The terms of a contract. English Law. Page 54

What forms part of a contract? Some statements made leading up to the signing of a contract do not form part of the same.

Terms may be implied into a contract by common law or statute.

There are major (essential) undertaking and minor (inessential) undertakings.

Terms are subdivided into different categories. Different things happen when one breaks different types of term.

What is a breach of contract?

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There are often many exchanges of info before a contract is signed. Some count as representations and some do not. The important statements will likely be representations.

A breach of contract gives on the right to claim damages and SOMETIMES the right to terminate a contract.

If a statement before a contract is signed does not form part of a contract then it is a representation.

If a representation is untrue this is a false representation it is NOT a breach of contract.

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A warranty can be a type of term of the main contract or it can be part of a separate collateral contract.

A representation may be a mere puff which has no legal significance – a statement of unsupported opinion e.g. ‘that shirt looks nice on you.’

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FALSE REPRESENTATIONS

A misrepresentation may lead to a legal action – one can rescind a contract for misrepresentation.

1967 – Misrepresentation Act.

There is negligent misrepresentation – the misrepresentor did not KNOW that what he said was false but he did not make enough of an effort to verify what he was saying was true.

Negligent misstatement is a tort – Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964.

Older cases see misrepresentations as a terM. Modern cases do not.

For a statement to be a term of a contract it should be made with the intention that it is a term of the contract. Lord Moulton 1913.nThis is objective.

Lord Denning 1957 Oscar Chess v Williams. ”if an intelligent bystander would reasonably infer that a warranty was intended that will suffice.”

Heilbut, Symins and Co v Bucketon . Lord Mlulton said –

1. importance of the statement – more important more likely it is a term.

2. one party is relaying on the statement

3. relative knowledge of parties matters.

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terms of COLLATERAL CONTRACTS.

A statement may be a term of a collateral contract.

To falsely say that something is of economic value when it is not is to break a term of a collateral contract.

Where a contract is set in writing one is not allowed to assert that there are terms to it other than in riting. This is the PAROLE EVIDENCE RULE. Oral statements do not count as part of a contract.

THERE ARE EXCEPTIONS.

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IMPLIED TERMS

An express term is something actually said.

Sale of Goods Act 1979 – all good must be of satisfactory quality. This is an implied term of every contract. Satisfactory is not perfect nor is it above average – just good enough. The goods may not be less than good enough.

Courts may imply terms into a contract but are loathe to do so.

Courts are interpreter of contracts not makers of them.

Crossley v Faithful and Gould Holdings Ltd 2004. The court REFUSED to imply a term into the contract that the employer had to take care of the employees economic well-being. This would open a floodgate.

Courts imply terms in

1. When there is an established trade usage.

2. Because relationship between the parties.

3. to give an effect to an unexpressed intention of the parties.

4. by operation of statute.

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In trade usage – there is standard practice.

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UNEXPRESSED INTENTION.

The officious bystander rule. If such a person were there one party would answer his questions, ”is that a term” with ;;yes of course” – testily suppress him. MacKinnon LJ said this in 1939.

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NATURE OF THE RELATIONSHIP.

Landlord and tenant.

Employer and employee –

Malik v BCCI  – 1997. Employer must conduct business in a way not to damage the reputation of the employee.___

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OPERATION OF STATUTE.

Sale and Supply of Goods Act 1994. It is a reasonable expectation that goods bought by a consumer will be of satisfactory quality – not merchantable.

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Unfair Contract Terms Act. 1977.

Unfair Terms in Consumer Contracts Regulations. 1999.

Wilson v Best Travel (1993) – operator must have regard to the safety of the tourist.

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CLASSIFICATION OF TERMS INTO MAJOR AND MINOR UNDERTAKINGS.

A undetaking is an obligation.

A contractual term is a primary obligation. A breach of a primary obligation engenders a secondary obligation to pay damages.

In some cases damages is the only remedy. There may be another remedy in other cases.

There is a remedy of rescinding or termination the contract.

A breach occurs then the injured party has a choice – EITHER Terminate the contract OR affirm it. To affirm it is to insist on contuned performance and claim damages.

An injured party only has the right to do this when the term breached is a condition or a sufficiently important innominate term.

A party is NOT allowed to terminate a contract for a breach of a warranty.

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RESCINDING FOR BREACH – injured party may consider the contract to be discharged – brought to an end/. Injured party provides no fiurther performance nor may expect to receive any.

RESCINDING FOR MISREPRESENTATION – injured party claims this. This means the contract is cancelled FROM THE BEGINNING. Property etc… is returned to whoever owned it ebfore the contract was signed.

Termination for breach is rare. Those who have made a foolish deal sometimes rescined for breach to get out of this bad deal. This person may use a technical breach to do so – they will be penalised for breaching lightly.

Requirements for the making of a contract. Page 43

1. the parties must intend to create legal relations.

2. the terms must be precise.

3. agreement is complete and does not need further negotiation.

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Intention to create legal relations indicates that in the case of a dispute the parties envisage a court adjudicating.

Domestic agreements are not contracts. Agreements between immediate family or between friends over something informal are not contracts.

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Intention to create legal relations is judged objectively.

Edmonds v Lawson 2000.

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Social and domestic agreements – presumed not to be contracts.

