Cases Con + Tort Law

L'Olympique Lyonnais v. Fuster

Relevant Facts:

> 21-year old Serge Fuster dies during a football match when a hooligan causes an explosion

> His parents, brothers and sisters claim compensation from organizer of the game, the football club

Judicial question:

> Is the football club liable?

The Court's Response:

> Organizer of a sporting event is under a duty to take adequate security measures

> No inspection to prevent spectators from carrying objects which could cause injury

> Conclusion: football club is liable

-for the explosion of a bomb by a hooligan: under duty to take certain measures

-they only had visual inspection: cannot check everyone, it had to

be physical as well

> Club is liable for omission

Snow-covered steps

Relevant Facts:

> On an evening in 1901, the plaintiff fell on steps of municipality open to public use

> Steps were slippery because of snow, they were in a very neglected state and unlit.

Judicial question:

> Is the municipality liable?

The Court's Response:

> Municipality's argument: notion of absoluteness of ownership, nothing prescribes duties towards third parties

> Person who has created and maintained a way of right is liable for damage due defective maintenance or failure to eliminate hazards on it

> Yes, because it was foreseeable

IMPORTANT: and there is a risk of physical interest

Lettuce leaf

Relevant Facts:

> Plaintiff fell in shop because he slipped on a lettuce leaf

Judicial question:

> Is the shopkeeper liable on the basis of either breach of contract or tort?

The Court's Response:

> Yes. Breach of duty of care can be established.

> The defendant was bound to take care of the plaintiff (i.e. the customer) both under the ancillary obligation arising out of a contract of sale, and under the general duty of safety.

> He should have ensured that the floors of his shop were cleaned and safe.

> He failed to do so, so he is liable.

But, the court attaches importance to the woman walking in the vegetable department and as a customer, you have to watch out carefully

→ contributory negligence

> Therefore, she only was awarded ⅔ of the damages

Garde des Sceaux v. Banque populaire

Relevant Facts:

> Schneider, Fischer and Gonthier are prisoners enjoying some liberty

> They rob a bank

> Bank sues Ministry of Justice (Garde des Sceaux) for compensation

Judicial question:

> Is the state liable to the bank?

The Court's Response:

> Yes, there is liability

> Highest admin court: yes, there is liability

> State is responsible for the conduct of individuals under its care/attention (causal link between conduct of prison service and damage)

> Principle: (used in all jurisdictions- égalité des citoyens devant les charges publiques) equality of citizens before public burdens

> The state does these things for common good- it is in the interest of society to keep order

> If in the process there is damage, the cost should be borne by society

> If the cost of the measure for the benefit of public health should be borne by the public, the measures can be in place, but the people have to be compensated

Donoghue v. Stevenson

Relevant Facts:

> August 1928, Mrs Donoghue consumed a ginger-beer at a café

> The decomposed remains of a snail floated out causing her alleged shock and severe gastro-enteritis

> Mrs Donoghue was not able to claim through breach of warranty of a contract: she was not party to any contract

>Therefore, she issued proceedings against Stevenson, the manufacturer, which ended up at the House of Lords

Judicial question:

> Did the manufacturer owe Mrs Donoghue a duty of care in the absence of contractual relations contrary to established case law?

The Court's Response:

> You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

> The concept of proximity, foreseeability

Smith v. Littlewoods Organisation

Relevant Facts:

> Vandals make fire on premises of Littlewoods

> Fire causes damage to neighbour Smith

Judicial question:

> Is Littlewoods liable to Smith because he failed to take preventive measures?

The Court's Response:

> If someone breaks in and knocks you on the head, it is too far to say you should have taken preventative measures

> But: if these issues were recurring and the people were not caught by police, it could be reasonable to say that you should have taken preventative measures

> Reluctance to impose liability for omissions

> Conclusion: plaintiff's claim unanimously rejected (Littlewood is not liable)

> No general duty of care to prevent third party from causing

damage

Caparo Industries v. Dickman

Relevant Facts:

> Caparo had bought shares in the company of which the report was about as part of a takeover.

> The appellant had relied upon the results of the report by an accountant, turned out the report had misrepresented the profits of the firm, in turn causing a loss for Caparo.

> A firm of accountants appealed against a decision of the Court of Appeal in which it was decided that the accountants owed a duty of care to the appellant shareholders when producing an audit report required by statute.

> The claim was for negligent misstatement.

Judicial question:

> Was there a duty of care (owed to people reading the report)?

> Was there negligence?

The Court's Response:

> The House of Lords reversed the decision of the Court of Appeal and held that no duty of care had arisen in relation to existing or potential shareholders.

> The only duty of care the auditor`s owed was to the governance of the firm.

> Three factors had to exist for there to be a duty of care

which were: Proximity, Knowledge of who the report would have been communicated to and for what purposes

> Finally, there had to be knowledge that the shareholders or investors would rely on the report in regards to the transaction.

> The accountants owed no duty to the entire public who might or might not place reliance on the report when making financial decisions.

