Remedies Flashcards

Question

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Answer 1

Equity may grant rescission of a voluntary transaction, e.g where a person has transferred property by way of a gift absolutely, or transferred it to trustees on trust, whether effected by Deed or otherwise.

Answer 2

Futter v IRC [2013] UKSC 26 | Test for rescission of voluntary transactions less onerous than for contracts.

Answer 3

So u can recind anything under equity-equitable fuad or wrongdoing- so u can recing gifts easier tor ecind gifts

Answer 4

futter v irc- obvs less onerous than undoing cotnractc os got bargain aspect, no cons just 1 way transfer. But if can show that transfer is precured by duress or undue infl or fraud or some othe wrongdoing u can get recsision I equity. Equity can unravel all these naught things.

Answer 5

Test being : ‘ the true requirement is simply for there to be a causative mistake of sufficient gravity’.

Answer 6

This could be a mistake either as to the legal character or nature of the transaction, or as to the effects of consequences of the transaction, including tax consequences.

Answer 7

Ultimate test is: Would it be unconscionable or unjust to leave the mistaken disposition uncorrected? This is an objective test.

Answer 8

Is it uncocnsiouble r.a.w couldnbe transfer of alnd, property , giving away mign vase u can undo recision of anything any gift. But have to show be uncconciousble unjust not to roder recison- q for judge.

Answer 9

Defence of Change of Position ? If before becoming aware/should have become aware of it being unconscionable to retain the benefit of the disposition, the recipient materially changed their position, the defence of change of position might prevent liability or minimise the same.

Answer 10

There amy be defence of change of position – so if before coming aware or should bec oem awa re- innocent part materially hnage positon or person gvign prpa way changed pos people relied somehow on that gift. That mgith epvent recison of it but depend on facts each and evry case- that’s a restitution argument.

Answer 11

Ur preventing an unjust enrichment here by ordering recsion of a gift which should ahev taken palce, did thru duress, but fi soemwhow there sbeen chan e of pso and ebcoems unjust to roder a recison that cans tp rec being roderd bt that restitution lawayers arg

Answer 12

A misrepresentation is a false statement of existing fact which in fact induces a contract, it does not render a contract void but voidable at the election of the misrepresentee.

Answer 13

Recision mis- saw in contract law- contract entered into false state existing fact which induces contrac tor a cause of inducing cont but not necc the cause recision is avial potentially whether misrep fruadlent neglgien to or innocent, depending on cuplabilti, wickeness of wrongdoer… so how guilty or incnoent maker statement is can dictate lieky toget recision or not

Answer 14

Rescission of a contract is available for both fraudulent, negligent and innocent misrepresentation (depending on culpability of maker), Ss.2 (1) and (2) Misrepresentation Act 1967

Answer 15

If the misrepresentation is fraudulent or negligent the misrepresentee can claim rescission and/or damages (on a tort of deceit/fraud basis, S.2(1)).

Answer 16

Rescission is at discretion of court, subject to bars, affirmation, delay (laches), restitutio integrum. Burden of proof is on maker of statement to show reasonable grounds for believing.

Answer 17

If the misrepresentation is innocent rescission OR damages in lieu available S.2(2).

Answer 18

Recission of coruse always ultimately discretion foc ct and are those bars to recisison for msirep in context of cotnracts

Answer 19

for e.eg despite misrep di guy nonetheless take car pay for ti and go around running taxi business 6 months before gone ct. if has done cant cliam rec coss used it andf been happy to wave thr eefct of misrep and carry on with it. Might be able to get damage I lieu but point ebign ahs he in someway affirmed contract and u can lose right then to set aside btus till be able claim dam for obvs any loss of overpaying car. Or fi he goes to ct may nto drive taix around, goes get rec

Answer 20

.. Ct says ur unreasonably delayed, uncocnsioubly delayed to assert ur right ofr ecc. Resturory itnegreim, restoring status quo anti u getting money back him getting car back has bene lost bc of delay.doc tor of lechees. So are these bars of reccison

Answer 21

Contracts, voluntary dispositions (absolute gifts or gifts on trust) can be set aside where they have been procured through undue influence.

