General contract principles Flashcards
knowledge (35 cards)
1
Q
Outline the types of behaviour that will amount to duress.
A
- Physical threats/threats to health or life: Barton v Armstrong [1976] AC 104, Debenture Trust v Ukraine
- Threats of prosecution: Rourke v Mealy (1879) 13 ILTR 52
- Threat to report to the legal authorities: Haines v Carter [2001] 2 NZLR 167
- Marriage: Griffith v Griffith [1944] IR 35
- Duress of goods: Smelter Corporation of Ireland v O’Driscoll [1977] IR 305
- Economic duress: Universe Tankship of Monrovia - no econ duress in UK available post Debenture Trust v Ukraine
2
Q
Duress
- remedy
- CL/equity
A
- Common Law doctrine - presumption that parties enter freely into contracts - duress is forcing other party to enter contract against their will
- voidable rather than void- can be affirmed by delay: North Ocean Shipping v Hyundai
- in Barton v Armstrong void
3
Q
Physical threats (3)
A
Physical threats/threats to health or life:
* Barton v Armstrong [1976] AC 104
* Debenture Trust v Ukraine 2024
* Lessee of Blackwood v Gregg
4
Q
Emotional force (3)
A
- Griffith v Griffith
- MK v McC
- Rourke v Mealy
- duress of goods: Smelter
5
Q
Economic duress (6)
A
- Atlas Express v Kafco
- B&S Contracts v Victor Green Productions
- Rogers v Iaralco
- Universe Tankships of Monrovia v ITWF
- Times Travel v Pakistan Int. Air. Corp.
6
Q
Test for duress
A
- illegitimate threat
- lack of alternatives
- causation- as outline in Barton v Armstrong- at least one of the reasons
7
Q
Undue influence
- remedy
- CL/equity
- types
A
- voidable in equity
- Two types:
- Actual undue influence
- presumed undue influence
- 2A: Relationships raises presumption
- 2B: Facts raise presumption
- improper pressure, but not as much as CL duress
8
Q
Actual undue influence (1 case and explain)
A
- no relationship that gives presumtion of undue influence but court satisfied it was not free will- Carroll v Carroll
- example: O´Flanagan v Ray- Ger - Pope undue influence on O´Flanagan
- Ffrench O´Carroll v Ffrench O´Carroll- not easy to establish
9
Q
Difference duress and undue influence?
A
duress= single isolated threat
undue influence= can not isolate one single threat
10
Q
Relationships giving rise to presumed undue influence
A
- particular relationship- power assymetry- only assumption- can be rebutted by facts of the other side
- works in favor of those presumed to be influenced- practical significance in court room - onus on defence
- Religious association/ devotee: Whyte v Meade, Allcard v Skinner
- doctor/patient
- solicitor/client
- parent/child: McMackin v Hibernian Bank, Carroll&Carroll v Carroll
11
Q
Facts raise presumption (2 cases and explain)
A
- relationship itself does not fit the aforementioned cathegories
- context of confidence and trust - ex. husband and wife, siblings, neighbours
- McGonigal v Black
- Allied Irish Bank v Byrne
12
Q
Test in Carroll v Carroll for undue influence
A
- one party at serious disadvantage to another, so that circumstances existed of which unfair advantage could be taken
- transaction was at an undervalue
- lack of independent legal advice
13
Q
Effect of undue influence on third parties
A
- the person was agent of the third party
- actual or constructive knowledge of undue influence
- McMackin v Hibernian Bank
- should if any above have independent legal advice
14
Q
Remedies in Undue influence
A
- discretionary - laches/lapse of time- as in Allcard- 6 years
- all-or-nothing process: AIB v Byrne
15
Q
Unconsionable bargain
- equity/CL
- remedies
- definitions
A
- equity
- no threat or power relation- the bargain itself is so shocking, it is clear that the weaker party should be protected
- voidable
16
Q
Cases of unconscionable bargain (3 plus 3)
A
- Slator v Nolan
- Rae v Joyce
- Grealish v Murphy
- Fusty v McLean Construction
- Credit Lyonnais v Burch
- Doan v Insurance Corporation of British Columbia
17
Q
Test for unconsionable bargain
A
Boustaney v Piggott
* serious disadvantage of plaintiff
* disadvatage exploited
* manifested negatively for the plaintiff
* no independent legal advice
18
Q
What are types of mistakes and their meaning?