Balfour v Balfour 1919.

Husband working abroad agreed to pay wife set amount.

The couple separated. She sued him for the money. The court found against her because there had been no intention to create legal relations.

Atkin LJ ruled on this. If the courts accepted such cases they would be overwhelmed.

Jones v Padavatton 1969.

Agreement between mother and adult child was not a contract.

Coward v MIB 1962. Agreement to drive someone to work in return for petrol money – not a contract.

There is a rebuttable presumption that domestic and social agreements are not contracts. This presumption CAN be overcome SOMETIMES.

Merritt v Merritt 1970 – the presumption was rebutted. Here spouses intended to create legal relations.

Darke v Strout 2003 – couple’s agreement about child support. There was a letter setting out the terms. A contract was held to exist.

The woman had given up statutory rights as part of the deal so this was consideration.

Soulsbury v Soulsbury 2003 – a spouse forewent maintenance payments in return for a bequest. This was a contract.

Simpkins v Payes 2003. Co- habitees agreed to enter a competition – this was held to be a contract.

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COMMERCIAL AGREEMENTS.

These are presumed to be contracts.

Esso Petroleum Ltd v Commissioners of Customs and Excise 1976.

Sale of land normally ‘subject to contract’. This displaces any presumption of contractual intention.

A comfort letter – Kleinwort Benson Ltd v Malaysia Mining corporation Berhad 1989. made sure there was no contract

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CERTAINTY OF TERMS.

A contract needs certain terms for it to be enforced.

Scammell v Ouston 1941. Agreement not enforceable because the terms were uncertain.

Viscount Maugham said that because the terms were uncertain there was no consensus ad idem.

THE Court is not there to make the terms.

In cases where parties have relied on an agreement a court may infer terms.

Hillas v Arcos 1932 – court inferred intent based on agreements and trade usage.

 

There may be a mechanism to agree terms and not a figure. If the contract says 1% above the Bank of England’s base rate this is still certain even though people do not know what the rate will be in future.

A meaningless term can be ignored and the rest of the contract is still enforceable. Nicolene Ltd v Simmonds 1953.

 

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A COMPLETE AGREEMENT.

An agreement must be complete to be a contract.

Courtneyn and Fairbairn Ktd v Tolani Brothers (Hotels) Ltd 1975. Agreement to negotiate is not a contract.

 

Sale of Goods Act 1979. Where a contract omits the price a reasonable price will be paid. The contract can be enforced.

Foley v Classique Coaches Ltd 1934. Court implied necessary terms to make contract enforceable because a party had already a cted in reliance on it.

 

 

 

contractual intention is a question of fact.

 

Explain how your subject contributes to the spiritual, intellectual, moral, social and cultural development of pupils.

My subject is History.

This essay will break down the task set by the essay into constituent parts. This essay shall consideration the spiritual, intellectual, moral social and intellectual development of pupils as occasioned by the study of History. However, this essay shall not examine the said forms of development in the sequence set out in the title. Be it understood this jumbling of the constituent parts is quite deliberate.

There is the hackneyed phrase that we must learn, ”the lessons of History otherwise we are condemned to repeat them.” This trite observation has some merit to it. The trouble is that it is fearfully difficult to determine what those lessons are. In 1914 we are told that it was a mistake to zealously enforce treaties because this caused war. Conversely the lesson of the 1930s is that one should strictly uphold treaties because this would avoid war. Without delving into the minutiae in each case these claims are specious but nonetheless that is the conventional view. Such glib a rationalisation of historical decisions is the stuff of which this ‘lessons of history’ school of thought it made. No one that this writer knows of has been able to boil down the lessons of history into anything easily digestible. If there were lessons of such import and lucidity they surely would have been long ago learnt and many tears would have been avoided. One of the problems associated with this lessons of History is the trap of false comparison. Was the order to taken military action in 2003 an example of the Coalition avoiding the mistakes of 1930s style appeasement or was it a case of the Coalition being Nazi-type aggressors like the 1930s? This depends upon one’s standpoint. The writer of this essay has a very strong opinion on the matter but shall not divulge it here. It strikes me that very few have imbibed the lessons of History since we seem to be committing them again and again. Dr Karl Marx made much the same point in his essay, ”On the 18th Brumaire of Louis Bonaparte.” Marx noted that he was paraphrasing an earlier Hegelian about History repeating itself the first time as tragedy and the second time as farce. This was of course because Louis Bonaparte (Napoleon III) carried out a coup like his uncle had 52 years earlier and at about the same time of year. The 18th Brumaire date alludes to the putsch launched by Napoleon I not the actual date of the takeover by Napoleon III.

Firstly, let us define our terms. History is the study of evidence about the human past. It should not be more recent than about 30 years in arrear. This is because in the United Kingdom there is a thirty year rule. Some sensitive government documents are not released until 30 years after they were written. Indeed some documents are so secret or controversial that a hundred years later they are still not released. This is true of documents relating to Roger Casement for instance – executed for high treason in 1916 because during a war be collaborated with the German Government to smuggle weapons into the United Kingdom for the purpose of starting a rebellion.

