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UNI > Contract > Flashcards

Contract Flashcards

1
Q

ramsgate hotel v Montefiore

A

offer cannot be accepted after the fixed period of the offer expires

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2
Q

carlill v carbolic smoke ball

A

advertised £100 to anyone who used a smoke ball and got the flu, and they said £1000 had been deposited with a bank to indicate their seriousness. mrs carlill bought one and got the flu and sued for her money, they were made to pay- clearly i2clr

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3
Q

Barry v Davies

A

an auction with no reserve is offer and acceptance

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4
Q

fisher v bell

A

displayed a flick knife in the shop window- it was an invitation to treat, an offer comes later when someone enters the shop

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5
Q

partridge v Crittenden

A

advert for birds in a magazine- invitation to treat not offer

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6
Q

dickinson v dodds

A

communication of revocation doesnt have to be by the offeror as long as the offeree ought to believe the source that informed him- offer can be revoked any time before acceptance as long as there is no consideration

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7
Q

stevenson v Mclean

A

a request for info won’t destroy the original offer

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8
Q

entores v miles

A

contract is made when and where the acceptance is recieved- it is as if they were in each others presence

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9
Q

byrne v van tienhoven

A

revocation needs to be communicated to the offeree before acceptance

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10
Q

Thomas v Thomas

A

something of value must be given for a promise in order to make it enforceable- even £1 a year as rent

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11
Q

Tweddle v Atkinson

A

tweddles son couldn’t enforce the promise of William guy as he had given no consideration

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12
Q

re mcardle

A

past consideration isn’t valid consideration

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13
Q

williams v roffey bros

A

already in a contract, D promised to pay C a bonus to complete on time, C failed to complete on time but D was still found to be liable for the money because they would have secured a practical benefit and there was no duress on them

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14
Q

high trees

A

paid a reduced rent during the war years but had to go back to full rent after- obiter- promissory estoppel stops claimant being able to get the full rent for the war years

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15
Q

d and c builders v Rees

A

Rees trued to exploit the bad financial situation of d and c builders by offering less money but promissory estopped that

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16
Q

pinnels case

A

payment of a lesser sum on the day its due cant be satisfaction for the whole

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17
Q

foakes v beer

A

beer sued foakes for the interest on the debt- foakes hadn’t offered any consideration for her promise to forgo the debt

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18
Q

Jackson v horizon holidays

A

could recover damages for his distress at the bad holiday but also his additional distress caused by his wife and kids distress- a way to get around privity of contract- connect also to damages for loss caused by 3rd parties

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19
Q

shanklin pier v detel

A

painting pier- paint manufacturer promised it would last 7 years but only lasted 3 months- main contract was between D and contractors but there was a collateral contract of D and paint manufacturers so could sue

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20
Q

s2(1)- contracts (rights of 3rd parties) act

A

circumstances where parties to a contract cant rescind the third party’s rights without their consent

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21
Q

contracts (rights of 3rd parties) act 1999

A

sets out when a third party has the right to enforce a term of the contract

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22
Q

Hong Kong Fir Shipping

A

innominate term- couldn’t be classified in advance as either a condition (serious term) or a warranty (not as serious) so whether they could terminate or not relied on the seriousness of the breach- this one couldn’t be terminated because they hadn’t been deprived of substantially the whole benefit

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23
Q

Bettini v Gye

A

not going to 3/6 of the rehearsals which his contract stipulated was held to be a breach of warranty

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24
Q

poussard v spiers

A

missed the first 4 performances- breach of condition

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25
Q

the moorcock

A

term implied by courts to give the agreement business efficacy - defendants were liable for the damage done to the steamship when it was moored at their jetty

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26
Q

offer cannot be accepted after the fixed period of the offer expires

A

ramsgate hotel v Montefiore

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27
Q

advertised £100 to anyone who used a smoke ball and got the flu, and they said £1000 had been deposited with a bank to indicate their seriousness. mrs carlill bought one and got the flu and sued for her money, they were made to pay- clearly i2clr

A

carlill v carbolic smoke ball

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28
Q

an auction with no reserve is offer and acceptance

A

Barry v Davies

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29
Q

displayed a flick knife in the shop window- it was an invitation to treat, an offer comes later when someone enters the shop