> Limitations have to be set when pure economic loss occurs in the

absence of contractual agreements between parties.

> The judgement accepts that there are circumstances where an auditor will owe a duty of care in respect of reports produced.

■ These are conditional that, at the time the report is prepared, it is known by the auditors that the results are for a specific class for a specific purpose.

Osman v. United Kingdom

Relevant Facts:

> 15 yr old Ahmet Osman is harassed by teacher Paul Paget-Lewis

> Despite several incidents Paul Paget- Lewis is not arrested

> He kills the father of Ahmet and wounds him

> Ahmet and his mother bring an action against the police force

Judicial question:

> Has the failure of the police to apprehend the criminal in the present case created an exceptional added risk, different from the general risk from criminal activity to the public at large?

> If so, are the police liable to individuals for a failure to apprehend a criminal when this was possible?

The Court's Response:

> Appeal allowed

> Following Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049, the plaintiffs and the boy's father were exposed to a risk over and above that of the public.

> Therefore, there was a case that there was a close degree of proximity amounting to a special relationship between the police officers and the plaintiffs.

> The existence of a general duty of the police to suppress crime does not carry with it liability to individuals for injuries caused to them by criminals whom the police had failed to apprehend where this was possible as it would be against public policy.

> It would not promote higher standards of care and divert police resources from investigation and suppression of crime

> Immunity- if police is worried, they can't do their job right

> ECtHR- blanket immunity may violate art 6 → in certain cases immunity is allowed, but the facts have to be examined

Bubbins v. United Kingdom

Relevant facts:

> Melanie saw feet of a man run in her bf's (Michael) flat, Melanie called out, no response.

> She calls police. Police shot intruder, who turned out to be drunk Michael himself, because they thought he had a gun pointed at them.

Judicial question:

> Can police be held liable for Michael's death? (for wrongful shooting)

The Court's Response:

> No violation of Art 2 (police did not act negligently), because Police has immunity

> Violation of Art 13 because English Law did not offer compensation for non-pecuniairy damages (no effective remedy in place).

Gaudras v. Dangereux

Relevant Facts:

> The defendant (Mr. Dangereux) was involved in a car accident for which he was held to be fully responsible and which caused the death of Mr. Paillette.

> The deceased lived together with Ms Gaudras as an unmarried couple; Ms Gaudras brought an action for damages

Judicial question:

> Can Ms. Gaudras claim for damages?

> Unmarried cohabiting partners have a sufficient interest to qualify as secondary victims under French tort law

The Court's Response:

> Yes

> The court of first instance allowed the action as the relationship appeared to be stable and was not tortious

> This was reversed by the court of appeal but if was squashed by the Cours de Cassation

> Generous interpretation, also allows claims from illegitimate children, fiances

Destruction of sperm

Relevant Facts:

> The plaintiff had to undergo surgery for cancer of the bladder

> The plaintive was aware that it would result in him becoming infertile, so he requested the defendant hospital to take samples of his sperm and put it into frozen storage

> Through a mishap attributable to the hospital's negligence, the samples were destroyed without the plaintiff's consent

> He was then informed that the samples had been destroyed

> Plaintiff sued the defendant hospital for payment of Schmerzensgeld in the amount of DEM 25,000

Judicial question:

> Can the plaintiff claim damages? Is the defendant hospital

liable?

> The culpable destruction of sperm constitutes an interference with bodily integrity and the autonomy of a person

> The destruction of the sperm is attributable to an oversight on the part of the hospital's employees in the course of endeavors directed specifically at maintaining the plaintiffs right to self-determination

The Court's Response:

> Yes

> Violation of personality right

> Privacy is a big concept encompassing many aspects

-one of them is the ability to take decisions regarding your own life- self determination

> Decision to have children is very private, regarding private life

> If it is interfered, because of negligent sperm destruction, it

constitutes a violation

> In Germany- violation of personality right

> But it is difficult to prove right to privacy because in german law- no explicit recognition of right to privacy

Power cable

Relevant Facts:

> An employee of the defendant, while operating an excavator, negligently ruptured an underground power cable, which served, from the place of the break onwards, only the plaintiff's business and factory

> The plaintiff claimed that the power cable formed part of its business and that the defendant, in cutting the cable, had interfered illegally and culpably with its business and was liable for the loss caused by the interruption of production

> The defendant argued that the plaintiff's business had been only indirectly affected by the cutting of the cable and that only direct interference would have made him liable

Judicial question:

> Can the plaintiff claim damages?

> There is no interference with the right to business when production must be stopped because of a power failure after an electricity cable has been cut

> The interference must be direct

> This case invented the right to business

The Court's Response:

> No, the claim was dismissed by the BGH

> If it is not an integral part/characteristic of the business → no interference

Alcock v. Chief Constable of the Sotuh Yorkshire Police

Relevant Facts:

> The police allowed an excessive number of intending spectators to enter an already full part of a football stadium

> As a consequence 95 spectators were crushed to death over 400 were injured

> The police admitted liability in respect for those who were killed or injured but denied that they hold any duty of care to the plaintiffs, all of whom were relatives of primary victims and had suffered a nervous shock causing psychiatric illness as a result

Judicial question:

> Can the plaintiffs claim damages?

