Contract Law Flashcards
1
Q
What is a contract?
A
A legally enforceable agreement in which failure to perform according to terms of agreement enables the innocent party to remedies
2
Q
What are ‘remedies’?
A
financial compensation for the innocent party (damages), treating the contract as discharged or terminating the contract
3
Q
Why is the risk of unfulfillment less in contract?
A
risks to businesses, damage to reputation from adverse publicity/lawsuits
4
Q
Why do we need contracts?
A
We don’t trust that agreements made will be fulfilled and contracts foster artificial trust
5
Q
Why do foreign firms choose English law to govern their contracts?
A
English contract law prioritises certainty, autonomy and formalism
6
Q
Why do contracts enable trust?
A
The law says the parties have to do certain things or they risk legal consequences (legal enforceability)
7
Q
What is ‘special performance’
A
When the court orders the party in breach to perform according to terms of contract (rare)
8
Q
What is ‘non-intervention’?
A
Courts don’t insert extra terms to make contracts ‘better’
9
Q
What is ‘formalism’?
A
The belief that contracts are made by the parties for the parties and that parties should have sovreignty over their contract (without intervention of the law)
10
Q
What is ‘caveat emptor’?
A
‘Let the seller beware’
11
Q
What is ‘autonomy”
A
When parties have sovreignty over their contract and therefore contracts entered into freely are sacred
12
Q
What if parties want extra protection from contracts?
A
Parties must put them in by themselves (caveat emptor)
13
Q
What are benefits of contracts?
A
- provide backup to help allocate losses if problems arise
- allows parties to determine responsibility for themselves
14
Q
Is legal enforceability concrete?
A
it doesn’t mean that all contracts will be fulfilled but risk of unfulfillment is less
15
Q
Is flexibility good?
A
The more flexible the rules the easier it is in theory to achieve fair results in cases
16
Q
In what circumstances are remedies appropriate?
A
When there has been a breach in contract and it is very serious (repudiatory breach)
17
Q
Disadvantages of flexibility in contract law
A
- outcome of each case is more debateable
- increased time to decide on outcomes
- more expensive (poorer party my not be able to afford case delay)
18
Q
Are inflexible/simple rules good?
A
No… increased potential for unfair results in cases
Yes… party with greater resources has less chance to identify/exploit loopholes
19
Q
What do you need for a contract to be concluded?
A
-you need an agreement, contractual intention, consideration and compliance with formality (contract in writing)
20
Q
What is a bilateral contract?
A
when each side makes a set of promises to the other and each party has obligations owed to the other
21
Q
What is a unilateral contract?
A
(if contract) promise in return for performance of an act and obligations are on one side only
22
Q
What is the main model for reaching an agreement in contract?
A
- offer and acceptance
- before parties reach an agreement they can walk away with no liability and not be in breach of contract
23
Q
What happens the parties reach an agreement?
A
- a legally binding contract now exists
- parties cannot walk away without being legally liable
24
Q
What is an offer?
A
An expression of willingness to contract on certain terms made with the intention that it will eventually become a binding contract when the other party accepts
25
Characteristics of acceptance
- the offeree responding to the offer by accepting its terms
- an unqualified yes to an offer
- silence cannot be used as acceptance
26
What is the tennis match idea?
-negotiations going backwards and forwards until an offer is proposed and accepted
27
How do you test the verification of an offer?
- objectivity (look objectively at communications between parties)
- preparedness to commit and conduct (offers can arise through actions also)
28
What is an invitation to treat?
preliminary communication/negotiation to elicit an offer which may then be considered
29
How do auction sales work?
- goods put up by auctioneer is invitation to treat
- bids made are all offers (most aren't accepted)
- until the hammer falls anyone can retract their bid because the offer hasn't been accepted and you're still in negotiation phase
- once hammer falls its changed from negotiation to legal commitment
30
How do auction sales with no reserve price work?
| same legal analysis for auction with reserve price if highest bidder exceeds or meets reserve
- reserve price is minimum price below which the goods won't be sold
- if seller refuses highest bid you can use a 'collateral contract' against the auctioneer
- goods auctioneer put up are invitation to treat and because there is no reserve price they're considered to have made an offer
- auctioneer essentially implies a (collateral) unilateral contract that he will accept buyer with highest bid
- highest bid is acceptance of auctioneer's collateral offer and has therefore qualified for award and auctioneer's failure to provide would be breach in contract
- highest bidder can claim damages for breach of collateral contract
31
What is a collateral contract?
