Ltd v Petroleum Geo-Services AS
What was the ratio in Grecoair Inc v Tilling?
An offer is an ‘expression of willingness to contract on specified terms, made with the intention that it is to be binding’
What relationship was found to be one of influence in Aboody?
Wife and husband
Merritt v Merritt
Intention to create legal relations different for separated couples
What does Hammond v Osborn suggest about proof of fault for undue influence?
You do not have to prove someone behaved badly for undue influence
Re Craig (deceased)
Old, dependent on housekeeper
Hammond v Osborn
Neighbour
What three cases would be decided differently now due to the C(RoTP)A?
Jackson; Beswick; Tweddle
Pao On v Lau Yiu Long
Shares
In Allcard v Skinner, what did Lindley J say to suggest undue influence means unconscionable influence?
It has been ‘developed by the necessity of grappling with insidious forms of spiritual tyranny’
Who argues against the majority for the doctrine of undue influence being about impaired consent, not about wicked exploitation?
P Birks and CN Yin in ‘On the Nature of Undue Influence’
According to Carlill, how does one communicate acceptance in unilateral contracts?
Not needed - waives requirement that acceptance be communicated
In what article did R Bigwood support M Chen-Wishart’s ‘third way’ for undue influence?
‘Contracts by Unfair Advantage’
What does Bank of Credit and Commerce International SA v Aboody suggest about causation in undue influence?
If A suffers UI but would have entered the contract regardless, UI is not a defence
When was economic duress first recognised, by who and in what case?
Last 1970s by Kerr J in The Siboean and The Sibotre
What two cases show courts requiring a transaction to call for an explanation to prove undue influence?
Etridge No.2 and Allcard v Skinner
Who identified the oxymoron of promissory estoppel?
Lord Hailsham
In order to establish undue influence, according to McKendrick, what must one focus on?
The state of mind of the claimant and the conduct of the defendant
What two broad categories show cases when it is not reasonable for B to believe A intends to be bound?
Express qualifications and by the nature of A’s promise
Wilkie v London Passenger Transport Board
Bus injury
In what article do Birks and Yin argue for undue influence being about impaired consent and not wicked exploitation?
‘On the Nature of Undue Influence’
What was the ratio in Chwee Kin Keong v Digilandmail.com Pte Ltd?
Unilateral mistake, and the individual should have reasonably known, so not allowed to take advantage
Ratio in Smith v Cooper?
Reasonable explanation does not rebut the presumption
Ratio in Astley v Reynolds?
Refusal to return goods by forcing the owner to enter into a contact invalidates any consent given and is duress to goods
What two cases note that promises in a deed are binding?
Macedo v Stroud and Pitt v Holt
RTS Flexible Systems Ltd v Molkere Alois Miller GmbH & Co KG (UK Production)
Packaging machine
In Allcard v Skinner, did the courts distinguish between presumed and actual undue influence?
Yes
Who expressed regret and in what case that P had still not done anything about the ‘unjust rule’ of privity, 12 years after Reid in Beswick v Beswick?
Scarman in Woodar Investment Development Ltd v Wimpey Construction Ltd
What case did Denning challenge in Ward v Byham?
Glasbrook Brother Ltd v Glamorgan CC
Ratio in Nippon Yusen Kalsha v Pacifica Navegacion SA (The Ion)?
Promissory estoppel estops D from enforcing the limitation as a defence
Shanklin Pier v Detel Products Ltd
Painting pier
What base did the HoL prefer in Alfred McAlpine Construction Ltd v Panatown Ltd?
Narrow ground, but it was inapplicable to the facts
What two judges and two cases both consider the effect of a defendant bona fide believing their pressure is legitimate?
Mance J in Huyton SA v Peter Cremer GmbH & Xo and Steyn LJ in CTN Cash and Carry Ltd v Gallaher
What are executory contracts?
Promise exchanged for a promise
In Niermans v Pesticcia, what did Mummery LJ say to suggest undue influence means too much influence?
‘As a matter of public policy’ presumed influence arising from a relationship should not be to the victim’s disadvantage
What did Lord Nicholls say in Etridge No.2 about proving a relationship of influence?
The claimant need only ‘prove the existence of the type of relationship’ to which the ‘law has adopted a seriously protective attitude’
Errington v Errington
Daughter mortgaged house
What Lord and in what case did they note that threatened acts need not be unlawful?
Lord Scarman in The Universe Sentinel
Ratio in Air Studios (Lyndhurst) Ltd v Lombard North Central Plc?
‘Subject to contract’ must be in very correspondence and you must not behave as though you believe yourself to be bound
Ratio in Chappell & Co Ltd v Nestle Co Ltd?
Consideration need not be adequate, just sufficient
Barry v Davies
Engine analysers
Who made a radical statement that contracts are not based on promises at all; they are just trying to find a reason for D to be liable, and the best way to do this is by showing A relied on D, or there was an element of benefit rendered/obtained
Atiyah
What did Lord Cairns say in Hughes v Metropolitan Railway Co?
‘The person who otherwise might have enforced this rights will not b allowed to enforce them where it would be inequitable having regard to the dealings’
What does Niersmans v Pesticcia suggest about proof of fault for undue influence?
Proof of fault not required for undue influence
Scriven Brothers & Co v Hindley & Co
Russian hemp and tow
Ratio in Stevenson, Jacques & Co v McLean?
Inquiry, not a counter-offer
Why does the case of Alfred McAlpine Construction Ltd v Panatown Ltd show the issue of privity and promisor’s rights is still unclear?
