Contract Y1S2 Flashcards
(136 cards)
1
Q
(per Lord Radcliffe in Davis Contractors Ltd. v Fareham Urban
District Council [1956] A.C. 696, p 728)
A
“…frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstance in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”
2
Q
Taylor v Caldwell (1863) 3 Best and Smith 826
A
A contract is frustrated when the subject matter is destroyed
3
Q
Asfar & Co. v Blundell [1896] 1 Q.B. 123
A
A contract is frustrated when the subject matter is rendered useless
4
Q
Condor v Barron Knights [1966] 1 W.L.R. 87
A
A contract is frustrated where init has incapacity, in contracts of personal service
5
Q
Nickoll & Knight v Ashton, Edridge & Co.
[1900] 2 Q.B. 298
A
A contract is frustrated Where the contract cannot be performed in the manner specified
6
Q
Krell v Henry [1903] 2 K.B. 740
A
A contract is frustrated when the event doesn’t occur
7
Q
Herne Bay Steam Boat v Hutton [1903] 2 K.B. 683
A
A contract is frustrated when the event doesn’t occur EXCEPT when the contract has other purpose
8
Q
MetropolitanWater Board v Dick,Kerr and Company Limited [1918] A.C. 119
A
A contract is frustrated where the government intervenes
9
Q
Tsakiroglou & Co. Ltd. v Noblee Thorl G.m.b.H. [1962] A.C. 93
A
A contract is frustrated where the government intervenes But not If performance is just more difficult/expensive
10
Q
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour [1943] A.C. 32
A
A contract is frustrated where it becomes illegal to perform
11
Q
if the event was included in a force majeure clause
A
Not frustrated
12
Q
Jackson vThe Union Marine Insurance Company
(1874-75) L.R. 10 C.P. 125
A
The clause must cover the situation or it can be frustration
13
Q
Davis Contractors Ltd. v Fareham Urban District Council [1956] A.C. 696
A
A contract is NOT frustrated where it has simply become more difficult to perform
14
Q
Maritime National Fish Limited v OceanTrawlers Limited [1935] A.C. 524
A
A contract is NOT frustrated where it is the fault of one party
15
Q
What does frustration mean for the contract?
A
Contract void from the point of frustration, future contractual obligations discharged
16
Q
What if there is no frustration?
A
Breach occurred
17
Q
What if it is covered by force majeure clause?
A
Look at the clause
18
Q
Express terms
A
Terms which are actually recorded or openly expressed
19
Q
Incorporated terms of not incorporated?
A
legally binding or not legally binding
20
Q
L’Estrange v E Graucob Ltd [1934] 2 KB 394
A
If it is in a signed written document, it is almost certainly an express term
21
Q
Chapelton v Barry UDC [1940] 1 KB 532
A
Other written terms can be included if They are on a contractual document
22
Q
Bannerman v White (1861) CB NS 844
A
More likely to be a term if…
It is of clear importance to the representee
23
Q
Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1WLR 623
A
More likely to be a term if…
The representor has special knowledge
24
Q
Schawel v Reade [1913] 2 IR 81
A
More likely to be a term if…
The representor accepts responsibility for the truth of the statement
25
Oscar Chess Ltd vWilliams [1957] 1WLR 370
Less likely to be a term if...
| The representee has greater or equal knowledge
26
Ecay v Godfrey (1947) 80 Ll L Rep 286
Less likely to be a term if...
| The representee was encouraged to verify it
27
Inntrepreneur Pub Co v East Crown Ltd
| [2000] 2 Lloyd's Rep 611
Less likely to be a term if...
| There is a delay between statement and contract
28
Routledge v McKay [1954] 1WLR 615
Less likely to be a term if...
