Week of 15 Apr 2024

Question 1

The Environmental Health Committee, which is part of a local council, is required by statute to inspect the hygiene and food safety of all restaurants in their area. The committee has decided to delegate the inspections to a company, Food Safety Inspections Ltd. The owner of a restaurant has received a poor safety rating from the inspection company. In response, the owner of the restaurant files an application for judicial review with respect to this decision.

If the owner succeeds on their judicial review claim, which of the following grounds is most likely to be the reason?

Answer 1

(A) The owner will most likely succeed on the grounds that the Company received an unlawful delegation of power. When a public body is granted a power by statute, they are not allowed to delegate the power unless expressly authorised by the same statute. As there is no indication that the committee was allowed to delegate their power, their delegation of power to the inspection company was unlawful. (B) is incorrect. A decision will be considered irrational if it is so outrageous or absurd that it cannot be considered lawful. No facts in the question indicate that is the case here. (C) is incorrect for the same reason as (B), as ‘irrationality’ and ‘unreasonableness’ are synonymous. (D) and (E) are incorrect because there is no general common law duty to consult or give reasons, and, although there is a duty to consult and give reasons in limited circumstances (for example, when statute requires, when a promise has been made, et cetera), there are no facts indicating that those circumstances apply here.

Question 2

A case comes before the Supreme Court concerning the interpretation of a provision in Article 8 of the European Convention on Human Rights. The appellant argues that the court should follow a recent line of decisions from the European Court on Human Rights (the ‘ECtHR judgments’), which provide a clear interpretation of the provision. The respondent argues that the court is free to make its own interpretation of Article 8.

Which of the following best explains how the Supreme Court should treat the ECtHR judgments?

Answer 2

(C) The Supreme Court should follow the ECtHR judgments. Under the Human Rights Act 1998, the UK courts are required to “take into account” the case law of the ECtHR. This has been interpreted as requiring the courts to follow (or ‘mirror’) the ECtHR’s interpretation of convention rights when the point is clear and settled. Thus, in light of the ECtHR’s clear line of authority on the Article 8 provision, the Supreme Court should follow the ECtHR judgments. (A) is incorrect because this choice states the standard the Supreme Court follows when deciding whether to depart from retained EU case law or its own decisions, neither of which is applicable here. (B) is incorrect because the Supreme Court may not ignore the ECtHR judgments but rather should follow them. (D) and (E) are incorrect because, similarly to (B), they indicate that the Supreme Court need not follow the ECtHR judgments

Question 3

The Supreme Court has made a declaration of incompatibility in relation to a provision of an Act of Parliament. A senior minister meets with her junior ministers to determine how to proceed, and they conclude that the declaration concerns an urgent issue.

Which of the following best explains how the senior minister should respond to the declaration?

Answer 3

(D) The best answer is that the senior minister can enact a remedial order to correct the incompatibility, and then lay it before Parliament. Declarations of incompatibility can be addressed by the government through remedial orders. This is a form of secondary legislation which allows the government to amend or repeal legislation, including Acts of Parliament. For matters deemed urgent, ministers can make remedial orders that immediately become effective. However, the order must then be laid (that is, published) before both Houses, and it will cease to have effect if within 120 days, either House has not passed a resolution approving the order. (A) is incorrect because a vote is unnecessary as it is clear what options are available to the government. (B) is incorrect because the senior minister has the option of correcting the incompatibility with a remedial order. She is not required to ask Parliament to correct the issue through primary legislation. (C) is incorrect because the government can (and usually will) respond to declarations of incompatibility; government is not required to ignore such a declaration. (E) is incorrect because it refers to the procedure used for non-urgent matters, which the senior minister is not required to follow

Question 4

The owner of a vacant building applied to turn part of the building into a restaurant. The application has been accepted by the local council’s planning committee. The director of the building company who will undertake the necessary work sat on the Committee when this decision was made. Within two weeks of the decision, a woman who owns another restaurant 50 miles away in another council area reads about the decision of the committee in a newspaper. The woman wishes to challenge the decision of the committee through judicial review proceedings.

Which of the following best explains why the woman’s application for judicial review is unlikely to be successful?