Answer 22

*See Pawlowski and Brown Undue Influence and the Family Home 2001 Cavendish.

Answer 23

Several types of Undue Influence: Actual Where one party has actually applied improper pressure (short of duress) which induces the transaction/disposition. -actual improp pressure cause someone to enter intoa greement which otherwise wouldn’t done

Answer 24

See Bank of Credit and Commerce International v Aboody [1990] 1 QB 923

Answer 25

Bank – mis aboady was hierarchy dures,s cultarlly did everything hudband told her, thretn abuse all sign mortgage agreement and she did and there was actual undue infl. Think claim failed cos cultrally signed anyway even if been no undue ifnlue. So weren’t cuase of her unsigned but illustrating banging fists and thigns is improper pressure actual undue influence

Answer 26

Presumed Undue Influence Where the nature of relationship between parties to transaction/disposition gives rise to a presumption of undue influence and such influence was exercised. E.g Parent/child; spiritual adviser/disciple; doctor and patient; lecturer/student; married and cohabiting couples; solicitor/client.

Answer 27

Presumed undure can arise where nature of rels r.a.w is such that law presumes oen ahs some sort of power or pshyciologcal control vor other. That to enter into r.a.w parent child e.f = power relationships – so any gift or contracted entered into where weaker party gives to some benefit tos tronger aprty can be recind at election of the weaker party and court can order recision in equit jurisdiction.

Answer 28

OR where a relationship of trust and confidence reposed by one in another is established. - Or presumption of undue ifnlu can arise where 1 person palces trust or conf in another. So this can happen inc otnext husband /wives aprtners

Answer 29

e.g 1 person simply says I trusted this eprso and went along and signed mortage agrrememnt. If uc an estab that 1 pary did that reposed trust and conf in other that then create presumption of undue ifn arising inf avour of strongr pary. Weaker paety ge trecision of transc once crossed hurdle. Unelss stronger aperty can show weaker party idnepdnanct advice clearly waware what getting themselves in for. So b.o.p shifts otherwise recisio will be ordered.

Answer 30

Allcard v Skinner (1887) 26 Ch.D 145- recision ordered Barclays Bank v O’Brien [1994] 1 AC 180 Roche v Sherrington [1982] 1 WLR 599 Wright v Carter [1903] 1 Ch.27 CA CIBC v Pitt [1994] 1 AC 200 Credit Lyonnais v Burch [1997] 1 All.E.R 144 Royal Bank v Scotland v Ettridge No.2 [2001] AER 449

Answer 31

A third party such as a bank or mortgage lender might be affected and tainted with the undue influence of say one individual procuring the consent of another over whom he or she has influence, into entering say a mortgage agreement. If so, the undue influence, is deemed to come from the third party bank as it has NOTICE of the wrongdoing of the one who exercised undue influence.

Answer 32

See Barclays Bank v O’Brien (above) (HL) | Royal Bank of Scotland v Ettridge No.2 (above) (HL).

Answer 33

Barclasy abnk will be tsinrd with husbaned resumed or actual ifnleucne unless tkane step sto detain themselves if bank were o unotice rela trust conf etc.

Answer 34

all stuff on idnepdnant advice and guidleiness etc whichc oems thru etrdige no2 if undure ifnl shown toe xist an if bank nto fre of it are tained by husabnds wrong doing , th en bankd eemd asif undue infleu bank over wife. Which gives her right to set aside mortgage trans feasibly her in bank

Answer 35

Its how do u infect bank with husbands bullying behiacivoru or undue influence, how do bank, notice of it unless essentially steps take them off notice.

Answer 36

But it could be obvs law there to protect women ut can protect men with bulling wife. But what step should bank do to make ensure not sucked into al this. Cos tehyc an eb contaminated by his ro her bulyig ro wrogn doing, wqhcih can lead to transacitonbtw them being set aside, tis asif undue ifnl then come from bank

Answer 37

. So recision claim to set aside trnsactiojn visibly victim an bank its asif udneu ifnl came from bank cos the unoteied and get contiamnted of usbands wrongdoing,t hats logic of alw here- so recison would be remedy.

