Monthly Archives: February 2021

L S A chapter 3

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self assessment p 36

  1. who were travelling justices and what was their role?

itinerant judges to administer law throughout the realm

2. where did the term common law come from?

from the aim of standardising law throughout the kingdom

3. how did precedents first some to be recognised?

4. in what way did the development of common law support social order?

it meant that people know what the law was and that it would be applied the same across the realm. it emphasised the primacy of central government.

5. how did the development of equity mitigate some of the problems that had developed in the common law?

common law was too harsh and sometimes had no law on an issue. judges said they would not suffer a wrong to be without a remedy. their equitable maxims dealt with situations.

6. name and explain an equitable remedy?

an equitable remedy is a means of dealing with a situation where statute is too rigid or heartless.

7. which areas of law remain heavily influenced by equity?

contract, tort and property

8. write a para explaining why the historical development of english law is important.

It was exported to the Commonwealth. It is a fusion of Anglo-Saxon and Roman law.

legal system and method. chapter 2

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self assessmet. p 29

  1. explain how acts of parliament are made

green paper, white paper – debate. 3 readings in both houses. amendments. passage through both houses. parliament act to pass lords in 1 year even against its will.

2. what is the difference between primary and secondary legislation?

primary allows bodies to do things. secondary implements primary.

3. what does it mean to say that england and wales is a comon law system?

it is not roman.

4. cite the case that explains the supremacy of Eu law over english law. exolain the facts of the case and the court’s decision

factortame. spanish fishing ship could nt get licenses due to merchant shipping atc 1988. should law be suspended whilst matter was settled? No. lords had no power to do so. ECJ said that M S A had to be repealed. it was.

5. explain the principle of margin of appreciation in the interpretation of ECHR reights by the E C H R

member states can do things a little differently within the perameters of the convention. crucifixes can be displayed in Italian classroms. religious affairs are for member states to determine.

6. name three ways in which HRA protects rights.

it incorporates into UK law the convention. this includes right to life, freedom to found a family and right to adequate rest.

7. explain some advantages and disadvantages of replacing HRA with british bill of rights.

might deprive people of rights. HRA would not be adjudicated by ECHR. UK reputation would suffer.

8. what are some of the advantages and disadvantages of codification

we know what the law is. it becoames rigid

9. name one way in which sources of law in france are similar to those in england and one way in which they are different

France has code napoleon – whole thing is codified even procedure. that is different. in england judges rulings form part of the law.

10. what is the function of the law commission ?

it is a governmental body to review law and recommend reforms.

legal system and method

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p 16

self assessment

  1. what is law?

It is a system of rules with legal force.

2. think of some important rules of behaviour that are not laws. how are they enforced? how important are those non legal rules to social order?

In school you are not permitted to run in the corridor. They are enforced with school sanctions. They are trifling.

3. what are the different functions of law? Give examples.

The functions of law are to regulate conduct, to prevent suffering and to allow certainty in interactions.

4. name five things to study in english legal system

precedents, criminal, human rights, property, tort and trusts.

5. explain differences between common and civil law systems.

Common law is found in the anglosphere. Some of it emerged from past practise and judicial rulings. Civil law is found in francophone and hispanophone countries. It derives from Roman law. It favours certainty over justice and is less adversarial.

6. name three common law and three civil law jurisdictions.

common; Rep of Ireland, Malta and Cyprus

civil: Argentina, romania and the Congo.

7. explain the difference between civil and criminal law.

Civil law is not criminal.

8. explain the different ways in which the term common law is used in the following statements:

england and oz are common law countries.

That is because they follow the English legal tradition where judges make law.

at common law even an unfair contract would be enforced but under the unfair contract terms act such terms may not be enforced.

here common law means in contradistinction to statute.

9. what is the standard of proof in civil and criminal cases? why do you think the standard is different?

civil – balance of probabilities. criminal beyond all reasonable doubt.

because we do not wish to incarcerate people wrongly. In civil law we need a decision. the consequences of an erroneous judgment are not so grave.

10. explain the basic difference between adversarial and inquisitorial proceedings.

in adversarial proceedings the lawyers battle it out. in the inquisitorial proceedings the judge strives to seek the truth.