Answer 4

(C) The most likely reason the woman’s application will not succeed is that the woman does not have standing to make the application. To have standing for judicial review, the claimant must have a sufficient interest in the decision at issue. Here, the woman likely lacks a sufficient interest in this decision. The planned restaurant is a considerable distance away from her own restaurant and thus is unlikely to compete with her restaurant. (A) is incorrect because the woman could assert bias as a ground for judicial review. The director of the building company appears to have a financial interest in the granting of the application (it provided the director’s company with work), which would have automatically disqualified the director from being involved in the decision. (B) is incorrect. This choice refers to the ‘victim’ test, which is not the correct test for standing here. The ‘victim’ test applies in cases involving human rights. (D) is incorrect because it is not true. Planning decisions, like other governmental decisions, are subject to judicial review. (E) is incorrect because the woman’s dispute is live, not hypothetical. That is, she is challenging a decision that has actually been made.

Question 5

It has emerged that in 2016, the UK Parliament enacted an Act of Parliament which conflicted with a provision of an EU regulation. That regulation has been preserved as retained EU law. However, this was not discovered until 2021.

Which of the following best explains the legal position?

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Answer 5

(A) The regulation will prevail over the Act. The European Union (Withdrawal) Act 2018 maintains the principle of supremacy in relation to legislation enacted before the end of the transition period (that is, before 31 December 2020). This means that if there is a conflict between UK law enacted before the end of the transition period and retained EU law, the retained EU law will prevail. Here, the retained regulation conflicts with legislation enacted before the end of the transition period. Accordingly, the regulation will prevail over the Act. (B) and (C) are incorrect because, at all times, including before and after the transition period, the regulation prevailed over the Act. (D) and (E) are incorrect as this is not a question of choice for Parliament or the courts to make

Question 6

A man has been dismissed from his employment at a bank because of his religion. As a result, he brings a claim against the bank under Section 6 of the Human Rights Act 1998. In the claim, the man contends that his firing violates Article 9 (Freedom of Thought, Conscience, and Religion) and Article 14 (Prohibition of Discrimination) of the European Convention on Human Rights (‘ECHR’). The bank applies for a dismissal of the case.

How is the court most likely to rule on the bank’s motion?

Answer 6

(E) The court should grant the application because the claim does not satisfy the criteria under HRA Section 6. Section 6 claims may be brought only against a public authority, and here the bank is not a public authority. (A) and (B) are incorrect because the bank is not a public authority and, thus, the application should be granted. (C) and (D) are incorrect because they arrive at the correct conclusion, but for the wrong reason. For (C), Article 14 does apply here in that there is discrimination on religious grounds with respect to another Convention right (that is, Article 9). For (D), a person must be a ‘victim’ to have standing under Section 6, meaning that the person was directly affected by the conduct at issue, and here the man clearly was directly affected by the bank’s action. QUESTION ID: CNL143

Question 7

A solicitor is employed as in-house counsel in a commercial business. His employer has been involved in court proceedings and it is held that important evidence has been destroyed by the legal team. This is widely publicised in the media and the SRA investigates the behaviour of the in-house counsel, who states that whilst he knew it was wrong to destroy documents, he did this because he was acting on orders from his employer.

Which of the following statements best describes the solicitor’s position?

Answer 7

(B) A solicitor is an officer of the court and a regulated person and must comply with the SRA Standards and Regulations. His actions have placed him in breach of SRA Principles such as the duty to uphold the constitutional principle of the rule of law and the proper administration of justice, the duty to act with independence (that is, independence from his employer), and the duty to act with integrity. The solicitor also has breached the SRA Code of Conduct for Solicitors, RELs and RFLs, which prohibits misusing or tampering with evidence. (A) is incorrect for these reasons; it is no excuse that the solicitor acted on orders from his employer. (C) and (D) are incorrect; the SRA has no regulatory reach over the employer. (E) is incorrect because a solicitor should be aware of their regulatory requirements and behave professionally.

Question 8

A solicitor is supervising a colleague, Joseph, who is a solicitor with five years’ post-qualification experience. The firm in which they are employed has a very short supervisory policy which simply states that supervision must be appropriate and proportionate. Consequently, the supervising solicitor decides that she will conduct one face-to-face meeting each year to deal with appraisal requirements and review one file each quarter. The solicitors work in different offices of the firm and rarely meet face-to-face. One day, the compliance office for legal practice sends an email to the supervising solicitor as follows: ‘I have received a complaint from a trial judge about Joseph. He was late for court and badly prepared. What’s going on?’

Which of the following statements best describes the position of the supervising solicitor?