Answer 38

Where the victim of undue influence wishes to set aside a transaction, contract, will, gift, trust etc, on showing the undue influence caused them to enter into the transaction, a court may set the same aside, i.e rescind the transaction in its equitable discretion.

Answer 39

Whole point gotta enter into them where contract elads gift, justopen gift entering wills withf ree and ifnoremd consent. And if tjink been udnure influence in perucign that gift contract or wil, the person can seek to set aside that transaction if they can show undue influe. Ct then has equitable remdy fo reci, can award and set aside transc perhaps on terms or absolutely. Undo the transaction in q. the gift contract will. Like form fo equitable fraud. Frsud unravels everything and remedy to do that sir ecsion. Discretinary remedy, ti can be on terms say reision of contract, to make someboy discorge benefits theyvre received until contract set aside they may have recievd be n under contract, if gonan set aside so got acocoutn for ebenfits recievd wlel contract was alive, this was called to make coutne rrestititiuion. Otherwise peosn contract set aside egt out of ti but obtain benefits while was alive.

Answer 40

Rescission may be on terms, ordering the victim of the undue influence to make counter restitution for benefits enjoyed up until rescission, Cheese v Thomas [1994] 1 All.E.R 35 Chees v Thomas- can have recision o terms.

Answer 41

As it is an equitable remedy, rescission is discretionary and bars to rescission may exist generally, viz:

Answer 42

Restitutio Integrum Impossible Rescission will be refused if it is impossible to return to status quo ante. Generally, Courts do what is practically just the question being can the status quo ante (before transaction/gift/trust etc) be restored

Answer 43

e.G to resotre sttu quo anti imposible. Where resittouo integrihas become impossible.so fi for soemr eason impossible tor estore parties to status quo to pre transaction, pre will pre contract rpescion, then reccison wont be rodered.

Answer 44

A contract for the management of a popular singer (Gilbert O’Sullivan) was rescinded on the grounds of undue influence. The managers were however entitled to retain a reasonable remuneration for the work they had done which had contributed to his success.

Answer 45

In awarding rescission (possibly on terms) , the court will seek in its discretion to do what is practically just, see Cheese v Thomas (above).

Answer 46

claimed signed under undue and got reciison of agreement, held , iliek reccision on terms bit like chees v Thomas has to make counter restitiution given credit for work done under contractbefore set aside. Doesn’t get round fact should ahven been entered in first palce cos undue ifnluence

Answer 47

Affirmation | A part cannot claim rescission of a contract which he has subsequently affirmed.

Answer 48

E.g Long v Lloyd [1958] 2 All.E.R 402 C.A A purchaser was taken to have affirmed a contract for the sale of a lorry when he used it a second time having discovered there were faults.

Answer 49

Long v lloy-d purchase of lorry lied to about mileage he then argued for recision for msirep but said he lost right tor escind, bar to recisio cos after discored true condition of lorry he sued it. Soe effctviely waved right toc laim rec, but could claim damages for differnc in vakue btw lorry right jmileage lorry rogn mgilage.

Answer 50

See also Mitchell v Homfray (1881) 8 QBD 587

Answer 51

Third Party Acquiring Rights The right in equity to rescind a transaction/disposition for e.g undue influence or misrepresentation, is lost where third parties have acquired rights in the property in good faith for value. -rights under transcational contract the that can stop recision beig orderd cos predujucie them.

