Contract Law - ACADEMICS

Question 1

Nolan

Answer 1

Offer and acceptance in instantaneous communication - much the same as telexes (postal rule not for telexes: Brikibon v Stahag-Stahl)

Question 2

C Fried (outline)

Answer 2

Consideration is inconsistent with promissory view of contract

Question 3

C Fried quote

Answer 3

Effect of ‘frustrating the projects of promisees after the fact and the potential projects of promisors’

Question 4

Janet O’Sullivan

Answer 4

‘Defend the indefensible’ - Foakes v Beer still stands as £100 does not equal £200

Question 5

M Chen-Wishart, two views on Williams v Roffey

Answer 5

‘Emperor’s New Clothes’ fiction and a ‘bird in the hand is worth two in the bush’

Question 6

Treitel on consideration

Answer 6

‘Invented’

Question 7

Atiyah on consideration

Answer 7

Distraction from real basis of liability - solely a reason to recognise an obligation, not a reason for enforcement

Question 8

Denning on consideration

Answer 8

‘We are tending to regard any act done on the faith of a promise as sufficient consideration to support it’

Question 9

Birks on estoppel

Answer 9

‘set equity on the path of supplementing the doctrine of consideration by extending the common law notion of estoppel’

Question 10

Atiyah in estoppel

Answer 10

Could have implied a request into Combe v Combe but wouldn’t have been just

Question 11

Lord Hailsham in Woodhouse v Nigerian Produce

Answer 11

Oxymoron and ‘problems of coherent exposition which have never been systematically explored’

Question 12

Reid in Beswick v Beswick

Answer 12

Hoped HoL would legislate over privity but if not, HoL might take it upon themselves

Question 13

Scarman in Woodar Investment v Wimpey on privity

Answer 13

Expressed regret that P still hadn’t legislated, 12 years after Beswick v Beswick, to remove this ‘unjust rule’

Question 14

Lord Goff in White v Jones on privity

Answer 14

English contract is ‘deficient’ for ‘unnecessary doctrine of consideration’ and ‘stunted’ by a lack of ‘jus quaesitum tertio’

Question 15

Steyn LJ in Darlington BC v Wiltshier Northern

Answer 15

‘No logical, doctrinal or policy reason’ for privity, and should be removed to protect the autonomy of the parties

Question 16

Stevens on C(RoTP)A

Answer 16

Traditionally, narrow ground was confined to when loss/damage was caused to property foreseeably transferred, and the third party had not acquired contractual rights

Question 17

SA Smith in duress

Answer 17

Two alternative elements to duress - plaintiff-based and defendant-based

Question 18

McKendrick’s two issues with Barton v Armstrong

Answer 18

‘A’ reason, not ‘the’ reason (see now DSND; Kolmar Group; Huyton SA on ‘but for’) and made contract void, not voidable (The Evia Luck)

Question 19

Burrows on duress

Answer 19

If to exploit a weakness, but not if reacting to frustration or bad bargain

Question 20

Goff and Jones on duress

Answer 20

Skeate v Beale ‘no longer good law’ because ‘in direct conflict with the modern view of duress’

Question 21

McKendrick on undue influence

Answer 21

Etridge makes it harder for wives and places a larger burden on solicitors

Question 22

Birks on undue influence

Answer 22

Innocent undue influence, so wrongdoing is not required

Question 23

Sir Kim Lewison

Answer 23

Should not use irrebutable presumptions unless the result is a ‘foregone conclusion’

Question 24

Auchmuity

Answer 24

Test for UI focuses too much on business, failing to protect women (especially after Midland Bank v Shepherd)

Question 25

AWB Simpson on Raffles v Wichelhaus

Answer 25

Hard to know if the court decided on latent ambiguity/no consesus ad idem as no reasons given

Question 26

Chitty on Raffles v Wichelhaus

Answer 26

Unlikely the court would be unable to distinguish between one or another interpretations

Question 27

MacMillan on Bell v Lever Bros

Answer 27

'Hard cases really do make bad law' and 'failed case of FMR'

Question 28

Beale on mistake

Answer 28

Alternative framework - if A, but for the mistake, different terms or no contract, and B knew of importance, then mistake. UNLESS as to value of performance or risk assumed.

Question 29

MacMillan on mistake in general

Answer 29

No reason to follow Cundy nowadays as legal basis has vanished and never supported Pollock's theory that mistake vitiates consent - treat identity consistently with fraud and voidable.

Question 30

Michael Trebilcock

Answer 30

Kantian precept of 'equal respect' for MR, but specifically rejected in Smith v Hughes

Question 31

Collins on contracts of insurance

Answer 31

'Bad faith use of the duty of good faith'

Question 32

Atiyah and Treitel on MR

Answer 32

S.3 of MA has enormous width, but now controlled by s.11 UCTA

Question 33

E Peden

Answer 33

'Consisiently implied' terms by law

Question 34

Rogers J on West Bromwich (but not from)

Answer 34

'Inimical' to contractual dispute resolution to approach it with a 'finely tuned linguistic fork'

Question 35

Hoffman on West Bromwich (after)

Answer 35

Criticism and concern over WB may have 'sound practical intuition'

Question 36

Collins in terms

Answer 36

Three justifications for implying terms: unexpressed intention, efficiency analysis and economic analysis

Question 37

Steyn in terms (writing extra-judicially)

Answer 37

Justification for implied terms is court's view of the reasonable expectations of the parties

Question 38

Atiyah on terms

Answer 38

Value of a signature 'would be greatly reduced if it could not be treated as a conclusive ground of contractual liability'

Question 39

M Chen-Wishart on UCTA

Answer 39

'No obvious way to draw the line' between what it reviewable and not under s.13(b) - 'but for' test of Smith v Eric is too wide and uncertain. Should limit to non-core terms only.