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contract law. chapter 15. equitable remedies============

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15.1

why are damages not considered to be adequate compensation for the breach of a contract for the sale of land?

because you might need that particular parcel of land and other land of similar value might not suffice. every piece of land is unique. damages are not a proper remedy. damages follow almost automatically if it is a sale of good becuase the money allows the wronged party to purchase goods.

Johnson v Agnew 1979

parcels of land are sometimes v small. many houses are identikit. however, it might not be possible to buy an identical home.

specific performance is often a remedy in land contract breaches. Sale of land creates equitable propritary interest for the purchaser. No one expects financial damages in these cases.

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15.2

would an order for specific performance in a contract of services be tantamount to slavery?

It could be yes or no . because it depends on whether the contract has the person would be paid and working in reasonable conditions. the persn would be doing what he freely agreed to do – to work. if the services could be provided by an agent or employee of the parties this would not be servitude. a company often has 10 000s of employees. personal elements are unreal in such cases. In a situation where someone is obliged to provide services for an individual or small group this might be closer to slavery.

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15.3

will an injunction be awarded if it has the same effect as an order for specific performance?

no they will not. page one records v britton 1968.

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damages are not an adequate remedy for breach. discuss

It depends. sometimes they are adequate especially where the loss is financial. On other occasions a party needs somethhing done and only specific performance shall suffice. An injunction is needed in other cases to prevent a party harming another when they party subject to the injunction had promised to refrain from a paricular action.

An injunction is usually not granted if it has the same effect as ordering specific performance. warren v mendy 1989. page one records ltd v britton 1968. if albert contracts with beatrice not to play professional sport for anyone else beside that team and not to work for anyone else in any wise then a cpurt will probably not grant an injunction enforcing this.. that is because taht would compel albert to work for beatrice. that is a contract for personal services.

if albert was banned by the contract for playing hockey fr another team then a court would grant such an injunction. there are other jobs he could do.

warner bros v nelson 1937. That was situation in this case. he could do other work but the pay was bad so he went back to warner bros.

14.1 damages . contract law =======================================

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14.1 damages contract law

the government of the country of culloden offers to sell rights to hunt and shoot 3 bighorns. v rare sheep are prized by hunters. damian accepts offer culloden’s offer pays 1 million for hunting rights.

spends 100 000 outfitting a group for the hunt. after several months of searching it transpires that bighorn are extinct a matter suspected for a long time by the ministry for environment. advise damian

even if the sheep existed damian was not guaranteed to sight one still less shoot one. but as the sheep did not exist there was no chance to do so. there was a totall failure of consideration. this was a misrepresentation. he can rescind for that and seek damages of 1 million plus more.

there was a breach of contract because govt tried to sell something that it believed did not exist. the offer implies that th sheep are extant. what is the measure of damages? what amount of money would allow damian to go and hunt the sheep elsewhere? we could go for loss of profits or wasted expenditure.

the loss of profits would reflect value of trophies. But Damian might not be able to prove loss. That is like Anglia TV v Reed. Damian might not have kiled the sheep.

Damian could say he did not lose the sheep but the CHANCE to kill them. Then he can claim for expenditure. McRae v commonwealth disposals commission

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14.2

emma contracts with fun toys co to buy 10 000 toys. emma intends to resell toys in her chain of shops. selection of toys is to be made within a year by emma. it is to be from fun toys range of 300 toys. toys range in wholesale price from 1.99 to 200. emma never slects any and refuses to do so. advise fun toys

emma did not perform. we do not know what she would have chosen had she performed. fun toys consideration cost them nothing.

at most they can get 1.99 x 10 000. they could terminate for reupidatory breach.

established breach of contract. emma refused to perform. assessing damages is hard. Fun toys co can clai for loss of profits. that is like robinson v harman. But how much was the loss? the price range is huge. either extreme is improbable. the measure could be 10 000 toys chosen reasonably. look at likely picks

see paula lee ltd v robert zehill 1983.