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Spiritual

Spiritual may be taken to mean religious so as to give pupils a better understanding of formal religions or a sense of numinousness about the world. History allows pupils to commune with dead generations and to feel part of a much wider whole. The author of this essay recalls as a child visiting places of serious historical import and feeling a curious sense of connection to famous historical figures and to bygone centuries. Whether it is visiting Tyne Cot Cemetery near Ypres or going to the grave of Catherine of Aragon – History can impart a strange but healthy sense of contact with those who have passed on. The saying goes, ”The past is another country – they do things differently there.” It ain’t necessarily so. To connect with one’s ancestors and ancestresses is to feel part and parcel of the very loam of one’s homeland. This can also be true of being in contact with humanity as a whole. One can come to appreciate the sameness of people all over the world – especially if one goes back far enough. Having pupils look at pre-History helps them to develop an understanding of how national, racial and religious differences are to a great extent a construct. In a sense such divisions are artificial since what is known of pre-Historic communities leads one to conclude that they were pretty much the same all over the globe.

History can examine the growth and dissemination of religions. The author of this self-same essay was in the difficult position of teaching pupils who were 90% Muslim about the Rise of Islam when the author himself is not from that background. It had to be rammed home to these Mohammedan pupils that they were looking at Islamic Civilisation as History and not as religious studies. The textbook had lengthy quotations from the Koran and from the Hadith (being a record of the life of the Prophet Mohammad Peace be Upon Him).

What is especially enlightening is to teach pupils about religions that absolutely no one believes in. The author of this essay has taught pupils about Ancient Rome and made the point that nobody practises the faith of that pantheon anymore. This has been challenged by a pupil who said the teacher could not make such a claim. The child herself could not furnish any examples of anyone who still lent credence to the cult of Jupiter and his vassal gods and goddesses. The point is this – pupils will see that dead religions bear striking similarities to living religions. This may lead to some uncomfortable self-questioning on behalf of those who have been raised in households that are religiously observant. It is therefore sage of a teacher not to labour the point.

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Moral

The consideration of morality when learning of historical events is a vexatious issue. It is very debatable whether or not pupils ought to be invited to regard actions in the past in terms of rectitude or turpitude. To do so it to introduce a measure of moral philosophy into History. History should be just that and not some attempt to impose value judgments on the past. This is especially true of the distant past when mores were very different.

It is simply infantile to attempt to divide historical protagonists into facile categories such as good guys and bad guys. People act for much the same motives whichever side they are on. A type of historical event which is fiendishly tricky to examine as good versus evil is war. Heaven knows there have been enough armed conflicts in the annals. One of the dispiriting but indisputable facts about war is that wars are fought for two reasons – sometimes for both these reasons at the same time. They are fought over resources and ideology (which can include religion). That is one of the less uplifting lessons of History is that little changes. Notions of a sudden outbreak of universal and saecula saeculorum peace  have been oft made but as yet unfulfilled. Such a boast at the end of many wars is dangerously vapid. It is equally dispiriting to see how often wars have been fought – for peace. This bitter irony is best seen in the First World War – the war to end all wars. As has been noted in the Middle East it seemed to transmogrify into the peace to end all peace.

If ever there is a moral issue it is surely this – when can it be right to willfully take human life? In the case of war this is innocent life since soldiers on all sides are not bad people unless they commit some atrocity. When is it morally acceptable to declare war? The rights and wrongs of past conflicts are incredibly difficult to determine as belligerents are busy acting as falsifiers of the chronicles even before the conflict has commenced. To establish the truth through the welter of claim and counterclaim is a near impossible task. Even were one able to find the whole and precise truth there would seldom be a case in which one party to a war was completely righteous and the other was utterly unrighteous.

This is not to say that pupils can not gain any moral uplift from learning about History. Certainly there are people who have been heroes by anyone’s definition. Likewise there have been people who surely qualify as villains in the view of any right thinking member of society.

One of the difficulties with looking at the past is imposing contemporary values on a different era. Take the case of slavery. Involuntary servitude was seldom questioned until the tail end of the 18th century. Slaves themselves may be presumed to have not been best pleased at their unenviable predicament but the broader issue of whether it was ever ethical to take someone hostage and compel them to work without pay and to deprive them of autonomy does not seem to have been a question that scratched the minds of many. One can look at slaveholders as being cruel, exploitative as they undoubtedly were. One should also have regard to the need to judge people by the standards of their time. Those who held slaves at that time were often seen as pillars of society and often seemed to see themselves as being fine, upstanding moral citizens. The fact that George Washington held slaves and many of the Founding Fathers of the United States were slaveholders was dismissed as a trivial issue until about the 1970s. In more recent decades people have begun to see that History has let George Washington and his colleagues off rather too lightly on this issue.

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Social

The study of History patently contributes to the social formation of the pupils since it allows them to comprehend how societies develop and operate. Pupils will see different systems of governance. They will see continuity in government over time and changes – some gradual and some revolutionary.

Pupils often have to co-operate on discussion tasks and this assists their socialisation. Joint projects can also help them to learn interpersonal skills. Discussion among pupils, facilitated by the teacher, is a means of enhancing the social as well as the educational development of the pupils as recognised by the National Literacy Trust:

”Questioning by both teachers and pupils is foundational in improving comprehension. It
should involve the explicit exploration and development of literal, inferential and evaluative
questioning. Revisit your approach to guided reading to ensure it is effective in developing
enthusiasm, response and key skills. Guided reading groups use cooperative learning and
should complement other strategies.” (‘Literacy Guide for Secondary Schools’ 2012).

