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Law: Y1 > Contract Y1S2 > Flashcards

Contract Y1S2 Flashcards

1
Q

(per Lord Radcliffe in Davis Contractors Ltd. v Fareham Urban
District Council [1956] A.C. 696, p 728)

A

“…frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstance in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”

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2
Q

Taylor v Caldwell (1863) 3 Best and Smith 826

A

A contract is frustrated when the subject matter is destroyed

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3
Q

Asfar & Co. v Blundell [1896] 1 Q.B. 123

A

A contract is frustrated when the subject matter is rendered useless

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4
Q

Condor v Barron Knights [1966] 1 W.L.R. 87

A

A contract is frustrated where init has incapacity, in contracts of personal service

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5
Q

Nickoll & Knight v Ashton, Edridge & Co.

[1900] 2 Q.B. 298

A

A contract is frustrated Where the contract cannot be performed in the manner specified

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6
Q

Krell v Henry [1903] 2 K.B. 740

A

A contract is frustrated when the event doesn’t occur

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7
Q

Herne Bay Steam Boat v Hutton [1903] 2 K.B. 683

A

A contract is frustrated when the event doesn’t occur EXCEPT when the contract has other purpose

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8
Q

MetropolitanWater Board v Dick,Kerr and Company Limited [1918] A.C. 119

A

A contract is frustrated where the government intervenes

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9
Q

Tsakiroglou & Co. Ltd. v Noblee Thorl G.m.b.H. [1962] A.C. 93

A

A contract is frustrated where the government intervenes But not If performance is just more difficult/expensive

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10
Q

Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour [1943] A.C. 32

A

A contract is frustrated where it becomes illegal to perform

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11
Q

if the event was included in a force majeure clause

A

Not frustrated

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12
Q

Jackson vThe Union Marine Insurance Company

(1874-75) L.R. 10 C.P. 125

A

The clause must cover the situation or it can be frustration

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13
Q

Davis Contractors Ltd. v Fareham Urban District Council [1956] A.C. 696

A

A contract is NOT frustrated where it has simply become more difficult to perform

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14
Q

Maritime National Fish Limited v OceanTrawlers Limited [1935] A.C. 524

A

A contract is NOT frustrated where it is the fault of one party

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15
Q

What does frustration mean for the contract?

A

Contract void from the point of frustration, future contractual obligations discharged

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16
Q

What if there is no frustration?

A

Breach occurred

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17
Q

What if it is covered by force majeure clause?

A

Look at the clause

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18
Q

Express terms

A

Terms which are actually recorded or openly expressed

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19
Q

Incorporated terms of not incorporated?

A

legally binding or not legally binding

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20
Q

L’Estrange v E Graucob Ltd [1934] 2 KB 394

A

If it is in a signed written document, it is almost certainly an express term

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21
Q

Chapelton v Barry UDC [1940] 1 KB 532

A

Other written terms can be included if They are on a contractual document

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22
Q

Bannerman v White (1861) CB NS 844

A

More likely to be a term if…

It is of clear importance to the representee

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23
Q

Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1WLR 623

A

More likely to be a term if…

The representor has special knowledge

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24
Q

Schawel v Reade [1913] 2 IR 81

A

More likely to be a term if…

The representor accepts responsibility for the truth of the statement

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25
Q

Oscar Chess Ltd vWilliams [1957] 1WLR 370

A

Less likely to be a term if…

The representee has greater or equal knowledge

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26
Q

Ecay v Godfrey (1947) 80 Ll L Rep 286

A

Less likely to be a term if…

The representee was encouraged to verify it

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27
Q

Inntrepreneur Pub Co v East Crown Ltd

[2000] 2 Lloyd’s Rep 611

A

Less likely to be a term if…

There is a delay between statement and contract

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28
Q

Routledge v McKay [1954] 1WLR 615

A

Less likely to be a term if…

It is not contained within the written contract

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29
Q

Implied terms

A

“other terms imported into the contract” Halisburys laws

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30
Q

Business Efficacy Test

A

The moorcock - factual implied term

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31
Q

Shirlaw v Southern Foundaries [1939] 2 KB 206

A

The officious bystander test - factual implied term

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32
Q

Liverpool City Council v Irwin

[1977] AC 239

A

in contracts off a sufficiently similar type terms can be implied

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33
Q

British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd [1975] QB 303

A

Custom of the industry that it is the hires responsibility

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34
Q

Principle of caveat emptor

A

buyer beware

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35
Q

Sale of good act s12

A

right to sell

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36
Q

Sale of good act s13

A

as described

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37
Q

Sale of good act s14(2)