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14.3

why does mckendrick write ”in awarding loss amenity damage it can be argued that the lords in ruxley electronics and construction v forsyth 1995 took one step forwards and one backwards?

contract case

choose between cost of cure OR loss of amenity if cost of cure is unreasonable

ruxley dug pool in forsyth;s garden under contract. diving area to be 7’6”

it was only 6′ . this was safe for diviing and did not affect valye of pool

forsyth unhappy. he brought acton for breach. sought pool to be demolished and redug. cost of cure. 21 000

judge at first instance said that was unreasonable. loss amenity damages awarded 2 500

court of appeal disagreed and said cost of cure was awarded

house of lords overturned that and said loss of amenity damges must be awarded

this is step forwad in that cost of cure will not be awarded when that is excessive. the cost of cure exceeded the financial enhancement that would accrue to the promisee.

to award the promisee nothing was wrong though the promisee was not financially hurt by the breach

small deviations from plans in building work have no pecuniary effect on the promisee

the courts want to know what damage money will be used for – that affect reasonableness.

the decision in ruxley electronics and construction v forsyth is not straightforward. that is what mackendrick alludes to. this recognises loss of amenity. . there are limtis to this. the limit is on the valuation expectation interest about the claimant’s performance interest. the claimant often wanted something thatwould benefit him and not others.

a gardener would want rails on his house to hold plants. others would not value these. some would see it as lwoering value of the house. the financial interest in the work being done is small or none. damages will be low.

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14.4

write a summary of the house of lords decision in attorney general v blake 2000?

breach of contract by spy. ordinary damages were insufficient. restitutionary damages

spy broke official secrets act. published memoir

he wrote no other choice. jonathan cape ltd published it 1989. advanced payments made

crown brought action for restitution. wanted the profits.

in exceptional circs a court can order restitutionary damages. lords ruled that. blake harmed public interest. book was another breach of official secrets act. telling unsecret info was also against official secrets act.

absolute rule against discloruse. crown had a legitimate interest in preventing publication

damages, specific performance and injunction were inadequate remedies.

there was a breach of trust and fiduciary duty. equity enforces fidelity. trustees and fiduciaries must peform in an disinterested manner . transactions impygned

lord cairns act

disgorgement of profits ordered. ability of MI6 to function ws imparied by blake.

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14.5

what is the purpose behind preventing recovery of damages for mental distress where there is a breach of an ordinary contract?

because this is going too far. that would be unjust. mental distress compensation is only where pleasure has been denied. feelings are usually not compensable.

judges are are loathe to give damages to compensate mental distress. there are several reasons for this.

cockburn J in hobbs v london and south western railway co 1875 spoke about it. the loss from a breach of contract was not in the contemplation of the parties.

however in some circs people contemplated sucha loss. in some cases the contract is to provide pleasure or relaxation . default causes the opposite.

Mellor J in Hobbs v south wetern railway co 1875 said that the loss if there is no physical inconvenience is only sentimental. contract law damages are seldom available for this

house of lords in addis v gramophone 1909.

tort now gives damages for mental distress sometimes.

Lord Denning in Jarvis v Swan Tours ltd 1973 said damages are allowed where contract was to provide leisure.

farley v skinner 2001 damages for loss of pleasure or relaxation if that was a purpose of the contract. does not have to be the main purpose

some award almost punitive damages in these circs.

some would deny any damages.

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14.6

how can farley v skinner 2001 be reconciled with watts v morrow 1991?

farley has skinner survey a property that farley was considering bying. was property affected by airport noise> Farley wanted to know

skinner said probably not. farley bought it. turns out it was affected by airport noise

farley said report was bad because it was wrong. he asked about airport noise

breach of contract. diminution of enjoyment. there was no pecuniary loss. no injury

damages for mental distress are usually irrecoverable. damages for distress are only recoverbale when contract was for freedom for distress

surveyors promose to exercise reasonable care. provision of amenity is not object of contract.

10 000 compensation was awarded for disress. pleasurable amenity was of no financial value but mattered to claimant.

watts v morrow 1991

mr and mrs watts bought property. it needed repairs. they had hired surveyor to find out if any repairs were needed. he said none.

there were major defects. 33 000 to correct.

report was no good. watts wanted cost of repair and loss of amenity compensation. distress . living on building site whilst work was done

watts recovered money for excess purcahse price but not cost of reapirs. money was enough to put watts in the position he would have been if the report had been done properly. the money awarded was the difference bwteen what he paid for the propery and its actual value

small damages for loss amenity also awarded.

yes they can. loss of amenity is worth something.

two cases are akin. surveyor hired contract to survey home. purchasers bought the home due to report.