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Intellectual

This assuredly is the chief purpose of education. Without getting into high falutin’ notions of intellectual formation one can see that the study of History advances the education of pupils. One need only look at the Ofsted policy on literacy across the curriculum to see that learning History is most useful in teaching pupils to read more, to widen their vocabulary, to spell correctly, to write grammatically, to speak grammatically and so on and so forth. Here is the exceptional standard that Ofsted has set for the very brightest pupils and this is what we should work towards: ”Pupils’ writing has shape and impact and shows control of a range of styles maintaining the interest of the reader throughout. Narratives use structure as well as vocabulary for a range of imaginative effects, and non-fiction is coherent, reasoned and persuasive. A variety of grammatical constructions and punctuation is used accurately and appropriately and with sensitivity. Paragraphs are well constructed and linked in order to clarify the organisation of the writing as as a whole.” (p. 15 ‘Reading, Writing, Communication and Literacy’ 2011).

The intellectual gains in History go much beyond literacy skills.  In more high brow terms one can observe the great scope for intellectual development inasmuch as History, especially at A level, requires pupils to examine different viewpoints. Pupils are compelled to critique views, to form their own opinions and to defend them. Essay technique taught as standard is to consider at length the argument with which one disagrees and then place the big but in the middle – to later state the counter-argument. Pupils learn to view information sceptically. They development sceptically. There are higher order reasoning skills such as identifying causes and consequences. Short term and long term causes may be categorised. Pupils learn to rank reasons in order of relative importance.

Worthwhile intellectual development through History will expose pupils to countries and centuries with which the previously had little contact. One may so that of course pupils cannot have had contact with centuries in which they have not lived. But pupils now know people who were alive in the twentieth century even though the said pupils may not themselves have been born then so in fact a child born since the Millennium may be said to have had contact with the century immediately prior to this one. Further, pupils are often taught a great deal of 16th century History. It is wise for a school to seek to introduce pupils to centuries that the pupils have not thus far encountered. In this author’s private tuition he sought, in Oxford preparation, to require pupils to look at something that was not from the 20th century. It is also valuable not to be so Eurocentric – too much History taught in British schools is about the 20th century. This is partly because it is so recent and therefore accessible on all sorts of levels. This indicates a certain indolence of approach. The Third Reich is a particular favourite. It is well worked over. It is chosen time and again for various reasons. Some of these are profound such as the anomaly of a high cultured and technologically advanced society being led to commit acts of extreme cruelty on a continent-wide scale. There are more banal and mundane explanations for the unhealthy British fascination with the Third Reich. The advent of Adolf Hitler coincided with the first time film could be shot outside a studio with decent sound recording. Before about 1930 there are very few films. Before 1927 there are no films with spoken dialogue. The Third Reich is an old chestnut beloved by Britishers because it also shows the United Kingdom as the good guy. Unfortunately much more time is spent on these 12 years of German History than the centuries of German History put together. Necessarily the view of many British people of Germany is wildly askew. This distortion is resultant upon this fixation with the years of the Hitler administration.

The trouble with teaching pupils about more distant centuries is that they are so alien to today’s children. One must reintroduce them to concepts that flummox them such as the feudal system. Many find it hard to conceive of a society with such primitive technology and in which formal religion plays such a prominent role. The fact that very few people could write before the 17th century in the British Isles leads more than a few pupils to the erroneous conclusion that people in former epochs were stupid.

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Cultural

Historical knowledge is de rigeur for an appreciation of most arts. In order to understand opera, fiction, poetry, painting, drawing, printmaking, ballet, theatre and film some historical context is needed. Schools sometimes co-ordinate their curriculum on this. For example while the English Department will teach pupils First World War poetry the History Department teaches the pupils about the Great War in the same term.

Culture does not exist in a vacuum. It is a historical outgrowth. Cultures are handed down from one generation to the next. Historical cross-fertilisation is a historical process. For instance in Brazil the cultural mixture present there shows elements of Portuguese influence and African influence. This can be explained with reference to the History of this land.

Marcus Garvey said, ”that a people without knowledge of their past history, culture and origins is like a tree without roots.” This national hero of Jamaica was quite right. He was incidentally not educated enough to avoid the jarring tautology ”past history.” This his syntax was at fault the substance of his statement was sound. One cannot comprehend one’s culture without some considerable knowledge of one’s History.

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Conclusion.

In conclusion this essay observes that the study of History indeed contributes handily to the development of pupils in several ways. This subjects facilitates their advancement in spiritual, intellectual, moral, social and cultural ways. For pupils to enter adult life without a decent grounding in History is to make them spiritually bankrupt, morally illiterate, socially deprived, intellectually stultified and culturally impoverished. History complements these aspects of a child’s development. That is why it is key that pupils be required to learn about History until their middle teens. This does not mean dry as dust rote learning. There needs to be some acquisition of facts to be sure but also an exercise of the critical faculties.

Consideration – notes on contract law

Consideration is essential to determing if a contract exists in English law. There must be mutuality in a contract.

A promise of a gift is not oftentimes legally enforceable.