| It is not contained within the written contract
29
Implied terms
"other terms imported into the contract" Halisburys laws
30
Business Efficacy Test
The moorcock - factual implied term
31
Shirlaw v Southern Foundaries [1939] 2 KB 206
The officious bystander test - factual implied term
32
Liverpool City Council v Irwin
| [1977] AC 239
in contracts off a sufficiently similar type terms can be implied
33
British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd [1975] QB 303
Custom of the industry that it is the hires responsibility
34
Principle of caveat emptor
buyer beware
35
Sale of good act s12
right to sell
36
Sale of good act s13
as described
37
Sale of good act s14(2)
satisfactory quality
38
Sale of good act s14(3)
fit for purpose
39
Consumer rights act application
B2C only
| Not to mortgages or other securities
40
Consumer rights act s.9
satisfactory quality
41
Consumer rights act s.10
fit for a particular purpose
42
Consumer rights act s.11
product will be as described
43
Consumer rights act s.13
Match the sample
44
Consumer rights act s.14
Match the model
45
Consumer rights act s.17
right to supply the goods
46
Consumer rights act s.49
ressonable care and skill
47
Consumer rights act s.50
Info about trader to be binding
48
Consumer rights act s.51
reasonable charge
49
Consumer rights act s.52
performance within a reasonable time
50
Scammell & Nephew Ltd v Ouston [1941] AC 251
where terms are too uncertain, there is no contract
51
Wallis,Son &Wells v Pratt & Haynes
| [1910] 2 KB 1003, per Fletcher at 1012
condition definition
Go to the heart of the contract
52
Condition definition
Wallis,Son &Wells v Pratt & Haynes
[1910] 2 KB 1003, per Fletcher at 1012
Go to the heart of the contract
53
Warranty def
less important terms of the conract
54
Warranty def
less important terms of the contract
55
Innominate term definition
Depend upon the nature of the event cannot be automatically classified
Hongkong Fir Shipping v Kawasaki [1962] 2 Q.B. 26
56
Poussard v Spiers & Pond
| (1876) 1 QBD 410
it is a conditionn if it is of great importance to the defendants
57
Poussard v Spiers & Pond
| (1876) 1 QBD 410
it is a condition if it is of great importance to the defendants
58
Bettini v Gye
| (1876) 1 QBD 183
it is a warranty
59
The Mihalis Angelos [1971] 1 QB 164
The terms of commercial contracts require certainty
60
Schuler AG v Wickman Machine Tools Sales Ltd [1974] AC 235
Using the word condition in the term doesnt necessarily mean it is a condition
61
United Scientific Holdings v Burnley BC [1977] 2 WLR 806
Anything to do with time is a warranty
62
Bunge Corporation v Tradax Export SA [1981] 1 WLR 711
If its a commercial contract time will be treated as a condition not warranty
63
Charles Rickards LD. v Oppenhaim [1950] 1 KB 616
Time can be made a condition when giving notice due to failure of contract conditions
64
Breach
Without lawful excuse, a party fails rot comply fully or at all with an express or implied term
65
Legal Remedies
```
Legal Remedies
Agreed sum/price
Liquidated damages clause in a contract that is an agreed price
Liquidated damages
Unliquidated damages
If there is no clause there are unliquidated damages decided by the judge
Termination
Repudiatory breach entitles termination
```
66
Legal Remedies
Legal Remedies
- Agreed sum/price
- Liquidated damages clause in a contract that is an agreed price
- Liquidated damages
- Unliquidated damages
- -If there is no clause there are unliquidated damages decided by the judge
- Termination
- -Repudiatory breach entitles termination
67
Equitable remedies
```
Specific performance
Injunction
Account on profits
Not available as of right only from court
May be refused on grounds of hardship
Damages
```
68
Purpose of damages
to return the claimant to the position they should be in
69
How to reduce damages?
