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Definition
Sets the test for causation w.r.t remedies
1) It is a test of common sense
2) The breach must be an effective or dominant cause of the loss
3) Factual causation is not enough - it is not enough that the breach created the opportunity of loss, the breach must have been effective and dominant in causing the loss
(although the breach need not be the only factor)
CASE WITH THE ACCOUNTANTS WHO DIDN'T SPOT THE FRAUD |
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Definition
For something to be an NAI, it must not be something that is likely to happen
In this case = england was on the brink of war... therefore, outbreak of war was NOT an NAI |
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Definition
| A promise to accept less in NOT enforceable. In the eyes of the law, the debt will remain. |
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| FOR PROMISSERY ESTOPPEL, IT IS NECESSARY TO SHOW RELIANCE, HOWEVER IT IS NOT NECESSARY TO SHOW DETRIMENTAL RELIANCE |
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Definition
Where an offeror has proscribed a mode of acceptance, if the mode of acceptance is for the benefit of the offeree, the offeree can use an alternative mode of acceptance - provided that this does not disadvantage the offeror.
(this case = acceptance proscribed by recorded delivery = for the benefit of the offeree) |
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Definition
For restitution you need:
1) Exceptional circumstances
2) Damages must not be adequate
3) The claimant must have a legitimate interest in claiming |
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Definition
Example of illegitimate pressure for an illegitimate purpose (Duress)
Woolworths case - refusal to deliver christmas hampers to woolworths 3 days before christmas
(illegitimate pressure = threatened breach of contract) |
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| B & S Cintracts and Design |
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Definition
example of lack of practical choice
Example of illegitimate pressure for an illegitimate purpose
Ideal home show case - stall erectors refused to erect stalls unless they got more money - days before the ideal home show |
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Definition
Revocation of an offer can be communicated by a 3rd party - even if the 3rd party is not authorised to do so.
However, in this case, the 3rd party communicating the news = a reliable person |
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Definition
w.r.t causation and NAIs, if something is unlikely to happen, it will = NAI
This case = campervan case, where the purchaser of the campervan continued driving it even though he knew it was broken |
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Definition
FOR PROMISSERY ESTOPPEL, THE CLAIMANT HAS TO SHOW THAT THEY RELIED ON THE PROMISE TO ACCEPT LESS
in this case, the C argued that he relied on the promise to accept less in that once he was given the promise, it made him decide not to haggle for other changes = NOT SUFFICIENT RELIANCE |
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Term
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Definition
Sets out the test for remoteness w.r.t. claiming for damages... can claim for the two things...
1) Something that would have been in the reasonable contemplation of the parties when the contract was made (imputed knowledge)... e.g. what the reasonable man would think the effect of the breach would be
2) If the other party had ACTUAL knowledge of what the breach would cause, you can claim for that
NOTE - if you have unusual damage that you incur as a consequence of the breach, you will not be able to claim for it unless the other party had actual knowledge of it.
Case = mill shaft thing, other party didn't know that there were no substitutes |
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| In order to revoke a unilateral offer, you have to give the revocation notice the same notoriety as you gave the offer in the first place |
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Provided that the offeree has knowledge of the offer, it does not matter what their motive is for performing the task outlined in the offer
(woman confessing on her deathbed was entitled to the reward) |
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Definition
| revocation of a bilateral offer is effective upon actual notice of it reaching the offeree |
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Definition
| w.r.t Hadley v Baxendale criteia for remoteness - the knowledge must have been in the reasonable contemplation (or the actual knowledge must be present) at the time the cotnract was made, not at the time of breach |
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| Balfour Beatty Construction v Scottish Construction |
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Definition
w.r.t the Hadley v Baxendale criteria for remoteness... the extent of the damage must also be in the actual knowledge or reasonable contemplation of the D.
Case = concrete pouring and the viaduct, D knew that break in the electricity supply would cause some damage, but had no idea how much damage it would actually cause. HELD = failed remoteness |
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Definition
High Trees
1) Sword not a Shield
2) A clear and unequivocal promise that legal rights are intended to be suspended... can be implied or express |
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Term
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Definition
A promise to accept less can be enforceable if...
