BL cases Flashcards
Wolf & Wolf V Forfar Potato Company Ltd 1984
Implied revocation new contract offered
Wylie and Lochhead V McElroy and Sons 1873
Implied revocation long time passed
Entores V Miles Far East Corporation 1955
Acceptance took place when the contract was printed out of the claimants terminal in London
Harvey V Facey 1893
Supply of information (Difference between an offer and supplying info)
Pharmaceutical Society of Great Britain V Boots Cash Chemists (Southern) Ltd 1952
Invitation to Treat
Carlill V Carbolic Smoke Ball Co 1893
Advertisements (advert appears to display an intention to be legally bound)
Adams V Lindsell 1818
The Postal Rule (Contract is formed when acceptance is posted unless retracted before acceptance or at the same time)
Thomson V James 1855
The Postal Rule (Contract is formed when acceptance is posted unless retracted before acceptance or at the same time)
The Countess of Dunmore V Alexander 1830
The Postal Rule : acceptance and retraction at the same time therefore no contract
Consideration
Executed consideration: Act in return for a promise
Executory consideration: This is a promise given in return for a promise
Re McArdle 1951:
past consideration for house work
insufficient consideration
Performance of an existing legal obligation is insufficient to support additional reward
Part payment of a debt in full settlement is insufficient consideration to support the promise that rights to the unpaid part of the debt have been waived.
Merritt V Merritt 1971:
he wife paid off the mortgage but the husband refused to transfer the house. It was inferred he intended it to be legally binding so the wife was entitled to sue
Fraudulent Misrepresentation
untrue statement of fact made by one party to the other which induces him to contract
False statement of material fact knowing it to be false, believing it to be false or recklessly not caring
Dunlop Pneumatic Tyre Co Ltd V Selfridge & Co Ltd 1915
third party has no right to sue tires sold between other parties
jus quaesitum tertio
a right accruing to a third party
Implied Terms
give recognition to the customs of a particular trade, give effect to normal expectation in certain recognised relationships, business efficacy, promote fairness
Terms incorporated by reference
subject to additional rules set out elsewhere (e.g. by a professional body)
Ambiguous words:
If vague it is uncertain then it not enforced.
Contra proferentem
standard form contracts (i.e a contract in which the terms are not individually negotiated between the parties) and exclusion clauses are construed contra proferentem. Ambiguity will thus be interpreted against the person seeking to rely on this ambiguity
Ejusdem generis:
list of things
Powell V Kempton Park Racecourse 1899
Ejusdem generis: list of things
The Scottish Farmers Dairy Co Ltd V McGhee 1933
a milkman was contractually bound not to carry on business as a milkman within one mile of his former employer’s business. Found to be reasonable
Nordenfelt V Maxim Nordenfelt Guns & Ammunition Co Ltd 1894:
Restrictions widen to protect business
The seller of an armaments business agreed he would not engage in the trade of arms for a 25-year period (worldwide restriction) this was upheld by the House of Lords on the basis that such an industry was international in its nature
Rentokil Ltd V Kramer 1986
Employee restrictive covenant
K’s Contract of employment prohibited him from canvassing anyone who had been a R customer for two years after K’s employment. R alleged K had canvassed at least 4, K said the restrictions were too wide, court upheld R on the basis it was legitimately protecting its business interests and K had had access to its client lists.
Empire Meat Co v Patrick 1939:
Restrictive Covenants (restriction too wide results in losing all protection) because the 5 mile radius was too wide it failed and the manager could stay.
Taylor V Glasgow Corporation 1952
Exclusion Clauses: (An exclusion clause will be valid only if its terms are incorporated into the contract not after!) She went into baths slipped and fell (clause was at the back of entrance receipt)
LEstrange V Graucob 1934
However if a person signs a document he is held to have agreed to the terms (even if not read)
Curtis V Chemical Cleaning & Dying Co Ltd 1951
misleading explanation of the term’s legal effect: Claimant took her dress to be cleaned, asked to sign a receipt which she was told restricted the cleaners liability for damage to beads and sequins, in fact it said not liable for any damage however caused. The dress was badly stained and she was entitled to assume she risked the beads and sequins on the dress being damaged only.
Thornton v Shoe Lane Parking Ltd 1971:
Exclusion Clauses: (ineffective)
Olley v Marlborough Court Hotel 1949
Exclusion Clauses: (ineffective)
Exclusion clause in the bathroom of the room is was not sufficient for the hotel not to compensate the customers as the contract was made at the reception before the disclaimer was seen by the customers.
Interfoto picture library ltd v Stiletto Visual Programmes:
unusual/onerous term should be highlighted to the other party if its relied on as part of the contract. The conditions included a clause for every day late to receive the photos there would be a charge of £5. Since the term was onerous the court did not apply full repayment.
Part 2 of CRA
protection to consumers
unfair it will not be binding on the consumer although the consumer may choose to rely on the term. Where a term is ambiguous it will be interpreted in the most favourable way to the consumer.Courts will not asses the fairness of terms regarding the price and the subject matter of the contract unless those terms are not transparent or not prominent.
Material breach / breach of a condition
The innocent party has access to greater remedies including the right to bring the contract to an end and claim for damages
Non-material breach / breach of a warranty
The innocent party has no right to bring the contract to an end. Just the right to claim damages.
