Flashcards in Week 8 - defective agreements Deck (20)
Describe conditions for avoiding voidable agreements
Restitutio in integrum must be possible
No unreasonable delay
Rights of third parties must not be affected
Contract must not have been ratified under s.4 ALCSA 1991 or affirmed under s.1 (3) RWSA 1995
How does force and fear effect contracts ?
Renders them void
Name different cases relating to different threats under force and fear
Threat of immediate violence
Earl of Orkney v Vinfra (1606) Mor 16481
Threat of lawful action
Hunter v Bradford Property Trust Ltd 1977 SLT (Notes) 33
Hislop v Dickson Motors (Forres) Ltd 1978 SLT (Notes) 73
What are the elemetns of facility and circumvention?
Facility - Weakmindedness
Circumvention - trickery/ misleading
Lesion - lost
A case that left contract voidable ?
McGilvary v Gilmartin 1986 SLT 8
What are the elements of undue influence?
Advantage taken of relationship of trust
dominant/ subordinate parties
Material and gratuitous benefit to stronger party
Lack of independent advice for weaker party
Must all elements of facility and circumvention be met ?
Yes howeevrr not all must be met to the same extent ( the greater degree of facility the less circumvention needed to satisfy ground)
Describe element of sexually transmitted debt
Lender must act in good faith, advise guarantor (cautioner) of consequences of signing deed and to seek independent legal advice.
Deed only challengeable where gratuitous i.e. no benefit to signatory ( not undue influence)
A case regarding sexually transmitted debt
Smith v Bank of Scotland plc 1997 SC (HL) 111 (W&B 6.44
What are the substantials?
Person (where essential)
Quality (where essential)
Essential errors can be?
Bilateral or unilateral
Name and describe the two types of bilateral essential error
Mutual error (parties at cross purposes on an essential of the contract) renders contract void
Common error (both parties make the same mistake on an essential) has the same effect.
Describe elements of unilateral errors
Can be treated as misrepresentation when induced by the other party
Can be challenged on grounds of error only where there is “error plus”
Give examples of error plus
Snatching at a bargain: Steuart’s Trustees v Hart (1875) 3 R 192; Followed in: Angus v Bryden 1992 SLT 884; Wills v Strategic Procurement (UK) Ltd  CSOH 26
Gratuitous transactions: Hunter v Bradford Property Trust Ltd 1970 SLT 173; Edgar v Edgar  CSOH 60
What is the effect of unilateral errors induced by misrepresentation ?
Contract will be voidable
What are the 3 types of misrepresentation ?
Fraudulent , innocent and fact
Give 3 examples of corresponding cases
Innocent - : Boyd & Forrest v Glasgow & South Western Railway Co 1915 SC (HL) 20
Fraudulent - Smith v Sim 1954 SC 357
Negligent - Hedley Byrne v Heller & Partners Ltd  AC 465
Can you receive damages from innocent misrepresentation ?
Can you claim damages from fraudulent misrepresentation without leaving the contract ?