A court will look for ‘an intention to create legal relations’ This exceedingly seldom applies to gifts.

Exceptions to consideration – ‘reasonable reliance’ and ‘promissory estoppel’.

These apply chiefly to the variation of pre-existing legal obligations.

One should be able to tell what behaviour does and does not constitute proper consideration with regard to a contract under the law of Cymru and England.

Consideration sometimes modifies contracts that already exist.

promissory estoppel sometimes leads to the enforcement of promises not supported by consideration.

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McKendrick  – ‘badge of enforceability’ – that is what cosnideration gives.

money for goods – consideration.

a promise must be supported by consideration to be legally valid.

a deed is a special form that makes a promise of a gift legally binding.

Law of Property (Miscellaneous Provisions) Act 1989 – about deeds.

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Definition of consideration.

Currie v Misa (1875). ”a valuable consideration , in the sense of the law, may consist either in some right, interestm profit or benefit accruing to the one party or some forebearance, detriment, loss of responsibility given, suffered or undertaken by the other.”

there must be a benfit to the promisor or a detriment to the promisee. Either one is good enough-ski.

Some agreements are executory which means beased on promises that neither party has yet performed. This is a minefield.

Making a promise (not just caryring it out) can be considered to be good consideration under the law of Wales and England.

Lord Dunedin in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915) – p. 855 –

A promise cannot be to the detriment of the person making it unless it is enforceable. A promise is only enforceable if there is benefit or detriment,.

Courts now look more for mutuality than benefit and detriment.

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CONSIDERATION – SUFFICIENT BUT NOT ADEQUATE.

Consideration must be worth something – even if precious little. It need not be adequate. That means it does not have to be the going rate for whatever good or service is being sold.

If some chap is damn fool enough to contract for a piffling consideration then that is not of interest to Her Majesty’s courts.

Thomas v Thomas (1842) – 1 pound per annum rent was sufficient.

Chappell v Nestle (1960) – Lord Somervell says that the court upholds ‘freedom of contract.’ ‘A party may contract for what consideration he chooses’. Be it understood that he may be read for she and they.

Sweet wrappers in that case were sufficient because this contract caused more people to buy sweets thus accruing proft to Nestle.

White v Bluett (1852). A son promised to stop complaining about something was not good consideration for a contract.

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EXISTING OBLIGATIONS AS GOOD CONSIDERATION.

3 ASpects to this.

1. Ob;igation which arise under law irregardless of any contract.

2. Obligations which are owed under a contract with a third party.

3. Obligations which exist under a contract with a person who has made a new promise, for which the existing obligation is alleged to provide good consideration.

The third situation is about varying existing contracts. To what extent can variations become binding? This is fiendishly complex. We will look at it later.

EXISTING OBLIGATION – policeman has a duty to uphold the law. If a member of the public promises to pay him to carry out his duty this promise is not normally enforceable since the police officer is obliged to do his duty anyway.

If a public official does more than he obliged to do anyway then the promise will be enforceable. Cf Glasbrook Bros Ltd  v Glamorgan CC (1925).

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The second situation – obligations to a third contract. This CAN be good consideration whether the context is domestic or commerical.

Shadwell v Shadwell (1860) – a promise to marry.

Unloading goods by stevedores – pre-existing obligation was good consideration since the pre-existing obligation was owed to a third party. This case is ‘The Eurymedon’ (1975).

Privy Council case – Pao On v Lau Yiu Long (1980) – pre-existing promiose as well as the performance of the said promise can be good consideration.

The third type of pre-existing obligation. This is an obligation owed under a contract with the party making the new promise. Key cases –

Stilk v Myrick (1809) and Williams v Roffey Bros & Nicholls (Contractors) Ltd (1991).

Stilk v Myrick. Sailors were under a contract to sail a ship back home. They were given a fresh promise to induce them to do what they were already contractually obliged to do. They sailed the ship home and then wanted to collect their reward. Their attempt to enforce this promise was blocked by the court because they were only doing what they had already contracted to do.

Williams v Roffey Bros – the carpenter did work on flats that he was already obliged to do. Williams attempted to enforce this promise. He won his case. The Court of Appeal dealt with the case.

Glidewell LJ said that practical benefits would come to the defendants through Williams doing the work so the promise must be enforced.

the benefits were  – this ensured that the work was continued and Williams did not give up the project.

The defendants would have had to pay compensation to the owner of the flat if the work was not done because of a penalty clause in a separate contract.

The defendants avoided the trouble and expense of finding new carpenters.

In Williams V Roffey there was no pressure on Roffey to offer an additional payment. This is the main difference between this and Stilk v Myrick.

There was no economic duress or fraud on the part of William. Glidewell said this counted in favour of Williams.

Part payment of a debt can never discharge a debtor from the obligation to pay the whole of it. Foakes v Beer (1884).

If something extra is done in terms of a debt the remainder can be discharged – such as paying part of the debt earlier than originally agreed or paying in goods that the creditor wants. Pinnel’s Case  1602.

Williams v Roffey does not discount the rule established in Foakes v Beer.

Ferguson v Davies (1995) again upheld the principle in William v Roffey that part-payment of a debt is not good consideration to excuse the remainder of the debt.

In general, consideration must move from the promisee to the promisor. There are exception.

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PAST CONSIDERATION.