A

fisher v bell

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30
Q

advert for birds in a magazine- invitation to treat not offer

A

partridge v Crittenden

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31
Q

communication of revocation doesnt have to be by the offeror as long as the offeree ought to believe the source that informed him- offer can be revoked any time before acceptance as long as there is no consideration

A

dickinson v dodds

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32
Q

communication of revocation doesnt have to be by the offeror as long as the offeree ought to believe the source that informed him- offer can be revoked any time before acceptance as long as there is no consideration

A

dickinson v dodds

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33
Q

a request for info won’t destroy the original offer

A

stevenson v Mclean

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34
Q

contract is made when and where the acceptance is recieved- it is as if they were in each others presence

A

entores v miles

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35
Q

revocation needs to be communicated to the offeree before acceptance

A

byrne v van tienhoven

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36
Q

something of value must be given for a promise in order to make it enforceable- even £1 a year as rent

A

Thomas v Thomas

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37
Q

tweddles son couldn’t enforce the promise of William guy as he had given no consideration

A

Tweddle v Atkinson

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38
Q

past consideration isn’t valid consideration

A

re mcardle

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39
Q

already in a contract, D promised to pay C a bonus to complete on time, C failed to complete on time but D was still found to be liable for the money because they would have secured a practical benefit and there was no duress on them

A

williams v roffey bros

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40
Q

paid a reduced rent during the war years but had to go back to full rent after- obiter- promissory estoppel stops claimant being able to get the full rent for the war years

A

high trees

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41
Q

Rees trued to exploit the bad financial situation of d and c builders by offering less money but promissory estopped that

A

d and c builders v Rees

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42
Q

payment of a lesser sum on the day its due cant be satisfaction for the whole

A

pinnels case

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43
Q

could recover damages for his distress at the bad holiday but also his additional distress caused by his wife and kids distress- a way to get around privity of contract- connect also to damages for loss caused by 3rd parties

A

Jackson v horizon holidays

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44
Q

painting pier- paint manufacturer promised it would last 7 years but only lasted 3 months- main contract was between D and contractors but there was a collateral contract of D and paint manufacturers so could sue

A

shanklin pier v detel

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45
Q

circumstances where parties to a contract cant rescind the third party’s rights without their consent

A

s2(1)- contracts (rights of 3rd parties) act

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46
Q

sets out when a third party has the right to enforce a term of the contract

A

contracts (rights of 3rd parties) act 1999

47
Q

exclusions and limitation clauses- 2 questions at common law

A
  • is the clause part of the contract?
  • is the clause appropriately worded to cover what has occurred?
  • if yes to both then turn to legislation
48
Q

UCTA 1977 what does it apply to?

A
  • business to business transaction
  • terms which exclude or restrict liability
49
Q

s13 UCTA

A

extends the acts to terms that may not appear at first sight to be limitation clauses such as a term
- which make the LIABILITY OR ITS ENFORCEMENT subject to RESTRICTIVE CONDITIONS
- which EXCLUDES ANY RIGHT OR REMEDY in respect of the liability
- excludes or restricts RULES OF EVIDENCE OR PROCEDURE

50
Q

reasonableness test

A

s11(1)- unfair contract terms act
- burden of proof lies on the party seeking to rely on the clause
- watford electronics- terms are unlikely to be found unreasonable where the contract is between two commercial companies of equal bargaining power

51
Q

consumer rights act 2015 important sections

A

-s64- where core terms can or cant be assessed for fairness
- s62- unfair terms

52
Q

unenforceable terms CRA

A
  • excluding or limiting liability for PI OR DEATH resulting from negligence
  • excluding or limiting liability for BREACH OF THE IMPLIED TERMS about QUALITY, FITNESS FOR PURPOSE AND MATCHING DESCRIPTION
  • excluding liability for the breach of the implied term to take REASONABLE CARE IN A CONTRACT FOR SERVICES
53
Q

effect of finding a term to be unfair

A
  • not binding on the customer
  • it is the individual term that isn’t valid, not the whole contract
  • contract continues to bind the parties as long as it is capable of continuing in existence without the unfair term
54
Q

what does mistake make a contract? and what are the 3 types?