Answer 8

(B) In acting as a supervisor or manager of others providing legal services, the solicitor remains accountable for the work carried out through them and must effectively supervise work being done for clients. The supervision displayed here seems light touch and therefore ineffectual. (A) and (C) are incorrect because these statements contradict the regulatory duties expressed in the SRA Standards and Regulations. (D) is incorrect as the expectation is that there will be supervision of all staff providing legal services regardless of individual experience. (E) is incorrect because the regulatory duty is to supervise in a way that ensures good quality, ethically based legal services to clients

Question 9

A former client has contacted a solicitor to inform them that they have a relative who needs legal advice on a property purchase. They want to refer their relative to the solicitor’s firm, but they ask that the solicitor share 10% of their fees for this matter with them.

Do the rules of professional conduct allow the solicitor to enter into this arrangement with the client?

Answer 9

(D) Fee sharing arrangements with a third party must be in writing, and the client must be informed of any fee sharing arrangement that is relevant to their matter. (A) is incorrect because a solicitor can share their professional fees with non-lawyer third parties. (B) is incorrect because the agreement to share fees must be in writing. Also, the client (here, the relative) must be informed of any fee sharing agreement that is relevant to their matter, but written consent is not required. (C) is incorrect because having a fee sharing agreement does not necessarily mean that a solicitor is acting without integrity. (E) is incorrect. This is not a ‘prohibited referral fee’ as it is not a personal injury matter

Question 10

A solicitor has an interest in another business which is an estate agency. The solicitor is dealing with the administration of an estate for a client and intends to refer the executors to the solicitor’s estate agency to market the deceased’s property. The solicitor believes that this particular estate agency is ideally suited to handle this.

Do the rules of professional conduct allow the solicitor to refer the client to the solicitor’s estate agency

Answer 10

(D) A solicitor is permitted to refer the clients to their separate business as long as they have the client’s informed consent to do this. Informed consent means the solicitor should tell the client about their interest in the separate business. (A), (B), and (E) are incorrect because there are no other facts indicating that the solicitor is acting without integrity, or is taking unfair advantage of the clients, or that this would create a conflict of interest. (C) is incorrect because the clients’ informed consent is required for any referral to a separate business.

Question 11

Two prospective buyers are attending a residential property auction, and both have approached the same solicitor to act for them. The first prospective buyer is a large company with its own in-house legal team, and the second prospective buyer is a local farmer who has never instructed a solicitor before.

Which of the following statements best describes whether the solicitor should accept instructions from both prospective buyers?

Answer 11

B) Acting for two buyers competing for the same property is a conflict of interest. Even though a solicitor may act despite a conflict where clients are competing for the same objective, this exception only applies if certain conditions are met. One such condition is that the solicitor must be satisfied that it is reasonable to act for all the clients. One factor to consider when determining whether acting for all clients is reasonable is the relative knowledge and bargaining power of the parties. Here, one prospective buyer is a sophisticated company and the other is an individual. The ‘competing for the same objective’ exception is generally only used when the clients are sophisticated users of legal services. Therefore, (A) is incorrect. (C) is incorrect because the ‘substantially common interest’ exception has no relevance to this scenario as the buyers are competing in the auction. (D) is incorrect. Giving written consent despite a conflict is only permitted for the two exceptions mentioned above, and this is not a situation where the clients can give their consent for the solicitor to act. (E) is incorrect because a conflict situation covers the entire firm, not just individual solicitors within the firm.

Question 12

A solicitor has a meeting with a client who is involved in a boundary dispute with their neighbour. The client instructs the solicitor to do whatever is necessary to win the argument and says that they are prepared to go to court if that is what is needed to win their case. The client also says that they have the means to pay and that money is no object. The solicitor’s view is that the client’s case is weak.

Which of the following statements best describes the solicitor’s obligations under the SRA Standards and Regulations?

Answer 12

(D) The solicitor must give the client information in a way that they can understand and ensure that they are in a position to make informed decisions about the options available to them. This means that the client must be advised about the solicitor’s opinion on the merits of the case. (A) is incorrect; as long as the case is properly arguable then the solicitor can accept instructions. A weak case can still be properly arguable. (B) is incorrect as there is no regulatory duty to ask the client to take independent advice before accepting instructions. (C) is incorrect; the solicitor must ensure that this information is given to the client. (E) is incorrect as it would be unprofessional to seek such an indemnity, and the solicitor must ensure that they have appropriate professional indemnity insurance to cover the risk of acting.

Question 13

A solicitor’s uncle instructs the solicitor to draw up his will. The uncle wants to leave £800,000 to the solicitor in the will. The solicitor urges the uncle to take independent advice as to making this gift, but the uncle refuses. The solicitor drafts the will in accordance with the uncle’s request.

Did the solicitor breach the SRA Code of Conduct for Solicitors, RELs and RFLs?

