3rd Party liability where should control party doing damage
Home Office v Dorset Yachet Co. Ltd (1970, HL): Liable for those under your control, or who should be
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A director can leave office via
removal, resignation, retirement, not standing for re-election, death, dissolution of the company, bankruptcy, disqualification
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Acceptance definition
‘A positive act by a person to whom an offer has been made which, if unconditional, brings a binding contract into effect’
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Acceptance mirror image case law
Butler Machine Tools Ltd v Ex-Cell-O Ltd (1979)- The last (counter) offer is the binding one
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Acceptance of part performance case law
Sumpter v Hedges (1898)- Part performance can be acceptable, but has to be accepted voluntarily. However, if abandoned, no payment is due.
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Actual breach
failure to perform at all or properly once performance is due
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Agency arising from necessity
Agency created by an emergency requiring the agent to take reasonable steps to preserve the principal’s property
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Agency by agreement may be made
Formally by deed (power of attorney), informally (written or verbal), by implication (employer/employee)
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Agency by ratification
Acknowledgement that a prior obligation is binding, creating antecedent authority
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Agency from necessity conditions
Emergency occurs, action is for the owner’s benefit, communication with the principal is impossible
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Agency from necessity false case law
Sachs v Miklos (1948): Must truly be emergency and act for owner’s benefit
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Agency misrepresentation liability
Principal is liable for misrepresentation by agent
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Agency payment case law
G.T. Hodges & Sons v Hackbridge Residential Hotel (1939): Due payment if specified in contract
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Agency, suspicious behaviour case law
Quinn v CC Automotive Group (t/a Carcraft (2010)): If agent is believed to have authority but still doing what you’d expect from the employee, still an agent
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Agency, vicarious liability case law
Quinn v CC Automotive Group (t/a Carcraft (2010))
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Agent reasonable skill, below standard case law
Arensen v Casson Beckman Rutley & Co. (1977) Must act to the standard of the reasonable \___
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Agent reasonable skill, false claims, case law
Chaudry v Probhakar (1988, CA): Held to the standard of someone with the experience claimed
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Agent, avoidance of conflict, case law
Armstrong v Jackson (1917): Must avoid conflict of interest
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Agent
a person with actual authority to carry out business on behalf of another person
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Agent’s right to indemnity case law
Anglo Overseas Transport Ltd v Titan Industrial Corporation (1959): Expenses incidental to performing the contract can be claimed from the principal
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AGM functions
question directors about annual report, vote on resulutions
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Ambiguous exemption clauses may be (case law)
e.g. Andrews v Singer (1934) interpreted contra proferentem
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Ambiguous exemption clauses may be
interpreted contra proferentem
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An employer must issue a written statement of \____ within \____ of the start date or \_______ - Statute
s1 Employment Rights Act 1996- key employment contract terms, 2 months, breach of warranty
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Anticipatory breach case law example
Hochster v De La Tour (1853)- breach doesn’t occur until performance is due, but anticipatory breach starts from notice and can sue and repudiate or wait and see what happens
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Anticipatory breach, frustration case law
Avery v Bowden (1855)- If breach occurs before actual breach, contract is frustrated and cannot sue
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Anticipatory breach, injured party
still expected to perform until breach
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Apparent authority, no real agent case law
Barrett v Deere (1828, HL) Principal allows 3rd party to believe there is an agency relationship, including not refuting agency
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Apparent authority, presenting greater authority case law
Racing UK Ltd v Doncaster Racecourse Ltd and Doncaster Borough Council (2005): If principal allows the 3rd party to believe the agent has greater authority, then liable for actions of agent. Includes not refuting
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Apparent or ostensible authority
the agent has no real authority but it appears that they do
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Appointment of administrator methods
decision from shareholders, directors or qualifying floating charge holder (QFCH) to petition the court for administration
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Appointment of administrator requirement for directors
majority decision
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Appointment of administrator requirement for shareholders
ordinary resolution
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Articles can be amended by (statute)
special resolution, S.21 CA 2006
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Articles of association forming contract statute
s.33 CA 2006, the constitution acts as a binding contract between the company and its members (but only re shareholder rights)
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Attempt to mitigate risks product liability case law
Tesco Stores Ltd and Another v Pollard (2006, CA): If a sufficient barrier to harm is created, okay
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Avoiding charges in liquidation
charges not registered in 21 days, transactions at an undervalue
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Beneficiaries to a contract privity statute
Rights of Third Parties Act 1999 S1- people who benefit from a contract are beneficiaries, so can sue
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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
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Breach of agency agreement means
can terminate agency relationship, repudiate agent, claim any bribe, claim damages and repudiate contract with 3rd party
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Breach of articles of association case law
Hickman v Romney March Sheep Breeders Association (1915): Bound by articles, so long as it refers to shareholder rights
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Breach of condition compensation
only damages, and can repudiate the contract
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breach of contract exclusion clause statute
UCTA 1977 s.3- cannot exclude liability for breach
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Breach of shareholder duty response
shareholders can vote to remove the director, and if the director is a shareholder, they can vote
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breach of SOGA 1979 exclusion clause statute
ss.6-7 UCTA 1977 doesn’t allow businesses to exclude implied terms for sale/ hire/purchase/supply of goods
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Breach of warranty compensation
Only damages
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Building contract quantifiable loss case law
correction, but in Ruxley Electronics & Construction Ltd v Forsyth (1995), correction wasn’t reasonable, so damage for loss of amenity
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Business agreements not binding exceptions case law
Jones v Vernons Pools (1938)- ‘In honour only’
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Business connections restraint of trade case law
Home counties dairies v Skilton (1970): Fair if to protect from poaching customers, not to restrict making earnings
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Business efficacy implied term case law
The Moorcock (1889, CA)- Where an implied term is obvious, it should be implied
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Bystander negligence liability case law
Stennett v Hancock (1939): If bystanders injured by product, can claim
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CA 2006 (s.994) requirements
must be a member of the company, must have evidence that the company’s affairs have previously been unfairly prejudicial to members’ interests, must have evidence that a proposed act or omission would be likewise
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CA 2006 (s.994) unfair prejudice case law example
Kohli v Lit and Others (2009): don’t unfairly prejudice shareholders
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Can be liable for both passing off and malicious falsehood if
parties are in competition (only necessary for passing off, not for malicious falsehood
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Careless misrepresentation case law
Howard Marine & Dredging Co. Ltd v Ogden & Sons Ltd (1978, CA)
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Careless misrepresentation definition
representor could not reasonably have believed his statement to be true
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Careless misrepresentation remedy
sue under S.2(1) Misrepresentation Act 1967 and get damages and/or rescission (basically the same as fraudulent but easier to prove)
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Causation in fact test
But for test (Without breach, what would have happened?)