> Does the police force have a duty of care to the plaintiffs?

> In case of a nervous shock, foreseeability does not itself

automatically give rise to a duty of care owed to a person.

> In addition to reasonable foreseeability, liability for injury, the relationship of proximity between the claimant and the party said to owe the duty is important to assess the duty of care.

The Court's Response:

> No, the court of appeal and House of Lords dismissed all the claims

> Very high bar to claim compensation

> What causes all claims to be thrown out: time and space

> The court attaches great weight as to whether someone saw it, not just people were dying, but if they saw their relative dying

> This is very hard to prove

> And because of the guidelines of BBC, it is deemed disrespectful to film someone dying or severely wounded, so people watching TV could not identify loved ones

> Criteria to decide case:

-Foreseeability of psychiatric injury

-Proximity (how closely/directly effected)

a. Emotional proximity

b. Physical and temporal proximity (immediate aftermath)

c. Proximity of perception

Spartan Steel & Alloys Ltd v. Martin & Co. Ltd

Relevant Facts:

> The defendant's employees were digging up a road when they negligent damaged a power cable, which the defendants knew was the power supply from the electricity board's power station to the plaintiff's factory

> The plaintiffs were without electricity until the board was able to repair the cable

> Due to the power failure, it had to pour molten metal out of its furnace to prevent damaging the furnace during the power cut

> The plaintiff claimed compensation for:

-The physical damage to the melt in the furnace at the time of the

power cut (GBP 368)

-The loss of profit on that melt (GBP 400)

-The loss of profit on four other melts which normally could have

been carried out during the period of the power cut (GBP 1,767)

Judicial question:

> Can the plaintiff claim the damage?

> Is the defendant liable for all three losses?

The Court's Response:

> The plaintiff can recover in negligence for damage to his or her property and other loss directly consequential thereupon, including economic loss.

> "Pure" economic loss, consequential on property damage cannot be recovered, no duty of care with respect to such loss.

> The Court claimed that the plaintiffs were entitled to recover from the physical damage to the melt in the furnace + loss of profit on that melt, but not for the loss of profit.

> Lord Denning objected to the third loss because there would be a lot of claims, someone can exaggerate and it is difficult to distinguish between fraud and real claims

> No right to profit

White v. Jones

Relevant Facts:

> Man (testator) wants to include daughters in his will

> He writes letter to solicitor to prepare a new will

> Solicitor fails to take action for a month, misses three appointments and goes on holiday for 2 weeks

> Testator dies and daughters are not included in the will

Judicial question:

> Does the solicitor have a duty of care towards the daughters?

> Could a professional person be liable for negligence to another person with whom they had no direct contractual relationship or responsibility?

The Court's Response:

> The House of Lords found for the claimants

> Determining that Mr Jones's negligent behavior did provide grounds for a claim by others, even where no prior contractual or fiduciary relationship existed.

> The Court applied the three part test stated in Caparo Industries v Dickman, finding that the loss caused by Mr Jones's delay was reasonably foreseeable, that a sufficiently proximate relationship could be identified between Mr White's daughters and Mr Jones, and lastly that it would be fair, just and reasonable for liability to be imposed.

Tarasoff v. Regents of University of California

Relevant Facts:

> Podar falls in love with Tarasoff, Tarasoff is involved with other men so Podar stalks her.

> He sees psychologist Moore, confiding in her that he wants to kill Tarasoff.

> Moore reports this to police, Podar shortly detained but then released.

> Tarasoff & family never informed. Poddar became friends with brother, moves in with him and kills Tarasoff.

Judicial question:

> Did Moore have duty of care to Tarasoff?

The Court's Response:

> Cali Supreme Court states that mental health professionals have duty of care to patients AND individuals specifically being threatened by patients.

Hachette Filipacchi v. France

Relevant Facts:

> Erignac murdered and his bloody mutilated body on the road was published fully.

> Wife and Kids found this distressing and a violation to Arrt. 8 ECHR (privacy) because not useful to public.

> They demanded:

-Seizure of all copies + prohibit further sale enforced by coercive fine.

2. Newspaper outlet should release a statement that they published the photos without consent enforced by coercive fine.

Judicial question:

> Is this violation of Art. 10 ECHR?

The Court's Response:

> French court rejected 1, accepted 2. They claimed violation of Art. 10 ECHR.

> No dissuasive effect on press = no violation.

Howald Moor and Others v. Switzerland

Relevant Facts:

> Moor, an employee, was exposed to asbestos in his work from 60-70s.

> In 2004 he was diagnosed with malignant tumor, dies in 2005. > Wife & kids claim damages to Moor's employer.

Judicial question:

> Is statute of limitation exceeded?

The Court's Response:

> ECtHR found a violation of Art. 6 ECHR.

> In cases where individuals have no way of knowing they are suffering from a specific disease, it has to be taken into account when calculating limitation period.