3:2 split between the judges
Give three cases which show relationships of influence being proved by showing trust and confidence?
Aboody, Cheese v Thomas and Credit Lyonnais v Burch
What two cases support principle 2 of promissory estoppel?
Central London Property Trust Ltd v High Trees House Ltd and Collier v P & MJ Wright (Holdings) Ltd
Holwell Securities Ltd v Hughes
Option of land
Alfred McAlpine Construction Ltd v Panatown Ltd
Duty of care deed
Ratio in Byrne & Co v Van Tiehoven & Co?
Revocation must be communicated to offeree prior to acceptance
What did Denning say in obiter in High Trees?
A promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration
What two cases give that consideration must move from the promisee?
Dunlop Pneumatic and Coulls v Bagot’s Executor & Trustee Co Ltd (High Court Australia)
Musumeci v Winadell Pty Ltd
Shopping centre
Nippon Yusen Kalsha v Pacifica Navegacion SA (The Ion)
Limitation period
How did Christopher Clarke J in Kolmar Group sum up the current state of duress law in regard to illegitimacy of pressure exerted?
‘A threat to break a contract will generally be regarded as illegitimate, particularly where the defendant must know that it would be in breach of contract if the threat were implemented’
What does Bridgeman v Green suggest about third parties in undue influence?
A third party receiving a benefit from a case of undue influence is still liable to give it back
What did the HoL decide in Beswick v Beswick?
X can sue A for specific performance and by court order A pays B
White v Bluett?
Complaining
In what case did Denning say that one should ‘look at the correspondence as a whole’ to see if they came to an agreement?
Gibson v MCC
What case did Fisher v Bell support?
Pharmaceutical Society of Great Britain v Boots
What case gives the ratio that a seller cannot ‘impose new or arbitrary conditions’ if the terms of a unilateral contract are fulfilled?
Lefkowitz v Great Minneapolis Surplus Stores Inc
The Satanita
Yacht regatta
B & S Contracts and Design Ltd v Victor Green Publications Ltd
Olympia exhibition
What was the promise in Shadwell v Shadwell?
A requested that B marry C and promise £150 a year for the rest of B’s life, but B was already engaged to C
What is the plaintiff-based element of duress?
Individual did not consent
Lancashire Loans Co v Black
Class 2(A) presumption of parent and child
How did the court decide acceptance in Brogden v Metropolitan Railway Co?
Acceptance through proceeding on the basis of the terms in the contract
Why did Denning state in Combe that there was no good consideration?
Forbearance not at the request of her husband
What did Lord Nicholls say of countervailing evidence in Allard v Skinner for presumed undue influence?
To decide it outside advice has had an emancipating effect ‘is a question of fact to be decided having regard to all the evidence in the case’
What in particular in Carlill showed an intention to be bound?
Money ‘put in bank’ so not just ‘mere puff’
Name two acknowledged exceptions to the requirement of consideration?
Bills of exchange and letters of credit
What case in particular supports rule 1 of privity?
Dunlop Pneumatic Tyre Co v Selfridge & Co
What does Etridge No.2 suggest about third parties in undue influence?
Banks are required to ensure wives have been thoroughly and independently advised, proved by a letter from an independent advisor
What express qualification of intention to be bound was given in Winn v Bull?
‘Subject to the preparation and approval of a formal contract’
Who said that the ‘greater the disadvantage to the vulnerable person, the more cogent must be the explanation before the’ presumption of undue influence can be rebutted?
Lord Nicholls
How did the court find a direct contract in The New York Star?
A offered B by the terms of the contract A had with X, which B accepted by loading/unloading the goods
What does Carlill note about communicating an offer?
Communication to all the word is still an offer
Judgment in Williams v Roffey Bros
Bonus was a benefit to the contractors and getting the work done was also a benefit to the employees, so CoA looked at the practical aspect of actually getting the work done
What did Lord Nicholls say about transaction calling for an explanation in Allcard v Skinner?
‘When that something more is present, the greater the disadvantage to the vulnerable person, the more cogent must be the explanation before the presumption will be regarded as rebutted’
Ratio in Hyde v Wrench?
Counter-Offer kills original offer
Who supported Roffey Bros and in what article?
M Chen-Wishart, ‘A Bird in the Hand: Consideration and Contract Modifications’
Ratio in White v Bluett?
Not consideration as the boy would stop complaining anyway after the debt was discharged
Ratio in Stilk v Myrick?
Performance of a pre-existing duty for payment does not give valid consideration
What are the two ‘snapping up’ offer cases?
Hartog v Colin & Shields and Chwee Kin Keong v Digilandmail.com Pte Ltd
In what case does Black J say an acceptance must be ‘A final and unqualified expression of assent to the terms of the offer’?
Day Morris Associates v Voyce
What was the ratio in Collier v P & MJ Wright (Holdings) Ltd?
A promise to pay less is not consideration, but actual payment and acceptance of it discharged the original duty
According to Alfred McAlpine Construction Ltd v Panatown Ltd, what happens if the 3rd party has their own claim?
Both the broad and narrow ground are inapplicable
In what case did an honourable pledge clause make an express qualification against intent to be legally bound?
Rose and Frank Co v Crompton Bros
Who said of duress that ‘the real objection is that that I did consent, but that you induced my agreement by illegitimate pressure’?
M Chen-Wishart in ‘Contract Law’
Who supported Professor Birks in the need for a category of ‘innocent undue influence’?