Answer 52

See Oaks v Turquand (1867) LR 2 HL 325 Bainbridge v Browne (1881) 18 Ch.D 188 Re Scottish Petroleum (No.2) (1883) 23 Ch.D 413 Coldunell Ltd v Gallon [1986] 1 All.E.R 429

Answer 53

Laches / Unconscionable Delay The remedy of rescission will not be available where there is unconscionable delay or laches in coming to court. -As said unreasonable ucncosiouable delay court- that can prevent recision being rodered

Answer 54

Allcard v Skinner (above)-The plaintiff was a novice/nun who signed away all her worldly property to the mother superior of a religious order. When she left the order she claimed rescission of the gift. Her claim failed as she took 5 years to bring the claim for rescission, unconscionable delay existed. See also Leaf v International Galleries [1950] 2 KB 86.

Answer 55

woman decided to be catholic nun sos he joined as nocie trainee nun , part dal sign awa all wordly possession and amrired tk Christ. So she singed this agreement hadn godos over to mother superior but after few fed up of beign nun and wante dot go back to real wordl. Too much for her. Needd her gave all up . The said can I have my prop back. Covnent said no cos givne it to us as gift. She claimed only signed bc there was power imbalaxn ebetw senior spriit avro and me nun ans novice and what signed under undue indfluecne due to power of lance. But took 5 yrs to come cort after elft conv to try claim. And ti was held yes undue indlfuence but claim for recision failed cos uncocnsiouble delay

Answer 56

Rectification is an equitable discretionary remedy, that allows for the correction of mistakes in documents. ALL ABOUT INHERENT EQUIT YTO CORRY MISTAKES IN DOCUMENYS- CORRECTIGN MSITAKES IN SIGNED DOC.

Answer 57

It is an exception to the Parol Evidence Rule, so that oral evidence may be admitted to demonstrate that a written instrument is incorrect.

Answer 58

so gott ahsow ithe vi tha the finale xcuted doc does not properly record what was earlier agreed btw 2 parties so classic e.g idsle fo white county court.. Here ncie e.g in sense often if say parties property long residual lease of flat or comme lease. Parties will initially agree to exchange contract for leas ee.g exchange freehold. So contract for lease like freehold. Contract fr leas which agreed , and then on completion execute formal elase by deed then sign off to be reg. soemtims what can ahpepn is the contrat of rlease mays ay certia thigs asn the finale xcuted lease by deed, and witnessed say 10 yr commericla elase doesn’t proepryl reflect what agree din agreement for lease.

Answer 59

So e.g had my case was in the agreement for elase agree dlandlord d repaird for prop Int eh inal executed lease drawn jup in ndeed not just contract, that excuted deed land reg admitted to put ladn lord reparing cov. So property could ltieally fall downa dnnobdoy label to repair.

Answer 60

So clearly neem screw up, so that gernate claim for recitificaito in equity on part leasher tenant seke court order rectifaicito of former convyeanc.e to make it reflect what true mutual cotnratcrl consent of parties as expresse I roginalc otnradct fo elase. ovs could just keot that , but want proeprl legal leae which can then be rg. So recitifcaiton is discretion court.

Answer 61

To ensure documents reflect what aprties truly had agree.d agreement could be agreement for lease or could be exhcnage of emails or something. So tis to correct defect in written isnturment. Correitng docu. Equitable discretion make sure reflect true contractual intent of parties.

Answer 62

CA here ordered the rectification of an agreement between a daughter and her father which they intended should include a provision that she was to pay household expenses which she had refused to pay, claiming that she was not required to do so by the agreement. -theys aid been udnertsaning and formal agreme recitficaiton was rodered

Answer 63

Many documents have been rectified e.g conveyances, bills of exchange, marriage settlements, transfer of shares, wills. So may doc been rect- r.a.w to properly reflect true objective mutuala gree ditnetnion of parties. So where doc badly drafted recitifation can be rodered. Covneyances bills of exchange leasehold conveyences etc. so

Answer 64

(a) Mistake in Written Documentation Rectification is only possible where a written document mistakenly fails to state what the parties intended. If that common intention does not appear in the written document rectification may be claimed as to the terms of the agreement.