reports negligent. watts v morrow survey did not show need for major repairs

farley v skinner. survey did not show airplane noise

watts v morrow court ave damages for distress an d inconvenience

farley and skinenr lords gave damages for non pecuniary loss

distinction. farley – the surveyor was asked about airplane noise. importnat factual difference

farley v skinner . lord steyn distinhuoshed this from bingham LJ in watts v morrow bysayinf that observations were never intended to state more than broad principles.

lord steyn in watts v morrow the claim was damages for inconvenience and discomfort from breach – it was not a claim for dmages resulting from breach of a specific undertaking to investigate an important matter for the buyers peace of mind.

lords was concenred that ruling was consistent with ruxley electronics v forsyth, 1995

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14.7

what is the policy behind rules of remoteness? what is the link if any between these rules and the cost of insurance?

damages cannot be recovered and too remote. hadley v baxendale established the rules. this is the broken mill shaft case. losses have to be reasonably foreseeable to be recoverable. things have to be within one’s contemplation as possible losses for them to be recovered. No damages awarded in that case.

loss must be naturally arising from the breach or to be in the reasonable contemplation of the parties.

two limbs. damages must be foreseeable

second limb – exceptional circs – if contract is breached and exceptional circs are in the reasonable contemplation of the parties as likely to occur in the case of breach especially if the circs were communicated.

two limbs not mutually exclusive . jackson v bank of scotland 2005

there is a link with cost of insurance.

policy of rules of remoteness. limit on recovery. parties can then plan for losses that might arise if there is a breach.

PARTIES CAN ENSURE THAT THEY have enough insurance. it allows parties to decide whether or not to breach. the link alos allows insurers to asses potential liabilities. they can figure out premiums.

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14.8

H Parsons livestock v Uttley ingham was it probable that pigs would die? why should it be enought that it might be foreseen that they would become ill? how can this decision be reconciled with the distinction drawn elsewere between ordinary and special business profits?

losses for breach of contract are recoverable if the loss was likely to result from breach.

parson had pigs. bought foods storage hoppers from uttley. ventilator stopper was not unsealed as should have been when installed

parsons noticed. did nothing. thoyght it did not matter. food went mouldy. pigs died from e coli asa result

parsons took legal action. breach of contract . won . damages similar as in tort.

test of remotness. makers of hoppers liable for pigs’ deaths.

H parsons livestock v uttley ingaham. it was improbable that pigs would die but likely they would be ill.

lid of hopper was left closed.

majrity found that it was enought to establsh liability if there was a real chance that breach would injure pigs. did not matter that severity was unforeseeable.

scarman LJ said that it is enough because parties are not prophets.

this is hard to reconcile with victoria laundry windsor ltd v newman industries ltd 1949.

the disclosure of a lucrative contract increased damages. it could be that the contract could be disclosed by the plaintiff becase he has special knowledge. to foresee the breach in parsons case would cause death was not in the knowledge of any party

how cn the cases be reconiciled? difference in parsons is that the court was worried about remoteness in tort wher it is establoshed that it s the harm resulting from the tort and not the extent of the harm. that must be foreseeable.

hughes v lord advocate 1963.

lord denning in parsons said the difference between remoteness in tort and contract was wrong.

lord reid in heron II said that in a contractual claim the parties are not strangers and provides a convncing syllogism for the different attitudes and his thinking was used by court of appeal in wellesley partners LLP v withers LLP.

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14.9

under the second rule in hadley v baxendale is the defendant’s knowledge of the special circs enough to make him liable or is something more required? if so what?

he has to know how much loss will result from his breach. loss must be reasonably foreseeable.

it is hrd to answer this properly. it is enought that the defendant knew of the exceptional circs. simpson v london and north western railway co 1876. seven seas properties ltd v ak esa number 2 1987.

if defendant knew of special circs and continues with contract he is impliedly accepting the losses – you could say.

defendant seems to know of exceptional circs – might be enough. simpson v london and north western railway co 1876. seven seans properties ltd v al esa n 2 1993.

there mightbe a need fr the defendant to agree to accept liability for this big loss. horne v midland railway 1873 . kemp v intasun holidays ltd 1987.

if defendant knew of special circs and continues contract then he is impliedly accepting lossess it seem.