Mummery LJ in Pesticcio v Huet
What does Barclays Bank plc v O’Brien suggest about third parties in undue influence?
An independent advisor is needed for a 3rd party to the contract
Ratio in Harvey v Facey?
Reply was an offer and it was not accepted so there was no contract
Who noted that no principle of promissory estoppel is a cause of action?
Denning
Ratio in Chwee Kin Keong v Digilandmail.com Pte Ltd for communicating acceptance to offeror?
Postal rule not for emails generally
What does R v AG for England and Wales suggest about proof of fault for undue influence?
Proof of bad behaviour is required
What does Dunlop note about consideration moving from the promisee?
It’s not just about A’s point of view but also B doing something
What two decisions of Denning’s in the area of privity have been given effect in C(RoTP)A 1999?
Jackson v Horizon Holidays Ltd; Beswick v Beswick
What case outlines the exception of bills of exchange to the requirement of consideration?
Pillans v Van Mierop
What three cases outline communicating acceptance to offeror in unilateral contracts?
Carlill, Errington v Errington and R v Clarke
What case qualifies the ratio in Williams v Carwardine?
R v Clarke
What are the three types of duress?
Duress to the person, duress to goods and economic duress
What in particular did Diplock criticise about Scarman’s judgment in Pao On?
Said duress vitiates consent, but not true because the claimant always has a choice
What case’s ratio gives that offer in shops takes place at a till?
Pharmaceutical Society of Great Britain v Boots
Ratio in RTS Flexible Systems Ltd v Molkere Alois Miller GmbH & Co KG (UK Production)?
No agreement on contract but extended letter of intent, and both parties seemed to think they were contractually bound, so contract
What is the broad ground for a promisor to gain damages in privity cases?
X can claim damages for X as A did not perform the promise made
What does the case of Shanklin Pier v Detel Products Ltd give as an ‘exception’ to privity?
Collateral contracts
What does Entores note about acceptance by instantaneous means of communication?
Receipt rule much clearer than postal
Ratio in Shadwell v Shadwell?
Good consideration in performing a pre-existing contract if it is with a third party
Ratio in Leonard v Pepsico Inc?
No reasonable man would take the advert of a harrier jet to be an actual offer
Who gave two elements to a duress claim and saw them to be alternatives?
SA Smith in ‘Contracting Under Pressure: A Theory of Duress’
What type of duress does Barton v Armstrong depict?
Duress to the person
Hughes v Metropolitan Railway Co
Six month repairs
What did the Privy Council decide in Barton v Armstrong
That the onus is on the individual who created duress to show that it made no difference whatsoever
What case suggests ‘full, free and informed thought’ is required to enter into contracts, and this could rebut a presumption of presumed undue influence?
Hackett v CPS
How does the decision in Waltons Stores not apply wholly to the UK?
The UK allows promissory estoppel to apply to promises not to acquire or not to enforce a legal right, but in Australia it also applies to promises to give a legal right
What case is an example of economic duress, other than that adjudged by Kerr J?
Dimskal Shipping Co SA v ITWF (The Evia Luck)
Who said that privity should be removed because ‘the autonomy of the will of the parties should be respected’?
Steyn LJ in Darlington BC v Wiltshier Northern Ltd
Felthouse v Bindley
Nephew’s horse
Ratio in B & S Contracts and Design Ltd v Victor Green Publications Ltd?
Any individual who threatens to breach his contract and takes advantage causes economic duress
What two cases show the effect of economic duress in regard to contractual variations and the ‘past consideration’ rule?
Stilk v Myrick and Williams v Roffey Bros
Ratio in Day Morris Associates v Voyce?
Acceptance must be ‘a final and unqualified expression of assent to the terms of the offer’ according to Black J
Ratio in Macedo v Stroud?
Promises in a deed are binding even if B is unaware of A’s promise
What did Lush J say in Currie v Misa?
valuable consideration ‘may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other’
Why is the coercion of will theory subjected to much criticism?
Duress does not vitiate consent
When the terms of a unilateral contract are fulfilled, what can the seller then not do?
‘impose new or arbitrary conditions’
What did Walton v Walton show about courts reluctance in creating legal relations?
The law is reluctant to assume intention to create legal relations between family members/in certain social contexts
Ratio in Dickinson v Dodds?
Offeror need not have personally communicated revocation to offeree
Who found Skeate v Beale to be ‘no longer good law’ and why?
Goff and Jones in ‘The Law of Unjust Enrichment’ because it is ‘in direct conflict with the modern view of duress’
What was the issue in South Caribbean Trading Ltd v Trafigura Beheer BV concerning the judgment?
Colman J did not want to apply Roffey Bros and wouldn’t have had it not been binding on him
What happened in Bank of Scotland v Bennett to prove actual undue influence on evidence?
The independent solicitor was present when the husband made the wife cry
How could one support the third way opinion of M Chen-Wishart on undue influence?
Allcard v Skinner supports both ‘too much’ and ‘unconscionable’ influence theories through Lord Cotton and Lindley J
What does National Commercial Bank of Jamaica Ltd v Hew suggest about proof of fault for undue influence?
Proof of bad behaviour is required
What case shows an exception to the offer/acceptance analysis?
The Satanita
What is the mirror image rule?
Must mirror offer terms or it’s a counter-offer
Tamplin v James?
Childhood gardens
What relationship was found to be one of influence in Credit Lyonnais v Burch?
Junior employee and mployer
Ratio in Eastwood v Kenyon?