A

satisfactory quality

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38
Q

Sale of good act s14(3)

A

fit for purpose

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39
Q

Consumer rights act application

A

B2C only

Not to mortgages or other securities

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40
Q

Consumer rights act s.9

A

satisfactory quality

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41
Q

Consumer rights act s.10

A

fit for a particular purpose

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42
Q

Consumer rights act s.11

A

product will be as described

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43
Q

Consumer rights act s.13

A

Match the sample

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44
Q

Consumer rights act s.14

A

Match the model

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45
Q

Consumer rights act s.17

A

right to supply the goods

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46
Q

Consumer rights act s.49

A

ressonable care and skill

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47
Q

Consumer rights act s.50

A

Info about trader to be binding

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48
Q

Consumer rights act s.51

A

reasonable charge

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49
Q

Consumer rights act s.52

A

performance within a reasonable time

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50
Q

Scammell & Nephew Ltd v Ouston [1941] AC 251

A

where terms are too uncertain, there is no contract

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51
Q

Wallis,Son &Wells v Pratt & Haynes

[1910] 2 KB 1003, per Fletcher at 1012

A

condition definition

Go to the heart of the contract

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52
Q

Condition definition

A

Wallis,Son &Wells v Pratt & Haynes
[1910] 2 KB 1003, per Fletcher at 1012

Go to the heart of the contract

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53
Q

Warranty def

A

less important terms of the conract

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54
Q

Warranty def

A

less important terms of the contract

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55
Q

Innominate term definition

A

Depend upon the nature of the event cannot be automatically classified

Hongkong Fir Shipping v Kawasaki [1962] 2 Q.B. 26

56
Q

Poussard v Spiers & Pond

(1876) 1 QBD 410

A

it is a conditionn if it is of great importance to the defendants

57
Q

Poussard v Spiers & Pond

(1876) 1 QBD 410

A

it is a condition if it is of great importance to the defendants

58
Q

Bettini v Gye

(1876) 1 QBD 183

A

it is a warranty

59
Q

The Mihalis Angelos [1971] 1 QB 164

A

The terms of commercial contracts require certainty

60
Q

Schuler AG v Wickman Machine Tools Sales Ltd [1974] AC 235

A

Using the word condition in the term doesnt necessarily mean it is a condition

61
Q

United Scientific Holdings v Burnley BC [1977] 2 WLR 806

A

Anything to do with time is a warranty

62
Q

Bunge Corporation v Tradax Export SA [1981] 1 WLR 711

A

If its a commercial contract time will be treated as a condition not warranty

63
Q

Charles Rickards LD. v Oppenhaim [1950] 1 KB 616

A

Time can be made a condition when giving notice due to failure of contract conditions

64
Q

Breach

A

Without lawful excuse, a party fails rot comply fully or at all with an express or implied term

65
Q

Legal Remedies

A 
Legal Remedies
Agreed sum/price
Liquidated damages clause in a contract that is an agreed price
Liquidated damages
Unliquidated damages
If there is no clause there are unliquidated damages decided by the judge
Termination
Repudiatory breach entitles termination
66
Q

Legal Remedies

A

Legal Remedies

  • Agreed sum/price
  • Liquidated damages clause in a contract that is an agreed price
  • Liquidated damages
  • Unliquidated damages
  • -If there is no clause there are unliquidated damages decided by the judge
  • Termination
  • -Repudiatory breach entitles termination
67
Q

Equitable remedies

A 
Specific performance
Injunction
Account on profits
Not available as of right only from court
May be refused on grounds of hardship
Damages
68
Q

Purpose of damages

A

to return the claimant to the position they should be in

69
Q

How to reduce damages?

A
  • But for causation
  • Remoteness
  • Failure to mitigate
70
Q

Farley v Skinner [2001] UKHL 49

A

The starting point in contract law is the expectation interest

71
Q

Anglia Television v Reed [1972] 1 Q.B. 60

A

recover the reliance interest

where it is not possible

calculate the with certainty the expectation interest but

not just to avoid a bad bargain

72
Q

Ruxley Electronics & Construction Ltd v Forsyth [1995] UKHL 8

A

In calculating the expectation interest the courts must decide wether to award the distance in value or the cost

73
Q

Jarvis v Swan Tours Ltd [1973] EWCA Civ 8

A

Where a contract is entered for the specific purpose of enjoyment or entertainment damages can be awarded for distress, disappointment frustration which causes a breach of contract.

