Contract Flashcards
(196 cards)
1
Q
What are the three types of undue influence
A
Actual influence
Did not enter of own free will
Presumed UI - special relationship
Established relationships cannot be rebutted
Presumed UI - must show a relationship of trust and confidence
Can be rebutted
2
Q
Actual influence - who has the burden
A
The burden lies on the party claiming UI
3
Q
Presumed UI when does it arise
A
In certain relationships law Presumes that a special relationship exists and this presumption cannot be rebutted
Trust and Confidence
4
Q
What relationships are excluded from presumed UI by special relationship
A
Spouses/ civil partnerships
Adult child/parent
5
Q
Presumed UI - trust and confidence
A
Presumption of UI which can be rebutted. Used by spouses and adult children and parents
6
Q
What is the general rule on an agreements that restrict a person freedom to trade
A
They are void the exception is that it is enforceable if the restriction is reasonable and not contrary to public interest
7
Q
5 ways to terminate a contract
A
Performance
Frustration
Breach
Agreement
Expiry of time or an event
8
Q
Performance and remedies:-
Performed but not exactly
Performed lower than substantial
A
Must pay for what has received but can claim for damages for breach of warranty unless precise clause then get nothing
No entitlement to payment u less party accepts the partial performance on a quantum merit basis
9
Q
What is a quantum merit basis
A
As much as he has earned or deserves
10
Q
What if a party is stopped from performing the contract what is the remedy then
A
They can ask for damages for breach or payment on a quantum merit basis
11
Q
Late performance rules
A
Late performance is usually acceptable unless TIE
12
Q
If Time is of the Essence and contact breached what can a party do
A
Repudiate and claim damages
13
Q
If one party has completed his obligation and agreed to terminate the contract unilaterally what needs to happen
A
Non performing party must provide consideration or be in a deed or will not be binding
14
Q
If a person is aware of an anticipatory breach do they need to act immediately
A
No they can decide whether or not to continue and hope it will be performed no matter how unreasonable that may seem or they can act and sue for damages
15
Q
If a contract is frustrated what is the rule on money expended
A
Money must be returned but statute does allow for reasonable expenses to be reimbursed
16
Q
What happens if a contract is frustrated and a party had received a non monetary benefit
A
Court will identify the value and calculate a just sum to be compensated
17
Q
What is a strict performance obligation in a contact
A
Where the obligation must be performed exactly as described or will be a breach
18
Q
What are qualified performance obligations
A
Where a party agrees to take reasonable endeavours to perform and if performed but for example is late no breach
19
Q
When does a repudiatory breach occur and the remedy
A
When a breach of a major term goes to the root of the contract and deprives the non breaching party of substantial benefit
Innocent can choose to affirm or discharge
20
Q
Is a repudiatory breach automatic
A
No it gives the innocent party the choice to affirm or discharge
21
Q
Are the following repudiatory or not
Condition
Warranty
Innominate
A
Yes
No
Only if the term goes to the root
22
Q
What is an innominate term
A
A provision not clearly intended to be a condition or warranty
23
Q
When does statute provide that certain provisions in contract are conditions
A
B2B - SGA
B2C - CRA
MEANS IT IS Repudiatory
24
Q
What implied terms are classed as conditions in the SGA (B2B) (3)
A
Goods will match their description
Goods sold are satisfactory quality
Goods sold by sample match
25
What is the exception to the rule that goods sold by sample that the bulk will correspond with the sample (B2B) SGA is a condition
If the breach is so slight that it would be unreasonable for the buyer to reject the goods it is treated as a warranty
26
Does a breach of a warranty allow repudiation
No only damages
Warranties do not undermine the overall purpose of the contract
27
What do the court consider to determine if an innominate term is a warranty or a condition
The effect of the breach at the time it occurs
Will only class a condition if the breach deprives the non breaching party of substantially all the benefit of the contact
28
If the injured party does not incur a loss as a result of a breach what can he claim
Nominal damages as a token
29
If there is an entire obligations rule in the contract what does it mean
The party must perform absolutely everything or they cannot be paid even if spent money on doing something
30
How can contracts be drafted to mitigate the entire obligations rule
Contract to be performed in stages
Substantial performance
Acceptance of performance by IP
31
Does frustration automatically discharge parties
Yes
32
Name some events that will frustrate a contract
Impossible due to SM destroyed/death or illness of a specific person
Illegal I.e law changes
Main purpose of contact lost
33
What is a fundamental element of trying to claim frustration
It should not result from the act or choice of the party seeking to rely on it
34
What is the general test to determine the existence of a binding contract between parties?