Answer 65

See Frederick E. Rose v William Pim Jnr [1953] 2 QB 450; Lloyds TSB Bank v Crowborough [2012] EWHC 2264

Answer 66

So what do we ened to establish claim from recti- 1st only possible where written doc mistakenly fails to satte what parties intended. If common intention does nto appear in written doc, redtificaiton claimed terms of agreement may sile white case e.g common mistake isnturment only be rectified if records agree

Answer 67

Common Mistake – An instrument will only be rectified if it records the agreement contrary to the intentions of both parties, Murray v Parker (1854) 19 Beav 305.

Answer 68

Unilateral Mistake – Generally rectification not available, but will be IF party who was not mistaken had acted fraudulently or is estopped from resisting rectification, i.e if he knew other party was mistaken about the wrongful inclusion or omission of a provision and failed to draw it to the other party’s attention and sought to benefit!

Answer 69

Thomas Bates v Wyndham Lingerie [1981] 1 All.E.R 1077 CA

Answer 70

Back tot hsic an get rect ito obvs get taken out foa greements or put in. its correcting doc that dot reflect etcx

Answer 71

Unconscionable delay/laches can bar a claim If a third party bona fide purchaser for value without notice of the equitable claim for rectification would be adversely affected, see

Answer 72

What defences exist rectification, goin gback tot hat can get reitifvcaiton to If too slow going to ct might lose claim for rectify or if 3r party purchaser somehow relied on agreement in unrectfiie form and now to recifited will prejudice them then it can be refused.

Answer 73

Thames Guaranty v Campbell [1985] QB 220.

Answer 74

Where someone has obtained a benefit to which they are not entitled or has incurred an expense which should be payable by another, an account in equity may be ordered either on its own or has an adjunct to another substantive remedy.

Answer 75

E.g Where co-owners are entitled to share the occupation of residential property, and only one has paid the bills, an account may be ordered against the other, Leake v Bruzzi [1974] 1 WLR 1528, or where a fiduciary has made financial gain from confidential information Boardman v Phipps [1967] 2 AC 46

Answer 76

fid like solicitor or solicitor trustee in deed – rule is msutn poruchase any profit thiese sit.

Answer 77

The remedy of specific performance applies where someone has already engaged (typically by contract) to do something and then has failed to do so.

Answer 78

The court in its equitable jurisdiction can order that the defendant specifically perform his promised obligation, e.g transfer title to land in return for money paid.

Answer 79

Failure to abide a court order for S.P. can result in contempt of court, resulting in a fine or imprisonment, Mid Suffolk DC v Clarke [2007] 1 WLR 98.

Answer 80

Speciifc performance again coema ccors in contra- equitable discretinar rem court can order an indivial specific perform for e.g contractual duty to carry a contract out to transfer a title to alnd.

Answer 81

Tod eleiver certain goods its ane quitabl jusridcaition situationagain, tis very dsicreitonary. Ct has poer to not just awrd damge but certia ciurmtance to order individ actuall specific perofrm and caryr out what ehs promised.a nd fif ail to obide by roder speicifc performance that contempt of corutcan be fined or go to rpsion

Answer 82

Exceptional remedy for breach of contract where damages for breach are inadequate, see, Co-Operative Insurance v Argyll Stores [1997] 3 All.E.R 297

Answer 83

Sp when can u get it – its an exceptional remedy not the norm can only get essentially wehre damages are se to be inadequate 0 copp – so land contract good e.g every land contract treated as unique whether contract to tske leasehold total flat I bham.

Answer 84

All contract in relation to aldn treated as unique and in theory person promising tot ransfer title sellor or vendor if he fails to erpfomr and covney title when money been paid or in orusant to cotnrct can be sued for speciif cperfomance. Sub brook trading and eggl

Answer 85

Land Contracts –Land is unique and such a land contract can readily be ordered to be carried through by specific performance, Sudbrook Trading v Eggleton [1983] 1 AC 444, this includes the grant of licences as well as the transfer of titles, Verrall v Great Yarmouth BC [1981] QB 202

Answer 86

This also grant of license r.a.w – they got speciif profmance agreement give lciense use peer great yarmoth.- revoke lciens esued and got order speciif perf againt council to caryrh through what rpomsie.