- But for causation
- Remoteness
- Failure to mitigate
70
Farley v Skinner [2001] UKHL 49
The starting point in contract law is the expectation interest
71
Anglia Television v Reed [1972] 1 Q.B. 60
recover the reliance interest
where it is not possible
calculate the with certainty the expectation interest but
not just to avoid a bad bargain
72
Ruxley Electronics & Construction Ltd v Forsyth [1995] UKHL 8
In calculating the expectation interest the courts must decide wether to award the distance in value or the cost
73
Jarvis v Swan Tours Ltd [1973] EWCA Civ 8
Where a contract is entered for the specific purpose of enjoyment or entertainment damages can be awarded for distress, disappointment frustration which causes a breach of contract.
74
South Australia Asset Management Corporation v York Montague Ltd [1996] UKHL 10
The claimant can only recover losses which have been directly caused by the breach i.e. which would not have occurred "but for" the breach".
75
Hadley v Baxendale [1854] EWHC Exch J 70
A loss will only be recoverable if it:
Loss unforeseeable
(1) arises naturally from the breach itself; or
(2) was (objectively) "in the contemplation of the parties" (i.e. if it was foreseeable), at the time of contracting, as the probable result of the breach
76
Victoria Laundry v Newman [1949] 2 K.B. 528
Loss foreseeable
A loss will only be recoverable if it:
(1) arises naturally from the breach itself; or
(2) was (objectively) "in the contemplation of the parties" (i.e. if it was foreseeable), at the time of contracting, as the probable result of the breach.
77
Brace v Calder and Others [1895] 2 Q.B. 253
Failure to mitigate
After a breach the claimant has a duty to take all reasonable steps to minimise its losses
78
Arcos Ltd v EA Roans' & Son [1933] AC 470
A failure to comply with terms of a contract will amount to a breach
79
Bolton v Mahadeva [1972] 1 WLR 1009
Where a contract can be easily divided into component parts a defendant may be taken to be in breach in respect to one part only.
80
Maple Flock Company, Limited v Universal Furniture Products (Wembley), Limited [1934] 1 KB 148
Where there is a contract for the sale of goods to be delivered by instalments which are to be separately payed for and there is one or more defaults by either buyer or seller, the court will consider the quantitative ratio which the breach bares to the contract as a whole.
81
Hochster v De La Tour (1853) 2 E & B 678
Anticipatory breach
82
Limitation act 1980 s.5
Breach of contract claim - 6 years from date of breach
83
Limitation act 1980 s.8
Breach of contract where contract is made by deed - 12 years from date of breach
84
Limitation act 1980 s.32
where there is a fraud the limitation doesn’t begin until the claimant discovers the fraud
85
Cavendish Square Holding BV v Makdessi [2015] 3 WLR 1373
If liquidated damages are disproportionate they will be deemed to be a penalty clause and therefore unenforceable.
86
Misrepresentation Definition
Halisburys laws
positive statement of fact
which is untrue
result of inducing represent into a contract
can elect to regard the contract as rescinded
87
Dimmock v Hallett (1866) LR 7 Ch App 21
A mere "puff" is not a "false statement of fact"
88
Bisset v Wilkinson [1927] AC 177
A mere statement of opinion is not a "false statement of fact"
89
Hummingbird Motors Ltd v Hobbs [1986] RTR 276
A mere statement of opinion is not a "false statement of fact"
90
Smith v Land and House (1884) 28 Ch D 7
A mere statement of opinion is not a "false statement of fact" UNLESS the opinion is not honesty held
91
Edginton v Fitzmaurice (1885) 29 Ch D 459
A statement of intention can be a "false statement of fact" if not honestly held
92
With v O'Flanagan [1936] Ch 575
A statement which ceases to be true can be a "false statement of fact"
93
Spice Girls Ltd v Aprilia World Service BV [2002] EWCA Civ 15
A "false statement of fact" can be implied through conduct
94
Attwood v Small (1838) 6 Cl & Fin 232
No reliance = no inducement
95
Redgrave v Hurd (1881) 20 Ch D 1
A representee is entitled not to check
96
Typical remedies for misrepresentation?