Objective or Subjective
Objective - the reasonable person test
35
When is the subjective test used to determine the existence of an agreement
Where the offeree knew or ought to have known that the offeror made a mistake - means not binding
36
What is important to the exception where a contact uses the subjective test
It only applies if the mistake relates to a term of the contract rather than a collateral matter
37
Are websites an ITT or an offer
ITT
38
Are auctions or tenders ITT or offers
ITT
BUT BOTH HAVE EXCEPTIONS AND BECOME AN OFFER WHEN
Auction is without a reserve
Tender is competitive bids
39
Are automatic vending machines an ITT or an offer
An offer once money inserted
40
Bilateral offers
A promise in exchanged for a promise
41
Unilateral offers
An offer in exchange for an act
42
Can offer be accepted if the person was not aware of it
No an offer must be communicated to be effective
43
What is the mirror image rule
The offer and the acceptance must be the same
If acceptable is different it is not a valid acceptance
44
If an offeror tells an offeree that he will assume his offer has been accepted if he does not hear from him is it legally binding
No acceptance for bilateral offers must communicated
45
When is the offeror free to revoke an offer
Before it has been accepted unless he has agreed to keep it open for a specific time
46
Why is consideration important
It's essential to make a contact legally binding other than deed
47
What is the exception to past consideration
When there is an understanding between parties that the actions of one party will be paid for
48
When a contact is amended the starting point is that consideration must be provided to be what
Binding unless by deed then no consideration is needed unless there is another promise by the other party
49
If one party obtains a practical benefit is this consideration
Yes it's legally binding
50
The starting point for an agreement amendments to pay more than initially agreed is not enforceable due to lack of consideration unless (2h)
The promised provides consideration by doing more than was agreed
Promisor obtains a practical benefit
51
52
If a creditor accepts less than owed under an existing contract is this consideration
No even if creditor obtains a practical benefit
53
What are the exceptions to a promise to pay less
Paid in a different place
Before it was due
Accepted different payment
Agreement between all creditors to pay a percentage
PROVIDED IT WAS MADE A CREDITORS REQUEST
54
Promissory estoppel is a defence what are the elements
Clear and unambiguous promise
Made to amended contracts
Relied on promise
Unfair to go back on the promise
55
A contract that is too uncertain to perform is what
Void
56
What does capacity mean on the enforceability of a contract
The ability of a party to be legally bound by the contract
57
ICLR the presumption of domestic is presumption. What factors can rebut this presumption
Certainty of agreement
Parties are no on friendly terms
Seriousness of agreement
Reliance to a parties detriment
58
Which factor to rebut the ICLR can on its own completely undermine the evidence of other factors
Sufficient certainty
59
Commercial contracts what two factors can rebut the ICLR
Clear words no intention to bind
Uncertainty
60
What words are enough to show commercial contracts shall have no legal effect ICLR
Binding in honour
Subject to contract
61
What two kinds of agreements in the commercial context will not necessarily be conclssive to have legal effect ICLR
Comfort letters & advertisements
62
If an agreement is too uncertain.....