Consideration must normally be given AFTER the promise which it is to make enforceable.

Re mCArdle 1951. The man did work in the house. His sisters and brothers then promised to pay him for it. The promise was not enforceable since it was for work that was finished before the promise had been made.

Past consideration is SOMETIMES good consideration. Pao On v Lau Yiu Long 1979. Lord Scarman laid down 3 rules

1. The act which is consideration must be done at the promisor’s request. See Lampleigh v Braithwait 1615.

2. The parties must have understood that the work was to be paid for in some way. See Re Casey’s Patents 1892.

3. The promise would have been legally enforceable if it had been made before the work was done.

Principle 2 is the hardest to determine.

The court will take and objective approach – would a reasonable person have thought at the time that the work was to be paid for in some way whether through money, goods, services etc…

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PROMISSORY ESTOPPEL.

This is about the modification of existing contracts.

The classic view is that contract can only be modified in return for consideration.

There must be mutuality.

Promissory estoppel is an equitable doctrine.

Central London Property Trust Ltd v High Tree Huses Ltd (1947). Denning J dealt witht his.

A rent was agreed on the flats. During the war it was agreed to reduce the rent.

Denning – ”A promise intended to be binding, intended to be acted upon and is in fact acted upon, is binding in so far as the terms properly apply.” No consideration was supplied to the landlord in return for agreeing to reduce the rent. Denning held that this agreement was still binding.

Waiver – the doctrine whereby one can agree to suspend certain of one’s right and then revive them after appropriate notice.

Hughes v Metropolitan Railway 1877 – Denning in the High Trees Housing Ltd cited this earlier case.

Waiver has been subsumed into promissory estoppel.

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LIMITATIONS ON PROMISSORY ESTOPPEL

 

promissory estoppel will only apply in the case of 6 points.

 

1. Need for an existing relationship. It can onyl modify an already existing relationshop not create a new one. Lord Denning though took the opposite view.

2. Need for reliance. Promisee must rely on a promise for their to be promissory estoppel. Someone has relied on a promise and it would be unfair to break this promise.

3. A shield not a sword. This doctrine cn only be used to protect oneself. Combe v Combe 1951. A wife tried to sue her husband for maintenance. She provided no consideration for a promise to pay her monies. Lord Denning and others in the court of Appeal ruled that she could not rely on the promise.

Lord Denning, ”consideration remains s cardinal necessity of the formation of contract though not is modification or discharge.”

4. Must be inequitable to go back on the promise.

The promise does NOT HAVE to be enforced. A court can rule that it is fair to break the promise.

D & C Builders v Rees 1966. Builders accepted part payment of a debt in lieu of the whole lot. Rees had taken advantage of the builders being stoney broke.

”He who comes to equity must come with clean hands.” Rees was forced to pay the whole lot. He had been sharp – using economci duress.

 

The Post Chaser 1982. Promise made and then withdrawn v quickly so no harm was done to the promisee.

 

5. Doctrine is generally suspensory.

It is NORMALLY intended to last only for a limited time.

Promisor is able to withdraw a promise after reasonable notice. Tool Metal Manufacturing v. Tungsten Electric Co Ltd 1955.

 

Reduced payment was agreed. The Plaintiff was able to go back to the original tariff after notice.

 

6. Where promise is forbidden by legislation.

A promise that breaks the law does not count.

Evans v Amicus Healthcare Ltd. 2003. Embryos created. The relationship between man and woman ended. He wanted the embryos destroyed. SHE did not. The man was allowed under legislation to withdraw his consent at any point.

The embryos were discarded.

4.

3.

French intervention in Mali is ill-advised.

La Belle France has dispatched her armed forces to the African nation of Mali. The Government of Mali was hard pressed by Al Qa’eda jokers. These religious fanatics have lately developed a taste for kidnapping Occidentals. President Francois Hollande had to make his mind up pronto. Had he not sent the military to Mali it is likely that his country would have fallen under the control of elements hostile to the values of the Englightenment.

The African Union has also sent troops to Bolster the Malian armed forces. Nigeria in particular has sent her soldiers there.

A UN resolution has also nerved the arm of Hollande. France is remarkably unembarrassed about military interventions in La Francophonie. This included even French-speaking lands that were not former French colonies – for instance Rwanda which is an ertstwhile Belgian colony. The RWANDANDS have epxressed their distaste for recent French military involvement by switching their official language to ENglish.

I am aware of decent arguments for France sending her sons and daughters to Mali. Had France desisted from this act then there would probably have been a failed state in Mali – or perhaps marginally worse: Mali would have emerged as a wholly owned subsidiary of Al Qaeda plc. This Islamist state would have been able to act as a base for Islamists zealots to launch attacks on her neighbours. Such bestial attacks on those who are not ultra-Islamists are already occuring in Algeria and likewise in Nigeria. The people of Mali would have been heavily oppressed by a Shariat state. The North African and West African diaspora in France would have a few members who would have been of a like mind with the Al Qa’eda types in Africa. Soon this would mean bombs in Paris.

Here is the case agin.

This organisation has a very long way to go before it reaches France. It is not essential that France gets involved. If one is unsure whether to plump for armed action surely one must give the benefit of the doubt to peace. One could always take up cudgels later.