Answer 13

(A) The SRA have issued specific guidance for situations where a solicitor is drafting a will for a client and the client proposes to make a gift of significant value to the solicitor or a member of the solicitor’s family or firm. When this occurs, there is usually an own interest conflict (and the solicitor must refuse to act) unless the solicitor is satisfied that the client has taken independent legal advice with regard to making the gift. Because the uncle did not take independent advice, the solicitor had an own interest conflict and should not have acted. (B) is incorrect because urging the client to take independent advice is not sufficient; the solicitor must be satisfied that the client has actually done so. (C) is incorrect because there can be an own interest conflict even where the client is the solicitor’s family member. (D) is incorrect because it is too broad. A solicitor can accept a significant gift from a client where there is no significant risk of an own interest conflict; for example, the solicitor can act where the client has taken independent advice as to making the gift. (E) is incorrect because a solicitor generally is not prohibited from acting for family members

Question 14

A woman is explaining to a friend the function of the Cabinet within the government.

Which of the following best explains the Cabinet’s function?

Answer 14

(D) The best explanation is that the function of the Cabinet is to make the most important decisions of the government. Decisions which are expected to go to Cabinet include decisions to take military action, the most significant domestic and foreign policy issues, and setting out the government’s legislative agenda as announced in the King’s Speech. (A) and (E) are incorrect because they are too narrow. The Cabinet does make decisions regarding government budgets and military matters, but they are just two of the matters it is expected to address. (B) is incorrect because it is too broad. The Cabinet makes the important decisions; subcommittees and the Prime Minister (without committee input) can make less important decisions. (C) is incorrect. The goal of the Cabinet, of which the Prime Minister is a member, is to make collective decisions for government.

Question 16

A member of the Welsh Parliament has introduced a Welsh-First right to work law that favours Welsh families that have lived in Wales for more than three generations. The law likely is contrary to the European Convention on Human Rights (the ‘ECHR’).

If the legislation were adopted, who has the power to strike the legislation down as being invalid on this basis?

Answer 16

(C) The Supreme Court can strike down the legislation. If the devolved legislatures pass legislation that exceeds their law-making powers (including legislation that contradicts the ECHR), it will be struck down as invalid. The Supreme Court can make this declaration. Thus, (A), (B), (D), and (E) are incorrect.

Question 17

A solicitor working at a firm was asked by their supervisor to research Criminal Finances Act 2017 c. 22.

What is the name given to this type of reference to an Act of Parliament?

Answer 17

(B) is correct. The language references the year and chapter of the Act of Parliament, and this is known as the Act’s citation. (A) is incorrect as an Act’s short title is a short name given to the Act. For example, the short title of 2017 c. 22 is the Criminal Finances Act 2017. Its long title is “An Act to amend the Proceeds of Crime Act 2002; make provision in connection with terrorist property; create corporate offences for cases where a person associated with a body corporate or partnership facilitates the commission by another person of a tax evasion offence; and for connected purposes”. (C) is incorrect as the royal assent is a reference to the specific date an Act is approved by the Monarch. It would look like “27th April 2017”. (D) is incorrect as a subsection is, as the name implies, a subset within a section of an Act of Parliament. A reference to a subsection would look something like: 2017 Ch 22 s69(1); 69 is the section and (1) is the subsection. (E) is incorrect as there is no such official term.

Question 18

Two weeks after not being paid for providing services to a local council under a contract, a consultant wishes to sue for the late payment of her fee.

Which of the following best explains why the consultant cannot bring judicial review proceedings?

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Answer 18

(C) The consultant cannot bring judicial review proceedings most likely because the matters raised do not involve public law. To bring an application for judicial review, the matters raised need to involve public law. Here, the consultant is suing to enforce a contract, which the courts consider to be a matter of private law. Public law issues involve decisions of a public or governmental nature, where the public authority is making a decision that they have been explicitly authorised to do, usually by statute. (A) is incorrect because the consultant will comply with the three-month time limit to bring a judicial review claim. (B) is incorrect. The consultant would have standing under the sufficient interest test, considering that she is directly affected by the council’s failure to pay her on time. (D) is incorrect because local councils are ‘public bodies’ for judicial review purposes. (E) is incorrect because it is untrue. The fact that a private party seeks judicial review of a public body’s decision does not necessarily mean that only private law issues will be involved. Rather, when a private party sues a public body to enforce a contract, the courts will deem the matter to be regulated by private law.