Denning stated that the ‘old common law of England’ holds past consideration to be bad
R v Attorney-General for England and Wales
SAS
In terms of a relationship of influence, how can this be proved?
Through irrebutable presumptions or by showing trust and confidence
What is a bilateral contract?
Both parties make a promise to do something (selling in exchange for a payment)
What Lord, to suggest undue means too much influence, said relief is given ‘on the ground of public policy’ and in what case?
Lord Cotton in Allcard v Skinner
Parker v Clark
Older and younger
Why does distinguishing between ‘unconscionable’ and ‘too much’ influence matter for undue influence?
For proof of fault (absence of bad faith may be crucial), for when 3rd parties are involved and for causation
National Commercial Bank of Jamaica Ltd v Hew
Old man loan
Give two examples of a unilateral contract
Carlill v Carbolic Smoke Ball Company and Bowerman v Association of British Travel Agents
In what case did Steyn LJ note privity should be removed to respect the autonomy of the will of the parties?
In Darlington BC v Wiltshier Northern Ltd
What two cases show by the nature of A’s promise that it was not reasonable for B to believe A meant to be bound?
Balfour v Balfour and Leonard v Pepsico Inc
Who said that deciding if outside advice has had an emancipating effect is a ‘question of fact’?
Lord Nicholls
Wright v Carter
Class 2(A) presumption of solicitor and client
In what case did the HoL see the division between presumed and actual undue influence as unnecessary - just two ways to prove one doctrine?
Royal Bank of Scotland plc v Etridge (No. 2)
What two elements of a duress claim did SA Smith in ‘Contracting Under Pressure: A Theory of Duress’ give?
Defendant-based and plaintiff-based
Ratio in Brinkibon Ltd v Stahag-Stahl?
Postal rule not for telexes
Why is the point put forward by Birks and Chin in ‘On the Nature of Undue Influence’ no longer possible?
HoL in Etridge No.2 made both presumed and actual undue influence to be one doctrine instead of two
Ratio in Tamplin v James?
Role of fault on buyer so seller allowed to enforce the contract
Who gave that duress invalidates any consent given?
M Chen-Wishart in ‘Contract Law’
Why does Shanklin Pier v Detel Products Ltd not really represent an exception to privity?
Creates a new contract, but is still an effective means of evading privity
Who expressed a view of consideration as redundant?
Lord Mansfield
What did Atiyah find strange about wholly executory contracts?
They are immediately binding
What does Pao On note about performance of a pre-existing duty?
Lord Scarman noted that it can be valid as consideration as the third party’s benefit is to control the situation
Who said that the ‘High Trees case set equity on the path of supplementing the doctrine of consideration by extending the common law notion of estoppel’?
P Birks in ‘Equity in the Modern Law: An Exercise in Taxonomy’
In what article did Burrows note that a threatened breach of contract is illegitimate if done on bad faith (to exploit weakness) but not if it is just a ‘reaction to… frustration’ nor if it merely a ‘bad bargain’?
‘The Law of Restitution’
Ratio in Barry v Davies?
Invitation to treat when advertising and putting up goods, bids are offers and fall of hammer is acceptance
What did Lord Goff say of economic duress in The Evia Luck?
Economic pressure must be ‘illegitimate and has constituted a significant cause inducing the claimant to enter into the relevant contract’
Re Brocklehurst
Old, general, commanded defendant
In what case did Atkin LJ give a policy reason for refusing to recognised a contractual duty?
Balfour v Balfour
What did Denning argue about the conclusion of an offer in Thornton v Shoe Lane Parking Ltd?
Concluded upon ticket receipt so any conditions on the ticket cannot form part of it
In terms of causation, what does Christopher Clarke J in Kolmar Group AG v Taxpo Enterprises Pty Ltd say there must not have been?
A ‘real choice’ or ‘realistic alternative’
What did Dyson J in DSND Subsea Ltd v Petroleum Geo-Services AS say of illegitimate pressure?
It ‘must be distinguished from the rough and tumble of the pressures of normal commercial bargaining’
Who has a promissory view of contract and argues that consideration frustrates ‘the projects of promisees after the fact and the potential projects of promisors’?
C Fried
Why did the court not apply Roffey Bros in Re Selectmove?
Would completely circumvent Foakes v Beer which is well-established
How was the case of Alfred McAlpine Construction Ltd v Panatown Ltd decided?
There was a duty of care deed so no need to decide on privity
What requirements does Black J gives for acceptance of an offer?
‘A final and unqualified expression of assent to the terms of the offer’
What are the two steps required for constructive notice to have been given to a bank?
Transaction is not to V’s financial advantage, and there is a substantial risk of undue influence to V
Lucy v Walwyn
Manor
In Allcard v Skinner, what did Lord Cotton say to suggest undue influence means too much influence?
Relief is given ‘on the ground of public policy’ and to prevent relationships ‘and the influence arising therefrom’ from being abused
How did Birks and Chin describe presumed undue influence in ‘On the Nature of Undue Influence’?
Focused on the vulnerable party being unable to resist
What rights do promisor’s have in contracts for the benefit of a third party?
Specific performance and damages
Central London Property Trust Ltd v High Trees House Ltd
War rent reduction
In what article did A Burrows give arguments for reform of privity?
‘The C (RoTP) A 1999 and it’s implications for commercial contracts’
What type of remedy is undue influence?
Equitable at the discretion of the courts
What case does Storer v MCC support with it’s ratio of being an offer, not an invitation to treat?