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sample exam question 1.

capt birdseye a fisherman. fishing industry was becoming unprofitable. He went into marine salvage. in sept he had his trawler converted into a salvage vessel for 20 000 cost.

birdseye approached by arty a TV producer for channel Poo. Arty wanted to make a documentary about marine salvage. he agreed to pay birdseye 20 000 for exclusive right to film salvage of a wreck if it was located in october

on 5 october birdseye purchased the right to salvage sunken tanker said to be lying at a chart reference from dreadnought for 30 000. from the descriptioon of the tanker given, birdseye antcipated a profit of 50 000 from salvage of emtal

on 10 october birdseye steamed to chart ereference ith crew and spent 21 says unsuccessfully trying to find wreck. in fact no tanker existed at reference. dreadnought had made a mistake as to location. it was in fact a long way off

birdseye returned to port. he was disappointed that operation had failed. annoyed because expedition cost 5 000 in fule and wages and he lost TV contrac

birdseye sues dreadnought for breach of contract. this they admit.

advise birdseye as to the damage he is entitled to

he cannot get back the 20 000 he spent on converting ship. that was done before he contratced with dreadnought.

dreadnought committed negligent misrep. they might have to pay cost of cure. dreadnought will have to repay the money. the location of the wreck was vital and they got it badly wrong. the money spent on fuel and wages will probably be recoverable. it could be argued that birdseye should have mitigated losses and ended expedition sooner.

the TV contract is more difficult. even if the reference had been right that does not guarantee that the wreck would have been found or that the salvage would have been effected.

In Golden Victory 2007 Lord Bingham set out the aim of damages.

The expectation measure must be considered – some call it the contractual measure since it is the main one used. Lord Nicholls in Nykredit plc v Edward Erdman said this is the main measure of damages.

Lord Parke in Robinson said that where a party sustains a loss by breach then he is so far as money can do to be placed in the same position as if the contract had been performed.

expectation loss. 50 000 profit. But can this be proved?

mcRae v CDC . Anglia TV v Reed suggest it cannot b proven.

20 000 from cotract with channel poor was lost.

that is like victoria laundries v newman . this is about remoteness.

contract between A and B is breached which caused a loss to C.

the test for remoteness is in hadley v baxendale. this was applied in victoria laundries. Heron II is about probability.

Lord Hoffmann commented on this in the Achilleas.

hadley suggest that this odd contract would not be withing ambit of first limb. no evidence of comms between birdseye and dreadnought to be bring it into scond limb

NON PECUNIARY LOSS

birdseye ight recover damages for being disppaointed. venture a failure. consumers can get damages like this. this is not non commerical contracts. This contract is commerical so such damages are non recoverable.

RELIANCE MEASURE

5 000 spent on fuel and wages. it is recoverable. spent in reliance. sometimes called damages for wasted expenditure.

mcrae v commonwealth disposdals commission. anglia tv v reid.

20 000 of convesion is not recoverabe as reliance measure damages. spending is not wasted due to dreadniughts breach as birdseye because there is re contractual relance. the spending was made before he anticipated ontract with dreadhought so is not spent in relaince on hat contract

pre contractual relaince has only been recovered when the spending was necesarily wasted due to breach. anglia TV v reid. that was a v rare exception.

30 000 purchase price for right to salvage is recoverbale under reliance measure or restitution measure of dreadnought was sen as giving nothing for it. total failure of consideraition.

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questio 2

L hired a band the fairies to play at his daughrer’s engagement party. the fee was 10 000. it was agreed that fairies would arrive at party venue one day early. to ensure presence on the day. in fact when the arrived the lead singer was not there as he was performing elsehwere. on day of party tacky came one hour before performance. he was unwell due to overdrining the day before. L told fairies hey ahd broken their contract and would not be needed

advise L who ad engaed anoter band AT fee of 20 000 due to short notice

what difference is any would it make it

a. L had sold tckets to the vale of 100 000 and purchasers demanded a refund

b. L had been unable to find an alternative band and the engagement party was a dreadful flop. it cost 150 000

it all hinges on whether Tacky being a singer was term of the contract. it probably was even if only implicit. the lead singer is vital. he broke his contract by being late. was he so unwell due to self induced reasons that he was unable to perform? If so this os fundamental breach. the show could have gone on without him but this would have been very different from how it was envisaged. there were breaches of conditions and he communicated to fairies that he was rescinding the contract.