Answer 87

Unique Personalty Contracts for the sale of unique personalty (not readily replaceable in the market) can be ordered to be performed by specific performance, Falcke v Gray (1859) 4 Drew 651.

Answer 88

Unqiue personality – ahhain personal good which under contract been agred ot be sold, if they can eb readily replaced in market. If ia gree to sell – got piana ymahoa , pay money don’t del. She can sue specific perfromacne cos just 1 of thousand of certia type of piano but can sue m fro damages for loss caused. Loss of paino or market replacement of ti and if bovs shortage of painos.. Painos now cost supply and deman twice as much she can claim .. And that’s her dmaages. Lodss of bargain. If …???? Unique cos history assoc wirth ot which make it sens epricles-s damages would nto enable her cos no market susbtitue he onl wrote sogn 1 paino I own so thenshe can sue me for speciif perfo cos goods unqieu and damage swould not enable her to get amrk sub. That the point of dmages. But if no market sub damages wilbe iandeuatq rem, sis he can sue tog et me tos epcifilal deliver tha unique paino,.

Answer 89

Behnke v Bede Shipping [1927] 1 KB 649 specific performance for the purchase of a steamship which had unique and special value to the plaintiff. -Unqiueness – KEY WORD bjhenek e case

Answer 90

Contrast Cohen v Roche [1927] 1 KB 169 8 ‘Hepplewhite chairs’ not considered of special value no specific performance ordered. Cohen v roche – heepel white chairs

Answer 91

A contract to sell shares in a private limited company may be specifically performable as the shares are not readily available in the market, Neville v Wilson [1997] Ch.144.

Answer 92

This si itnersitng 1 – contract tos ell shares I private r.a.w ford share not avial for memerbs of public etc so not readily avail in market not for sale so if rpviat lmt company opposed ot public- u can get speicif performance venedor to make transfer into name so can g onto company shar reg as owner. Damages iandeuqte rem cos no alternartive share sin market. Private comp shares are unique and contract to sell them which not followed thru can enforce speciif perofmr – Neville and also jermomve v Kelly , ultrid v irc lord Radcliff judgement

Answer 93

Non-Unique goods contracts might attract remedy of specific performance IF in special circumstances no market substitutes exist, Sky Petroleum Ltd v VIP Petroleum Ltd [1974] 1 All.ER 954 (petrol and diesel).

Answer 94

Non unique gogod might attract spei r.a.w0 so non unqiue paino of siddentl dome reason temporaily 1 paiano elft even temprotay blip, big blips pecific performance might ebccome avail. So for ostrenous cirmum mgith create uniquenss which other might not exist then can get specific perf

Answer 95

Contracts of Personal Service Equity will not compel by specific performance a contract of personal service requiring the defendant to work for the claimant, essentially as this would infringe the defendant’s liberty and almost render him/her a slave; De Francesco v Barnum (1890) 45 Ch D 430

Answer 96

Not avail equit reme = personal service contract. So if uve agred supply or labour to certain eprsonf or money and refuse to caryr out ru service tot ehem. Gen they cant sue u for speciif form cos said essentially ifnringe defene liberit cosnittionaly speaking and render hi or her essentially slave. Quote- contract of service ain to contrc of slavery which ti isn’t/.

Answer 97

Similarly the courts will also refuse an injunction to give effect to a contractual undertaking that the defendant is not to work for anyone else, as this would amount to indirect specific performance of the contract, see, CH Giles v Morris [1972] 1 WLR 307 per Megarry J.