French military action may provoke these people to attack France which they may not have otherwise done.

There may well be some easy victories in the initial stage. But when the conflict becomes principally     guerrilla conflict. Resistance will then be stubborn. As French fatalities mount, the bill rises and the years roll on there may be little to show for this sacrifice. Leftists will do their best to denounce the intervention as neo-colonialism. To an extent it is but this is no bad thing. Public opinion will probably then turn against the military operation.

Inevitably there will be mistakes. French soldiers may lose their temper with those who take pot shots at them. We might as well set the clock before the first case of torture is proven. The French Army is no better nor worse than any other in this regard. It is an unedifying human instinct to repay pain. Civilian casualties is a fact of modern warfare.

It was easy enough to send soldiers to Mali. How will they get out? When will they come home? It wil l take several years for this to happen. How well one be able to ajudge the operation a success. An outright victory against irregular forces is a rare beast indeed. SOme of the people France labels terrorists were directly assisted by Paris only 18 months ago when they ousted Gaddafi. Does this show a lack of foresight, consistency and judgment?

There is more to it than freedom versus barbarism. The rebels – to use that non-loaded term – are drawn chiefly from the Tuareg people. This ethnic group feels largely disenfranchised. Many Tuaregs would like a state of their own. There is probably a little justice to their case. Hollande and his fellow war mongers are helping a rather corrupt military dictatorship. This junta is more savoury than her enemies but one cannot plausibly argue that one is fighting for a cause with moral clarity on its side.

Her Majesty’s Government sent transport planes. This may induce Islamists to bomb the UK. They have done so before but not for several years. For the UK to get herself bogged down in a quarrel that is of little concern to her would be an act of considerable unwisdom. I am of a mind to say mind one’s own business. It is not as though the UK has too few problems as it is.

A dream of changing jobs

Yesterday was the end of a rough week. At the fag end of the week the last thing I wanted was to be summoned to a meeting with the toad. One of the pleasing things about this diminutive ball of lard is that he has a heart condition grave enough that doctor’s orders is that he cannot fly. As I was ushered into the presence of His Ugliness the thuggish brain dead security guard got out a cigarette for the Toad. Anyhow, he told me he had a problem with me and all that. The long and the short of it is that my job is under threat. Both those who have denounced me happen to be Ishmaelites. Whether they have conferred on this I know not.

Anyhow. I went to bed at 9.30 and slept 12 hours. I was drained.

I dreamt I changed jobs. I went to a rival outfit in the same town – the Oxford Insitute. The skinny Saffa who is the head honcho there welcomed me in his measured Capetonian cadences. I was sharing a house again with a Shrek-like moron. There was some dispute about who owned what in our one floor building. There was some speccy Arab chap there. There were outings by a clean canal. It was a confused situation. Had I actually defected to this other organisation or was I about to. How about money – would I get less. 

I awoke not sure whether I had indeed turned my coat. I feel not a job of loyalty to an organisation that has knife me many times. 

I do not intend to leave the contemptible organisation which employs me but if I were given the boot it would be a boon. I am past caring. 

Dreams of my siblings and the Old Firm.

I have been dreaming of my sisters. That was the night before last. It was a curious dream and involved Gabi too as well as the younger generation. My eldest sister Anna divorced her husband. I do not know why. This seems very unlikely to happen in real life. I THOYGh she and her husband were too close to each other. If one of them died or they splity up then it would be devastating  – mroe so than in an ordinary marriage.

 

 I pictured the children in anorkas outside on a drizzly day – the earth was bare. It reminds me photos I have seen of firstborn and my nieces and nephews.

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 Last night I dream that I was going t a Celtci game as I have always wanted to. I wore a Celtic top. I was joigging a long a strete. I would see people who would glower at me and vervally abuse me. They called me bastard. They were all young men. 2 youths at fdifferent imtes threatened t punch me. I TOLD ONE i DID NOT WISH TO FIGHT. oNE OF THEM SCORNED ME FOR THIS. They were both smaller than me.

I keep thinkin of that treanor family i Camlogh whom I met when I was 18. Maybe this Celtci dream relates to that.

A dream of a presentation and going to Durham.

I dreamt that I was going to give a big speech. It was an uplifting occasion but would be delivered in a bland hall. Nelephant was to be involved – he primed me for it. I pictured his red bearded physiognomy chuckling gaily. I cannot recall what the content of the oration was to be. This is probably a prolepsis to the talent show. There was something in there about paying a visit to Durham. I was last there in March 2008 – near on half a decade in arrear. I was thinking of some of my former pupils who went there. I also thought of Corina that skinny sister of my schoolmate who fetched up at Dunelm.

A statement of intention.

Legal eaglets 0 check this out.

A party may state what he intends to do. This is not the same as saying what he shall do. An intention may be changed legally. For a party to not do something that he said that he SHALL do is a breach of contract.

Harris v Nickerson (1873). Be it understood that the party bringing in the action whether in civil or in criminous law is the first party mentioned in any record of the case.

One party may supply information to another. Neither the request for further information nor the response is an offer not an acceptance.

Harvey v Facey (1893) is the key case for this.

A display of goods is an invitation to treat and not an offer. There are exceptions to this such as in the case of dealing with a machine.

Thornton v Shoe Lane Parking (1971).