1) Lesser payment is given, AT THE CREDITOR'S REQUEST in a different time / place
2) A different form of chattel is offered in payment & the creditor accepts it |
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Term
| City of Westminster v Mudd |
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Definition
One way of getting around the parol evidence rule = collateral contract... therefore = two contracts, the main one complies with the PE rule, and the second one is anxillory to it and may in some places override it
THIS CASE = NUTTER WHO WANTED TO SLEEP IN HIS SHOP, SIGNED A FORM TO SAY HE WOULDN'T, BUT PERSON FROM THE COUNCIL SAID HE COULD = ORAL COLLATERAL CONTRACT |
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Parol evidence rule can be avoided where the court finds that the contract is not intended to be wholly written, but is instead part-written and part-oral
In this case = contract to say the way the cargo would be stored on the ships would be changed, but there was an oral promise that the cargo would be kept downstairs. Cargo was put on the deck & it fell into the sea. |
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Definition
In order for something to = course of dealings, it must = regular
In this case, sometimes whent he contracted D would get C to sign a risk note. And sometimes when they cotnracted he wouldnt. = NO REGULAR COURSE OF DEALINGS. |
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Definition
EVIL MRS REES
W.r.t Pinnel's case rule, where payment in a different chattel can = release from debt obligation... cheque instead of money = not a big enough change in chattel
Mrs Reiss was trying to use duress on the builders. |
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Definition
| If a 3rd party enters into an agreement with the creditor to pay a lesser sum in return for the creditor's promise that he won't pursue the debtor for the full sum - this is sufficient to dispel the debt e.g. debt will no longer be enforceable |
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| Hughes v Metropolitan Railways |
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Definition
promise under promissery estoppel need not be express, it can be implied - how ever it must show a clear and unoquivocal intention to suspend legal rights
this case = tenant who had to do repairs in six months, told landlord he wouldn't do them when they were in negotiations, landlord aquiesced, held to = implied promise not to enforce legal rights. |
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| Bikrom Investments v Carr |
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Definition
| If a promisor is disputing that the promisee acted in reliance on the promise - the burden of proof is on the promisor to show this. |
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Definition
Set out the test for determining LD vs PC
1) Does it look intimidatory
2) Does the price payable seem unreasonable, unconscionable and more than you could ever expect to pay
3) If breach = non-payment, is the amount you have to pay more than what you should have paid in the first place
4) Does it set a standard charge which is payable for both serious & non-serious breaches?
(case concerned tyres that shouldn't be sold for below a certain price - HELD clause = LD clause, not Pc |
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Term
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Definition
| An accelerated payment clause is not a penalty clause, unless the accelerated payment includes the interest that would have been payable over the full term |
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Term
| CCC FIlms v Quadrant Films |
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Definition
If your expectation loss is too speculative, the courts will make you claim reliance interest instead.
If the D is trying to argue that you would not have re-couped your reliance interest, the burden is on the D to prove that |
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Definition
Set the test for restitution
1) Exceptional circumstances
2) Damages must be inadequate
3) C must have a legitimate interest in preventing the C from keeping the money
This case = spy who sold his memoirs |
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Definition
Set the test for causation w.r.t damages & breach
1) It is a test of common sense
2) The breach must be an effective or dominant cause of the loss
3) Factual causation is not enough e.g. creation of an opportunity for loss is not enough, must be E or D cause of loss |
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Definition
Set the test for remoteness w.r.t breach and damages...