Quote in Smith v Hughes - ‘a contract is formed when there is, to all outward appearance, a contract’
How was consideration found in Thomas v Thomas?
B promise to pay £1 per year in rent and maintain the property
How did Lord Scarman still enforce the idea of duress even when the threatened act is lawful?
‘What [one] has to justify is not the threat, but the demand’
Who noted that it may be particularly difficult to establish duress ‘if the defendant bona fide considered that his demand was valid’?
Steyn LJ in CTN Cash and Carry Ltd v Gallaher
Ratio in Pao On v Lau Yiu Long?
Lord Scarman - past consideration may be good if the act has been requested by the promiser, parties understood the act was to be remunerated by either a payment/benefit and the remuneration would be legally enforceable had it been promised in advance
What promisor right does Beswick v Beswick support in privity cases?
Specific performance
What did Smith v Hughes note about distinction between offer and invitation to treat, used in Storer v MCC?
‘A contract is formed when there is, to all outward appearance, a contract’
What is principle 3 of promissory estoppel?
The promise-detriment principle
What is a voidable contract?
If a party complains, it can be retrospectively voided but otherwise it is assumed to be valid
What two things are required for any claim of duress?
One must show illegitimate pressure and causation
Why does SA Smith argue that lack of free consent alone should be sufficient to set aside a contract?
To protect the autonomy of the party
How does Tweddle v Atkinson apply to both privity and consideration?
There was no consideration for him to enforce the agreement, and he couldn’t enforce it in his favour because he was only a named party
What was the pre-existing contract in Shadwell v Shadwell?
Engaged to fiancé so was going to marry her
Ratio in Hackett v CPS?
‘Full, free and informed thought’
What did Lord Goff say in The Makhutai about carriage of goods by sea as an exception to privity?
It is ‘perhaps an inevitable step’ that one day courts will recognise ‘in these cases a fully-fledged exception to the doctrine of privity’
What is principle 1 of promissory estoppel?
Stopping A from getting a right after B’s actions
What did Collier v P & MJ Wright (Holdings) Ltd judgment show?
Courts are prepared to sidestep Foakes v Beer to allow debtors to estop creditors from denying an agreement for part payment
Taylor v Laird?
Captain
Stilk v Myrick
Sailors
In which case did a wife try to use promissory estoppel as a sword?
Combe v Combe
How does Denning LJ’s third principle of promissoryestoppel differ from B McFarlane’s?
McFarlane allows that in the absence of detriment, it would not be inequitable for A to enforce their right
In what article did an academic say the test for UI focuss on businesses too much, failing to protect vulnerable women, especially in regard to Midland Bank v Shepherd exclusion in Class 2(A)?
Auchmuity, “Men Behaving Badly”
What two cases suggest proof of fault/bad behaviour is not required for undue influence?
Hammond v Osborn and Niersmans v Pesticcia
Ratio in Pitt v Holt?
A unilateral mistake by A may suffice to allow the deed to be set aside
What two cases highlight the role of causation in undue influence?
Bank of Credit and Commerce International SA v Aboody and UCB Corporate Services Ltd v Williams
What case gives the general rule for tenders?
Spencer v Hardin?
What does Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd note about last shot?
Last shot wins
What did Kerr J recognise in The Siboean and The Sibotre?
Economic duress
What four points does McKendrick note that Etridge No.2 raises?
Presumption is rebuttable and evidential, change of label from ‘manifest disadvantage’ to Lindley J in Allard v Skinner on ordinary motives, relationship of husband and wife gives no presumption and necessary to prove nature of relationship AND not explicable by ordinary motives for factual inference
Harvela Investments Ltd v Royal Trust Co of Canada
Referential bid
Lucy v Walwyn is an example of what?
An executory contract
Thomas v BPE Solicitors on instantaneous means of communication
‘office hours receipt rule’ applies to emails
What did Barry v Davies note about the contract of auctions?
Between buyer and seller, not buyer and auctioneer
Blackpool and Fylde Aero Club v Blackpool BC
Town hall
Ratio in Skeate v Beale?
Unlawful detention of another’s goods is not duress
Who argued for a broad ground base for damages in Alfred McAlpine Construction Ltd v Panatown Ltd regardless of duty of care deed?
Lord Millett and Goff
What three cases distinguish between offer/invitation to treat for transport?
Thornton v Shoe Lane Parking Ltd, Wilkie v London Passenger Transport Board and Denton v Great Northern Railway Co
Who said that Skeate v Beale is in ‘direct conflict with the modern view of duress’?
Goff and Jones in ‘The Law of Unjust Enrichment’
Ratio in Thomas v Thomas?
Consideration cannot be found wherever there is a ‘good reason’
Ratio in Felthouse v Bindley?
Silence is not acceptance
Tweddle v Atkinson
Promise to pay husband between father-in-laws
What case shows a shift from the coercion of the will theory to legitimacy of pressure applied?
The Universe Sentinel
What cases show two different ways of getting to the same result: through economic duress or through past consideration?
Stilk v Myrick and Williams v Roffey Bros
What did Sir Kim Lewison in ‘Under the Influence’ say about irrebutable presumptions?
They should only be used where it is a ‘foregone conclusion’ or there are ‘powerful policy reasons for not allowing the truth to be found’
In what case did the HoL overturn Denning’s judgment in Jackson v Horizon Holidays Ltd?
Woodar Investment Development Ltd v Wimpey Construction Ltd
What was the ratio in Hartog v Colin & Shields?