74
Q

South Australia Asset Management Corporation v York Montague Ltd [1996] UKHL 10

A

The claimant can only recover losses which have been directly caused by the breach i.e. which would not have occurred “but for” the breach”.

75
Q

Hadley v Baxendale [1854] EWHC Exch J 70

A

A loss will only be recoverable if it:
Loss unforeseeable
(1) arises naturally from the breach itself; or
(2) was (objectively) “in the contemplation of the parties” (i.e. if it was foreseeable), at the time of contracting, as the probable result of the breach

76
Q

Victoria Laundry v Newman [1949] 2 K.B. 528

A

Loss foreseeable
A loss will only be recoverable if it:
(1) arises naturally from the breach itself; or
(2) was (objectively) “in the contemplation of the parties” (i.e. if it was foreseeable), at the time of contracting, as the probable result of the breach.

77
Q

Brace v Calder and Others [1895] 2 Q.B. 253

A

Failure to mitigate

After a breach the claimant has a duty to take all reasonable steps to minimise its losses

78
Q

Arcos Ltd v EA Roans’ & Son [1933] AC 470

A

A failure to comply with terms of a contract will amount to a breach

79
Q

Bolton v Mahadeva [1972] 1 WLR 1009

A

Where a contract can be easily divided into component parts a defendant may be taken to be in breach in respect to one part only.

80
Q

Maple Flock Company, Limited v Universal Furniture Products (Wembley), Limited [1934] 1 KB 148

A

Where there is a contract for the sale of goods to be delivered by instalments which are to be separately payed for and there is one or more defaults by either buyer or seller, the court will consider the quantitative ratio which the breach bares to the contract as a whole.

81
Q

Hochster v De La Tour (1853) 2 E & B 678

A

Anticipatory breach

82
Q

Limitation act 1980 s.5

A

Breach of contract claim - 6 years from date of breach

83
Q

Limitation act 1980 s.8

A

Breach of contract where contract is made by deed - 12 years from date of breach

84
Q

Limitation act 1980 s.32

A

where there is a fraud the limitation doesn’t begin until the claimant discovers the fraud

85
Q

Cavendish Square Holding BV v Makdessi [2015] 3 WLR 1373

A

If liquidated damages are disproportionate they will be deemed to be a penalty clause and therefore unenforceable.

86
Q

Misrepresentation Definition

A

Halisburys laws

positive statement of fact

which is untrue

result of inducing represent into a contract

can elect to regard the contract as rescinded

87
Q

Dimmock v Hallett (1866) LR 7 Ch App 21

A

A mere “puff” is not a “false statement of fact”

88
Q

Bisset v Wilkinson [1927] AC 177

A

A mere statement of opinion is not a “false statement of fact”

89
Q

Hummingbird Motors Ltd v Hobbs [1986] RTR 276

A

A mere statement of opinion is not a “false statement of fact”

90
Q

Smith v Land and House (1884) 28 Ch D 7

A

A mere statement of opinion is not a “false statement of fact” UNLESS the opinion is not honesty held

91
Q

Edginton v Fitzmaurice (1885) 29 Ch D 459

A

A statement of intention can be a “false statement of fact” if not honestly held

92
Q

With v O’Flanagan [1936] Ch 575

A

A statement which ceases to be true can be a “false statement of fact”

93
Q

Spice Girls Ltd v Aprilia World Service BV [2002] EWCA Civ 15

A

A “false statement of fact” can be implied through conduct

94
Q

Attwood v Small (1838) 6 Cl & Fin 232

A

No reliance = no inducement

95
Q

Redgrave v Hurd (1881) 20 Ch D 1

A

A representee is entitled not to check

96
Q

Typical remedies for misrepresentation?