A
- Any mistake - position when the contract was entered
- Common mistake: arise where parties share the same mistaken perception as to an issue of fact
- Eg. Both mistaken by exactly the same thing - same mistaken perception
- Mutual mistake: both parties mistaken but of different things
- Eg. Both have different POV - unclear what
- Unilateral mistake: only one party is mistaken
- Eg. One party creates a mistake to then exploit
19
Q
Common mistake in CL (3)
A
- Fitzsimons v O´Hanlon
- Couturier v Hastie
- Galloway v Galloway
- narrow view in common law- has to be essential to the contract
- criteria layed down in Associated Japanese Bank- high burden
20
Q
Mistake
- equity/CL
- remedy
- what it means
A
- most mistakes only common law- common mistake actionable in equity in IE not in UK
- so usually void- in equity voidable
- mistake- has to be present before or when the contract is entered- 3 different types
21
Q
Case law mutual mistake (1)
A
- Mespil v Capaldi - no consenses as no proper offer and acceptance- different idea
22
Q
Unilateral mistake (5 and explain)
A
- mistake as to identity makes void, not attributes or characteristics, those at most voidable before third party gets the good
- Phillips v Brooks
- Ingram v Little -mainly bc old ladies, lower burden, social policy
- Lewis v Avery
- Shogun Finance v Hudson- no face to face, identity crucial, forged drivers licence, in writting
- Longley v PPB Entertainment
23
Q
Non est factum
A
- not in my deed
- complaint that the document is not what they thought
- very rare in commercial scenarios
- Danske Bank AS v Walsh
- IBRC v Quinn
- AIB v McKenna
- Friends First Finance v Lavelle - sucess
24
Q
Damages
A
- usually ppl sue for money
- forward looking- putting in position where they would be if the contract was performed
25
What is meant by remotness of damage? (4 or 5)
* not all loses compensated
* English case- wedding
* Hadley v Baxendale- test two limbs
* Parson v Uttle Ingham
* Kemp v Intasun
* Transfield Shipping v Mercator Shipping- adds limb- risk accepted by one party
26
Test for remotness
* Hadley v Baxendale
* objective: arise naturally
* subjective: reasonably be supposed to have been in conteplation of both parties when contract was made
27
Heads of loss - 3 types and 2 cases
Expectation loss- expected profit
Reliance loss- expenses lost by relying on X to fullfill the contract
Restitutionary loss- conferred benefit on the other side
- can not claim all have to decide 1- no overlap
- Anglia Television v Reed
- Bowlay Logging v Domtar
28
Types of intanglible loss anf relevant case law (1 plus 4)
* lost chances
* Hawkings v Rodgers- Lonely Maid horse
* emotional distress
* Hobbs v London&SW Railways - no distress damages
* Jarvis v Swan Tours - reversed- pleasure/holiday
* O´Keeffe v Ryanair
* Circuit Court case
* Dinnegan v Ryan
29
Difference between penal clauses and liquidated damages
* penal clause- not enforceable- sets a penalty for breach of contract, not an exstimate of the price of breach
* Liquidated damages- enforceable- tries to estimate the value of breach, lower litigation costs- needs to reflect actual costs
* not the language but effect
* Dunlop Tyre v New Garage
* Durkan New Homes v Minister- construction and surronding circumstances
* Ford Motor Company v Armstrong
* ParkingEye v Beavis - wider than original test- legitimate intests cna be broad
* Governor of Irish Bank v O´Boyle
30
Mitigation of loss
* Lennon v Talbot - no need to accept new disadvantageous agreements
* take reasonable steps
31
Other equitable remedies?
* Specific performance
* Injunction
* Rectification of mistake- not usual - rewrites to the intended form
* rescission- mistake, duress, undue influence- back into original position- untie contract
32
Adequacy of damages
* not always- unique subject matter- like art or land- scarcity
* Sky Petroleum v VIP Petroleum
33
Specific performance when constant supervision is required
* Ryan- porter 24/7 present- could not be supervised by court
* Posner v Scott-Lewis - simple yes/no- is he a resident
34
Specific performance and personal relationships
* mostly injunction - incentive to remain in contract- nudging- no coercion
* Warner Bros v Nelson
* Lumley v Wagner- can earn money elsewhere
* Warren v Mendy - no injunction, no alternative of a manager
35
What discretions are utilized in specific performance/injunction?
* do equity - laches
* do their side of nargain
* benefits weighed with costs
* hardship- Patel v Ali - good health, delay- no fault, bad health- would have to move- needs to be close to family- poor English - damages calculated