An advertisement is an invitation to treat.

Carlill v Carbolic Smoke Ball. This seemed to be an advert but was in fact an offer to all the world. It did not need to be accepted and then performed. Performance was acceptance.

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A request for tenders. This is an invitation to treat. The tender is the offer. Harvela v Royal Trust Co of Canada 1985.

An invitation to treat may contain an implied undertaking to consider all conforming tenders. See Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council 1990.

An auctioneer’s request for bids is an invitation to treat.

The bid is an offer. When the hammer comes down the offer is accepted. In the case of auctions without a reserve price the auctioneer enters into a separate (collateral) contract. The nature of this is that the auctioneer will accept the highest contract bid..

Warlow v Harrison (1859) and Barry v Davies (2000).

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Read Anson pp. 27-38—-\——-

COMMUNICATION OF OFFER.

An offer must be communicated to count. One cannot accept an offer without knowing about it.

A contract requires a meeting of minds or consensus ad idem.

Gibbons v Proctor (1891). a policeman sent in information without knowing that an offer of a reward had been made for such information.

R v Clarke (1927). This is an Australian case. Hearing an offer and the forgetting about it is the same as never knowing of it.

Brogden v Metropolitan Railway Company 1871 – an offer accepted by behaviour.

Confetti Records v Warner Music UK Ltd 2003 – same principle.

Acceptance is when words of behaviour lead to the objective judgment that this is an acceptance.

Hyde v Wrench (1840) after an offer is made if the offeree attempts to add terms while accepting this destroys the offer.

An offer is made – the offeree then asks a question. This question has no effect on the offer. Stevension, Jacques and Co v McLean 1880.

An acceptance cannot be made through silence.

Felthouse v Brindley 1862. An offeror cannot waive communication if this would disadvantage the offeree.

The Law of Contract – an introduction for newbies.

Greetings ye uninitiated! This shall be a case of the blind leading the purblind. Here goes!

Check it – a contract is not what you may assume it to be. When I was but a twelvemonth younger and scarce a shade greener I bethought me that a contract was something that had to be written and written in legalese. As a child when brought by my parents to travel agencies I would while away the minutes perusing these documents of quite exceptional opacity. It struck me then as it does know that for the legal profession language is a means of concealing rather than revealing facts and rules. I digress so I will gress. Not a word I know. Down to the real meat and potatoes.

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A contract requires there to be parties twain. A party may be an individual or several persons. A party may be a form group such as a public limited company, the state etc…. One party to a contract is the offeror – he makes the offer. The other is the offeree – he has the offer made to him. An offer must be accepted for a contract to be formed. Notice that it is convention to say ”he” for a party. Ultra-feminists beware – this text will not go through PC convulutions of saying he or she, (s)he, they etc… when the meaning of ‘he’ in this context to signify a party of either gender or a party consisting or persons of both genders is well understood.

Contract chiefly concerns the enforcement of promises. Not all promises are legally binding as we shall see. Later we will return to this issue and discuss which promises have legal status and which do not.

A contract can be purchasing something in a shop.

It is important to note that contracts do not need to be in a written form though the most important and complex ones are invariably written do so as to be certain what the terms are. One of my barrister chums, Raymond, ten years ago told me, ”Any lawyer will tell you that a contract can be accepted by conduct and not just signature.” Drat – my plan to get out of honouring my housing agreement by never signing it was scuppered.

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Gentle readers – a contract is when ”parties have voluntarily assumed liabilities to each other.”

An offer must be accepted unconditionally for it to be valid.

The acceptance must be validly communicated for the contract to be formed.

Subjective inference is not determinative and seldom important in ruling what a contract consists of. Subjective intention is what a party meant at the time. Say Bloggs says to Timmy, ”I will buy your car for 1 000 pounds.” Bloggs meant Syrian pounds despite being in the UK when he said it. I know it would be daft of him to mean it but if he genuinely meant it then that is his subjective intent. Timmy accepted the offer at once. They then get into a row because Timmy insisted on pounds sterling. The court would go by objective inference. What would a neutral person assume the pounds to mean? As one is in the British kingdom one would presume the pounds to be British currency. The court would find the contract legally binding and require that payment be handed over in pounds sterling.

What would a reasonable person in the position of the offeree understand by such words? That is the essential test.

Centrovincial Estates Investors Assurance Company (1983) is the leading case for such matters.

An offer is an expression of a willingness to form a contract in specified terms. It must be made with the clear notion that it will be legally binding once accepted. No additional ado must be acceptable. If an offer is made and the offeree essays to parley further while accepting the offer then this is not an acceptance. This is a counter offer which wipes the previous offer.

Storer v Manchester City Council (1974). Manchester city council sent Mr Storer and offer which was intended to be binding if it was accepted. Manchester City Council’s offer was accepted but they attempted to back out on it. Held – the contract was water tight.

Gibson v Manchester City Council (The year of grace some one thousand nine hundreds nine and seventy). The Council posted Gibson an invitation saying it ‘may be prepared to sell’ his house to him. Gibson accepted. Lord Diplock ruled that this was not a binding offer. ”the words may be prepared to sell are fatal;.” What the council had sent him was an invitation to treat. By treat they do not meant give him goodies – they meant the verb to treat as in the noun treaty. To open negotiations.