Failure to perform the contract
Known as a repudiation of the contract (a material breach of contract that entitles the innocent party to withdraw from the contract)
Delayed performance
time of the essence material. time not an issue non material
Anticipatory Breach
Immediate action:
Tsakiroglou & Co v Noble Thorl:
Frustration: closed cannal
White & Carter (Councils) Ltd V McGregor 1962:
Perform: innocent party may ignore the other, continue his side anyway then sue for payment.
Anglia TV v Reed:
Remedies for breach of contract: Damages
Actor broke contract with TV company to make Movie. TV already incurred preparatory costs which were then recovered.
Sykes v Midland Bank Executor and Trustee:
demonstrate that the loss suffered by the innocent party has been caused by the breach
Solicitors acting in breach failed to advise their client of a disadvantageous term in a lease. Client would have entered into the contract even if he had been advised of the term therefore the breach did not cause the loss and no compensation was payable other than nominal damages
Payzy Ltd V Saunders 1919:
the party claiming damages must take reasonable steps to minimise loss
Payzu failed to pay the 1st instalment, Saunders refused to make further deliveries unless it received cash in advance. Payzu refused this. No further goods were delivered. The price of the goods rose and Payzu sued for breach of contract. Payzu should have mitigated loss by accepting Saunders’ offer of goods for cash in advance of delivery. Thus damages were limited to the amount of its assumed loss had it paid in advance, that is the interest over the prepayment period
Hadley V Baxendale 1854:
Remoteness of loss: Loss may not be recoverable if it is too remote, damages may only be awarded for a loss suffered where: the loss arose naturally from the breach, or the loss was reasonably foreseeable as liable to result if there was a breach of contract.
The mill owner was not entitled to damages because it was not reasonably foreseeable to the carrier that the mill would be out of action for that period (most mills have a spare crankshaft)
Hadley V Baxendale 1854:
Remoteness of loss: Loss may not be recoverable if it is too remote, damages may only be awarded for a loss suffered where: the loss arose naturally from the breach, or the loss was reasonably foreseeable as liable to result if there was a breach of contract.
The mill owner was not entitled to damages because it was not reasonably foreseeable to the carrier that the mill would be out of action for that period (most mills have a spare crankshaft)
Victoria Laundry v Newman Industries: .
Special Circumstances need to be disclosed for the unexpected losses should there be a breach of contract:
Late delivery of boiler caused V to lose a lucrative contract. However N was only liable to compensate V for ordinary loss of profits as he was not aware of the lucrative contract
Balfour Beatty construction v Scottish power plc
Power failed and the structure had to be demolished and reconstructed. Held that the loss was remote as the demolition and reconstruction were not within reasonable contemplation of Scottish power (they were not aware of the demolition if power failed).
The control test
an individual would be an employee if the employer could tell him not only what work to do but also how to do it and when to do it.
Walker V Crystal Palace FC 1910:
The control test: footballer was an employee of the club as he was under its control with regards to training, discipline and how he was paid.
The integration test
part and parcel of the organisation’. Under a contract of service an individual is employed as part of the business whereas under a contract for services his work, although it is done for the business, is not integrated into it.
Cassidy V Ministry of Health 1951:
The integration test
a surgical operation was carried out negligently by a full time medical officer at the hospital. The hospital was sued by the patient but the hospital argued that it did not have control over the doctor’s medical work. However the court decided the medical worker was integral to the hospital and thus was an employee.
The multiple (economic reality) test
Remuneration (salary regardless or do they have to invoice), Equipment (do they supply their own), Work routines (determine yourself or does the employer), Mutuality of obligation (if you are asked to do something by your employer do you have to do it or could you allocate it to someone else of your choosing), do you have your own business address etc
Ready Mixed Concrete V Ministry of Pensions and National Insurance 1968
: A driver was self-employed because he could appoint a replacement driver, owned the lorry he used and was responsible for its repair, despite only having one employer whose uniform he wore. The court was persuaded against Ministry which claimed he was an employee and the company should pay NIC
Autoclenz v Belcher 2011:
Car valets stated that they were self employed but they arrived at work each day they were provided with work and there was never any provision for substitute workers. Employer provided the materials and given the bargaining strength of the parties it was considered an employer/employee relationship.
Statement of employment terms
if the employer and the employee do not have a written contract then the employee must provide a statement of employment terms within 2 months of starting work.
Length of notice
the ERA provides that more than a month but less than 2 years = a weeks’ notice and for two years or more than one weeks’ notice per year (until year 12). Ok to agree longer
Terms implied by statute for employment
itemised pay statement (either on or before the day that you are paid). Employees who hold certain public offices e.g. tribunal members must be given reasonable time off without pay to carry out their duties. Employees under notice of redundancy are entitled to time off without pay to find work. All female employees can have up to a year off for maternity leave and can return to the same job and terms of conditions. The Equal Pay Act 1970 (men and women same pay) and the National Minimum Wage Act 1998
Summary dismissal
where the employer dismisses the employee without giving notice. If this happens without sufficient justification then the employer is in breach of contract and will be liable to compensate however if the employee has committed a serious breach of contract then it’s ok
Constructive dismissal:
where an employer repudiates an essential term of the contract of employment and, as a result, the employee resigns. Thus liable for breach of contract.
