Journal Articles

Question 1

Fuller and Perdue 1936

Answer 1

L Fuller and W Perdue, ‘The Reliance Interest in Contract Damages’ (1936) 46 Yale LJ 52

• There are 3 possible purpose for damages: expectation, reliance, resitution
• The main purpose should be, and in fact is protecting the cliamants reliance
• The reason why law often appears to protect expectation as opposed to reliance is because:
  
  1. Enforcing expectation discourages breach of contract thus preventing losses occasioned through reliance.
  2. The reason for not explcitly/directly protecting reliance is that expectation is a more easily measured, and administered recovery, plus reliance is difficult to prove.
  3. If the courts protected reliance then the ordinary business man would hesitate to rely on a promise.
  4. Enforcing expectation therefore most effectively protects reliance by dispensing with its proof, and also maintains trust in the system of contract.

Question 2

Friedmann 1995

(Key quote and 3 main points)

Answer 2

D Friedmann, ‘The Performance Interest in Contract Damages’ (1995) 111 LQR 628

Key Quote: Contracts are made in order to be performed

Main Points:

1. It is better to use teh terminology of performance interest as opposed to expectation interest
2. The law has become more willing to protect this perfromance interest demonstrated by increased willingness to grant SP and cost of cure.
3. The doctrine of efficient breach is entirely antithetical to the nature of contractual promises.

Question 3

OW Holmes 1897

Answer 3

Oliver Wendell Holmes, Jr, The Path of the Law, 1897

Key Quote: The duty to keep a contract at common law means a prediction that you must pay damages and nothing else

• Argues for the doctrine of efficient breach, whereby partes have dual disjunctive obligations requiring them either to perform or to pay damages.

Question 4

M Chen-Wishart 2010

(Key Quote + 3 points

Answer 4

M Chen-Wishart, ‘A Bird in the Hand: Consideration and Contract Modifications’ in Contract Formation and Parties (eds A Burrows and E Peel, 2010) 89

Key Quote: [A] complete answer is provided by supplementing the original bilateral contract with a collateral unilateral contract to pay more (or accept less) if actual performance is rendered

• The solution to the problem of consideration posed by the promise to pay more (or accept less) is to recognise that what the promisor is paying more for (or accepting less for) is the performance of the pre-existing duty, not the promise to perform.
• Therefore what is being made is not a modfication to the pre-existing bilateral, but a new unilateral contract; with the performance of said unilateral contract constituting sufficient consideration.
• Therefore there was consideration for a unilateral contract in, eg, Williams v Roffey.

Question 5

Hooley 2013

(2 points)

Answer 5

R Hooley, ‘Controlling Contractual Discretion’ [2013] CLJ 65

1. Argues that the standard method of controlling an express contractual discretion is by an implied term of fact which, however it has been expressed by the courts, boils down to requiring good faith (ie honesty) in the exercise of the discretion.
2. Analogously, he argues that the choice that an innocent party has to terminate a contract for breach (see Chapter 7), whether under the general law or under an express termination clause, requires that the choice be exercised in good faith.

Question 6

Midwinter 2003

(Key point + 3 part argument)

Answer 6

S Midwinter, ‘The Great Peace and Precedent’ (2003) 119 LQR 180

Key Point: Due to the laws of precedent the Court of Appeal in The Great peace did not have the authority to overrule Solle v Butcher.

Argument:

• The CA is bound by its own decisions with three exceptions
  
  • (i) when there are two irreconcilable Court of Appeal judgments, the Court must choose one and ignore the other
  • (ii) when the earlier Court of Appeal judgment is inconsistent with a subsequent decision of the House of Lords the latter is binding
  • (iii) where the earlier Court of Appeal judgment was per incuriam (‘through lack of care’ ie unaware of binding authority).
• It cannot be said that Solle v Butcher fell into any of these categories and thus, applying the standard rules of precedent, it would seem that the Court of Appeal in The Great Peace did not have the authority to overrule Solle v Butcher. The next Court of Appeal case to come along, however, will fall under exception (i).
• Yet, whatever the technical position as regards precedent, it is surely inconceivable that, after such a detailed examination of the issue, Great Peace would not be followed.

Question 7

Brownsword 1985

(Key point)

Answer 7

R Brownsword, ‘Henry’s Lost Spectacle and Hutton’s Lost Speculation: a Classic Riddle Solved?’ (1985) 129 SJ 860

Key point: The difference between Krell v Henry and Herne Bay v Hutton is that Mr Henry was a consumer and Mr Hutton was acting in a business capacity. The courts do not as readily release a commercial party, as opposed to a consumer, from what has turned out to be a bad bargain.