Question 19

The UK Parliament has enacted the Employment Pay (Nationality) Act 2012. The 2012 Act would allow employers to pay EU nationals 10% less than a UK national. The Act is controversial because it discriminates against EU nationals and is contrary to an EU regulation passed in 1983. In 2021, the EU Workers Union, a trade union that supports the rights of EU workers across the EU and beyond, challenges the validity of the 2012 Act before the High Court.

Which of the following best explains how the High Court would likely respond to the action?

Answer 19

(A) The High Court would be required to give effect to the EU regulation over the 2012 Act. Under the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020, retained EU law will prevail over conflicting UK law enacted before the end of the transition period (that is, before 31 December 2020). Under the 2018 and 2020 Acts, the EU regulation here was preserved as retained EU law, and because it conflicts with the 2012 Act, the EU regulation will prevail. (B) is incorrect because, for the reasons discussed, the EU regulation will prevail. (C) is incorrect because the courts do not have the power to strike down Acts of Parliament. Under the Human Rights Act 1998, the courts may make a ‘declaration of incompatibility’ concerning an Act that breaches human rights, but the declaration does not strike down the law. (D) and (E) are incorrect because, similarly to (C), the courts do not have the power to declare Acts of Parliament contrary to the constitution or to common law rights

Question 20

A group of 30 restaurant employees hold a spontaneous march in central Manchester to call for higher pay in their industry. The group hold the march alongside public roads running through the main shopping and office districts of the city.

Which of the following best describes what has taken place?

Answer 20

(E) A public procession has taken place. A public procession is any march taking place in public, and this would include the group’s march along public roads. (A) is incorrect. A breach of the peace occurs when a person becomes genuinely fearful of harm to themselves or property in their presence as a result of a disturbance, or when harm has or is likely to be done to a person or property in their presence. There is no indication that those events have taken place here. (B) and (C) are incorrect because there is no legal concept of a trespassory march or procession. (D) is incorrect because to qualify as a trespassory assembly, the assembly must take place on land to which the public have no right of access (or a limited right of access). That would include, for example, assemblies obstructing traffic on public roads. Here, however, the procession took place alongside the road, out of the way of traffic. In other words, it took place on land to which the public have a right of access.

Question 21

A defendant is charged with an offence that is triable either way. He wants advice from his solicitor about which court he should go to in order to minimise his penalty and what the maximum penalty would be.

Which of the following is the correct advice to give to the defendant?

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Answer 21

(B) The defendant is best off in the Magistrates’ Court because that court can impose a sentence of up to 6 months with an unlimited fine only. (A) is incorrect because the defendant may be imposed a sentence of 6 months in Magistrates’ Court. (C) and (D) are incorrect as the Crown Court will usually serve a higher punishment, and the maximum penalty may be life imprisonment. (E) is incorrect as the minimum sentence is not 3 months but rather 6 months.

Question 22

At a meeting of senior police officers from around the country, concern is expressed about a new group that promotes terrorism. They ask the Home Secretary to ban the group under existing legislation. However, the Home Secretary is concerned that banning the group may conflict with Articles 10 and 11 of the ECHR, which are qualified rights.

Which of the following best explains the concept of qualified rights?

Answer 22

(C) The state can limit a qualified right if necessary to promote legitimate interests stated in the ECHR article. Articles 10 and 11 are qualified rights. This means that these rights can be limited by the state in the circumstances outlined in the articles to the extent that is necessary and when pursuing the interests outlined-in this case, when it is in the interests of national security or the prevention of disorder or crime. (A), (B), (D), and (E) are incorrect because they do not accurately describe qualified rights. In particular, (A) provides the standard for limited rights, while (B) provides the standard for absolute rights.

Question 23

A thief is charged with theft of £100 from a supermarket till. To access the till, the thief used a penknife to wedge open the till to access the money. The statute that applies provides ‘a defendant will commit such an offence if he uses a weapon in the course of carrying out a theft’.

What presumptions can be made about the meaning of the statute if the literal meaning of the words are ambiguous?

Answer 23

B) is correct because there may be a presumption in favour of the defendant in a criminal trial, but this is rebuttable when there is a relevant legal rule. This accords with the presumption of innocence of the defendant and the burden of proof being placed on the prosecutio

Question 24

The government is pursuing a deeply unpopular policy, which sparks enormous political controversy. At the time it pursues this policy, the government lacks a majority of seats in the House of Commons.

Will the government be required to step down?