A

Rescission/damages

97
Q

Remedies for fraudulent misrep

A

Damages for deceit

recession (absolute)

98
Q

Remedies for negligent misrep

A

Damages for deceit

recession (discretion)

99
Q

Remedies for innocent misrep

A

Rescission (Discretion)

OR

Damages in lieu of rescission (Discretion)

100
Q

Bars to Rescission

A

Affirmation (Long v Lloyd [1958] 2 All ER 402)
 Lapse of time (Leaf v International Galleries [1950]
2 KB 86
 Impossibility
 Third party rights

101
Q

When is an exclusion clause incorporated? Tech 1

A
  • it is signed
  • its on a contractual document
  • it is introduced in time
  • reasonable notice has been provided
102
Q

Houghton v Trafalgar Insurance Co Ltd [1954] 1 QB 247

A

Clauses will be construed “Contra Proferentem”

103
Q

White v JohnWarwick & Co [1953] 2All ER 1021

A

Liability for negligence

104
Q

Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805

A

Misrepresentation

105
Q

Webster v Higgin [1948] 2 All ER 127

A

collateral contracts

106
Q

Cosgrove v Horsfall (1945) 175 LT 334

A

Privey of contract

107
Q

How does parliament limit draconian exemption clauses

A 
UCTA77
and
The requirement of "Reasonableness"
and
Reasonableness -
Schedule 2 Factors
108
Q

(Raffles v Wichelhaus (1864) 2 H&C 906)

A

Latent ambiguity MAY negative consent

109
Q

(Smith v Hughes (1871) LR 6 QB 597)

A

A mistake as to the terms of the contract which is known

to the other party MAY negative consent

110
Q

Cundy v Lindsay (1878) 3 App Cas 459

A

A mistake as to the identity of the other party MAY negative consent

111
Q

Authoritative Definition: Common Mistake

A

the parties are agreed on the terms of the contract but have entered it under a shared and fundamental misapprehension as to the facts or the law.’

Chitty

112
Q

Bell v Lever Brothers Ltd

A

Leading case for common mistake

113
Q

Galloway v Galloway (1914) 30TLR 531

A

can be common mistake where the subject matter does not exist

114
Q

s. 6, Sale of Goods Act 1979

A

can be common mistake where goods to be purchased, have perished

115
Q

Sheikh Brothers Ltd v Ochsne

[1957] AC 136 (Privy Council)

A

can be common mistake where the contract is physically impossible to perform

116
Q

Cooper v Phibbs (1867) LR 2 HL 149

A

can be common mistake where the contract is legally impossible to perform (not the same as being illegal)

117
Q

Griffith v Brymer (1903) 19TLR 434

A

cam be common mistake where the contract is commercially impossible to perform

118
Q

Mistakes as to quality are rarely sufficient e.g.

A

Oscar Chess Ltd vWilliams [1957] 1WLR 370

119
Q

Great Peace Shipping Limited v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407

A

test for common mistake

1) common assumption of state of affairs
2) no warranty by either party that states it exists
3) non existence of affairs must be due to either party
4) must render performance impossible
5) must be vital attribute of consideration

120
Q

No mistake?

A

Breach

121
Q

Mistake?

A

Contract void

122
Q

Duress?

A

Illegitimate pressure + causation

123
Q

OccidentalWorldwide Investment Corporation v Skibs A/S Avanti [1976] 1 Lloyd’s Rep 293, 336 (Kerr J).

A

def of duress

[Some action] which could in law be regarded as coercion of his will so as to vitiate consent.”

124
Q

Barton v Armstrong [1976] AC 104 (PC)

A

Duress to the person

125
Q

Astley v Reynolds (1731) 2 Str 915

A

Duress to Goods

126
Q

Atlas Express Ltd v Kafco [1989] QB 833

A

Economic Duress

127
Q

Undue influence?

A

consent obtained by unacceptable means

unfair exploitation

128
Q

how to see undue influence?

A

relationship pf influence + abuse of relationship

129
Q

Williams v Bayley (1866) LR 1 HL 200

A

Actual undue influence

130
Q

Royal Bank of Scotland v Etridge (No. 2)

[2001] UKHL 44

A

Presumed Undue Influence

131
Q

CPR 1.1

A

Deal with cases justly and at proportionate cost

132
Q

CPR 44

A

Identifys how the court should deal with damages

133
Q

CPR 36

A

about offers to settle

134
Q

Bellway Homes Ltd v Seymour

A

costs penalties fro parties

135
Q

CPR 6

A

directions for service of documents

136
Q

CPR 7

A

how to start proceedings

Law: Y1 (6 decks)

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