Not allowed to take advantage because always discussed at price per piece, not pound, so reasonably should have known
How does Smith v Hughes challenge Pitt v Holt on promises in a deed?
Suggests that a unilateral mistake is not enough to get out of a contract
What two cases show that it is an objective test to decide if two parties reached an agreement?
Smith v Hughes and Centrovincial Estates plc v Merchant Investors Assurance Company Ltd
R v Clarke?
Murder information
What clause in Rose and Frank Co v Crompton Bros rebutted the usual commercial agreement presumption of intention to be bound?
Honourable pledge clause
In what case did Steyn LJ note it may be particularly difficult to establish duress ‘if the defendant bona fide considered that his demand was valid’?
CTN Cash and Carry Ltd v Gallaher
Which acts did Lord Simon and Wilberforce not the law will not accept as a reason for voluntary action in Barton v Armstrong?
‘Fraud, abuse of a relationship of confidence, undue influence, duress or coercion’
How does Stilk v Myrick relate to duress?
The courts made use of consideration in the absence of a developed doctrine of duress
What is the ratio in Spencer v Hardin?
Invitation to tender is an invitation to negotiate
Letter must be properly stamped and addressed for postal rule of acceptance
Re London & Northern Bank
What two individuals argue for a third way for undue influence?
M Chen-Wishart in ‘Undue Influence’ and R Bigwood in ‘Contracts by Unfair Advantage’
What post-Etridge case shows a plaintiff-oriented conception of undue influence?
Pesticcio v Huet
Name three primary criticisms of consideration
Inconsistency with promissory morality/Will Theory of contract; distraction from the real basis of liability; lack of success in meeting its supposed goal
What was the ratio in Storer v Manchester City Council?
Agreement for sale so not just an invitation to treat
What three key ingredients for economic duress did Dyson J give in DSND Subsea Ltd v Petroleum Geo-Services ASA?
Pressure that (1) compels/removes practical choice, (2) which is illegitimate and (3) a significant cause of C entering the contract
Name three exceptions to the C(RoTP)A?
Carriage of goods by sea, contracts for employment and bills of exchange (section 6)
What two requirements are there to defeat a Class 2(A) UI claim?
V needs to have had full knowledge of the contract, through independent and impartial advice
What was the two-stage approach given in R v AG for England and Wales for illegitimacy?
‘The nature of the pressure and the nature of the demand which pressure is applied to support’
What two cases suggest proof of fault/bad behaviour is required for undue influence?
R v AG for England and Wales and National Commercial Bank of Jamaica Ltd v Hew
Glasbrook Brother Ltd v Glamorgan CC
Miner’s strike
In what case did Dyson J give three key ingredients for economic duress?
DSND Subsea Ltd v Petroleum Geo-Services ASA
How did Diplock suggest we should view duress claims, other than seeing them as vitiating consent for removing choice?
See if there was a practical alternative
Ratio in Glasbrook Brother Ltd v Glamorgan CC?
If B is under a public duty to provide a service then this does not give consideration
What did Lord Simon and Wilbeforce say in Barton v Armstrong?
‘In life… many acts are done under pressure’ and the law has only selected ‘some which it will not accept as a reason for voluntary action’
What case highlights the effect of constructive notice on transactions, and gave the two requirements?
Barclays Bank plc v O’Brien
Who said that ‘Our law knows nothing of a jus quaesitum tertio arising by way of contract’?
Viscount Haldane LC in Dunlop Pneumatic
Who gave two limitations confining narrow ground of damages in privity cases traditionally?
R Stevens, ‘Law Quarterly Review; The C (RoTP) A 1999’
Who said that ‘an estoppel bars the object of it from asserting some facts/fact, or, sometimes, something that is a mixture of fact and law’?
Lord Scott in Cobbe v Yeoman’s Row Management Ltd
Why is the decision in Blackpool and Fylde Aero Club v Blackpool BC controversial?
Unclear when invitations to tender will be subject to similar implied terms
What was the ratio in Lefkowitz v Great Minneapolis Surplus Stores Inc?
Seller cannot ‘impose new or arbitrary conditions’ if the terms of a unilateral contract are fulfilled
Balfour v Balfour
Husband and wife
What case showed that ever duress claim is ‘fact sensitive’ on the illegitimacy of pressure exerted?
Progress Bulk Carriers Ltd v Tube City IMS LLC
What was the ratio in Blackpool and Fylde Aero Club v Blackpool BC?
Unilateral contract, finding that the invitation was to consider all tenders correctly submitted
What label did the court in Etridge No.2 prefer over ‘manifest disadvantage’?
Lindley J in Allcard v Skinner on ordinary motives of ordinary men
Who said that the carriage of goods by sea as a ‘fully-fledged exception’ to privity is ‘perhaps an inevitable step’?
Lord Goff in The Makhutai
In terms of reasonable alternatives for economic duress, what kind of test is it?
Both objective (Christopher Clarke J) and subjective view of the facts in the particular case
What did Lord Cross note about the effect of causation in duress to the person?
It need only have been ‘a reason’
What is the problem with using Hughes v Metropolitan Railway Co as support for principle 1 of promissory estoppel?
The judges don’t mention estoppel and can be explained without the use of estoppel
Hyde v Wrench
Farm
Why do the courts use a causation test for duress?
They do not approve of it
What three cases support principle 3 of promissory estoppel?
