lecture seven

Question 1

example in case law

Answer 1

As to facts, no person can lay himself under an obligation to perform what is naturally impossible; Erskine, III, 3, 3

Question 1

Pacta illicita

Answer 1

Pacta illicita covers contracts that are illegal or impossible at formation.
- is potentially unenforceable as a matter of law. It is not ‘void’

Question 2

pacta illicita contracts

Answer 2

• Contracts with lawful objects but intended to be performed illegally are unenforceable (Malik v Ali 2004).
• contracts contrary to public morals or policy - (Justinian’s Digest; MacQueen & Thomson, para 8.16).

Question 3

unjustified enrichment

Answer 3

If property or money has passed under an illegal contract, a party may claim unjustified enrichment—unless they are equally at fault (in pari delicto);

Question 4

illegal contracts

Answer 4

An illegal contract is unenforceable: no specific implement or damages will be granted, though property may still lawfully pass under it.

Question 5

remedies for pacta illicita

Answer 5

remedies are equitable but not in the English sense. Dowling & Rutter v Abacus Frozen Foods Ltd.

Question 6

innocent party

Answer 6

an ‘innocent’ party may in exceptional circumstances claim redress on the basis of the law of unjustified enrichment – see Cutherbertson v Lowes

Question 7

english solution

Answer 7

D Geddes (Contractors) Ltd v Neil Johnson Health and Safety Services Ltd- look at some additional principles that no one should profit from wrongdoing

Question 8

restrictive convenant

Answer 8

A restrictive covenant limits a party’s ability to contract with third parties.
- Usually unenforceable

Question 9

when is it enforceable?

Answer 9

• A restrictive covenant is enforceable if it: (1) protects a legitimate interest, (2) is reasonable between the parties, and (3) serves the public interest.

Question 10

restrictive covenant examples

Answer 10

• Sale of a business: Nordenfelt v Maxim Nordenfelt
• Partnership agreements Anthony v Rennie

Question 11

frustration

Answer 11

Frustration applies when events after formation make performance impossible, illegal, or commercially futile. Bell’s Principles in 1899 at s.29

Question 12

supervening illegality

Answer 12

Supervening illegality – this is for situations where performance of the contract becomes illegal after the contract has been formed James B Fraser & Co Ltd. v Denny Mott and Dickson Lt

Question 13

supervening impossibility

Answer 13

• Supervening impossibility (rei interitus) arises when performance becomes impossible, typically due to destruction of the subject matter or death of a key person (delictus persona). Taylor v Caldwell (1863) 3 B & S 826

Question 14

commercial frustration

Answer 14

Commercial frustration occurs when a supervening event fundamentally alters the nature of the contract. Krell v Henry.

Question 15

force majeure

Answer 15

Force majeure clauses are contractual terms that pre-emptively address such disruptive events, separate from frustration but related.

Question 16

force majeure definition

Answer 16

Force majeure = superior force Really, an event which is unexpected and outwith the parties’ control.

Question 17

force majeure clause

Answer 17

A force majeure clause lets parties define which events will trigger it and set out their preferred consequences, such as pausing, continuing, or adjusting the contract.