-contract comes into existence on an implied basis to support a possible primary contract
32
Contractual reasoning of a 'display of goods'
- goods displayed in supermarket with attached price are invitation to treat
- customer picking a good and taking it to checkout is offer
- supermarket accepts/rejects through checkout assistant
33
Contractual reasoning of Catalogue
- HoL held that catalogue is invitation to treat
- orders placed by customers were offers
- merchant is free to accept/reject offers
34
Contractual reasoning of adverts inviting parties to submit tenders/bids
- invitation to submit tender is invitation to treat
- tenders/bids submitted are offers
- it's up to party that invited tenders to decide which offer to accept
- no obligation to accept a tender that wins in terms of price BUT if party decided in advance that it would accept lowest/highest bid it must do so
35
Certainty/completeness in contracts
-contracts need to be certain/complete to be enforceable in court
36
Problems associated with determining certainty/completeness
- unclear wording
- vague/hard to discern wording
- material omission (parties failing to address essential issues)
37
Sovereignty of the contract
courts don't have the right to create a contract that the parties didn't create for themselves
-courts do everything they can to uphold/give effect to a contract where it is clear that the parties intended to have one
38
Is an agreement to agree valid?
- -an agreement to agree on something in the future is no agreement at all
- it is not recognised as a contract because there is uncertainty
- it is impossible to say what the agreement would have been
39
What happens if negotiation has no fixed duration?
-if there is a preliminary agreement with no fixed duration the courts will probably decide that there is only an agreement to negotiate which is not legally enforceable (Walford v Miles)
40
Sales of goods act section 8
| terms to ascertain price
1. the price in contract of sale may be fixed by contract/fixed manner agreed by parties themselves
2. where price isn't determined as mentioned before the buyer must pay a reasonable price
3. What is a reasonable price is a question of fact depending on each particular case
41
Sales of goods act section 9
if contract states price is to be determined by a third party but third party cannot/will not do it the agreement is void
-if this does not work the agreement is void
42
Significance of performance
- legal reasoning must take cues from reality
- if you're trying to argue that the contract is void after most of the subject matter has been performed courts will not believe you
- if the deal is unworkable how did you work it up until this point?
43
Possible responses to an offer
- acceptance (offeree signifying that they agree to the offer as a whole)
- rejection (offeree says no to package of the offer)
- counter offer
- enquiry
44
Can an offeree pick and and choose bits and pieces of an offer?
If you say no to parts you say no to the entire contract (its indivisible)
45
What is a counter offer?
- when offeree doesn't say no or yes but says what about this instead
- offeree that makes counter offer is turning down offer that has been received
- rejection of first offer to make fresh offer awaiting response of other party
46
What is an enquiry?
- offeree might not want to accept/reject
- the offeree is not ready to make a final decision
- offeree might want to continue negotiation and responds saying they want to continue to negotiate
47
What happens if the method of accepting the offer is indicated?
-the stipulated method is the only allowed method
48
What happens if the method of accepting the offer are not indicated?
- if there is no specific instruction the offeree can use the same method used by offeror to offer the contract
49
What method of acceptance is expected with a unilateral contract?
- offeror does not look for offeree to respond with acceptance they just expect them to perform the stipulated act
- similar to acceptance by conduct
50
Can acceptance be inferred from conduct?
- it can provided the conduct is clearly relevant to the offer when viewed objectively and if the offeror is aware
- conduct must be unequivocal
51
Issues of acceptance by conduct
- conduct relied upon can be ambiguous
| - acceptance could equally be explained as a wish to carry n negotiations
52
Battle of the forms
- business contracting parties approach contracts with their own established standard terms
- each party wants to conclude on the basis of their terms
- each party replies to offer from the other party with counteroffer (goes on for a while)
53
Problems with offer acceptance by silence
- if silence could act as acceptance in all circumstances we would have to vocally reject all things offered to us
- junk mail and offers we don't ask for would overwhelm us
54
Is it ever possible for silence to constitute acceptance?
