PBLFinal

Criminal case name order

Prosecution and defence (or defendant/accused)

Civil name case order

claimant/plaintiff and defendant

Contextual approach

Interpret any disputed words in the context of the surrounding text and the statute as a whole

Literal rule

Take the words at face value, i.e. their ordinary grammatical meaning

Golden rule

Modify the literal meaning to overcome ambiguity and avoid absurdity

Mischief rule

Look at the preceding common law to determine the ‘mischief’ the statute is meant to fix

Purposive approach

Look beyond the words to determine the general purpose of the statute

Persuasive decision

A non-binding but influential precedent

Per incuriam

Without due care, meaning judges can depart from previous decision if it was ‘wrong’ or if the interests of justice

Contracts require

Offer and acceptance, intention and consideration

Simple or parol contracts example

Buying a coffee

When is an offer not an offer?

Invitations to treat and statements in negotiation

Invitations to treat (CL)

Inviting an offer; Case Law, Fisher v Bell (1961, CA)- Flick knife in a shop window is not an offer to sell

Vague statements are not valid offers case law

Guthing v Lynn (1831)- The terms of an offer need to be clear to be valid

unilateral offer acceptance case law

Carlill v Carbolic Smoke Ball Company (1892)- unilateral offers are valid. Fulfilling the terms of a unilateral contract constitutes acceptance

Coincidental performance case law

Bloom v American Swiss Watch Co (1915)- Coincidental performance isn’t binding (can’t accept an offer without knowing it exits)

Vague statements in negotiations case law

Harvey v Facey (1893)- Statement of possible price isn’t an offer

Specific statement in negotiation case law

Bigg v Boyd Gibbins (1971, CA)- An affirmative statement of what you would accept is a valid offer and not a statement in negotiations

Termination of an offer conditions

Death, Rejection, Counter-offer, Lapse of time or Revocation

Counter-offer case law

Hyde v Wrench (1840)- Counter-offers are not a form of acceptance, they are new offers

Lapse of time case law

Ramsgate Hotel Co. Ltd v Montefiore (1866)- significant gap between offer and acceptance may terminate the offer

When can offers be revoked?

Until the point of acceptance

Notice of revocation case law

Dickinson v Dodds (1876, CA)- Offers can be revoked until acceptance, notice by a third party is valid

First refusal case law

Routledge v Grant (1828) first refusal isn’t valid as one party cannot be bound whilst the other is not

Unilateral revocation case law

Errington v Errington & Woods (1952, CA)- Can’t revoke the offer once performance has begun

Acceptance definition

‘A positive act by a person to whom an offer has been made which, if unconditional, brings a binding contract into effect’

Rules for acceptance

Must be a ‘mirror image of the offer’, must be unconditional, must be communicated to the offeror

Acceptance mirror image case law

Butler Machine Tools Ltd v Ex-Cell-O Ltd (1979)- The last (counter) offer is the binding one

Unequivocal conduct of acceptance (valid acceptance) case law

Brogden v Metropolitan Railway Co. (1877)- Acceptance through conduct is enough

Postal rule case law

Byrne v Van Tienhoven (1880)

Consideration definition

Each party must give something in return for what is gained from the other party e.g.

Consideration definition case law

Currie v misa (1875)- Consideration requires a benefit and detriment on each side

Past consideration case law

Re McArdle (1951, CA)- If the act comes before the contract, it is not consideration

Consideration rules

Must move from the promise, Must be sufficient, can be sufficient without being adequate, Usually involves taking on some new obligation (unless separate parties) and A subsequent promise of additional payment to encourage performance isn’t fresh consideration

Sufficient, but not adequate compensation case law

Thomas v Thomas (1842)- £1 is sufficient as consideration, even if it isn’t adequate

Sufficient consideration case law

White v Bluett (1853)- e.g. Promising not to nag isn’t sufficient

Consideration new obligation case law comparison X2

Collins v Godefroy (1831) Can’t use something you are already obliged to do as consideration/ Glasbrook bros v Glamorgan County Council (1925, HL)- If going beyond existing legal duty, it’s consideration