A

VOID
- common
- mutual
- unilateral

55
Q

common mistake

A

both parties have made a contract on the basis of the same false and fundamental assumption

56
Q

3 possibilities to consider before mistake

A
  • term/warranty- one party may have expressly/impliedly promised the subject matter existed
  • assumption of risk- if one party assumed the risk of the non-existence of the subject matter, they are liable
  • misrepresentation- the false statement wasn’t a term but induced the party to enter the contract
57
Q

leaf v international galleries

A

C bought a painting both parties thought was painted by Constable but 5 years later found it wasn’t- claim failed cuz it was about the quality of the painting not the subject matter

58
Q

raffles v wichelhaus

A

2 ships called peerless, one party thought it was the one sailing in Oct, the other thought it was the one sailing in Dec- contract failed for mutual mistake

59
Q

mutual mistake

A

2 parties misunderstand each others intentions and are at cross-purposes- they dont make the same mistake

60
Q

unilateral mistake

A
  • one party must make a mistake as to a fundamental aspect of the contract
  • and the other party must be aware of the mistake
61
Q

cundy v Lindsay

A

a rogue induced Lindsay to sell goods on credit to him by using the name of a company they were aware of. the rogue then sold the goods on to cundy, who Lindsay then successfully sued for the goods because the contract between the rogue and Lindsay was void for mistake

62
Q

documentary mistake

A
  1. a person is induced by the false statement of another to sign a contract that is fundamentally different from that contemplated-
    - lloyds bank v Waterhouse- C was illiterate so this was successful
  2. parties agree on the terms of the contract but record them incorrectly by mistake and one party seeks rectification–
    - Craddock v hunt, contract was for an extra piece of land than originally agreed on so court rectified it to not have the extra land
63
Q

lloyds bank v waterhouse

A

c was illiterate so contract being fundamentally different from that contemplated succeeded

64
Q

Craddock v hunt

A

contract was for an extra piece of land than originally agreed on so court rectified it to not have the extra land

65
Q

misrep problem question

A
  1. is the statement a term or representation?
  2. is the misrep operative?
  3. what type of misrep is it?
  4. has any attempt been made to exclude liability for misrep?
  5. what remedies are available?
66
Q

term or representation?

A

primarily a question of intention

guidelines for if intention is unclear
- timing of the statement- routledge v McKay
- whether an opp to verify was given- ecay v Godfrey
- importance of the statement is made clear to the maker- Bannerman v white
- specialist knowledge and skill of one part- dick Bentley v Harold smith
- whether the statement was put in writing- Routledge v McKay

67
Q

routledge v McKay

A
  • timing of the statement
  • whether it is put in writing
68
Q

ecay v Godfrey

A

whether an opp to verify was given

69
Q

dick Bentley v harold smith

A

specialist knowledge and skill of one party

70
Q

Bannerman v white

A

importance of statement was made clear to seller

71
Q

what makes a misrep actionable?

A
  • false statement of existing or past fact
  • inducement
72
Q

smith v Chadwick

A

the fact must have induced the person to enter into the contract- in this case it didnt so wasn’t actionable

73
Q

type of misrepresentation

A
  • fraudulent- one made knowing its a lie or being reckless- burden is on the claimant to prove this- hard to do
  • negligent- requires the representor to disprove negligence
  • negligent misstatement- careless- breach of DoC- Hedley byrne special relationship test
  • wholly innocent- not at fault, genuinely believed it
74
Q

bars to recission (setting aside the contract and restoring parties to their original position)

A
  • rights of 3rd parties
  • impossibility of restoring
  • affirmation (injured party wants to continue)
  • lapse of time
  • s2(2) MA
75
Q

3 types of duress- VOIDABLE

A

Economic
duress to the person
duress of goods

76
Q

pao on v lau yiu long- 4 factors to see if economic duress is present

A
  • did the person claiming to be coerced PROTEST?
  • did that person have any OTHER AVAILABLE COURSE OF ACTION?
  • were they INDEPENDENTLY ADVISED?
  • after entering into the contract did they TAKE STEPS TO AVOID IT?

dont all have to be present, just guidelines

77
Q

barton v armstrong

A

duress to the person
- managing director was threatened with death if he didnt buy shares from D