- maybe if the offer has been requested
- if the offeree asks offeror for an offer for their car
- offeror comes up with price and says the price they want saying if they don't hear from offeree by the next day the deal is done
- it would definitely not work if there was no time limit for offeree to decide
55
Requirement of communication in acceptance
- for an acceptance to be valid it has to be communicated
| - it must get through to the other party or it does not take effect
56
Communicating acceptance by email
- offer made by email and acceptance sent off by email
- acceptance is not effectively communicated when it is read because it would depend on how often offeror checks his email/how efficient their staff is
- unfair to say email is communicated when it is sent off cause of different time zones
- email acceptance is communicated when it has been read
57
What if acceptance by email does not get through? (problem with offeror's internet)
- it's the offeror's fault and the offeree wasn't responsible for lack of communication
- you usually get notification when something doesn't deliver
- law says there is no acceptance and you should try again
58
What if you sent an acceptance off before the deadline but because of offeror's IT failure it didn't deliver in time?
- its too late to send another message because deal had strict time limit
- original communication met deadline so it would be enough
59
Postal acceptance rule
-an acceptance sent off by post takes effect in law as soon as it is posted and a binding contract now exists (even if post is lost acceptance is technically valid)
60
Why does PAR exist?
- post has risk of things being delayed/lost
| - risk should fall on offeror because they initiated the use of post
61
Does PAR always apply?
- offeror can phrase contract so that although post is permissible method for acceptance PAR doesn't apply
- under those circumstances for acceptance to be valid the post must be delivered
62
What if PAR applies and the offeree posts acceptance but wants to change their mind?
-sends a second communication using a faster method like email to reject the offer if it arrivers before acceptance than it is valid
63
Cons of allowing offeree to change their minds with PAR
- unfair advantage to offeree
- they can play the market at expense of offeror
- if the deal is good offeree can post acceptance then if the market moves and the deal isn't as good they can quickly send electronic rejection and escape contract
64
What is the impact of a rejection/counter-offer?
-They completely kill off the initial offer
65
When does a rejection/counteroffer occur?
When they get through to the offeror
| -no such thing as postal rejection/counteroffer rule
66
If the offeree does nothing after a reasonable time will the offer expire?
- offer contains implied term that it's only available for acceptance for a reasonable time
- the failure of the offeree to respond within reasonable time a rejection
67
Revocation of offer
-an offeror is free to revoke an offer until a legally binding contract has been concluded
68
How does revocation of offer take effect?
- it must be communicated to the offeree and must get through
- if it has been sent off and doesn't reach the other party it cannot work
- revocation can be communicated by third party
69
Revocation of unilateral offer
- often made to large numbers of people (posted missing cat posters)
- not possible to track everyone down
- you just have to do a public revocation that is equivalent to offer that's been made
70
When is a unilateral offer acceped?
- it's accepted once the other party has performed the stipulated act
- completion of stipulated act is acceptance
71
What about unilateral contracts that require acts that take a long period of time to complete?
- offer is accepted by commencing performance
| - the contract is concluded by commencing the act but you don't get the award until you complete the act
72
Walk from london to york analogy
- if you're walking from london to york and you're 3/4 of the way there
- the offeror catches up to you and revokes the offer
- the revocation didn't work but you stop walking because you think it does
- you would stop walking and loose the reward
- there is potentially an implied collateral contract from offeror saying that once offeree starts performance they won't do anything that prevents them from completing
- sue for breach of collateral contract and can claim damages for loss of opportunity to complete walk
73
What three components are needed to complete an agreement to be a contract?
- intention to create legal relations
- (some require) compliance with a given formality
- consideration
74
What counts as intent to create legal relation?
(it is an objective requirement)
- as long as there are relevant words/conduct which indicate intent to create a legally binding contract
- if the agreement was broken would it end up in court?
75
Rule for formalities (putting contract in writing)
-contracts do not have to comply with formality unless it is specifically stipulated but because of common sense most people put significant contracts into writing
76
When are formalities required?
- if the subject matter is particularly important so courts want reliable record of transaction (land contracts have to be in writing)
- contracts of guarantee also have to be in writing (statute of frauds, 1677)
- in consumer law the contracts require the seller to give buyer a written statement of their rights
77
What is consideration?
- something that is given in return for a promise
- it can be a benefit to the party making the promise or a detriment incurred by the promisee
- there must be consideration for a contract to be legally enforceable
78
Consideration in bilateral contracts
two sets of promises exchanged, in return to sellers' promises the buyer makes a reciprocal promise and that is their consideration
79
Consideration in unilateral contract
the performance of the stipulated act is consideration
80
Can past consideration work?