Answer 24

(D) The government stays in office as long as it retains the confidence of the House of Commons. This means that the government remains in office until the House of Commons passes a motion of ‘no confidence’, which can trigger an early election. After the election, if another party has a majority of seats in the Commons, that party would form the next government. (A) is incorrect because regardless of the popularity of the government’s policies, a vote of no confidence would be required to remove the government. (B) and (C) are incorrect because the Speaker of the House of Commons and the Supreme Court cannot decide whether the government remains in power. (E) is incorrect. Despite the lack of a majority, the government remains in office until there is a vote of no confidence in the House of Commons.

Question 25

A legal intern is reading a case that includes a majority opinion and a dissenting opinion rather than a unanimous decision. The intern asks her mentor to explain the difference in precedential effect among the three.

Which of the following states the correct legal position?

Answer 25

B) When multiple judges hear a case, matter that is the ratio decidendi (that is, court statements that are essential to the court’s decision) within their unanimous decision or the majority opinion forms binding precedent. Matter that is not ratio and matter in a dissenting or otherwise non-majority opinion may be persuasive authority, but it is never binding. (A) and (C) are incorrect because matter within a majority opinion can create binding precedent too. (C) is also incorrect in that a dissenting opinion may serve as persuasive authority. (D), on the other hand, is incorrect because a dissenting opinion cannot create binding precedent. (E) is incorrect because, as indicated above, matter within a unanimous decision or a majority opinion that is not part of the ratio can create persuasive authority.

Question 26

In an ongoing court case, the parties disagree over how a provision in an Act of Parliament should be interpreted. One of the parties is relying on a statement made by a minister during a debate in the House of Commons. The court concludes that the provision of the Act is unclear but that the statement of the minister is clear.

For purposes of its ruling, can the court properly refer to the minister’s statement to interpret the provision?

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Answer 26

(D) The court can refer to the statement to interpret the provision. Generally, due to parliamentary privilege, the courts do not refer to statements made in Parliament as an aid to the interpretation of legislation. As an exception, if the legislation is unclear and there is a helpful statement from a minister which is sufficiently clear (as is the case here), the courts can use the statement when interpreting the legislation. (A) and (B) are incorrect because they are too broad. The courts can use debates in Parliament as an aid to interpreting legislation only under the circumstances previously described. (C) and (E) are incorrect because the statement must be by a minister.

Question 27

(D) The court can refer to the statement to interpret the provision. Generally, due to parliamentary privilege, the courts do not refer to statements made in Parliament as an aid to the interpretation of legislation. As an exception, if the legislation is unclear and there is a helpful statement from a minister which is sufficiently clear (as is the case here), the courts can use the statement when interpreting the legislation. (A) and (B) are incorrect because they are too broad. The courts can use debates in Parliament as an aid to interpreting legislation only under the circumstances previously described. (C) and (E) are incorrect because the statement must be by a minister.

Answer 27

(A) Under the postal rule, acceptance by mail creates a contract at the moment of posting, with a couple of exceptions not relevant here. Rejection, on the other hand, is effective when received. So, as the postal rule applies, there is a contract, because the friend’s acceptance was posted before his rejection letter was received. (B) is incorrect because whether the friend paid for the bicycle is irrelevant. (C) is incorrect because when a rejection by post is followed by an acceptance by post, the postal rule will apply and there will be a contract if the acceptance is posted before the rejection is received. (D) is incorrect as the postal rule does apply to this scenario. (E) is incorrect because the fact that the bicycle owner did not read the rejection does not matter; the time of receipt is the relevant factor.

Question 28

A man wanted to buy a car from his nephew, who worked at a car dealership. The two spoke on the phone to discuss a possible sale, and after offering to buy the car the man concluded the phone call by saying, ‘If I hear no more about the car, I consider it mine for £500’. The nephew said nothing, but moved the car from the forecourt before leaving for his lunch break. In his absence, another member of the dealership’s staff sold the car to a third party.

Was there a valid contract between the man and his nephew?

Answer 28

(C) For an offer to be validly accepted, the offeree must have communicated their acceptance of the offer to the offeror. Therefore (C) is the correct answer. (A) is incorrect because silence cannot constitute acceptance: a positive act is required unless both parties have agreed to dispense with the need for communication. (B) is incorrect because the nephew’s actions were not enough to communicate his acceptance to the man. It is unclear why the nephew moved the car. (D) is incorrect as the terms of the offer seem to have been definite and certain: the subject matter and price to be paid are clear. (E) is incorrect because there is no suggestion that the parties did not intend to be legally bound. Even though the parties have a family relationship, it may not be close enough to constitute a domestic and social arrangement. Even if it was, the fact that they are acting in the course of business would be enough to rebut the presumption that they did not intend to be legally bound

Question 29

On 3 November, an investor sent an email to a dealer in precious metals: “Please quote your best price on 800 troy ounces platinum bars for immediate delivery at my bank”. At 10 a.m. the next morning (4 November) the dealer replied by email, “My best price is £475 per ounce”. The investor received the dealer’s message later on that same day.