Consideration with contracts with 2 parties consideration

Shadwell v Shadwell (1860)- Same action can provide consideration for different contracts with different parties

Extra payment to encourage performance consideration case law comparison X2

Stilk v Myrick (1809)- Doing your existing duty isn’t enough/ Hartley v Ponsonby (1857)- If taking on extra duties or conferring benefit, it’s binding

Part payment case law

Pinnel’s Case (1602)- Part payment of a debt isn’t sufficient consideration to discharge the full debt

Exception to Pinnel’s Case (1602)

Insolvency law

Promissory estoppel

Prevents one party of a contract from breaking a gratuitous promise not to enforce the contract

Gratuitous promise

statement lacking consideration

Promissory estoppel case law

Central London Property Trust v High Trees House (1947)- can’t go back on a gratuitous promise if it would be unfair to do so

Promissory estoppel conditions case law X2

can only act as a defence (Combe v Combe (1951, CA)), defendant must behave equitably (D&C Builders v Rees (1965))

Privity of contract case law X2

Tweddle v Atkinson (1861)- Only a party can sue; Dunlop Rubber Co. Ltd v Selfridge (1915, HL)- Parties who have not contributed consideration to a contract cannot sue for breach

Exceptions to privity of contract

agency, third-party insurance, collateral contracts and contracts for the benefit of a group

Contract for benefit of a group case law

Jackson v Horizon Holidays Ltd (1975, CA)- Can sue for group damages if the contract was made for the benefit of a group

Collateral contracts case law

Shanklin Pier Ltd v Detel Products Ltd (1954)- Proximity may cause a collateral contract

Collateral contracts

the performance of a contract between A and B may indirectly bring about another between A and C, so A can sue C and vice-versa

Beneficiaries to a contract privity statute

Rights of Third Parties Act 1999 S1- people who benefit from a contract are beneficiaries, so can sue

Beneficiaries to a contract, changes, statute

Rights of Third Parties Act 1999 S2- beneficiaries are protected from cancellation or variation of a contract without their permission

Double liability for beneficiaries statute

Rights of Third Parties Act 1999 S5-prevents double liability, the defendant doesn’t have to pay twice

Business agreements not binding exceptions case law

Jones v Vernons Pools (1938)- ‘In honour only’

Social agreements being non-binding case law

Wilson and Another v Burnett (2007, CA)- casual statements in a social context aren’t expected to be binding

Domestic agreement non-binding case law

Balfour v Balfour (1919, CA) Domestic arrangements assumed to be non-binding

Social or domestic agreements being binding case law

Simpkins v Pays (1955, CA)- Regular, formal, systematic arrangements suggest intention

Express terms

Clearly stated in contract

Sources of implied terms

Common law; Business efficacy; Trade, custom and practice; Statute

When to imply business efficacy implied terms

Only where it would otherwise lack commercial/ practical sense

Business efficacy implied term case law

The Moorcock (1889, CA)- Where an implied term is obvious, it should be implied

Trade, custom and practice implied terms case law

Hutton v Warren (1836), can be implied if normal practice

Sale of Goods Act 1979 implications by statute

The seller has lawful authority to transfer ownership of goods, the goods will match their description, the goods will be of satisfactory quality, the goods will be suitable for their particular purpose, the goods must correspond to sample

Conditions vs Warranties case law X2

Poussard v Spiers & Pond (1876), conditions as essential to the benefit of the contract/ Bettini v Gye (1876) warranty may change the benefit of the contract, but not fully deprive

Breach of warranty compensation

Only damages

Breach of condition compensation

only damages, and can repudiate the contract

Repudiate meaning

cancel the contract

Innominate terms

Unknown whether the term is a condition or a warranty until the breach occurs, as the damage is unknown, exhibits sliding scale of harm

Use of the word ‘condition’ and ‘warranty’ (not) conclusive case law X2

Schuler AG v Wickman Machine Tool Sales (1974, HL)- Cannot just call it a condition, though may be persuasive; Lombard North Central plc v Butterworth (1987, CA) If elevated clearly to be essential to contract in wording, then binding.