- no because it pre-dates the promise it is supposed to support
- sometimes a later promise after the consideration may just make explicit what was already impliedly understood by both parties
81
Consideration must move from the...
- it must move from the promisee
- to generate a bargain the consideration for the promisor's promise must be provided by the promisee
- promisee doesn't have to give promise to promisor (promisor could make promise to promisee in return for promisee paying money to a third party)
82
Do considerations have to be adequate?
- no legal requirement for balance between value of agreement and value of consideration to make it binding
- up to parties to look after their own interests (caveat emptor)
83
What if the rights the promisee refrained from pursuing were invalid but promisee did not know this ? (consideration)
- consideration doesn't collapse
- their forbearance is still good consideration as even if the promisee lost their case you would still have to pay legal fees etc
- being relieved of that is a benefit
84
what is good consideration
refraining from a suit or enforcing legal rights (forbearance)
85
What if the rights the promisee refrain from pursuing were invalid and they knew?
it is not good consideration, it could be fraudulent
86
What do you do if you have doubts that there is valid consideration?
use a deed (special document that derives its enforceability entirely from its form)
-a promise stated in a deed does not need consideration, it is enforceable in itself
87
Argument for consideration not serving a purpose
- very rare that contracts fail solely on consideration, usually because there also hasn't been a proper bargain
- Lord Mansfield believed the purpose of consideration was to provide evidence that the parties intended their argument to be legally binding and that consideration had no fundamental substance
88
Arguments for consideration serving a purpose
- HoL rejected Mansfield's view
- consideration held avoid contracts happening in informal circumstances
- 'importance of consideration is as a valuable signal that the parties intend to be bon=und by their agreement' (supreme court of australia)
89
What are vitiating factors?
Factors that taint the validity of an agreement (foundation of contract)
90
Examples of vitiating factors?
misrepresentation, duress (coercion), undue influence (taking advantage of interdependent relationships), unconscionable bargains
91
Duress/Coercion (vitiating factors)
party may complain that they were not left with any other alternative/effectively forced into contract
92
Undue influence (vitiating factors)
one party says they were taken advantage of because they were in a position of weakness and were exploited
93
What is the effect of vitiating factor on contract?
-contract is voidable which means the claimant is able to take it back but can also just act as normal
94
What is rescission?
taking the whole contract apart, terminating it
| -it reverses everything that resulted from the contract from the day it was concluded
95
What is misrepresentation? (vitiating factor)
when the offeree is induced to agree to contract based on false statement (mislead)
96
Characteristics for actionable misrepresentation?
- must be a statement of fact
- made by either of the two parties to the other
- statement must be false
- must induce the other party into the contract
97
Does there need to be dishonesty for misrepresentation?
NO because a lie is intentionally untrue
| -maker of misrepresentation can believe what they say and have solid reasoning
98
What doesn't qualify as fraud?
- negligence--> if the reasonable person would know the statement was untrue this is NOT fraud
- you're only fraudulent when you know something is untrue/probably untrue
- if you SHOULD have known it is negligence
99
What about silent misrepresentation?
-if the D sells goods knowing they have a defect and keeps silent on their condition there is no remedy for what they do NOT say
100
What happens if statement is true at the time it's made but stops being true before contract is binding?
maker of statement needs to correct it and if they fail that is misrepresentation (With v O'Flanagan)
101
Can statements of opinion constitute actionable misrepresentation? (rule)
NO--> it must be statement of fact
102
Exceptions of actionable opinions as misrepresentation
- if the statement of opinion implicitly involves certain statements of fact and the fact is wrong there will be liability because both the opinion and implicit fact are incorrect
- if party provided opinion that required some factual thought and did a blind guess there could be liable misrepresentation
- someone giving false opinion is misrepresentation
103
Other exceptions to the actionable opinions as misrepresentation?
- no reasonable grounds for opinion
- representor holds itself as having special knowledge and that the representee can trust them
- representor is in good position to know what truth is and is wrong
104
What is a statement of intention?
a statement that contemplates what you will do in the future
105
Are we allowed to change our minds with statement of intentions?
- no law against changing your mind
- failure to keep to intention in itself doesn't warrant liability
- person to whom statement is made cannot see statement as guarantee and if they do it is their problem
106
When is a statement of intention misrepresentation?