It is not legally binding
63
When can an agreement be held to be uncertain
TOO vague
Not complete
Mistaken
TOO uncertain
Law allows a degree of contractual freedom so if it is certain enough to be performed will be valid
64
When looking at whether agreements are certain or not what's important to look for
Is there any evidence of previous transactions under same agreement that will clarify the terms and option to apt an independent third party to clarify the terms
65
Two tests for showing a person did not have the mental capacity to contract
He can show he did not have the mental capacity
&
Otherside knew or ought to have known that did not have capacity
66
If a person with mental capacity proves he has no capacity what can he do
Set the contract aside and not be bound - voidable
67
What is the exception to the rule if a person does not have capacity/minir where they still need to perform
Must pay a reasonable price for goods and services for necessities
68
What act governs minors
Minors contract act 1987
69
If an agreement is entered into with a company and that conflicts with its constitutional documents which prevails
The agreement and will be bound
70
71
Can the CRTPA be excluded
Yes
72
What is the exception to the general rule of privity of contract under statute and the criteria
CRTPA - where the contract expressly states a third party can enforce
Or
Contract confers a benefit on third party
73
Can a contract exclude the CRTPA
Yes
74
What are exceptions to a third party being able to acquire rights in a contract under common law
Assignment - permitted absolute in writing
Agency - a party made an agreement on behalf of another as agent
Collateral contract - e.g where a person asks a contractor to buy a product due to an advertisement there is a separate contract
Trusts
Contracts of convenience
Party who entered into a contract can sue for others
St Martin's property
Commercial context
Where party a engaged party b to work on his property and both know party A will transfer to party c
Party A can sue on behalf of party C
75
Pre contract negotiations what at three tests to determine if they any legal effect
Puff - no legal affect
Representation - legal effect
Term - legal effect
76
How can terms be implied into a contract
By The courts
By Custom
By statute
77
What is the difference between a term and a representation
A term is a promise that a pre contract statement is true and so becomes part of the contract
A representation is not a promise that a pre contract statement is true but induce a party to enter into a contract
78
What are the factors the court use to determine if a pre contract statement is a term or a representation
Maker of statements knowledge
Importance of statement to the person
If the statement maker assumes responsibility
Any of above it's a term
If the representor advised the representee to check/verify the statement will be a REPRESENTION
79
What term is implied by s12 SGA 1979
The seller has the right to sell goods
80
What is the 4 corners approach that the courts take when interpreting contracts
That if the contract has used clear language the courts will apply it without considering the context in which it was made
81
When analysing if a pre contractual statement is a term or representation what do the court so
Analyse the evidence objectively to determine whether the representor intended to make a contractually binding promise that the statement was true
82
The long the time a statement was made and the contract being entered into means what
Greater the presumption that it was not intended to be a term
83
What is an entire agreement clause
A clause where the parties agree all the terms are contained and no party can rely on pre contract statements
84
What implied term is s9 CRA
Goods will be of satisfactory quality
85
If a term is breached what remedies are available
Damages
Can terminate or affirm the contract
86
What remedies are available for a breach of a pre contract representation
Damages but only for fraudulent or negligent statements
Can rescind the contract
87
When terms are implied in a contract by the court what is the test
Implied in law - necessary
Implied in fact - necessary by using two tests (Officious Bystander Test & Business Efficacy Test)
88
What is the bystander test in terms being implied by court
If a bystander was present who observed the process would they have agreed to it being a term
89
What is the business efficacy test for terms being implied into a Contact by the courts
That without the term the contract could not function as parties intended (objectively)
90
When can terms be implied in a contact by custom
When established well known customs in industries arise
91
Terms implied by statute in B2B
SGA 1979 & SGSA 1982
SGA
The seller has the right to sell goods
If by description will match
Satisfactory quality (exception)
Sold by sample must match
SGSA
Supplier will carry out service with reasonable care and skill
92
What is the exception to s14 SGA that goods must be sold of satisfactory quality
Where defects are pointed out or that the defects should have been revealed when the buyer examined the goods
93
Terms implied by the CRA 2015 B2C
Quality of goods are satisfactory
Reasonably fit for purpose
Goods will match the description
Where sold by sample must match
Model seen it will be matched
Correct installation of goods
Performed reasonable skill and care
Performed within a reasonable time
94
When reasonable notice has been given terms will be incorporated when what factors need to be adhered to
Notice must be timely @ time or before contract made
Reasonable steps to bring to attention if unusual must use red hand rule (BOLD)
Contractual
95
What are the exception to the Rule that a term is usually incorporated by signature (Won't be bound by the signature)
Signed by fraud or Mis Rep
Non est factum
Not contractual I.e receipts/timesheets/invoices
96
What is the contra proferentem rule
If the meaning of a term is ambiguous
The term will be interpreted by the court least favourably to the person relying on it
97
Unfair terms refers to what ....