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Change of circumstances between statement and acceptance case law
With v O’Flanagan (1936, CA)- Should update the other party
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Checking truth of information case law
Redgrave v Hurd (1881)- Don’t have to check truth, even if invited to do so
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Children duty of care
Orchard v Lee (2009) Children held to lower standard
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Civil court order
County or High Court Court of appeal Supreme court
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Civil name case order
claimant/plaintiff and defendant
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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)
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Collateral contracts case law
Shanklin Pier Ltd v Detel Products Ltd (1954)- Proximity may cause a collateral contract
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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
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Communicating acceptance to a third party case law
Powell v Lee (1908): Only effective is communicated to an authorised person (in this case, an agent, but that’s not 100% neccessary)
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Communication rule exception case law OBITER
Re Selectmove (1995): can waive if waived by both parties BUT ONLY OBITER, NOT BINDING PRECEDENT
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Company legal personality
Once registered, a company has its own legal personality distinct from its members. The company can be liable in Tort and Contract and for some criminal acts
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Company liability
unlimited liability. Members have limited liability for debts (to the value of their investment
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Company liable for criminal acts case law
R v Cotswold Geotechnical Holdings (2014) Companies can be liable for acts distinct from its members (here, corporate homicide)
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Company method of formation
Doesn’t exist until the registration procedures of the Companies Acts have been complied with
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Company secretary agency context case law
Panorama Developments v Fidelis Furnishing Fabrics (1971, CA): company liable where under secretary’s apparent authority
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Company secretary cannot
borrow money or make trading contracts
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Company secretary
principal administrative officer
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Company supervision
An LLC is monitored by the companies registrar through its annual return. Reports and accounts are open to public inspection. BIS has wide investigative powers and can send in investigators.
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Company termination
exists in perpetuity until wound up
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Company voluntary arrangement (CVA/IVA) definition
compromise with creditors which aims to avoid bankruptcy
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Comparator for discrimination
when bringing a case, victim chooses a comparator to claim that they would be treated differently if they had the same protected characteristics. Comparator can be hypothetical
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Compliance with ACAS grievance procedures failure
Unreasonable failure can increase damages by up to 25%
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Compulsory liquidation creditor requirements:
creditor is owed more than £750 and served a written demand for payment at its registered office, which has not been paid within 21 days
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Compulsory liquidation definition
petition to court by creditor or possibly a member
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Compulsory liquidation main statutory grounds (X2)
Company is unable to pay its debts (s122(1)(f) IA 1986) [for creditor], it is just and equitable to wind up the company (s122(1)(g) IA 1986) [member]
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Conditional offer acceptance
cannot be completed unless and until conditions are met
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Conditions for agency by ratification
Agent has actual authority, principal exist and has capacity to contract, reasonable timescale, ratification complete and communicated
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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
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Conformity with accepted practice duty of care case law
Bolam v Friern Hospital Management Committee (1957, CA): If you can bring in expert witnesses who would agree with you, that’s a defense
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Consent defence free choice case law
Smith v Baker (1891): Must have a reasonable choice
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Consent to harm case law cf X2
Haynes v Harwood (1935, CA): moral duty to intervene, method was reasonable. Sylvester v Chapman (1935): moral duty, but not reasonable method, not enough care for own safety
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Consequence of creditors rejecting plan
goes back to the court, who can make any order it sees fit, e.g. terminating administrator
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Consequence of frustration
Contract ceases to exist from the point of discharge
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Consequences of administration
moratorium on winding the company up, fixed charge holders can’t enforce their security over property without the consent of the administrator or court, can’t seize leased assets without consent, can remove or appoint directors and employees, directors’ powers are suspended
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Consequences of agency by ratification
agent free of liability from acting without authority and can claim remuneration if appropriate, 3rd party obtains title to the goods, contract is retrospectively binding
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Consequences of agency from necessity
agent can claim expenses, agent has defence if sued for trespass, 3rd party gets good title to the goods
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Consequences of declaration of solvency without reasonable grounds consequence
criminal offence, punishable by fine or imprisonment
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Consequential loss case law
Muirhead v Industrial Tank Specialties Ltd (1986) Can claim for consequential loss, but not PEL without a special relationship
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Consideration definition case law
Currie v misa (1875)- Consideration requires a benefit and detriment on each side
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Consideration definition
Each party must give something in return for what is gained from the other party e.g.
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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
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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