1) Imputed knowledge
2) Actual knowledge |
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Term
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Definition
The postal rule
Where post is the appropriate means, acceptance is effective from whent he letter is properly posted |
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Term
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Definition
| w.r.t reliance damages, in certain circumstances, you can claim for pre-contractual expenses |
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Term
| C & P Haulage v Middleton |
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Definition
Reliance damages cannot be used to escape a bad bargain
Case where lease = fixtures, fitting & any home improvements go to the landlord
Couldn't claim cost of cure for the breach, because council then gave him a free garage |
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Definition
| YOU CAN CLAIM FOR LOSS OF REPUTATION IF IT = EMPLOYMENT CONTRACT |
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Term
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Definition
YOU CAN CLAIM DAMAGES FOR MENTAL DISTRESS (where the main reason = relaxation etc.) - COMES UNDER LOSS OF AMENITY
EXAMPLE OF LOSS OF AMENITY CLAIM
C hired surveyor to assess country home, surveyor didn't notice it was under a flight path |
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Definition
You can claim for loss of opportunity
provided you had a significant chance of the opportunity realising
entered a beauty contest |
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Definition
In order to have a term implied under 'course of dealings', the course of dealings must be regular.
In this case, sometimes a risk note was given, and sometimes it wasn't. |
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Term
| McGlinn v Waltham Contractors |
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Definition
IDIOT - demolished his house, tried to claim cost of cure and loss of amenity.
HELD - he chose to demolish his house = no cost of cure. Because the house was demolished, court couldn't assess loss of amenity. |
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Term
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Definition
High water point for restitution
Probably only given because of good faith element
Dude who was selling petrol, but kept the profits for himself |
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Term
| McAlpine Capital Projects |
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Definition
| w.r.t a liquidated damages clause - provided that it pases the Dunlop Pneumatic test, it doesn't matter if what is payable under the clause is a lot more than what the breach actually cost the V |
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| Ruxley Electronics v Forsyth |
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Definition
Idiot with the pool.
Created loss of amenity. Couldn't give cost of cure, because that would cost more than it had cost to build the pool int he first place. Couldn't give difference in value, because the value of the pool hadn't changed. |
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Term
| NON-PECUNIARY DAMAGES ARE GENERALLY NOT RECOVERABLE IN A CLAIM FOR BREACH OF CONTRACT. HOWEVER = SOME CIRCUMSTANCES (WHERE YOU MEET LOSS OF AMENITY / LOSS OF A CHANCE / LOSS OF REPUTATION), YOU MAY BE REWARDED. IF NOT, YOU MAY GET NOMINAL DAMAGES TO ACKNOWLEDGE THE FACT THAT THERE HAS BEEN A BREACH |
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Definition
| NON-PECUNIARY DAMAGES ARE GENERALLY NOT RECOVERABLE IN A CLAIM FOR BREACH OF CONTRACT. HOWEVER = SOME CIRCUMSTANCES (WHERE YOU MEET LOSS OF AMENITY / LOSS OF A CHANCE / LOSS OF REPUTATION), YOU MAY BE REWARDED. IF NOT, YOU MAY GET NOMINAL DAMAGES TO ACKNOWLEDGE THE FACT THAT THERE HAS BEEN A BREACH |
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Definition
| w.r.t promissery estoppel, whilst it is not necessary to show that the promisee acted to his detriment, if he can show that he did, it might be easier for him to prove that it would be inequitable for the promisor to go back on his promise |
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Definition
set the test for remoteness w.r.t breach and damages
1) Imputed knowledge - in reasonable contemplation
2) actual knowledge |
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Definition
| where one party has suffered a loss as a consequence of the other party's breach, the injured party should take steps to minimise the effect of the breach. whilst it is not necessary for them to mitigate the loss, any additional attributable to a failure to do so are not recoverable. |
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Definition
| there is no expectation that the claimant should take crazy measures in order to mitigate the effect of the breach |
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Term
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Definition
| reasonable steps to mitigate may in some circumstances include accepting the performance offered by the D under a new contract - and then claiming damages for whatever they lost as a consequence |
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Definition
Example of the Hedley v Baxendale remoteness test in practice
D didn't know about lucrative contracts with the MoD |
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Definition
w.r.t promissery estoppel, the promisee must show that they acted in reliance on the promisor's promise
however - choosing not to bargain is NOT acting in reliance |
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Definition
Innominate terms
seaworthy = innominate term
look to the consequences of the breach to determine what remedy |
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Definition
Breach of a condition causes a thing wholly different in substance to what was agreed
Breach of a warranty causes a mere variation of what was agreed
this case = breach of a warranty
opera singer turned up for last two rehearsals and was there for the opening night and the rest of the shows |
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Definition
| a condition goes to the root of a contract |
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Term
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Definition
| ASSUMPTION OF RESPONSIBILITY w.r.t whether rpe-contractual statements become terms of the contract |
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Term
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Definition
SPECIALIST KNOWLEDGE w.r.t whether a pre-contractual statement becomes a term of the contract
Case = car deal had specialist knowledge, therefore he lost the case |
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Definition
importance of the statement w.r.t whether it becomes a term of the contract
Hops case |
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Term
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Definition
Set out the criteria for when consideration can be past:
1) act constituting consideration must be performed at the request of the promisee
2) there must be an understanding that payment will be given
3) if consideration had been at the time, rather than past, the agreement should be legally enforceable |
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Definition
WHERE A TERM REFERS TO ITSELF AS A CONDITION, THE COURTS WILL TRY TO GIVE EFFECT TO THAT, BUT IF THAT WOULD LEAD TO AN IRRATIONAL AND UNREASONABLE OUTCOME, THE COURTS WONT.