- what you're saying is your opinion
| - if you say it's your intention to do X when it's NOT that is misrepresentation of fact
107
Who needs to make the statement in misrepresentation?
It needs to be made by or on behalf of the defendant
108
What if the claimant is induced by 3rd party into contract? (3rd party liability)
-if C is induced into contract by something false said by 3rd party this generally is sufficient grounds to challenge contract
109
What if the claimant is induced by 3rd party into contract? (defendant liability)
if misrepresentation is made by 3rd party and D is aware and knows it is misrepresentation and C is entering into contract based on that then D is liable
110
What if claimant overheard Defendant's misstatement and relied upon it and wanted to use it against D?
they would not be permitted to do so
111
What is materiality? (misrepresentation)
whether a reasonable person in the position of the representee would regard the misstated fact as relevant in deciding whether to enter the contract
112
What is the function of materiality?
to make sure representees don't rely on statements that objectively no reasonable person would take seriously
113
Examples of materiality in misrepresentation
there is no materiality in cases of advertising hype or obvious hyperbole
114
What if someone enters into a contract without materiality?
they cannot claim misrepresentation
115
How do you qualify for inducement (misrep)?
-claimant needs to show that without representation they would have not entered the contract/entered it on different terms
116
What is the authority for the inducement requirement in misrepresentation?
Assicurazioni Generali v Arab Insurance Group
117
Do you need to show if the misrepresentation is fraudulent for inducement??
-no you just need to show that the representation was a relevant reason as to why C entered into contract
118
What does section 13 of the sales of goods act say?
- when goods are sold by description it's implied that they should match description
- even if the goods are described pre-contractually those statements have contractual effect
119
What duress concerned with?
- illegitimate exercise of coercion
| - draws line between legitimate and illegitimate coercion
120
What are three requirements for coercion? (duress)
- illegitimate threat
- causation
- sufficient coercive power
121
What is an illegitmate threat?
-threat made to do something unlawful such as personal harm or threat to property and threat to break contract
122
an example of what does not constitute duress?
- a threat to not conclude future contracts
| - they are threatening to exercise a right they have
123
What is the Obiter dictum of CTN Cash and Carry v Gallagher, used to argue lawful act duress cases?
L.J Stain said to determine L.A.D we have to consider whether the party genuinely believed they had the right to make that threat
124
How does LJ Leggatt address lawful act duress in Al Nehayan case?
-if the threat is lawful but does not meet minimum standards it is illegitimate
125
What does LJ Leggatt address as the minimum standards of acceptable behaviour in Al Nehayan?
- D had no reasonable grounds to make demand
| - threat would not be considered by reasonable people to be a proper means of reinforcing demand
126
The 'but for' test in duress (general rule)
-without the making of the threat the coerced party would have declined entering the contract or entered on different terms
127
Can you qualify for duress if it is a threat the claimant could resist or reasonably should resist?
- NO
| - according to the law you have voluntarily acquiesced to the threat
128
How do you satisfy sufficient coercive power requirement for duress?
-courts look for evidence that Cs are put in situations which there was no realistic alternative
129
requirements to help determine sufficient coercive power (duress) set out in Pao On v Lau Yiu
- did they protest at the time?
- any sensible alternative?
- did they take independent legal advice?
- did C take steps to rescind pressure removed?
130
Ingredients for undue influence?
-some unacceptable form of persuasion and causation
131
What causation do you have to show for undue influence?
-simply that the undue influence is what induced the party into the contract
132
What is actual undue influence?
-proved by direct evidence
133
What is presumed undue influence?
-proved by circumstantial evidence
134
How do we determine presumed undue influence?
- relationship of trust of confidence
| - transaction that is out of the ordinary within the context
135
Can you refute presumed undue influence?
- if they can show that C entered into the contract because they wanted to the transaction could stand and not be rescinded
- evidence C thought about contract properly such as obtaining independent legal advice
136
What is the doctrine of unconscionable bargains concerned with?
-its concerned with exploitation of vulnerability
137
What is the general rule for minors entering contracts? (unconscionable bargains)
- minors lack contractual capacity and cannot consent to a contract
- if one party is a minor the contract is void
138
What is the general rule for people with mental incapacities entering contracts? (unconscionable bargains)
- their mental incapacity must be what causes them to not understand the contract
- protection is granted on proof of their M.I and that the other party knew
- there is a contract but it is voidable
139
What are the characteristics needed for a qualifying unconscionable bargains case?