A contract that causes a significant imbalance in the parties rights and obligations
98
What is the largest category of unfair terms
Exclusion/exemption clauses
99
When are unfair terms enforceable
They are incorporated in contract
Wording covers the clause
Not ruled out by statute or common law
100
What are the 4 ways unfair terms AND Exemption clauses can be incorporated into ALL contracts
Signature
Reasonable notice
CONSITENT course of dealing on specific terms
Common knowledge or awareness of practice in exact industry
101
Non est factum conditions
Must not be through fault of signor
Radically different to what they thought were signing
102
If a exclusion clause is deemed to be incorporated the next step is to ...
ensure that the wording in the exclusion clause covers the exemption
103
Can an exemption clause excluded negligence and what is excluded
Yes
Exception negligence for death or PI
104
If an exemption clause is deemed to be effective to exclude negligence the next hurdle is to check what ..
Is it reasonable - UCTA - B2B
Is it fair to - B2C - CRA
105
Can terms implied by sections 13-15 of the SGA be excluded from a contract
Yes provided it is REASONABLE to do so
What is reasonable factors - p113
106
What term cannot be excluded under s49 CRA
Will supply a service with reasonable care and skill
107
Terms included in s 9-16 CRA can they be excluded (B2C)
No
108
Remember the tests of interpretation for exemption clauses where there is negligence and on another ground
If the exemption clause covers liability in negligence the final hurdle is that the clause must be fair or reasonable to be enforceable
109
Can word or conduct amount to misrepresentation
Yes
110
4 conditions to prove a statement induced them into a contract via mis-rep
Must be material
Aware of the statement
Person Intends the other to act on it
Must act on the statement
111
A mis rep must be what..
Exception
Clear and not unambiguous
Must be False
It must be a statement of fact or law not an opinion or belief rem the sheep case - Exception if the opinion is (like an expert) knows the facts so be in a good position to make the statement
Must not be a statement of intention to do something - exception where he makes a statement to do something he’s not going to do
112
General rule for disclosure in contracts and two exceptions
Neither is under an obligation to disclose facts unless there is a change of circumstances or it’s not the whole truth
113
In a scenario in which a person buys a damaged item that has been changed to look undamaged can you claim mis-rep
No as the person WAS NOT AWARE OF THE STATEMENT so cannot use mis rep in that scenario
114
Where does the BOP lie in misrepresentation
With the representor to prove that the represented would have acted BUT FOR the statement
115
What happens if the represented fails to test the accuracy of the mis rep statement
Can still claim damages for mis rep but likely to be contributory negligent
116
Can rescission happen for all types of mis rep (innocent/negligent/fraudulent)
Yes - unless subject matter lost
E.g where a car is required to be returned and money refunded
117
What does recission mean
Setting the contract aside with the main aim of putting the parities back in the position they were in before the contract was made
118
Always look out for scenarios where once someone is aware of the mis rep and continues with time passing as what happens …
He is deemed to have affirmed the contract and loses the right to rescind
119
What is negligent mis rep
Where the represented honestly believes his statement to be true but not exercised reasonable care and skill in making the statement
120
What are the two ground main which a person could bring a claim for negligent misrepresentation
Common law in tort
Misrepresentation act 1967
121
Factors to bring a negligent mis rep claim at common Law
Must be a special relationship
DOC BOD CAUSATION REMOTENESS
122
For claims to be brought under MA 1967 what must be shown