What is the best characterisation of the communications between the investor and the dealer?

Answer 29

B) The investor’s communication was a request for an offer and the dealer’s response was an offer. For a communication to be an offer, it must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. The investor’s communication does not pass the test because it is clear on its face that he did not want to be bound by whatever price the dealer came up with, but rather wanted to find out what the dealer would offer. The dealer’s communication, on the other hand, passes the test. Whilst it said nothing more than the price, it was sent in response to a request containing specific delivery terms and a specific quantity. Under the circumstances, the dealer’s response would have created a reasonable expectation in the investor that the dealer was willing to enter into a contract under the terms of the two communications. (A) is wrong because, as indicated above, the investor’s communication was not an offer because it did not indicate the requisite intent to be bound. Thus, the dealer’s communication could not be an acceptance, because an acceptance must be in response to an offer. (C) and (D) are wrong because, as explained above, the dealer’s communication was not merely a price quotation; given that it was sent in response to a very specific inquiry, it was sufficient to be an offer. (E) is wrong as there was no offer made by the investor capable of acceptance, and even though there has been an offer by the dealer, there has been no acceptance by the investor of the dealer’s offer

Question 30

The product buyer for a supermarket chain approaches a selling agent of a frozen pizza manufacturer to negotiate a contract for a recurring monthly purchase of pizzas. The buyer explains that the chain desires to purchase 400 pizzas per month for each of its supermarkets, and that the pizzas are to be a mix of the six varieties of pizza.

After some negotiation, the buyer and selling agent conclude a contract. Among the terms of the contract are a provision for a monthly delivery of 40 cartons of pizzas of a mixed variety to each of the chain’s 50 supermarkets.

Two weeks later, the pizza manufacturer delivers 20 cartons of cheese pizza and 20 cartons of sausage pizza to each of the chain’s supermarkets. Each carton contains 20 pizzas.

The supermarket’s buyer complains to the manufacturer’s selling agent, and the selling agent replies that the deliveries comply with the terms of the contract. The buyer argues that the term “carton” should be interpreted as cartons of 10 and not 20 and that the term “variety” meant a mix of all six of the varieties of pizza the manufacturer sells.

In which of the following circumstances would the courts not get involved with such a contract?

Answer 30

B) Where the courts are unable to conclude that the parties intended to be bound by the contract without their intervention, they are unlikely to get involved in trying to make it work. This is because the ‘meeting of minds’ between the parties necessary for a valid contract would be absent. Therefore (B) is the correct answer. (A) is incorrect because, where the courts are unable to show sufficient certainty to enforce a term, an alternative would be to sever the uncertain term from the contract and allow the parties to enforce the remainder. However, the more essential the term, the more difficult it will be to sever it from the contract. (C) is incorrect because if partial performance of the contract has taken place, and one or both of the parties have acquired rights under it, the court is more likely to get involved to try and give effect to the parties’ intentions. (D) is incorrect because the presence of a dispute resolution mechanism, such as an arbitration clause, may be enough for the courts to find that the contract is sufficiently certain, as the parties have a contractual means of resolving a dispute as to the terms. (E) is incorrect because in a commercial situation, where the parties are familiar with the particular trade with which the contract is concerned, the courts are likely to imply terms which are normal in the trade into the contract to make it work

Question 31

Two businesses are negotiating a contract for a delivery of coal. The parties have finalised all the terms including payment and delivery, but as one of the directors of the coal supplier is going on holiday, signature of the written contract is delayed and it is marked ‘subject to contract’ pending her return.

Do the parties have a binding enforceable contract?

Answer 31

E) Marking a contract ‘subject to contract’ means that the parties do not yet intend to be legally bound. Negotiations have taken place, but the parties are in agreement that a legally binding agreement will follow, therefore (E) is the correct answer. (A) is incorrect because, whilst it is correct that in a commercial situation the parties are presumed to intend to be legally bound, this presumption is rebutted by the inclusion of the words ‘subject to contract’. (B) is incorrect because all the elements of a valid contract are not present, as the parties lack legal intent. (C) is incorrect because, whilst a contract does not have to be in writing, there is no intention to be bound by terms agreed orally if they are stated to be ‘subject to contract’. Also the draft contract is in writing, and even if there were verbal discussions as to the parties’ intent to be legally bound, the written terms are likely to be definitive under the parol evidence rule. (D) is incorrect because a contract marked ‘subject to contract’ does not require execution by deed. Categories of contract that require execution as a deed include a conveyance by land or a contract that lacks consideration

Question 32

What is an ‘invitation to treat’?