The bank Guarantee

Relevant Facts:

> Bank wrote to Steel Contractors (SC) that it would guarantee the debts of one of SC's customers

> SC seeks to enforce the guarantee

> Bank declares that it had had no subjective intention to perform a juristic act/to enter into a contract

Judicial question:

> Contract between Bank and SC?

> Did the Bank guarantee debts of the customer to SC?

> Whether the statement of guarantee constitutes a contract and whether the party expressing the intention needs a will to be bound.

The Court's Response:

> The law on declarations is not built on self-determination alone; the reliance of the recipient of the statement is protected as well.

> Objectively, by a reasonable person could be seen as a contract.

> The declaror has the choice to either uphold the agreement or to rescind it and to compensate the recipient (reliance damage)

> Declaration of intention exists when the declaror, if he had exercised the necessary care in social intercourse, could have realised that his declaration or conduct could have been understood by the recipient as a declaration of intention.

> German law: try to strike a balance between self-determination and reliance

> The declarer has the choice to uphold the agreement or rescind and compensate the recipient (reliance damage)

Shared business trip

Relevant Facts:

> Mr. De Stephano and Mr. Spinelli went on a business trip and agreed to share the costs and use Mr. Spinelli's car.

> The car got in an accident, resulting in Mr. De Stephano getting injured.

> Mr. De Stephano wanted to claim damages based on contract

Judicial question:

> Does an agreement to share the costs for the business trip constitute a contract of carriage?

The Court's Response:

> An agreement to share costs of a business trip is not sufficient to establish a contract

Betting syndicate

Relevant Facts:

> The plaintiffs and the defendant formed an association to place bets.

> Each week they bet a certain sum of money together and the bet was placed under the defendant's name.

> One day the defendant did not place the bet and that was the day when their ticket would have won.

> Plaintiffs claimed that there was a contract and the defendant is liable.

Judicial question:

> Does an agreement to place bets together each week constitute a contract?

> Is the defendant liable towards the others?

> Was there a legal obligation to place tickets?

The Court's Response:

> The defendant would be liable in the event of a legally binding obligation to buy a ticket with the agreed numbers, so the question is whether such an obligation existed

> An agreement to place a bet each week does not create a legal obligation; the person who agreed to place the bet on their name cannot be held liable if the bet would have won.

> No establishment of obligation by gaming and betting

> Herefore: weighing of interests in light of the requirements of good faith and custom

> Conclusion: no obligation since it could result in total ruination of the defendant

Exploding lemonade bottle, Dame Dehen V Soc

Relevant Facts:

> The plaintiff went to a self-service store and purchased a bottle of lemonade and a bottle of beer.

> At the checkout, the employee took items out of the basket.

> While the plaintiff was waiting for her total bill, she placed both bottles in her bag.

> At this moment, the bottles bumped together and the lemonade bottle exploded, injuring the plaintiff in the eye.

> She sued the supermarket and the manufacturer of lemonade.

Judicial question:

> Can the plaintiff hold the manufacturer liable if the accident was not caused by the way the goods were produced but by the way they were handled?

> When is there a contract?

The Court's Response:

> Burden of proof under contract is lighter than the burden of proof under tort law

> The contract is when the customer places the items in their basket.

> In this case the liability lies on the supermarket because there was a contract between the plaintiff and the supermarket.

> Invitation to an offer vs an offer

Hannah Blumenthal

Relevant Facts:

> A contract of sale for a vessel contained an arbitration clause.

> After there had been a dispute, arbitration proceedings were started in 1972 but were pursued only sporadically, and for a long time, neither party did anything

> In 1980 a buyer proposed that a date be fixed for the hearing

> The seller sought a declaration that the arbitration agreement no longer subsisted- the contract had been abandoned

> The House of Lords declined to grant the declaration to the seller (on the basis of agreement, frustration or repudiation).

Judicial question:

> Was the arbitration agreement frustrated by virtual impossibility of a satisfactory trial following the delay?

> Is the fact that arbitration was halted for many years a clear indication of the intent to terminate?

> Was the original contract abandoned?

The Court's Response:

> NO

> There were two contracts: a sale contract and a contract of abandonment, the second ends the first

> Is halting arbitration for many years indication of intent to terminate?

> For a contract of abandonment, normal rules of contract law apply; there should be consensus.

> The intention of the party should be judged by how it reasonably appeared to another party.

> The seller should prove that:

-there was a communication by buyer, he understood B's intention to abandon the original contract

-seller could have reasonably understood buyer's communication

> Lord Diplock: what is necessary is that the intention of each as it has been communicated to and understood by the other (even though what has been communicated does not represent the actual state of mind of the communicator) should coincide

> Two things to remember:

-how communication is reasonably understood

-mere silence cannot easily be construed as an offer/acceptance-

weak basis

Carlill v. Carbolic Smoke Ball Co

Relevant Facts:

> The Company inserted an advertisement in a newspaper with the promise to pay "100 pounds to any person who contracts influenza after having used the Smoke Ball three times daily for two weeks".