Rescission/damages
97
Remedies for fraudulent misrep
Damages for deceit
recession (absolute)
98
Remedies for negligent misrep
Damages for deceit
recession (discretion)
99
Remedies for innocent misrep
Rescission (Discretion)
OR
Damages in lieu of rescission (Discretion)
100
Bars to Rescission
Affirmation (Long v Lloyd [1958] 2 All ER 402)
Lapse of time (Leaf v International Galleries [1950]
2 KB 86
Impossibility
Third party rights
101
When is an exclusion clause incorporated? Tech 1
- it is signed
- its on a contractual document
- it is introduced in time
- reasonable notice has been provided
102
Houghton v Trafalgar Insurance Co Ltd [1954] 1 QB 247
Clauses will be construed "Contra Proferentem"
103
White v JohnWarwick & Co [1953] 2All ER 1021
Liability for negligence
104
Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805
Misrepresentation
105
Webster v Higgin [1948] 2 All ER 127
collateral contracts
106
Cosgrove v Horsfall (1945) 175 LT 334
Privey of contract
107
How does parliament limit draconian exemption clauses
```
UCTA77
and
The requirement of "Reasonableness"
and
Reasonableness -
Schedule 2 Factors
```
108
(Raffles v Wichelhaus (1864) 2 H&C 906)
Latent ambiguity MAY negative consent
109
(Smith v Hughes (1871) LR 6 QB 597)
A mistake as to the terms of the contract which is known
| to the other party MAY negative consent
110
Cundy v Lindsay (1878) 3 App Cas 459
A mistake as to the identity of the other party MAY negative consent
111
Authoritative Definition: Common Mistake
the parties are agreed on the terms of the contract but have entered it under a shared and fundamental misapprehension as to the facts or the law.'
Chitty
112
Bell v Lever Brothers Ltd
Leading case for common mistake
113
Galloway v Galloway (1914) 30TLR 531
can be common mistake where the subject matter does not exist
114
s. 6, Sale of Goods Act 1979
can be common mistake where goods to be purchased, have perished
115
Sheikh Brothers Ltd v Ochsne
| [1957] AC 136 (Privy Council)
can be common mistake where the contract is physically impossible to perform
116
Cooper v Phibbs (1867) LR 2 HL 149
can be common mistake where the contract is legally impossible to perform (not the same as being illegal)
117
Griffith v Brymer (1903) 19TLR 434
cam be common mistake where the contract is commercially impossible to perform
118
Mistakes as to quality are rarely sufficient e.g.
Oscar Chess Ltd vWilliams [1957] 1WLR 370
119
Great Peace Shipping Limited v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407
test for common mistake
1) common assumption of state of affairs
2) no warranty by either party that states it exists
3) non existence of affairs must be due to either party
4) must render performance impossible
5) must be vital attribute of consideration
120
No mistake?
Breach
121
Mistake?
Contract void
122
Duress?
Illegitimate pressure + causation
123
OccidentalWorldwide Investment Corporation v Skibs A/S Avanti [1976] 1 Lloyd's Rep 293, 336 (Kerr J).
def of duress
[Some action] which could in law be regarded as coercion of his will so as to vitiate consent."
124
Barton v Armstrong [1976] AC 104 (PC)
Duress to the person
125
Astley v Reynolds (1731) 2 Str 915
Duress to Goods
126
Atlas Express Ltd v Kafco [1989] QB 833
Economic Duress
127
Undue influence?
consent obtained by unacceptable means
unfair exploitation
128
how to see undue influence?
relationship pf influence + abuse of relationship
129
Williams v Bayley (1866) LR 1 HL 200
Actual undue influence
130
Royal Bank of Scotland v Etridge (No. 2)
| [2001] UKHL 44
Presumed Undue Influence
131
CPR 1.1
Deal with cases justly and at proportionate cost
132
CPR 44
Identifys how the court should deal with damages
133
CPR 36
about offers to settle
134
Bellway Homes Ltd v Seymour
costs penalties fro parties
135
CPR 6
directions for service of documents
136
CPR 7
how to start proceedings