Answer 98

Simialruy courts r.a.w so fi ia grred to wrok for a – if I want to wro for b court siwllr effuse inunction tog ive effect udnetaking wont work for a hyoe elsr r..aw must be fre eto breach contract. So I cant be made to perofm a personals ervice contract.d riectly or indirectly GH giles v morris. Perosnal service ocntracts are nto contracts of slavery, u may allowed to reach and may be laible in damges but u cannot be tied to them

Answer 99

See also Page One v Britton [1967] 3 All.E.R 822; The Scaptrade [1983] 2 AC 694 Lumley v Wagner (1852) 1 De GM & g 604

Answer 100

Page one v britton - - look at that itnerstin case, could make people perform service contracts Look athose cases

Answer 101

Contracts to carry on a business Courts will not order specific performance e.g of a keep open covenant to carry on a business, as this would need ‘constant supervision’ by the court, see Co-Operative Insurance v Argyll Stores [1997] 3 All.E.R 297

Answer 102

Contracts to caryr on busiens s- r.a.w – stop keeping sotre open , which stopped lruignin custoemrs to rest of shoppin lo, landlros said keep open in palce cos ur magnet retail business. And coop peope refused kepe sotre open. Aldnlord said breach open cov –specifi perfoman –lord hoof said not enforce keep open cov by specific perfomacne cos more importantly that that would need constant superviiosn, gong back to cort all the time , to much work in polcing ct can obv police … so whether kept open – always comig abck toc orut long. Har police such order of speicif perfoemance Contracts transfer gfoo wil

Answer 103

Contracts for Partnership Such contracts not specifically enforceable unless partners have begun to act upon their agreement England v Curling (1844) 8 Beav.129

Answer 104

Contracts to transfer goodwill on its own not specifically enforceable unless annexed to land/premises/business assets, Baxter v Conolly (1820) 1 Jac 7 W 576

Answer 105

Contract to exercise a testamentary power of appointment in favour of someone, not specifically performable, as would undermine donor’s intention that donee should be able to exercise power until donee’s death Re Parkin [1892] 3 Ch. 510

Answer 106

So toher osbtaclers qute hard to get specific perfoemance. Keyt hings need to show UNQIUENESS OF GOGDS. Lots obstacle to it Other obstacle

Answer 107

The courts can decline specific performance on certain grounds, viz:-

Answer 108

Equity will not assist a volunteer, i.e someone who has not provided valuable consideration, this does not include deeds. Futter v Revenue and Customs [2013] UKSC 26. No change to this rule is effected by the Contract Rights of Third Parties Act 1999, S.1 (5).

Answer 109

If there agreement a and b but noc odntract no consi- genrall equity wotn assit volunteer it wont give speicif perfom agains tsomeone where no consid been exhnaged. - futter

Answer 110

(b) Claimant in Breach If the claimant is in breach of an essential term of the contract, e.g not being ready to pay full purchase price on completion of a contract for the sale of land, after time has been made of the essence, specific performance will not be available. Clarke Investments v Pacific Technologies [2013] EWCA Civ 750.

Answer 111

Claimant – person sekeing specif also in breach himself hekl lose right to specific performance . Complete comply law contractual oblgiaiton, constant superviosn looked at .

Answer 112

(c ) Contract requires Constant Supervision See Co-Op v Argyll Stores (above) Also see Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch.116

Answer 113

(d) Contractual Terms are Imprecise A vague agreement is incapable of being granted specific performance. It must be clear what the defendant is being asked to do. See Co-Op v Argyll (above). -If agreemtn is vague, and not sure acutal what seeking specif formance, not clear want to do cour witll refuse

Answer 114

(e) Illegal/immoral contracts No specific performance permitted here, where such an order would involve the breach of any other civil law obligation or contrary to public policy or law, see Wroth v Tyler [1974] Ch.30 S.P refused where it involved a defendant husband to take legal proceedings against his own wife to terminate her statutory rights to occupy the matrimonial home.

Answer 115

Illegal immoral contac- nos pecific performance there e.g 100 prositie and she dotn turn up cant get roder specif p against her, coudlnt eens ure on contract bc illegal contract cos cant sue.

Answer 116

(f) Mutuality Earlier cases suggested that a court could not grant specific performance in favour of the claimant unless it could also have granted specific performance in favour of the defendant Flight v Bolland (1828) 4 Russ 298.