> The plaintiff, believing the advertisement, bought a Smoke Ball and used according to directions but nonetheless contracted influenza.

Judicial question:

> Can the advertisement be considered a contract or an offer?

> Distinguish between offers that lead to legally binding contract

upon acceptance and offers that invite to enter into negotiations

('offers to receive offers')

> To what extent are the personal characteristics of the other party relevant?

The Court's Response:

> Advertisement is not a contract but it is an offer, if the other parties fulfill the conditions that are presented in the offer.

> Generally, an advertisement does not constitute an offer; however, if an advertisement contains a specific requirement to be fulfilled, it is regarded as a legal offer.

> In this case, it was sufficiently clear to be considered an offer → therefore allowing for compensation

> The personal aspects of the other party does not play a big role in this contract- but in others, it might

Shark Meat

Relevant Facts:

> Contract of sale: 214 barrels 'haakjöringshöd'

> This is shark meat in Norwegian but parties intended to buy and sell whale meat

> Buyer claimed difference in price back (whale meat is more expensive): DM 47,515.90

> Seller wanted to avoid contract because of mistake

Judicial question

> Whether or not there was a binding contract for the sale of whale meat and whether the plaintiff could claim the difference in price

The Court's Response:

> Reichsgericht: common intention prevails over erroneously used term, so there is a contract for whale meat

> Yes, there was a binding contract and the plaintiff could claim the

difference in pay

> The court found that both parties wrongfully assumed that the goods were whale meat, when they were in fact shark meat, and the parties did not know

> This does not justify that what had been sold was also what had been delivered

-it was open to the plaintiff to avoid the contract on account of the

mistake as to the essential characteristics of the goods sold

> However, both parties intended whale meat and used the wrong term in stating their contractual intention

-this did not correspond to their intention

> Accordingly, the legal relationship between them must be assessed as if they had used the right terms ('whale meat'), reflecting their intention

> The fact that the product delivered did not possess the characteristic of being whale meat constitutes a material defect, therefore, the plaintiff is entitled to compensation

-it was about discrepancy between what was written and what was

meant

>Because it was clear that both parties wanted to enter into the

contract for whale meat, what was written is not important

The threatened wife

Relevant Facts:

> The plaintiff bank had business dealings with firm H (owned by defendant's husband).

> An agreement was concluded by the plaintiff with the firm.

> The defendant acted as a guarantor for the performance of the

obligations owed by the plaintiff.

> Wife guarantees debts of firm H. of husband for debts of firm to bank; she invested in the firm for DM 36.000.

> After composition proceedings against the assets of firm H, settlement was reached but was not performed by the defendant's husband.

> Wife attempts to avoid guarantee.

> Deputy bank director threatened her that criminal proceedings would be brought against husband for 'jobbing in bills'.

> Plaintiff brought action against the defendant under the guarantee.

> As a result, she was induced to sign the agreement.

Judicial question:

■ What criteria needs to be fulfilled to render an act unlawful ?

The Court's Response:

> The appellate court dismissed the plaintiff's claim.

> The BGH set aside this decision because it applied a wrong standard in deciding whether the threat, which was lawful in its means and object was illegitimate.

> The BGH formulated a test which should have been applied and

referred the case back to the appellate court:

> Two things are necessary to examine:

-whether the person making the threat has a legitimate interest in

achieving the result sought after by him.

-whether in the view of the fair minded and right minded person the threat constitutes a reasonable means for achieving the result.

> BGH decides that all circumstances of the case should be considered, such as:

-Is the conduct of the bank compatible with considerations of public policy + relationship between the criminal act and the claim

asserted?

> A creditor who threatens someone, acts unlawful when he should be aware that he acts contrary to morality.

The former shop director, Dlle Ceytere v Époux Tournaire

Relevant Facts:

> C (a former shop director) agreed to pay the debt of a customer;

> She tried to avoid agreement on the ground of threat with criminal prosecution.

Judicial question:

> Was the contract avoidable?

The Court's Response:

> Court dismissed the claim.

> Threat was not sufficiently serious, based on her experience, age and the fact that she replied 3 months later and put conditions.

> Threat must be sufficiently serious.

> Therefore, this contract is not voidable.

ebret v Fleischer, Steamship Rolf

Relevant Facts:

> Steamship Rolf runs aground on sands in the mouth of the river Seine

> Value of Rolf and cargo was 363,000 Francs

> Delamer, master of the tug Abeille no. 9 only wants to help for 18,000 Francs

> This agreement was the only chance for the captain of Rolf to save the cargo and the ship.

> Upon being sued for payment of the agreed sum, the captain argued that the contract was void on the ground of invalid consent given by him.

Judicial question:

> Was the contract voidable?