L does not have to pay the 10 000. he might get damages for loss of amenity since pleasure was the objective of the contract.

in a. he can get back the 100 000 because of the financial loss.

in b. he would get back some of this. the party was not solely about the band. he band even if it had performed well might not have saved the party.

this is about breach and damages. frustration: tacky’s late arrival is a supervening event. that changes the obligation a lot.

national carriers ltd v panalpina northern ltd 1981.

the even here is due to default. have the fairies breached a condition ? or is it a fundemental hong kong term? can L rescind for breach? If not then L has breached it.

it is probable that L can rescied for breach because fairies were supposed to perform

what s the right measure of damages. damages to put him in position e wuld have been but for the breach

in (a) ticket sold and then damages measured on expectation bass. recover profit that would have been made. that loss might be too remote. hadley v baxendale. 1854. it is not a loss arose naturally or was contemplated.

a profit made by a host in connection to an engagement party would not be expected.

(b) L might want to seek his wasted spending. anglia TV v Reed 1972.

in both cases L wants damages for non financial loss. distresss. the cntract was about enjoyment

jarvis v swan tours 1973

jackosn v horizon holidays 1975

farley v skinner 2001

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q 3

M and N arrange to have electiral system in their house re wired. dye to exetensie distrubances that this will entail they move to temp accomm for a month. they infom O the electrician that they will return the end of the mont. O assures them that the work will be finished by this time. it is not. M and N are forced to live in house without electricity. M is forced to spend 500 on laundry service , food delivery and many candles. N is unable to bear stress of living in these circs and suffers a nervous breakddown.

advise O as to liability

O had breached the contract. this is probably a condition or at the very least an important innominate term. the electrician must pay cost of cure. are all these expenses cost of cure? They would have spent some of this money anyway on food and laundry but the price would have been lower. they would have spent on electricity rather than candles. the couple might have been able to find cheaper solutions.

the nervous breakdown if it was caused by the lack of electricity is a reason for more compensation since it is an injury consequent upon breach. the purpose of the contract was to provide greater pleasure and convenience. M and N got the opposite.

Is there a breach? O said work will be finished in a month. is that a term? Probably. is it a condition, warranty or innominate term? does the breach allow M and N to terminate?

seems to be a condition or important innominate term. what damages? M and N might want to recover 500 spent on meals and candles.

is that loss too remote? hadley v baxendale. the losses are not remote. natural arising.y. they were in reasonable contemplation.

recovery for nervous breakdwon. unlikely

addis v gramophone co ltd 1909/ no compesnation for feelings.

ruley elextrocnis v forsyth . mahumd v BCCI. johnson v unisys. farley v skinner. comepsnation for distress.

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Q 4

damages are not an adequate remedy for breach of contract. discuss

Sometimes damages are adequate especially if the loss is pecuniary. specific performance or an injunction is sometimes more suitable. sometimes money does not work.

money does not always seem an apt recompense for stress but what else can we do> Provide free therapy?

restiturionary remedy should be based on profit of wrongdoer.

attorney general v blake 2000.

court of appeal in blake looked at skimped performance. wrongdoer provided poor performance and saved money but dd not cause loss to claimant.

anothe mreasure is where defendant attained profit by doing the thing he vowed not to do. blake.

there could be compensatory measure of damages resulting in nominal award yet malfeasant made fat profit.

role play business

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role play business;

You are the CEO of Big Beans Co. You are negotiating with the MD of QuickTrucks.

You want Quick Trucks to deliver your beans to the supermarket at a rate of EUR 1 000 per tonne. However, you are willing to pay up to EUR 1 300.

You will need at least 200 tonnes to be delivered every 6 months.

You want the contract to last 6 months but you are prepared to agree up to 12 months.

The contract is to start 23 February. Try to get him or her to agree to this date.

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You are the MD of Far East Fast which is an airline. You are negotiating with Jump Jet Airlines.

You fly from Osaka to San Francisco. Your rival airline also flies this route. You try to persuade them to give up this route. If they do you will pay them JPY 1 billion a year. You are willing to receive the equivalent in RMB.

Try to get a contract for 3 years or more.

Jump Jet might ask you to exchange another route instead such as to Tokyo to Shanghai. You would be willing to agree but only in return for JPY 2 billion per annum.

You do not have to agree on both routes. You might agree on one route but not another.

Discuss a code share on the Shenzhen to Seoul route. You would agree to a codeshare if Jump Jet will let you fly the routes and you will get 85% of the profit.