Just the statement is false and that he had reasonable grounds to make the statement and honestly believed it was true at the time statement was made
123
Remedies for
Negligent
Fraudulent
Innocent
Misrepresentation
N - damages and recession
F - damages and recession
I - recission only
124
Even tho there is no automatic right to damages for innocent mis rep can they be claimed
Yes the court does have discretion to award damages if it is equitable having regard to the circumstances as a whole
125
To make a claim for Mis rep the statement has to be actionable what does that mean
The statement must be unambiguous and false addressed to the claimant inducing him into a contract and a statement of fact
Cannot be sales talk/opinions
126
Silence cannot amount to acceptance what is the exception
If the other party agrees this will overrule the general rule
127
A party is not entitled to extra payment if they only perform their pre existing obligations under a contract unless what
There is a practical benefit lead case Williams v roffey
128
TIE RULES
Where time is not expressly stated to be “of the essence,” a delivery term will usually be treated as an innominate term. The right to terminate depends on the seriousness of the breach. In this case, a two-hour delay is unlikely to deprive the company of substantially the whole benefit of the contract, so termination is not justified.
129
What is Mutual mistake and is it void or voidable
Both parties make a fundamental mistake as to what they have agreed
VOID
130
What is unilateral mistake and 3 criteria
One party is mistaken and the other knew or ought to have known they were mistaken - VOID
Party was aware or ought I have been aware at time of contract
Term induced the party into contract
(Not a collateral matter)
Mistaken party not at fault
131
Mistake as to identity F2F
F2F presumption is party intends to deal with person physically present regardless of identity- rebuttable
Eg I will sell to A and no one else but could rely on fraudulent Mis rep
132
Unilateral mistake elements
VOID
other party was aware or ought to have been aware of mistake
Mistake was a term which induced (not a collateral matter)
Mistaken party not at fault
133
Mistake as to identity at a distance
Presumption is this is a term of the contract and will be VOID
134
Duress in contract
VOIDABLE
must be acted on promptly
By physical/threats
Holding goods wrongly held
Economic duress must be significant
135
Undue influence is what
An equitable doctrine can rescind the contact if can show was influenced or pressured not of own free will VOIDABLE
136
137
138
What does s197 of the CA say about loans to Directors
Needs OR by members if no approval loan is voidable and can rescind the loan
139
Although every breach of a contract allows damages only a repudiatory breach allows the options to elect discharge what is a RB?
A breach of a major term that goes to the root of the contract and deprives the other of substantially the whole benefit of the contract
140
How do you determine whether a breach is repudiatory
Condition - major term - yes
Warranty - minor term - no
Innominate - if goes to the root of the Contract
141
TIE is it repudiatory
Yes
142
What is expectation loss
The measure of calculating damages to put the party as if the contract had been performed
143
What are the three was of calculating expectation loss
Loss of profit
Difference in value
Eg had a house with cracks in plaster can still use
Cost of cure unless all out of proportion
144
What is wasted expenditure
Where damages for lost profit cannot be calculated so damages awarded to cover wasted expenditure eg actor doesn't perform
Not allowed for a bad bargain
145
A person must take reasonable steps to mitigate his loss. What happens if the loss makes it worse
Still can recover the loss provided he took reasonable steps to try and mitigate the loss
146
What is a liquidated damage clause
A clause that provides that a payment will be made on a breach they are enforceable unless deemed to be a penalty
147
A promise to pay lees .....