Answer 32

D) An invitation to treat is an expression of willingness to negotiate, which falls short of a valid offer. (A) is incorrect because a counteroffer is a response to a valid offer, which terminates the original offer and renders it incapable of acceptance. As there is no valid offer in the question, there can be no counteroffer. (B) is incorrect because it states the definition of an offer, not an invitation to treat. (C) is incorrect because an invitation to treat falls short of a valid offer, it merely invites offers to be made. (E) is incorrect because where an agreement between parties remains ‘subject to contract’, they are in agreement, but until a formal contract is entered into, they do not intend to be contractually bound.

Question 33

A marketing company has its offices in an older building that is heated by a boiler. On a recent cold day, the managing director of the company noticed that the office was cooler than it should be. The managing director asked the company’s facilities manager to have a heating engineer come in to determine what can be done to make the offices warmer.

The facilities manager calls a heating engineer who inspects the existing system. The engineer determines that the old heating system should be replaced. After brief negotiations regarding the price, the heating engineer agrees to supply and install a new boiler in the company’s offices. The only terms agreed are the make and model of boiler and the price.

Which of the following will be implied by statute into the contract between the company and the heating engineer?

Answer 33

(E) When goods are supplied under a contract for services, all the statutory implied terms are implied by the Supply of Goods and Services Act 1982 (‘SGSA’). These terms include conditions relating to the goods similar to those which would be implied by the Sale of Goods Act 1979 (‘SGA’) in the case of a sale of goods contract. They also include terms (which are ‘innominate’ terms) that the work will be carried out with reasonable care and skill, and that it will be carried out within a reasonable time if no time for performance has been agreed. (A), (B) and (C) are incorrect because the SGA has no relevance to this contract. (D) is incorrect because the SGSA implied terms relating to care and skill and time for performance are innominate terms, not conditions

Question 34

Question
On 6 December, the owner of an electronics store sent a written request to a computer manufacturer asking for the price of a certain laptop computer. The manufacturer sent a written reply with a catalogue listing the prices and descriptions of its computers. The letter stated that the terms of sale were cash within 30 days of delivery. On 14 December the store owner ordered the computer, enclosing a cheque for £4,000, the listed price. Immediately on receipt of the order and cheque, the manufacturer informed the store owner that there had been a pricing mistake in the catalogue, which should have quoted the price for that computer as £4,300. The store owner refused to pay the additional £300, arguing that his order of 14 December in which the £4,000 cheque was enclosed was a proper acceptance of the manufacturer’s offer.

Will the manufacturer’s claim for the extra £300 succeed?

Answer 34

(D) The store owner’s letter of 14 December was an acceptance. Whether the letter was an acceptance depends on whether the manufacturer’s letter was an offer, because an acceptance is a manifestation of assent to an offer. For a communication to be an offer, it must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. There must be a promise, undertaking, or commitment to enter into a contract with certain and definite terms. Courts usually hold that if a statement is made broadly, such as in an advertisement or catalogue, it will not constitute an offer because it is not reasonable to expect that the sender intended to make offers to all who received the advertisement; rather, the courts usually find such advertisements to be invitations to treat seeking offers. However, price quotations (particularly from a manufacturer) may be considered as offers if given in response to a specific inquiry. The courts will look to the surrounding circumstances, and here a court would probably determine that the catalogue that the manufacturer sent was an offer because it was sent in response to the store owner’s specific enquiries about prices on a specific computer and it included delivery terms and conditions of sale. (A) is incorrect because, although the letter called for payment in cash, payment by cheque is sufficient. Moreover, because the contract called for payment within 30 days of delivery, even if the cheque was not sufficient, the store owner still had time under the contract to obtain cash. (B) is incorrect because the mistake was unilateral. Generally, a unilateral mistake will not be grounds to rescind a contract unless the non-mistaken party knew or should have known of the mistake. Here, nothing in the facts indicates that the store owner knew of the mistake, and the mistake was not so large that it could be said that he should have known of it. (C) is incorrect because, as explained above, the manufacturer’s catalogue was sent in response to the store owner’s request for information and its terms for sale constituted an offer. (E) is incorrect because there is a presumption of legal intent in commercial situations that can only be rebutted by strong evidence to the contrary, and there is no evidence here to suggest that the owner did not intend to be legally bound.