- special susceptibility that merits protection
- incapacity of vulnerable party must rob them of ability to comprehend contract properly
- susceptibility must be exploited (unconscientious exploitation)
- dominant party must be aware of the susceptibility (substantive imbalance)
140
What are possible rebuttals to unconscionable bargains?
- if you can show you knew about their speical susceptibility so you had it explained to them by a professional in a way they understood
- it is no longer exploitation because they were properly informed before they made decision
141
What is the primary remedy of vitiating factors?
recission
142
Can you use recission to alter the contract to deal with the misrepresentation?
No, if you rescind you are terminating the contract completely
143
How do you rescind?
- self help remedy
| - you just have to contact the other party and let them know
144
What happens in fraud cases when the 1st party cannot tell the other party they want to rescind? (Caldwell case)
- by making 'caldwell noises'
- try to give publicity to the fraud
- in caldwell they notified the police and automobile association and CA held it was enough to rescind
145
What are the bars to recission?
- unjust enrichment
- intervening third party rights
- affirmation
146
What is the doctrine of unjust enrichment (recission) ?
- if you're unable to reverse the contractual terms and give back complete restitution the rescission cannot be done
- if one party cannot give back what they received they will be unjustly enriched
147
What is the doctrine of intervening third party (recission) ?
- fraudster tricks the owner of goods into selling and pays with bad cheque
- third party buys the goods from the fraudster
- if the seller did not rescind before F sold to 3rd party they cannot rescind because the 3rd party's rights override theirs
148
What is the doctrine of affirmation (recission) ?
- if you decide to not rescind the remedy of rescission is gone
- affirmation is being aware of whatever vitiating factor has occurred but choosing not to rescind
149
Is recission affected by time?
- In Allcard she did not choose to excercise her R for a long time and she was aware of it so it was conduct for affirmation
- recission may not be granted if too much time has passed (implied affirmation)
150
What is indemnity (rescission) ?
it covers expenditure incurred as a result of entering the contract but NOT by reason of the wrongdoing
151
When do you need damages in misrepresentation?
- recission is not available
| - if further loss has been sustained which recission does not cover
152
What tort is most useful to recover for misrepresentation?
- the tort of deceit
| - it can recover all losses caused by misrep
153
What does section 2 (1) of the misrepresentation act 1967 say?
- created a liability for misrepresentation when a person entered into contract because of it and suffers loss
- if the defendant proves he had reasonable grounds to believe the facts he presented were true there is no liability
154
What does section 2 (2) do?
- it gives the courts judicial discretion to award damages for innocent misrepresentation in lieu of rescission
- you cannot claim this section it is up to courts
155
What is actual notice?
where the bank would know of the wrondoing by the spouse to make the other spouse grant security
-bank is not allowed to take the security
156
What is constructive notice?
- bank has knowledge of circumstances which should alert them to possibility of wrondoing
- bank must take reasonable steps to respond to this
- if they take reasonable steps their constructive notice is discharged and they can enforce security
157
How does the law conclude that a bank is alive to possibility of husband committing wrongdoing according to O'Brien case?
- trust and confidence (risk of undue influence)
- informal relationship (risk of misrep)
- extends to all stable emotional relationships not just H/W
- if it is a non commercial suretyship (W gains nothing)
158
What is the next step the banks should take after being alerted to constructive notice according to Etridge?
- bank must ensure the wife takes advice from solicitor who she is content with (formal confirmation)
- recieve confirmation from S that he has given advice
159
If the solicitor fails to give proper advice is the bank liable?
- no
- if the solicitor fails to provide proper advice and the bank is not aware they are not liable as long as they have brought him in
160
requirements for solicitor's advice to wife
- explain why they are involved
- obtain W's confirmation she is happy for S to act for her
- explain nature of transaction and risks
- ask if W is happy to proceed
- ask if she is happy for S to tell bank they have given her advice
- W needs to be aware of full context of granting security
161
What if solicitor fails to give proper advice? Who is liable?
- bank is not liable they are entitled to assume the solicitor performed their function properly and do not have to check
- wife can sue the solicitor
- S owed W professional care