The Court's Response:

> Agreement was declared void

> Factors that play a role:

-salvaging operation involved no risks, easy job

-took less than 45mins

-caused no harm to salvor

> The prices asked by the tug are out of this world, appeal court determined it only cost 4,190 francs

> As a matter of public policy people should be encouraged to help each other

> But people should not exploit the hardship of others

> Therefore, the contract is avoidable

Raffles v. Wichelhaus

Relevant Facts:

> R (plaintiff) sells cotton to W, the cotton is transported from Bombay by a ship named 'Peerless'

> W (defendants) refuses to accept the cotton because the cotton should have been transported by 'Peerless' that left Bombay in October

> The cotton however was transported by another ship also named 'Peerless' that sailed in December

> Because not advantageous anymore for the buyer to enter into the contract as the price of cotton changed dramatically

-in determining whether the parties meant something is a matter of

interpretation

-both parties present their evidence

-he court said that the evidence shows they had different things in

mind

-and because of that, no consensus

-and therefore, no contract

-this should not be confused with avoidance of a contract because of a mistake

Judicial question:

> Whether there was an enforceable contract between the parties despite that both had different understandings as to a term in the contract.

The Court's Response:

> It was held that the contract between the plaintiff and defendant was not enforceable.

> When the contract was being discussed, there was ambiguity in the Peerless and what ship was being referred to, as well as no agreement on the terms on the sale.

> There had been no consensus ad idem or meeting of the minds between the parties to form a binding contract.

> The objective test made it clear that a reasonable person would not have been able to identify with certainty what ship had been agreed on.

> The court agreed with the defendants: there was no contract to start with because the parties didn't agree on the same thing.

North Ocean Shipping Co Ltd v. Hyundai

Relevant Facts:

> Builders of ship 'The Atlantic Baron' demand 10% increase in price when value of dollar drops with 10%; they threaten not to deliver the ship

> Owners propose arbitration but agree when builders refuse

> Owners were afraid to lose a very lucrative contract they were negotiating with Shell regarding The Atlantic Baron

> 28 June 1973: owners agree to pay 'without prejudice to their rights' and make no further protests when paying subsequent instalments

> 27 November 1974: The Atlantic Baron is delivered to owners

> 30 July 1975: Owners claim the 10% back

> Owners say that delay was due to fear that a sister ship 'The Atlantic Baroness' would not be delivered

Judicial question:

> Was there a consideration for a 10% increase?

> Were owners under economic duress?

> Did owners affirm the voidable agreement to pay 10% extra?

The Court's Response:

> The increase of the letter of credit by 10% amounted to

consideration

> However, it is right to view this as being reached under duress in

the form of economic pressure

> The shipbuilders' threat amounted to economic duress

> The agreement was therefore considered voidable

> However, the owners paying the increased installments without protest, and by waiting for eight months before bringing their claim, had affirmed agreement

Hartog v Colin and Shields

Relevant Facts:

> C&S mistakenly offers to sell to H Argentine Hare skins for a price per pound, H accepts

> C&S refuses to perform, it meant to sell hare skins for a price per piece

> This would mean that the price difference was one third cheaper

> The plaintiff purported to accept the offer, and when the defendants refused to deliver, brought an action

Judicial question:

> Whether the contract would be rescinded for the mistake to the price of hare skin

The Court's Response:

> Claim was dismissed

> No contract (no consensus) because it is customary in the hare skins trade to give prices per piece and not per pound

> The plaintiff knew there was a mistake and sought to take advantage of that mistake

> The offer was wrongly expressed , and the defendants, by their evidence and by the correspondence, have satisfied the fact that the plaintiff could not have reasonably have supposed that the offer contained the offerers' real intention

> If you know the offer was a mistake- no contract

> Parties didn't have the same intent- no consensus

The EDF strike

Relevant Facts:

> EDR entered into contract to supply electricity to Heliogravure Jean Didier

> Heliogravure Jean Didier complained about interruptions in 1987

and 1988, bringing proceedings against EDF

> EDF countered by invoking force majeure due to strike of it's staff

> Héliogravure sought compensation for the loss caused by those

interruptions

> EDF claims relief from liability

Judicial question:

> Did the strike constitute force majeure?

The Court's Response:

> Dismissed interruption claims of 1987

> Situation gave rise to force majeure

> Claims of 1988- no proof that interruptions can be treated as being a case force majeure, therefore referred to a different article

> Ordered Heliogravure Jean Didier to pay compensation

> On appeal, Heliogravure Jean Didier argued that the fact that

employees/agents take strike action does not, in itself, amount to an event extraneous to the undertakings necessary for a finding of force majeure such as to exempt liability

> Therefore force majeure is inapplicable solely on account of the

abovementioned characteristics of strike action without making a

finding as to the unforeseeability

> EDF was unable to forbid its staff or decide on requisition measures or to recruit well-qualified temporary staff

> The Court of Appeal examined the circumstances and noted that the EDF could not have foreseen this action or avert it by satisfying

the claims of the employees in light of government control of

wages

> The appeal was therefore found groundless and dismissed

> Therefore, on those alternative grounds, the decision is justified

> The strike constitutes a case of force majeure;

-external, unforeseeable and irresistible event

The bad harvest

Relevant Facts:

> Defendant sold to the plaintive 20,000 kg of sugar beets seed

> In 1912 only 920 kg were delivered because only 933,35 quintiles were harvested instead of the 4,908 expected

