Remedies Flashcards
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First tie on module this heyar, ewuitable remedies obvs course to datr concerned with institution fot rust, epress trust resulting trust c.t. , trusts for rpivste purpose,cy prs , so very much looking at turst and how can eb created when arise and duties trustes, proeitatyr rememd ben, todays elc and enxr weeks lec. But this alst topic si really nothing to dow tih trust, sep topic butmake up equity, requite rem part of ost equit course
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Forget trusts and just focus on remedies avila an equi- final chunk of equity and trust course. Thing slike recision, rectification, injucntions, specifi perfoamcne, so this whoe topic remedies, tutorial q and will be examind fis time this year.f or those hwo ahte trust this wil eb saving grace. Equit remedies do – do soemthign toehr than topic relaitn trust makes upo this lec and next lec so heres u opp
Introduction
Introduction
Equitable Remedies apply in ALL fields of law, e.g Contract, Intellectual Property, Tort
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e.Gs ithings like injcutioms tro restrain breach of contract or stop osmeoen rbeahcign agreement tor estrain use of conf info or breach of cxopyright injuction be obtained ormdidle tort stp someone trespassing land injunction
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So equitable remeid- injucnitons… really do paly importna tpart and compliment civil law obcs vommonlaaw mian rem = damages how mcu u get but if suffer loss entitled to common law dam as right.. Ct work out and then loo at rules rmeottes award, comp .. But saw e=gsutiruakcaky , equitably developed menu other – speciif perfom recison, all equitable re,
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All eq rem highly discretionary hut all this additional rem work ina didito to dimple comn la wdamage this flexi bity .. Have been defvleoped b equity ckviilc ause of action
So facet equity improtnat felt improant to include in equity trust course
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Equitable Remedies were developed in Court of Chancery to ameliorate the harshness of the Common Law and to provide for alternative relief, with remedies being developed like, Rescission, Specific Performance and Injunctions and account.
RESCISSION
Rescission is the right of a party to a contract to have the contract set aside and to be restored to his former position as if the contract had never been formed.
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to restore status quo anti psootion before agreement entered into, why want recision want ti bc ct undo contract to roder a transfer consideration back from aprties form ocne it came to undo contr to set it aside perhapos on trms, discretion tod ot hat.
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When get recison- say contrat nebver been form bc some factor lessen genuines consent parties of that aghreemnt obv e.g.mis rep fraudlent neg or inncoen to coursevaries bit there under misrep act1967 s.2 – recison potential rem there. But still equitybale and still discretionary
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Rescission can be ordered by a court for various reasons here, mistake, fraud, lack of consent.
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When else could recison be ordered – well euqitbale to recend contract but discresion of court. Or where contract entered into udnure influence improper pressur epalced some shape or form on 1 contracting party agaisn another.
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Right barclasy bank v obrein remebr contract law- right to set aside contrac, th undue influence means imporper pressure,
Justice nuebuerger – problisoky brown undue infleucne in family home chec I tout – hardback 2002 haven’t updated not much happen sicne then prob could right second edition.
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Recision- for what other vixitiaing factors can lessen quality of consent trasncaiton like contract get recision fo it- misrep, undue infleu, duress gun to ehad sign here, didn’t truly consent, so recision be avial
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Eonomic dures- don’t sign will stop selling cheap cig- economic presur-e economic durees contract la- any of these estab show contract weasdnt propab entered itno get eecision but recision is an equit remedy and wright to recision is equity innocent party has
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Obs recision here is undoing contract on basis thay consent supporting that contract wasn’t prop obtained, wasn’t due cocneous adidem meetin gof midns bc someone some shape form pressuring enter that agreement.
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So notbased on true geneuiend conset. Court would order each pry to order back value each part gave other
Receion to terms. But ud try bring about restituor intgreim to restore pre contractual positon besta s u an.
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Sometiems have to makeppl give reciosn on terms- chees v Thomas but reccison equitable discretianry remdy.
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Distinguishable from Rescission for breach !
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Obvs reciision undoing contract for LACK OF COSNENT DIFF FRO RECINDING CONTRACT FOR BREACH – if someone in fundamental breach u are gine trust u can elect to terminate contract and accept repudairtoy brech. Almost like fundamental breach offer to terminate offer accpe can term u can then accept breach.
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Soemtiems called recision fro brehac
But recision here sayin contract should ntb be made cos pressure in first palce
So reciion is this sense equitablea dn discretionary
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E.G At common law a contract can be rescinded for mistake where the parties have made a mistake which negates agreement or which would make the performance of the contract as agreed impossible.