78
Q

test for duress- Olib case

A
  • duress must be OPERATIVE (must be a reason for entering into the contract)
  • barton v Armstrong
  • LACK OF A REASONABLE ALTERNATIVE
  • Atlas v Kafco-kafco made to pay more for baskets so not to lose their contract with someone else
  • ILLEGITIMACY OF THE THREAT- threat of an illegal act
  • barton v Armstrong
79
Q

remedies for duress

A
  • damages
  • rescind the contract- can only do if there aren’t any bars to recision
80
Q

undue influence- voidable-when does it apply

A

applies when IMPROPER PRESSURE has been used on a party to the contract
- usually arises in THIRD PARTY SITUATIONS
- influencer (husband) will persuade complainant (wife) by undue influence to guarantee a loan given to the influencer by a creditor (bank) using the matrimonial home as security
- needs to be a RELATIONSHIP

81
Q

two types of undue influence

A

actual
- dominating influence
- no need to show a transaction that requires explanation

presumed
2 types
- special type of relationship existed
(parent and child, dr and patient)
claimant shows existence of relationship, law then presumes influence
- specific relationship was such that the presumption of influence arose
(husband and wife, banker and customer)

82
Q

bank of credit and commerce v Aboody

A
  • younger and traditionally educated wife was asked by husband to take out a loan
  • tried to seek independent advice but he stopped her
  • actual undue influence
83
Q

lloyds bank v bundy

A
  • farmer relied wholly on advice from banker- set aside because of the undue influence
84
Q

2 ways in which a third party could be affected by undue influence

A

agency- debtor seen to be the agent of the creditor- any undue influence exerted upon the victim was deemed to be used on behalf of the creditor- even if they were unaware
notice- whether the creditor has been tainted by notice of the undue influence of one of the parties- eg if a bank is put on enquiry when a wife offers to be surety for her husbands loan- creditor needs to insist the wife gets independent advice

85
Q

things that stop remedies for undue influence

A
  • affirmation/lapse of time- right to rescind is lost if the influenced party affirms the transaction
  • impossibility of restitution- same as for misrep- if the value of property has changed there can be problems
  • third party rights- if a third party has acquired rights eg bought the property then recision is not available unless the third party was aware of the influence then it is voidable
86
Q

when does frustration occur?

A
  • whenever a contract, after its formation, becomes impossible to perform without default of either party
  • frustrating event must not be the fault of either person or foreseeable
87
Q

Taylor v Caldwell

A
  • fire burned down a music hall- wasnt the fault of either party and there wasnt a provision in the contract so it was frustrated
88
Q

frustrating events

A
  • supervening illegality (performance would be contrary to a law passed)
  • further performance rendered impossible by either - destruction of the subject matter of the contract or - non-availability of one of the parties due to death/illness/other circs
  • nature of obligations becoming sig different from what was agreed, by - the non-occurrence of a particular event which forms the basis of the contract or - gov intervention
89
Q

Avery v Bowden

A

crimean war made it illegal to load cargo at an enemy port
contract was frustrated

90
Q

frustration doesnt occur where

A
  • the events are foreseeable
  • one of the parties is at fault
  • the contract becomes more onerous or expensive to perform
91
Q

davis v Fareham

A
  • contracted to build houses for a specific price
  • turned out to cost more than expected
  • wanted it to be frustrated- but wasnt because they could have foreseen the higher cost
92
Q

davis v Fareham

A
  • contracted to build houses for a specific price
  • turned out to cost more than expected
  • wanted it to be frustrated- but wasnt because they could have foreseen the higher cost
93
Q

the law reform (frustrated contracts) act 1943- why was it enacted?

A

came into effect because frustration automatically brings the contract to an end at the time of the frustrating event and that led to some unfortunate consequences

94
Q

appleby v myers

A
  • c undertook to erect machinery on ds premises
  • work was to be paid for on completion
  • the premises and machinery burned down so the contract was frustrated
  • didnt get any money for the work they’d done cuz that was to happen after the frustrating event
95
Q

discharge by performance

A
  • both parties have fulfilled their duties under the contract
  • they no longer have any obligations under the contract
96
Q

discharge by breach

A
  • one of the parties breaches one or more of their obligations
  • needs to happen without lawful excuse (eg frustration is lawful)
  • burden of proof is on the party alleging it has been breached
97
Q

remedies for the innocent party in a breach of contract

A
  • termination
  • sue in equity for specific performance
  • sue for contract price
  • claim damages
  • combination
98
Q

repudiatory breach

A
  • occurs where the defaulting party intimates an intention not to comply with their obligations under the contract
  • may be express or implied
  • types- actual breach and anticipatory breach
    can either accept the breach and terminate and sue
    or
    affirm the contract and hope the party in breach will ultimately fully perform the contract- doesn’t stop them being able to sue
99
Q

discharge by agreement

A

2 types
- bilateral discharge of obligations (neither party performs their obligations
- unilateral discharge (one party hasn’t performed but both parties agree to discharge and fresh consideration is given by party in breach)