BP (Libya) v Hunt (No.3), Nippon Yusen Kalsha v Pacifica Navegacion SA (The Ion) and Waltons Stores (Australia case)
What was the ratio in Thornton v Shoe Lane Parking Ltd?
Denning argued that the more onerous the clause, the better notice that needs to be given.
How did P Birks criticise the High Trees decision in ‘Equity in the Modern Law: An Exercise in Taxonomy’
The ‘High Trees case set equity on the path of supplementing the doctrine of consideration by extending the common law notion of estoppel’
Ratio in Warlov v Harrison?
Fall of hammer is acceptance, so although owner breaches advert promise by bidding, all complainant can claim is a loss of opportunity to buy the horse as hammer fell on the defendant’s bid
According to the ratio in Entores, where did the contract take place?
In London as acceptance was received there
What did Lord Nicholls say in Etridge No.2 in regard to proving actual undue influence on evidence?
Evidence of ‘overt acts of improper pressure or coercion’ is needed
Who said that ‘Agreements such as these are outside the realm of contracts altogether’ as a policy reason for refusing to recognised a contractual duty?
Atkin LJ in Balfour v Balfour
What two post-Etridge cases show a defendant-oriented conception of undue influence?
R v AG for England and Wales and National Commercial Bank of Jamaica v Hew
What is a void contract?
Contract was never valid
What does Etridge No.2 say about proving actual undue influence on evidence?
Lord Nicholls - evidence of ‘overt acts of improper pressure or coercion’
Ratio for Waltons Stores in Australia concerning principle 3 of promissory estoppel (not applicable wholly in UK)
Applis to promises to give a legal right
What rule does Williams v Roffey Bros technically break, along with performance of a pre-existing duty?
Promise must move from the promisee
What case supports the encouragement-benefit principle (principle 1) of estoppel in particular according to B McFarlane?
Hughes v Metropolitan Railway Co
What were the five arguments Burrows gave for reform of privity?
Thwarts intention of parties that 3rd parties be benefitted, causes injustice to 3rd parties, produces perverse results, there are many exceptions and it is out of line with legal systems of majority of EU members
Who highlighted the two-stage approach of illegitimacy for duress?
Lord Hoffman in R v AG for England and Wales
What did Birks and Chin note about the judgment in Allcard v Skinner?
Her ‘autonomy was impaired to an exceptional degree’, suggesting the doctrine is more about the position of the defendant than the plaintiff
What relationship was found to be one of influence in Cheese v Thomas?
Great uncle and nephew
Apart from Stilk v Myrick, what other case supports the old well-established rule of performance of a pre-existing duty not constituting valid consideration?
Foakes v Beer
Ratio in Taylor v Laird?
An offer must actually be communicated or no damages
What is principle 2 of promissory estoppel?
Acceptance of substitute performance and subsequent discharge of original duty
What was the ratio in Alfred McAlpine Construction Ltd v Panatown Ltd?
Two different bases for getting damages - narrow (X as conduit for B’s loss by recovering from A) and broad (X entitled to damages for X as A did not perform the promise made)
What did the HoL in The Evia Luck specifically reject which Barton v Armstrong ignored?
That duress voids a contract - they argued that duress does not give an absence of consent, so duress makes contracts VOIDABLE
What did Lord Goff say would be the benefit of accepting carriage of goods by sea as an exception to privity in The Makhutai?
It would allow courts to escape ‘from all the technicalities with which [they] are now faced in English law’
What three cases outline the role of fault in contracts?
Denny v Hancock, Tamplin v James and Scriven Brothers & Co v Hindley & Co
Raatio in R v Clarke?
If someone is solely motivated by something else then they cannot accept the reward
What was the ratio in Partridge v Crittenden?
People are not required to sell to anyone who replies to their advert - not an offer but an invitation to treat
What did the honourable pledge clause in Rose and Frank Co v Crompton Bros do?
Rebutted usual commercial agreement presumption of intention to be legally bound by agreement
In what case did Lord Scarman note the benefit of being able to control a situation in making valid performance of a pre-existing duty
Pao On
In what case did Denning state that promissory estoppel is only a defence?
Combe v Combe
What express qualification of intention to be bound was given in Rose and Frank Co v Crompton Bros?
Honourable pledge clause rebutted usual commercial agreement presumption of intention to be legally bound by agreement
How did Denning challenge Glasbrook Brother Ltd v Glamorgan CC in Ward v Byham?
Said public duty is good consideration because ‘it is a benefit to the person to whom it is given’
What was the ratio in Harvela Investments Ltd v Royal Trust Co of Canada?
Lord Diplock - unilateral contract incapable of being fulfilled by either promisee except by a self-contained offer
How did the HoL overturn Denning’s judgment in Jackson v Horizon Holidays Ltd?
Rejected his argument that A can always recover for B’s loss and then must pay this to B in Woodar Investment Development Ltd v Wimpey Construction Ltd
What article did Auchmuity write concerning the failures of the test for UI?
“Men Behaving Badly”
What does s.1-7 of the C (RoTP) A give?
Exceptions to rule 1 of privity, including requirements for a third party to claim on a contract and the rights of the two original parties
Who said that valuable consideration ‘may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other’?
Lush J in Currie v Misa
What is a unilateral contract?
One party makes an offer which requires an act to be performed by one or more parties (lost advert with a reward)
Hickman v Haynes
Delivery promise
What is the defendant-based element of duress?
Contract is due to defendant’s wrongdoing
In what case did Lord Scarman say that ‘What [one] has to justify is not the threat, but the demand’ for duress?