Damage test for condition vs warranty

Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha (1962, CA)- A breach of condition must strike at the root of the contract, how ruinous is the damage?

To be effective, exemption clauses must be

Incorporated into the contract, clear and unambiguous and not rendered ineffective by statute

Incorporation of exemption clause timing case law

Olley v Marlborough Court Hotel (1949, CA)- Must be made aware of exemption clause before contract is formed

Implied notice of exemption clause case law

Kendall v Lillico (1968, HL)- Can be implied from previous dealings

Sufficiency rule of exemption clauses case law

Interfoto Picture Library Ltd v Stiletto Productions (1988, CA)- must take reasonable steps to draw it to the customer’s attention

Sufficiency rule of exemption clauses exception case law

L’Estrange v Graucob (1934)- notice of exemption clauses is implied for signed documents.

Signed documents exemption clause signed document implication exception case law

Curtis v Chemical Cleaning & Dyeing Co. (1951, CA)- Incorporated exemption clauses don’t count if misled

Ambiguous exemption clauses may be

interpreted contra proferentem

Statutory controls on exclusion clauses UCTA 1977 negligence

doesn’t exclude liability for death or personal injury caused by negligence, but may exclude negligence liability for property if reasonable under the circumstances

What affects reasonableness under UCTA 1977?

Where there is an imbalance of bargaining power, inducement, prior knowledge or special requirements

UCTA 1977 breach of contract

cannot be excluded

UCTA 1977 implied terms from SOGA 1979 \______

Cannot be excluded when selling to consumers

Terms in consumer contracts found to be unfair can be \___ (statute)

Voided under CRA 2015

CRA 2015 definition of unfair

lack of good faith causing a significant imbalance in the parties’ contractual relationship

Forms of manipulation

written, spoken, pictorial or by conduct

Misrepresentation is not

statements of opinion, unless lying

Lying misrepresentation case law

Gordon v Selico (1986)- Lying is misrepresentation

Misrepresentation statement of opinion case law

Bisset v Wilkinson (1927)- Honest opinion is not misrepresentation

Misrepresentation obviously wrong statement of opinion case law

Smith v Land & House Property corp. (1884)- Saying something you couldn’t reasonably believe to be true is misrepresentation

Estimates of future performance case law

Esso petroleum v Mardon (1976, CA)- Statements of fact if they can reasonably be relied upon

Where is it misrepresentation to not volunteer information?

Half truths given, circumstances change between statement and acceptance or a fiduciary relationship exists

Obligation to volunteer information case law

Smith v Hughes (1871)- Don’t have to volunteer information

Half truth case law

Nottingham Patent Brick & Tile Co. Ltd v Butler (1886)- Needs to be fully true

Change of circumstances between statement and acceptance case law

With v O’Flanagan (1936, CA)- Should update the other party

Material inducement reasonableness case law

Vahey v Kenyon (2013, CA)- must be enough to enter incline a reasonable person to enter the contract

Material inducement unreasonable risks case law

Hurst and Others v Hone and Others (2010)- If you take on excessive risk in pursuit of large profits, the misrepresentation may not have induced the representee to enter into the contract

Demonstrating reliance on misrepresentation case law

Re Northumberland & Durham District Banking Co., ex parte Bigge (1858)- Must prove they knew of and relied upon untrue information

Checking truth of information case law

Redgrave v Hurd (1881)- Don’t have to check truth, even if invited to do so

Fraudulent misrepresentation definition

representor knows the statement is untrue or doesn’t care

Material inducement reasonableness case law

Vahey v Kenyon (2013, CA)- must be enough to enter incline a reasonable person to enter the contract

Material inducement unreasonable risks case law

Hurst and Others v Hone and Others (2010)- If you accept a high level of risk, this may outweigh misrepresentation