> Because the defendant had other purchasers as well he allocated the seeds on a pro rata basis of customers ordering

> The plaintiff distributed the allocation carried out, only 46% of what was contractually agreed, and brought an action for performance of the contract and seeking judgment against the defendant for damages and interest

Judicial question:

>

The Court's Response:

> Plaintiff's action was dismissed

> After the agreement the plaintiff was entitled for seeds from the

defendants own personal cultivation

> Inability to perform the contract releases the defendant only when:

-performance has become totally impossible

-on condition that is necessary that no fault could be attributed to the defendant under the given article

> The defendant is therefore entitled to claim that due to impossibility the judges infringed the provisions

> Therefore in light of the requirements of good faith and the exceptional circumstances of 1911, the defendant cannot be required to do more than he can reasonably perform

> He was entitled to treat his consumers on an equal footing and to sell his seeds on a pro rata basis in accordance with the quantities ordered

> Therefore the plaintiffs action was ill founded on the appeal and revision was granted to the defendant

> It was not the defendant's fault

> Exceptional circumstances

> The principle of good faith takes precedent over the binding force of contract

Surrogate motherhood: France

Relevant Facts:

> In order to remedy their childlessness, the couple had recourse to an association.

> They put them in touch with a woman who agreed to bear a child on their behalf.

> This was done by artificial insemination.

> Surrogate mother was the biological mother.

> The name of the father was stated and he acknowledged her as his progeny.

> The name of the mother, however, was not stated.

> The wife then lodged an application for full adoption.

Judicial question:

> Was surrogate motherhood lawful?

> Was the adoption in accordance with the interests of the child?

The Court's Response:

> Surrogate motherhood was lawful and in accordance with public policy.

> Although the adoption was the final stage in the entire process design to enable to couple to receive the child to their home, the child conceived pursuant to a contract involving it's abandonment at birth by its mother and that such a process, which violated the principles of inalienability of the human body and its personal status, thus constituted an abuse of the institution of adoption.

> It was held at the court of appeal fringe the above mentioned legislative provisions and therefore the court quash is the judgment but only in the interests of establishing the law and without referring the case back for further adjudication.

Davis Contractor Ltd v. Fareham UDC

Relevant Facts:

> A contract with the respondents to build 78 houses for 8 months.

> Due mainly to the lack of skilled labour, the undertaking would require 22 instead of 8 months.

> The appellants were paid the fixed price, they claimed that they were entitled to more money on the basis of unjust enrichment (quantum meruit).

> The appellants also argued that the price in the contract was not binding

> An undertaking contracted to build 78 houses in 8 months (£92,000). It took 22 months (£115,000).

> It sought compensation and contended the contract was frustrated because adequate supplies of labour and materials were not available.

Judicial question:

> Are the appellants entitled to more money on the basis of unjust

enrichment?

> Was the contract overridden by the letter in the tender?

> Was the contract frustrated due to the shortage of labour that caused a long delay in the performance of the contract?

The Court's Response:

> The appeal was dismissed.

> Frustration is applied in certain limited circumstances for the purpose of deciding that contractual obligations are no longer enforceable between parties

> They could not have been expected to foresee what would happened

> Frustration does not depend on adding any implied terms, but on the true construction of terms which are in the contract read in light of the nature of the contract and of the relevant surrounding circumstances when the contract was made.

> A court can and ought to examine the circumstances in which [the contract] was made, not to vary, but to explain it

> Full weight must be given to the requirement that the parties 'must have made' their bargain on a particular footing

> The fact that a contract becomes more difficult to perform (or not so profitable) is not sufficient to amount to frustration. It was still possible to perform the contract.

Schroeder Music Publishing Co v. Macaulay

Relevant Facts:

> Macaulay, a novice songwriter aged 21, entered a standard form

agreement with Schroeder Music, whereby they would have the exclusive benefit of his compositions.

> The global copyright was assigned to another party in return for a fixed percentage of any royalties.

> This was to last five years, could automatically be extended for five years if the royalties went above £5000.

> SM could terminate/assign the contract, but Macaulay could not, Schroeder was under no obligation to publish/promote anything.

> Macaulay claimed the agreement was contrary to public policy and void.

Judicial question:

> Whether and how far the operation of the terms of the agreement is likely to conflict with public interest

The Court's Response:

> Public interest requires, in the interest of both the public and the

individual, that everyone should be free to participate to earn a living and to give the public the fruits of his particular abilities

> In the contract, Macaulay had no bargaining power.

> He received no payments unless his work is published, and it was only published when the defendants chose to do so

> If contractual restrictions are necessary or have oppressive enforcement, they must be justified

> The respondent assigned to the appellant the full copyright for the whole world in every musical composition composed, created, or conceived by him alone, or in collaboration with another person during the period of five or maybe 10 years

> The defendants had failed to justify restrictions which appeared

unnecessary and capable of oppressive enforcement.