Although a promise to accept less than the contracted amount is not good consideration to create a binding obligation, a promise to accept less will be binding if it is accepted on different payment terms. In this case, the supplier agreed to accept £7,000 on a date earlier than the due date, resulting in a change of the payment terms, which becomes binding.
148
Special damages v general damages
In law, particularly in personal injury and contract cases, "special damages" and "general damages" are two distinct categories of compensatory damages awarded to a plaintiff to make them whole after suffering a loss due to another party's wrongful act.
Here's a breakdown of their key differences:
General Damages (Non-Economic Damages)
* Definition: General damages are awarded for non-monetary losses that are subjective and difficult to quantify precisely. They compensate for the intangible effects of an injury or breach of contract.
* Purpose: To compensate the injured party for their pain, suffering, and the overall impact on their quality of life.
* Calculation: These damages are not easily calculated with receipts or invoices. Instead, they are assessed based on factors like:
* Severity and duration of the injury/harm
* Pain and suffering (physical and emotional)
* Loss of amenity (loss of enjoyment of life, e.g., inability to pursue hobbies)
* Disfigurement or scarring
* Psychological impact (e.g., anxiety, depression, PTSD)
* Impact on relationships (loss of consortium)
* Loss of earning capacity (if the injury permanently affects future earning potential)
* Examples:
* Physical pain and discomfort
* Emotional distress, mental anguish, anxiety, or depression
* Loss of enjoyment of activities (e.g., sports, hobbies)
* Reduced quality of life
* Loss of companionship or consortium
* Disability or physical impairment
Special Damages (Economic Damages)
* Definition: Special damages are awarded for specific, quantifiable financial losses that can be precisely calculated and supported by evidence. They are "out-of-pocket" expenses directly resulting from the injury or breach.
* Purpose: To reimburse the injured party for actual financial losses incurred or reasonably expected to occur due to the incident.
* Calculation: These damages are typically straightforward to calculate as they are based on concrete figures and documented expenses. Evidence such as receipts, invoices, pay stubs, and medical bills are used.
* Examples:
* Medical Expenses: Past and future medical bills, hospital charges, prescription costs, therapy, rehabilitation, and medical equipment.
* Loss of Earnings/Income: Lost wages, salary, bonuses, or commissions due to time off work. This can include both past and future lost earnings.
* Property Damage: Cost of repairing or replacing damaged property (e.g., vehicle, clothing, personal items).
* Travel Expenses: Costs incurred for traveling to medical appointments or therapy sessions.
* Care and Assistance: Costs for professional care, or even the value of gratuitous care provided by family or friends.
* Household Expenses: Costs for household tasks that the injured party can no longer perform.
* Home Modifications: Costs to adapt a home or vehicle due to a disability caused by the injury.
In summary:
| Feature | General Damages | Special Damages |
|---|---|---|
| Nature | Non-economic, subjective, intangible | Economic, objective, quantifiable |
| Quantification | Difficult to precisely calculate | Easily calculated with supporting documentation |
| Purpose | To compensate for pain, suffering, and impact on quality of life | To reimburse for specific financial losses |
| Evidence | Often relies on medical evidence, expert opinions, and judicial guidelines | Receipts, invoices, pay stubs, bills |
Both general and special damages are types of "compensatory damages," meaning they are intended to compensate the injured party and restore them, as much as possible, to their pre-injury or pre-breach position.
149
When can a revocation take place by a 3rd party
If the 3rd party is a reliable source their notice of revocation will be sufficient and the offer can no longer be accepted even if the offer had a date open for offer
150
Satisfactory quality
Is an implied term that the quality is satisfactory and generally allows for rejection however rejection is not permitted for minor or trivial breaches where so slight would be unreasonable to reject.
Assessed by a reasonable person
151
When will a penalty clause be allowed
If it protects a legitimate commercial interest and does not impose a detriment that is all out of proportion which has moved away from the genuine pre estimate loss rule
152
For common mistake what is not enough to void the contract
The quality. If parties made the same assumption about the quality of the guitar it exists and was delivered it cannot be void.