Answer 117

However now lack of mutuality in this sense is no bar to specific performance being granted, as long as no injustice or unfairness to D results: See Price v Strange [1978] Ch.337

Answer 118

(i) Lack of Formality. A land contract cannot be specifically performed if it does not comply with the necessary written formalities S.2 LP(MP)A 1989, Keay & Anor v Morris Homes [2012] EWCA Civ 900.

Answer 119

Defences to claim – land contract so rother contract require formalit. Obvs if not in lwritingm like aldn sales, insurance contracts, contracts of guanrantee, cant claim spec.p but more broadly cant sit on contract cos lack relevant formality u know ahev agreement 10 yr lease nothing inw riting vant sue on it. No contract s.2 89 act.

Answer 120

(ii) Misrepresentation. Any misrepresentation by P to D (of any nature, fraudulent, negligent or innocent) will prevent a court ordering specific performance against D. Walker v Boyle [1982] 1 WLR 495.

Answer 121

Mis rep – can stop sp. Being otderd. Again claiming eq remedies u have to be lieka n angel done nothing wrong not in breac youself. Anything liket ha tor fi ur guilft of fraud will stop u being able to claim sp.o

Answer 122

(iii) Mistake Webster v Cecil (1861) 30 Beav. 62 D the vendor offered to sell land to P for £1,250. This was a mistake. The price should have been £2,250. P the purchaser must have known that this was a mistake, as earlier D had refused to sell for £2,000! P accepted the offer of £1,250 by return of post. D realised his mistake and immediately told P . P claimed specific performance of the contract, but court refused specific performance on grounds that it would ‘amount to a hardship and injustice’.

Answer 123

Webster r.a.w –s uein ot complete perfomacne. S.p corut refused on ground amount to ahrship clearly mutual mistake and purchaser was tryna take advtanage of it to get transfer of aldn for knwockdown price.

Answer 124

(iv) Hardship | Specific performance is discretionary and it may be refused if it were to cause great hardship to D or a third party.

Answer 125

Patel v Ali [1984] Ch.283 The Ali’s entered into a contract to sell their house to the Patels. Mr Ali was then adjudicated bankrupt and spent a year in prison. Mrs Ali had bone cancer and a leg amputation before the birth of her second child, then had a third. Goulding J refused an order for specific performance of the sale contract on the grounds of hardship. -last change due to doctrine of hardship ??

Answer 126

(v) Misdescription. If a property has been misdescribed in a contract of sale, the defendant will be entitled to rescind the contract and resist a claim for specific performance if the property he would be forced to buy was different in substance, e.g where a contract provided for the sale of a registered freehold title, the buyer would not be compelled to take merely a possessory title, Re Brine and Davies’s Contract [1935] Ch.388

Answer 127

(vi) Delay/Laches Unjust/unconscionable delay will be a bar to specific performance being granted. It is a question for the court in each case in all the circumstances.

Answer 128

Huxham v Llewellyn (1873) 21 WR 570, a delay of five months prevented a decree of specific performance being awarded.

Answer 129

Williams v Greatrex [1957] 1 WLR 31, despite a delay of 10 years specific performance was still granted of a land contract where the purchaser had long been in possession of the land he bought.

Answer 130

Court of Chancery long had power to grant damages in lieu of specific performance, S.2 Chancery Amendment Act 1858 (Lord Cairn’s Act). This provision is now encapsulated by S.50 Supreme Court Act 1981.

Answer 131

Measure of damages will be the same whether at common law or in lieu of specific performance, Wroth v Tyler (above); Hooper v Oates [2013] EWCA Civ 91.

Answer 132

So equit damage sin lieu beign abekt og et spedicif performance alternative in palc.

Answer 133

In AG v Blake [2001] 1 AC 268 Lord Nicholls suggested that the jurisdiction under S.50 SCA enables a court to include in any assessment of damages any losses likely to follow from the anticipated future continuance of the wrong in addition to losses already suffered.

Answer 134

END OF THIS ONE

Remedies Flashcards

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