this case = guy who had to go to showrooms every single day of the year for 6 years |
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Definition
| To test whether something is a significant cause, you must apply the but-for test (duress) - but for the illegitimate pressure, the contract / variation clause wouldn't have been entered in to - the illegitimate pressure must have been such as actually cause the making of the agreement |
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Definition
| Can't claim expectation loss if it is too speculative. Case w.r.t salvaging ships after WWII - salvagers wouldn't always make a profit & the ship didn't exist. |
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Definition
| in a commercial setting it would be unusual, if not impossible for loss of amenity damages to be awarded |
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Definition
| can't enforce a promise to give consideration for an existing public duty (case w.r.t going to court to give evidence) |
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| consideration must be sufficient - agreement not to do something which you couldn't legally do anyway = not sufficient consideration |
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Definition
Post is not reasonable where there is an implied condition that prompt response is required
counter-offer sent by telegram = implied condition of promptness |
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Definition
| Post is not properly posted by putting it into the hands of a postman NOT authorised to receive letters |
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Definition
| Post = proper means of acceptance where in all the circumstances, it is reasonable to use it |
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Definition
| If a letter is incorrectly addressed = not proper posting - acceptance is only effective upon actual notice of it reaching the offeror |
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Definition
Set the postal rule
Where posting is deemed to be the proper means of acceptance, acceptance takes effect from the moment the acceptance letter is properly posted |
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Definition
| crazy scottish authority which said that a posted acceptance can be revoked by a revocation reaching the offeror before the letter of acceptance reaches them |
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Term
| Household Fire and Carriage |
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Definition
| where a letter is lost in the post / delayed in the post, acceptance is still effective upon posting |
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Definition
In order to create a valid offer, it must be communicated to the offeree
Guy on the ship who didn't tell people he was working |
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Definition
A third party can accept an offer on bhelaf of the offeree, but ONLY if they are authorised to do so
Headmaster caseq |
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Definition
| A 3rd party can communicate revocation of an offer to the offeree... in this case = reliable person |
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| Only an offeree can accept an offer |
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Definition
| You cannot stipulate that you will take silence to = acceptance |
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Definition
| Items on display in a shop window = ITT |
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Definition
| Perhapes if the seller / writer of the advertisement = the manufacturer |
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Definition
| Request for more information is NOT a counter offer - therefore, the offer remains open |
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Definition
| A counter-offer extinguishes the original offer |
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Definition
| as a unilateral offer is accepted upon complete performance, the offeror is able to revoke the offer at any point up until performance is finished. |
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Definition
| once the offeree has begun performing the act requested in the unilateral offer, and it would be inequitable to revoke the unilateral offer, then the offeree must be given the chance to complete performance |
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Definition
| Once an offeree has commenced the obligation under a unilateral offer, there is an implied condition on the offeror not to revoke the offer after performance has commenced |
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