The Universe Sentinel
What does Bills of Exchange Act 1882, s.27(1)(b) note?
Valuable consideration for a bill of exchange can be constituted by a pre-existing debt/liability
What two cases support the fact that the carriage of goods by sea is an exception to rule 1 of privity?
The New York Star and The Makhutai
Who said that the courts could have implied a request in Combe v Combe but it wouldn’t have been just?
Atiyah in ‘Consideration: A Restatement’
What did Lord Scarman in The Universe Sentinel say of threatened acts needing not be unlawful for duress by way of example?
‘Blackmail is often a demand supported by a threat to do what is lawful’
What did Atiyah say about consideration?
Distracts from real basis of liability - it’s just the best way of showing D to be liable
What is the narrow ground for a promisor to gain damages in privity cases?
X is a conduit for B’s loss by recovering from A
Eastwood v Kenyon
Daughter
What case would not be decided differently after the C(RoTP)A?
Dunlop v Selfridge
What two cases outline withdrawing/terminating an offer?
Byrne & Co v Van Tiehoven & Co and Dickinson v Dodds
What does Henkel v Paper note about acceptance by instantaneous means of communication?
The onus is on the seller to check any acceptance by instantaneous means of communication
Hartog v Colin & Shields
Argentine hare skins
Denton v Great Northern Railway Co
Train timetable
Leonard v Pepsico Inc
Pepsi points
What did Steyn say of the doctrine of privity in Darlington BC v Wiltshier Northern Ltd?
‘no doctrinal, logical or policy reason’ for denying expressed intention of parties to contract for C’s benefit
Who said that there is a ‘presumption against such an intention’ as for family members to be legally bound in regard to family affairs and in what case?
Dankwerts LJ in Jones v Padavatton
Why does the C (RoTP) A not technically breach privity?
It is a statutory, not a general, contractual right
Astley v Reynolds
Silver plate
How did Dyson J qualify the requirements of lawful threats of breaches of contract so as not to amount to economic duress?
Decided that in this case the threat was ‘reasonable behaviour by a contractor acting bona fide in a very difficult situation’
Ratio in Williams v Carwardine?
Shouldn’t look at motives, just that offer was in mind regardless
What are the two elements to any duress claim according to McKendrick?
Lack of free consent and illegitimacy of pressure exerted
What are the four exception to Rule 1 of privity?
C (RoTP) A 1999, claims in tort, trust for B for X’s contractual right against A and carriage of goods by C
What were the two limitations confining narrow ground of damage given by R Stevens?
Loss or damage foreseeable transferred by promisee to 3rd party and 3rd party foreseeably not acquired any contractual rights against promisor
What was said at paragraph 91 about Aboody in UCB Corporate Services Ltd v Williams?
Rejected the fact that D can claim V would have entered the contract anyway regardless of undue influence because UI is a ‘species of fraud’, so no defence to say regardless of UI
Collier v P & MJ Wright (Holdings) Ltd
Partners
What case showed that the law is reluctant to assume intention to create legal relations between family members/in certain social contexts?
Walton v Walton
Why can Dunlop Pneumatic Tyre Co Ltd not bind Selfridge?
No contract binding them (privity) and no consideration
What did Denning in Modern Law Review argue about consideration?
‘We are tending to regard any act done on the faith of a promise as sufficient consideration to support it’
Barton v Armstrong
Threat to ill
What is the presumptin Danckwerts LJ highlights in Jones v Padavatton?
Presumption against legal relations between parents and children
In which case was the well-established rule on performance of a pre-existing duty not constituting valid consideration overturned partly?
Williams v Roffey Bros & Nicholls (Contractors) Ltd
Combe v Combe
Maintenance
What are the two main cases which outline the rule for auctions for offer and acceptance?
Barry v Davies and Warlov v Harrison
Who said the irrebutable presumptions should only be used where it is a ‘foregone conclusion’ or there are ‘powerful policy reasons for not allowing the truth to be found’?
Sir Kim Lewison in ‘Under the Influence’
What is the scope of the C(RoTP)A?
Section 1 –> express provision for 3rd parties, or intending to give a benefit, UNLESS proper construction shows not intending to benefit 3rd party
Ratio in Pillans v Van Mierop?
‘Custom of merchants’ means A is liable to B even without consideration
What is an example of invented consideration according to Treitel?
Shadwell v Shadwell
In what case did Denning try to claim that A can always recover for B’s losses and then must pay this to B?
Jackson v Horizon Holidays Ltd
In what case did Mance J find it ‘difficult to accept that illegitimate pressure applied by a party who believes bona fide in his case can never give grounds for relief’?
Huyton SA v Peter Cremer GmbH & Co
What is an example of duress to the person?
Barton v Armstrong
In what case did Dyson J find the threatened breach of contract was ‘reasonable behaviour’?
DSDN Subsea Ltd v Petroleum Geo-Services ASA
What did Lord Hailsham say about promissory estoppel in Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd?
It raises ‘problems of coherent exposition which have never been systematically explored’ and cannot be against something that is to happen in the future
Ratio in Hickman v Haynes?
A’s right to terminate the contract is suspended to allow B to modify their behaviour accordingly
What happened in Astley v Reynolds?
D set the price above statutory level to force the owner to pay more in order to get the plate back
Which case suggests a reasonable explanation is not enough to rebut presumed undue influence?
Smith v Cooper
What is substantive unfairness to duress according to McKendrick?
It is a feature but not the foundation of duress as it is not sufficient in itself