The mistake must go to the existence or identity of the subject matter
153
Where property is immovable where would the applicable law be
Where the property is situated
154
When may the right be lost for undue influence or duress
where the contract is affirmed after the UI/D has ceased
* a lapse of time from the end of the UI/D may also amount to affirmation, or
* if third-party rights have intervened.
155
What is a Tomlin Order
A court order used to formalise a settlement agreement reached between parties in a legal dispute. It essentially "stays" (pauses) the court proceedings on the agreed terms.
Here's a breakdown of its key characteristics:
* Settlement Agreement: It's a way to record the terms of a settlement that the parties have negotiated and agreed upon themselves, rather than having the court impose a decision.
* Two Parts: A Tomlin Order typically has two distinct parts:
* The Court Order Proper: This part is a formal court order that states the proceedings are "stayed" (put on hold) on the terms set out in a separate document. It also usually grants permission for either party to apply back to the court to enforce those terms without needing to start fresh legal proceedings.
* The Schedule (or Annexed Document): This is a separate document that contains the detailed terms of the settlement agreement. These terms can be complex, confidential, or involve actions that the court itself might not have the power to directly order.
* Confidentiality: A significant advantage of a Tomlin Order is that the detailed settlement terms, being in the schedule, often remain confidential between the parties and are not part of the public court record.
* Enforcement: If one party breaches the terms of the settlement outlined in the schedule, the other party can apply to the court (using the "permission to apply" clause in the order) to enforce those terms. This avoids the need to initiate entirely new litigation for breach of contract.
* Contractual in Nature: While it's a court order, the schedule itself functions as a binding contract between the parties.
* Distinction from Consent Orders: While a Tomlin Order is a form of consent order (as it's made with the consent of both parties), it differs from a standard consent order in that the bulk of the agreed terms are kept in a separate, often confidential, schedule. A standard consent order would typically incorporate all the agreed terms directly into the order itself, making them public.
When are Tomlin Orders commonly used?
Tomlin Orders are particularly useful in situations where:
* The settlement terms are complex or involve actions that the court wouldn't normally order (e.g., ongoing obligations, specific performances).
* The parties want to keep the details of their settlement confidential.
* The parties want a clear mechanism for enforcing the settlement terms without having to start new court proceedings if a breach occurs.
* They are often seen in commercial litigation and can be used to prevent a County Court Judgment (CCJ) from being entered if payments are agreed upon.
In essence, a Tomlin Order provides a robust and flexible way for parties to settle their disputes, giving their agreement the backing of a court order while maintaining a degree of privacy over the settlement details.
156
CRA 2015 goods should be of satisfactory quality, fit for purpose and as described if a fault arises ....
With 30 days can reject
After 3 months (refund)
157
Is a parent company liable for a subsidiary companies debts
No - because each company is treated as a separate legal entity
EXCEPTION
where the parent company takes over and exercises significant control
158
Can SOGA s14 goods must be of a satisfactory quality be excluded under UCTA
Yes but any exclusion clause must be reasonable.