100
Q

Victoria laundry v newman industries

A
  • claimants wanted to claim for profits lost from their ordinary business by late delivery of boiler (normal loss)
  • and also the profits lost from their lucrative contracts (abnormal loss)
  • but because the defendants didnt know about the lucrative contracts they weren’t liable for that
  • had to be reasonably foreseeable
101
Q

parsons v uttley Ingham

A
  • d contracted to supply c with a hopper for storing pignuts
  • d installed one faultily and the nuts went mouldy
  • c fed them to some pigs and 254 got an infection and died
  • c was successful in their claim because although the infection couldn’t be foreseen, it was reasonably foreseeable that pigs would be ill if their food was badly stored
  • where type of damage is reasonably foreseeable at the time of contract formation you can claim
  • degree doesnt have to be foreseen but type does
102
Q

3 types of pecuniary losses

A
  • expectation measure (loss of bargain)
  • reliance measure
  • restitution measure

can only claim once for the same loss but can combine claims

103
Q

expectation measure

A
  • giving damages for what the claimant expected to gain by entering into the bargain

can use
- DIFFERENCE IN VALUE (diff between performance provided and performance that should have been provided)
- COST OF CURE (cost of repair)
- LOSS OF OPPORTUNITY (partial recovery on the basis the claimant lost the chance to make the profit)

104
Q

reliance measure (and case)

A
  • puts claimant in position they were in before they relied on the contract

CCC films v Impact Films
- D granted C a licence for £12,000 to exploit and distribute films, the rights to which were owned by D
- D breached contract by sending uninsured copies to third parties
- held D had to prove C wouldn’t have recouped the £12,000 expenditure and couldn’t so C succeeded

105
Q

restitution measure

A
  • return of money where there has been a failure of consideration
  • eg where a seller has paid for goods in advance and they dont recieve them they have to pay the money back
106
Q

addis v gramophone

A
  • non pecuniary losses
  • cant get damages for injured feelings
107
Q

2 exceptions to not getting damages for non-pecuniary losses

A
  • direct result exception- mental distress is a direct result of the physical inconvenience and discomfort caused by breach
  • object of the contract exception- if the object of the contract was to provide a pleasurable experience then you might be able to get losses
108
Q

time for assessment of the loss

A
  • general rule- damages are assessed at the time of the breach
  • if they didnt know and couldn’t discover the breach, damages are assessed at the earliest time they could have discovered it
  • if the party in default performs late and the other party suffers loss because of this, the damages are assessed by reference to when performance was actually rendered, not when it should have been
109
Q

brace v calder

A
  • claimant has an obligation to take reasonable steps to mitigate his loss
  • only entitled to nominal damages if you dont
    (not this case) - only needs to be reasonable, not expected to embark on hazardous litigation
110
Q

liquidated damages clause and what are unliquidated damages

A
  • contract provides for a particular sum to be payable upon the occurrence of one or more specified breaches of contract
  • even if the actual loss is greater/smaller than the fixed sum, that is the amount that will be paid
  • unliquidated damages- the amount is fixed or assessed by the court
111
Q

dunlop v new garage and motor co

A
  • d bought tyres from c and agreed they wouldn’t sell below listed price
  • liquidated damages clause provided that £5 was to be paid for every tyre sold in breach
  • this was held to be a liquidated damages clause because it was a reasonable amount and not excessive
  • it would be a penalty if it was excessive

linked to dunlop v Selfridge- privity of contract

112
Q

equitable remedies for breach of contract

A
  • specific performance (not available as of right but decided by the court)
  • injunctions
  • (mandatory)- orders D to take positive steps to put right what they’ve done wrong
  • (prohibitory)- enforce a negative stipulation in the contract- the D will be ordered not to break the stipulation
113
Q

Warner bros v nelson

A
  • bette davis agreed to work exclusively for Warner bros for a period of time
  • she broke this
  • court ordered injunction to stop her appearing in any production for anyone else
  • but no specific performance saying she had to work for them

UNI (15 decks)

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