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Great Peace Shipping v Tsavliris Salvage [2003] QB 679
CA held: There was no separate form of mistake in equitable which merely rendered a contract voidable, only mistake at common law which could render a contract void.
Lord denning only 1 mistkae at common law
Rescission of Voluntary Transactions
So if u give away some money as deed of gift, so just five someone 20,000 deed of gift, a gifts money to b b nothing return no contract no consideration and then transpires only reason cos b gonna blow brains out the obvs 1 can get recision of giftr on absis of duress
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Equity may grant rescission of a voluntary transaction, e.g where a person has transferred property by way of a gift absolutely, or transferred it to trustees on trust, whether effected by Deed or otherwise.
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Futter v IRC [2013] UKSC 26
Test for rescission of voluntary transactions less onerous than for contracts.
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So u can recind anything under equity-equitable fuad or wrongdoing- so u can recing gifts easier tor ecind gifts
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futter v irc- obvs less onerous than undoing cotnractc os got bargain aspect, no cons just 1 way transfer. But if can show that transfer is precured by duress or undue infl or fraud or some othe wrongdoing u can get recsision I equity. Equity can unravel all these naught things.
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Test being : ‘ the true requirement is simply for there to be a causative mistake of sufficient gravity’.
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This could be a mistake either as to the legal character or nature of the transaction, or as to the effects of consequences of the transaction, including tax consequences.
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Ultimate test is: Would it be unconscionable or unjust to leave the mistaken disposition uncorrected? This is an objective test.
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Is it uncocnsiouble r.a.w couldnbe transfer of alnd, property , giving away mign vase u can undo recision of anything any gift. But have to show be uncconciousble unjust not to roder recison- q for judge.
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Defence of Change of Position ?
If before becoming aware/should have become aware of it being unconscionable to retain the benefit of the disposition, the recipient materially changed their position, the defence of change of position might prevent liability or minimise the same.
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There amy be defence of change of position – so if before coming aware or should bec oem awa re- innocent part materially hnage positon or person gvign prpa way changed pos people relied somehow on that gift. That mgith epvent recison of it but depend on facts each and evry case- that’s a restitution argument.
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Ur preventing an unjust enrichment here by ordering recsion of a gift which should ahev taken palce, did thru duress, but fi soemwhow there sbeen chan e of pso and ebcoems unjust to roder a recison that cans tp rec being roderd bt that restitution lawayers arg
Rescission for Misrepresentation
A misrepresentation is a false statement of existing fact which in fact induces a contract, it does not render a contract void but voidable at the election of the misrepresentee.
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Recision mis- saw in contract law- contract entered into false state existing fact which induces contrac tor a cause of inducing cont but not necc the cause recision is avial potentially whether misrep fruadlent neglgien to or innocent, depending on cuplabilti, wickeness of wrongdoer… so how guilty or incnoent maker statement is can dictate lieky toget recision or not
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Rescission of a contract is available for both fraudulent, negligent and innocent misrepresentation (depending on culpability of maker), Ss.2 (1) and (2) Misrepresentation Act 1967
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If the misrepresentation is fraudulent or negligent the misrepresentee can claim rescission and/or damages (on a tort of deceit/fraud basis, S.2(1)).
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Rescission is at discretion of court, subject to bars, affirmation, delay (laches), restitutio integrum. Burden of proof is on maker of statement to show reasonable grounds for believing.
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If the misrepresentation is innocent rescission OR damages in lieu available S.2(2).
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Recission of coruse always ultimately discretion foc ct and are those bars to recisison for msirep in context of cotnracts
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for e.eg despite misrep di guy nonetheless take car pay for ti and go around running taxi business 6 months before gone ct. if has done cant cliam rec coss used it andf been happy to wave thr eefct of misrep and carry on with it. Might be able to get damage I lieu but point ebign ahs he in someway affirmed contract and u can lose right then to set aside btus till be able claim dam for obvs any loss of overpaying car. Or fi he goes to ct may nto drive taix around, goes get rec
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.. Ct says ur unreasonably delayed, uncocnsioubly delayed to assert ur right ofr ecc. Resturory itnegreim, restoring status quo anti u getting money back him getting car back has bene lost bc of delay.doc tor of lechees. So are these bars of reccison
Rescission for Undue Influence
Contracts, voluntary dispositions (absolute gifts or gifts on trust) can be set aside where they have been procured through undue influence.
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*See Pawlowski and Brown Undue Influence and the Family Home 2001 Cavendish.
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Several types of Undue Influence:
Actual
Where one party has actually applied improper pressure (short of duress) which induces the transaction/disposition.