Question 40

Law Com Report No.204 on UCTA and UTCCR

Answer 40

Merge them, one reasonableness test, increase protection for consumer to ALL non-core terms, regardless of negotiation, and non-core, non-negotiated for micro-businesses

Question 41

M Chen-Wishart on UTCCR

Answer 41

'Little scope for terms not deemed to be part of the "main subject matter" or "price or remuneration"'

Question 42

'Anthropomorphic construction of justice, the reasonable man'

Answer 42

Per Lord Radcliffe in Davis Contractors v Fareham

Question 43

Andrew Kull

Answer 43

Subscribes to 'no excuses' rule of contracts (Paradine v Jane)

Question 44

Alan Sykes

Answer 44

Tendency for factors to lean against frustration - would abolish it as strict liability is simple, predictable and certain

Question 45

MacMillan on frustration

Answer 45

Not cemented until the frustration cases (Krell v Henry)

Question 46

Treitel on frustration

Answer 46

Law has moved from absolute contracts to 'the modern doctrine of discharge by supervening event'. Critcises Denning in Eugenia - provision first, then foreseeability (to allow for situations like Met Water Board v Dick Kerr) and does not go past unforeseen events. Distinction between Krell and Herne Bay.

Question 47

Professor Ibbetson on frustration

Answer 47

'Rules of law behind a facade of party intention', in reference to implied term in Taylor v Caldwell

Question 48

McKendrick on frustration (Contract Law, not Restitution, LA etc)

Answer 48

Sea Angel warns against over-refinement of foreseeability - Treitel argues for 'any person of ordinary intelligence would regard as likely to occur'

Question 49

Treitel on foreseeability requirement of F

Answer 49

Treitel argues for 'any person of ordinary intelligence would regard as likely to occur'

Question 50

McKendrick (restitution essay)

Answer 50

Praises Goff in BP for seeing LR(FC)A as for 'prevention of the unjust enrichment'. Thinks s.1(2) will lead to all or nothing cases. Criticises s.1(3) for end-product analysis - no distinction betwen services without an end product and product being destroyed.

Question 51

McKendrick conclusion in restitution essay on F

Answer 51

'Undoubted improvement upon the CL rules' in LR(FC)A by removing 'total failure of C' from Fibrosa Spolka, but 'grave deficiencies' still exist

Question 52

Board of Trade in 1918

Answer 52

Examined CL when there are increased costs but no frustration (e.g. Davis Contractors), but preferred certainty and sanctity of contract so did nothing

Question 53

Professor Brownsword on performance and breach

Answer 53

In Hansa Nord, the courts took a stand against 'bad faith' and 'economic opportunism'. Should focus on motivations for termination instead; fairer and more direct in cases like HN.

Question 54

McKendrick on performance and Breach

Answer 54

Brownsword's approach increases costs, not all difficulties are removed (e.g. both in bad faith; Mihalis Angelos) and why should C need to act fairly?

Question 55

Q Liu

Answer 55

Reform wholly unreasonable test with one that weighs wastefulness against sanctity of contract - performance interest in contract price may be outweighed by wastefulness

Question 56

Lord Hobhouse in A-G v Blake

Answer 56

Error often made is to refer to compensation as 'relating to a loss as if there has to be some identified physical or monetary loss'

Question 57

Friedmann on Ruxley v Forsyth

Answer 57

Shouldn't be called a 'defeated expectation loss' as he had a right to the performance.

Question 58

Fuller and Perdue

Answer 58

Championed reliance interest, arguing damages usually protect it alone. Included loss of opportunity in reliance, bringing it closer to pI

Question 59

Friedmann on remedies

Answer 59

F&P's label is misleding, defends primacy of PI and states reliance is not a contract interest at all (with Atiyah, but see the mamola challenger)

Question 60

Professor Edelman in remedies: damages

Answer 60

Disgorgement damages (Blake) and restitutionary damages (Wrotham Park v Pakside Homes)

Question 61

Coote on remedies: damages

Answer 61

In cases like Ruxley , law has failed to recognise the value of the right to performance itself, so not protecting PI at all

Question 62

Schwartz

Answer 62

specific performance should be a general right; there is a strong incentive against it as D is reluctant to perform and may be hostile

Question 63

Burrows on SP

Answer 63

Mitigation rule does not apply so C not encouraged to minimise loss. Greater infringement of liberty to carry out C involuntarily, but voluntarily agreed to C

Question 64

Smith on SP

Answer 64

Forced performance is 'self-defeating' - bonds from voluntary obligations can only be released by voluntary performance (nonsense)