159
160
Is it necessary to show that a party knew their statement was false to be a claim for Innocent, Negligent or Fraudulent Misrepresentation
It is not necessary to show that the party knew the statement was false for there to be a claim
161
162
Can a person withdraw a bid before the hammer falls at an auction
Yes could held bid is an offer an can be revoked at any time before acceptance (I.e. the hammer)
163
What was Carlill v Carbolic smoke ball relate to
Unilateral contracts - performance of conditions can be accepted. The company put £1000 in funds to pay out so also established ICLR
164
Display of good what is this …
An ITT
CUSTOMER MAKES OFFER
SHOP CAN REJECT OR ACCEPT
165
166
What is an honourable pledge clause
A clause in the contract to exclude ICLR - they are effective - freedom of parties to make decisions
167
Does making a misrepresentation invalidate an exclusion clause
Yes
168
Can exclusions clauses be given after contract form
General rule no but such clauses CAN be incorporated through regular prior dealings as the terms will be deemed to be implied into the contract
169
When is the contra preferendum rule used
When exclusion clauses are ambiguous
170
Remedy for a warrant my
Damages only cannot repudiate/terminate the contract
171
If a term is labelled a condition does that automatically make it a condition
No courts look at substance over the label
172
Remedies available for a contract claim
* common law remedies – damages, which are available as of right
* equitable remedies of specific performance, injunction, rescission and rectification, which are available at the discretion of the court, and
* restitution – restoring to the innocent party benefits transferred under the contract before it was discharged by the other’s breach
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Claims for interest for breach of a contract can be claimed under what statutes
CC - s69 County Court Act
HC - s35A SENIOR COURTS ACT
At court's discretion
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When assessing damages, the courts will only compensate the claimant for the losses which...
follow from the breach, losses which are not too remote
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Purpose of Damages in contracts
to place the claimant in the position they would have been in had the contract been performed properly.
In rare cases, damages may place the claimant in the position they would have been in had the contract never been entered into. This is known as reliance interest.
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When will the court make cost of cure
The courts will calculate how much it costs to put things right to cure the defective performance. But this is only recoverable when it is reasonable to recover on this basis
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Reliance interest
Reliance interest is assessed differently. These are damages which place the claimant in a position they would have been in had the contract never been entered into. This is designed to compensate a party for expenses incurred in reliance on the contract. For example, if there are costs of preparation prior to the contract taking place, it is possible to recover any wasted expenditure
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Bad Bargains
If a party has made a bad bargain, the principal of caveat emptor applies because the courts do not protect those who make a bad bargain. It is not possible to recover in this situation because it would put the injured party in a better position than if the contract had been performed and this would be considered to be unjust enrichment.
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When can Damages for disappointment/injured feelings be claimed
Not usually recoverable however if the object of the contract is for pleasurable reasons damages may be awarded
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If you are dismissed under a contract and you want to sue what must you try and do
mitigate the loss where reasonable to do so i.e. get a new job
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Anticipatory breaches and mitigation of loss
Where there is an anticipatory breach, if the claimant accepts the breach, they have a duty to mitigate. If they do not accept the breach, there is no such duty.
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Restitution
Restitution is available where there is no contract, either because no contract has been made, the contract has been discharged or the contract is void. If valuable benefits have been conferred on the defendant and then the contract has been breached, that valuable benefit will have to be returned or the party will be seen to have been unjustly enriched.
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For misrepresentation to be actionable
It must induce the C into the contract.
If a C does not see something the couldn't be induced by it
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If a defeat is obvious on reasonable inspection and you fail to se it can you claim Mis Rep
No as it would not have induced you into the Contract
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Can an offer be revoked before it's communicated
Yes and can be by a third party
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What is important about revocation of an offer
The revocation must be communicated in the same way offered
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A espérate document t is an agreement to agree. An agreement to agree is what?
Not enforceable
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Can a party make a minor return the property
They could petition to the court if it is just and equitable to do so
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Are contracts with minors void or voidable
VOIDABLE
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Pre contract statements made by persons in a professional capacity are more than likely to be what
Terms
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B2B contracts
V
B2C contracts
B2B terms are IMPLIED by statute
B2C terms are INCLUDED by virtue of CRA 2015
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Four Conditions to satisfy that a statement induced a party to a contract (MAIA)
Statement is material
Aware of the statement
Intend party to act on statement
Must act on the statement
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Key test to satisfy in showing that a statement induced the contract is what
That the party was aware of the misrepresentation
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Strict contractual obligation
V
Qualified contractual obligation
Must be EXACTLY performed
REASONABLE ENDEAVOURS
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Repudiation can only take place when
If it deprives the non breaching party of substantially the whole benefit of the Contract (could still claim damages)
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