-actual improp pressure cause someone to enter intoa greement which otherwise wouldn’t done
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See Bank of Credit and Commerce International v Aboody [1990] 1 QB 923
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Bank – mis aboady was hierarchy dures,s cultarlly did everything hudband told her, thretn abuse all sign mortgage agreement and she did and there was actual undue infl. Think claim failed cos cultrally signed anyway even if been no undue ifnlue. So weren’t cuase of her unsigned but illustrating banging fists and thigns is improper pressure actual undue influence
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Presumed Undue Influence
Where the nature of relationship between parties to transaction/disposition gives rise to a presumption of undue influence and such influence was exercised.
E.g Parent/child; spiritual adviser/disciple; doctor and patient; lecturer/student; married and cohabiting couples; solicitor/client.
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Presumed undure can arise where nature of rels r.a.w is such that law presumes oen ahs some sort of power or pshyciologcal control vor other. That to enter into r.a.w parent child e.f = power relationships – so any gift or contracted entered into where weaker party gives to some benefit tos tronger aprty can be recind at election of the weaker party and court can order recision in equit jurisdiction.
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OR where a relationship of trust and confidence reposed by one in another is established.
- Or presumption of undue ifnlu can arise where 1 person palces trust or conf in another. So this can happen inc otnext husband /wives aprtners
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e.g 1 person simply says I trusted this eprso and went along and signed mortage agrrememnt. If uc an estab that 1 pary did that reposed trust and conf in other that then create presumption of undue ifn arising inf avour of strongr pary. Weaker paety ge trecision of transc once crossed hurdle. Unelss stronger aperty can show weaker party idnepdnanct advice clearly waware what getting themselves in for. So b.o.p shifts otherwise recisio will be ordered.
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Allcard v Skinner (1887) 26 Ch.D 145- recision ordered
Barclays Bank v O’Brien [1994] 1 AC 180
Roche v Sherrington [1982] 1 WLR 599
Wright v Carter [1903] 1 Ch.27 CA
CIBC v Pitt [1994] 1 AC 200
Credit Lyonnais v Burch [1997] 1 All.E.R 144
Royal Bank v Scotland v Ettridge No.2 [2001] AER 449
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A third party such as a bank or mortgage lender might be affected and tainted with the undue influence of say one individual procuring the consent of another over whom he or she has influence, into entering say a mortgage agreement. If so, the undue influence, is deemed to come from the third party bank as it has NOTICE of the wrongdoing of the one who exercised undue influence.
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See Barclays Bank v O’Brien (above) (HL)
Royal Bank of Scotland v Ettridge No.2 (above) (HL).
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Barclasy abnk will be tsinrd with husbaned resumed or actual ifnleucne unless tkane step sto detain themselves if bank were o unotice rela trust conf etc.
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all stuff on idnepdnant advice and guidleiness etc whichc oems thru etrdige no2 if undure ifnl shown toe xist an if bank nto fre of it are tained by husabnds wrong doing , th en bankd eemd asif undue infleu bank over wife. Which gives her right to set aside mortgage trans feasibly her in bank
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Its how do u infect bank with husbands bullying behiacivoru or undue influence, how do bank, notice of it unless essentially steps take them off notice.
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But it could be obvs law there to protect women ut can protect men with bulling wife. But what step should bank do to make ensure not sucked into al this. Cos tehyc an eb contaminated by his ro her bulyig ro wrogn doing, wqhcih can lead to transacitonbtw them being set aside, tis asif undue ifnl then come from bank
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. So recision claim to set aside trnsactiojn visibly victim an bank its asif udneu ifnl came from bank cos the unoteied and get contiamnted of usbands wrongdoing,t hats logic of alw here- so recison would be remedy.
Rescission for Undue Influence
Where the victim of undue influence wishes to set aside a transaction, contract, will, gift, trust etc, on showing the undue influence caused them to enter into the transaction, a court may set the same aside, i.e rescind the transaction in its equitable discretion.
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Whole point gotta enter into them where contract elads gift, justopen gift entering wills withf ree and ifnoremd consent. And if tjink been udnure influence in perucign that gift contract or wil, the person can seek to set aside that transaction if they can show undue influe.
Ct then has equitable remdy fo reci, can award and set aside transc perhaps on terms or absolutely. Undo the transaction in q. the gift contract will. Like form fo equitable fraud. Frsud unravels everything and remedy to do that sir ecsion.
Discretinary remedy, ti can be on terms say reision of contract, to make someboy discorge benefits theyvre received until contract set aside they may have recievd be n under contract, if gonan set aside so got acocoutn for ebenfits recievd wlel contract was alive, this was called to make coutne rrestititiuion. Otherwise peosn contract set aside egt out of ti but obtain benefits while was alive.