> Contract was declared void being contrary to public policy as it

unreasonably restrained trade and the songwriter's liberty in action

> Assignment of copyright is manifestly inequitable and oppressive

> Violation of the public policy of promoting trade

Ship not loaded

Relevant Facts:

> Ship was to be ready to load in NYC around 5 sept.

> Ship arrived on 11 sept. / when asked, charterers named a firm that was not involved

> Plaintiffs set 12 sept. as the (ultimate) date where loading was to begin/this was not done, charterers made a vague offer of loading in New Orleans.

> Plaintiffs withdrew from the contract on 13 sept. and claimed damages.

Judicial question:

> *Intentional / reckless non-performance and unreliable future

performance?

The Court's Response:

> The appeal court declared the claim well-founded

> The charterer has by his conduct culpably jeopardised the object of the contract to such an extent that the shipowner can no longer

reasonably be expected to continue the contract or to perform its

obligations under the contract.

> The decisive factor is merely whether the breach is so serious that not only the object of the contract is jeopardised but also that as a result the injured party can no longer be expected to continue the contract

> The plaintiff gave the defendant a final chance to perform by fixing a period => attempt to cure

Machine for peeling artichokes

Relevant Facts:

> The defendant railway company delayed in delivering a package

containing a machine

> Plaintiffs were unable to use it and claim the consequential damages (vegetables perished and employment of manual labor)

Judicial question:

> The losses incurred by the plaintiffs were and could not be envisaged when the contract was concluded

> The defendant cannot be ordered to compensate the unforeseen and unforeseeable losses

The Court's Response:

> *The judgement was set aside on the grounds that the parties could not have foreseen the loss and that the contract of carriage was concluded outside the scope of article 1150 of the civil code

The bad-tempered bear

Relevant Facts:

> A visitor of a zoo falls against a barrier keeping visitors at a safe distance of bears

> The barrier collapsed, the bear bites the visitor

> The visitor sues the zoo

Judicial question:

> Is the zoo liable to pay for damages to the visitor as a result of

non-performance?

The Court's Response:

> Damages can only be reduced in case of force majeure or

after finding a fault (contributory negligence) on the part of the visitor (not a mere act of the victim)

> The appeal judgement partially lifting the contractual liability of the zoo was set aside (no fault of visitor)

> English law: contributory negligence only possible if there is a concurrent tort liability

~only contractual liability → contributory negligence cannot be invoked

Hong Kong Fir Shipping Co Ltd v. Kawasaki

Relevant Facts:

> Ship owners let the vessel, Hongkong fir, to Kawasaki for a period of 24 months. Clause 1 of the contract obliged the owners to deliver a "seaworthy" vessel and clause 3 obliged them to maintain the vessel's seaworthiness and good condition.

> Upon initial delivery, the vessel's machinery was described to be in 'reasonably good condition,' yet required constant maintenance due to its age.

> The vessel owner's chief engineer was incompetent, and the vessel suffered numerous breakdowns and delays (for a period of 18 weeks).

Judicial question:

> Does the breach deny the claimant the main benefit of the contract?

> The Court's Response:

> Fundamental non-performance? art. III. - 3:502?

> 18 weeks out of a 2 year contract period did not substantially deprive the defendants of whole benefit and therefore they were not entitled to repudiate the contract. Only damages.

> First, the seaworthiness and maintenance clause was not viewed as so fundamental so as to amount to a condition of the contract, but rather constitutes a term allowing damages.

> Secondly, the Court held that an innocent party cannot treat the

contract as repudiated due to delays, however significant, if the

breach falls short of a frustration of the contract rendering

performance impossible.

Hochster v. de la Tour

Relevant Facts:

> De La Tour employed Hochster as his courier for a trip around the

European continent.

> On 11 May 1852, De La Tour wrote to say that Hochster was no longer needed.

> On 22 May, Hochster sued De La Tour.

> De La Tour argued that Hochster was still under an obligation to stay ready until the day when performance was due, and therefore could commence no action before.

Judicial question:

> Whether a debtor's refusal to perform the agreement before the date of commencement entitled the creditor to damages, and

> Whether this breach is actionable before the date on which the contract was due to commence.

The Court's Response:

> Yes, if a contract is repudiated before the date of performance, damages may be claimed immediately. art. III. - 3:504

Houghton v Trafalgar Insurance Co

Relevant Facts:

> The insurance contract included an exemption clause, which stipulated that coverage was excluded for "loss, damage and or liability caused or arising whilst the car is conveying any load in excess of that for which it was constructed".

> The Claimant suffered a car accident and attempted to claim on his policy.

> At the time of the accident there were 6 people in the vehicle. >The vehicle was designed to seat only 5.

Judicial question:

> Ambiguity: What is the meaning of the word "load" in the exclusion clause? Can it apply to carrying too many passengers (instead of too much weight).

The Court's Response:

> It was held that the meaning was ambiguous (1) and that in such cases the meaning would be interpreted in the interests of the insured and against the interests of the insurer, in other words - contra proferentem (2) Article II. - 8:103

> Defendant had to pay out