You want the right to rescind the contract within 2 months if it is not working for you.

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13.1 frustration. contract law =========================================================

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13.1

why do you think that mckendrick and poole deal with doctrine of frustration in chapters on mistake?

because they bleed into each other. frustration overlaps with mistake in common mistake. If two people agree a contract about something which unbeknownst to them has been destroyed then the conteact is void for common mistake. If they sign a contract and the subject matter is destroyed the next day before performance is possible then it is frustration.

where do risks and losses fall? This depends only on whether the disrupting event happens before or after signing.

amalgamated investment and property co ltd v john walker ans sons ltd 1977. . common mistake is sometimes called shared impossibility. common mistake and frustration are not identical.

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13.2

on monday nathalie arranges for her car to be serviced at phil’s garage on the following friday. Jamie the mechanic who normally carries out the servive is taken ill on thurs and is not in on fri. will the contract be frustrated?

No. some contracts involve provision of services are more likely to be frustrated than others. for frustration we must be sure exactly what the contract was for. the contract for car servicing probably remains because who does it does not matter . contract for hair styling is probably frustrated because it matters who does it. contract may be to be done by Jamies.

has frustrating event made contract radically dissimilar to how it was envisioned?

if mechanic ‘s name was not specified then contract is not frustrtated.

the nema 1911. all mechanics went on strike so contract frustrated.

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13.3

Monday nathalie arrnages for hair to be styled at salon. jamies usualy does it. he is ill on thurs and unavailable on fri is contracted frustrated>/?

Only if Jamies being the stylist was a term.

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13.4

aaron has booked to attend an even at highplace hall. event is to include tour of grounds in hall followed by concert with famous pianist. is contract frustrated if

a. day before evnt highplace suffers fire and is damage . grounds are still opne so meal and concert cannot take place.

yes because contract must now be radically reduced in scope.

b. on day before concert pianist breaks wrist and concert cannot play.

yes

events happen in 2 situations . fire at hall destroys subjects matter. injurty to claudio leads to personal incapacity. both can frustrate,

what is effect on contracts?

herne bay steam boat co v hutton 1903. some part of contract survives frustrating event. is contract radically different? if so it is frustrated.

in (a) it is frustrated. two thirds of contract is off.

aaron cannot sue for breach of contract. there are rules about frustration

(b). how important was concert? contract not frustrated . aaron entitled to compensation for breach of contract as concert not provided.

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13.5

read the case of J Lauritzen As v Wijsmuller BV , the super servant number two 1990. why is this case seen as extending rather than simply applying the principle established in maritime national fish v ocean trawlers?

wijsmuller was to transport lauritzen’s rig from Japan to holland. a barg was to be used. super servant 1 or 2. super servant 1 was being used on another job. number 2 was to be used. super servant 2 then sank before rig could be taken on board. another vessel was used by wijsmuller to transport rig under a LATER agreement

was contract frustrated?

no it was not since the contract allowed wijsmuller to use another vessel

there was a major difference between super servant number 2 and national maritime fish in that super servant and owner of vessels were faced with breaking 1 of 2 contracts. super servant number 2 had sunk it ws impossible to perform both contracts.

maritime national fish defendants could have given licences to plaintiffs’ boats rather than to one of their own.

they could have performed their contract and not broken any.

court of appeal dealt with the cases the same. court said in super servant sinking was not reason for non performance. the reason was allocation of the ship t another contract.

in both cases non performance was a choice made.

why has it been criticised?

because in super servant number 2 there was no real choice. a contract had to be broken either way. shuld have been seen as frustration. in this case they were proected by force majeure clause as they had not been negligent.

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13.6

Sabina makes a contact with Peter for the redecoration of a house she owns. total cost 5 000 in the contract. she gives Peter 1 500 initial payment. the balance to be paid on completion. day before work starts vandals set fire and destroy house

Peter spent 500 on materials. what would be position be as to distribution of losses on redecoration contract under common law rules?

The 1 500 is not recoverable. Sabina took the risk that this would happen. future obligations are over. past ones are not.

contract frustrated because house destroyed. common law says that obligations have arisen up to that point usually stand, exception is total failure of consideration. obligation to pay 1 500 arose before destruction. tota failure of consideration as peter did no work,. common law allows sabina to recover 1 500. peter not entitled to any payment even for money sent on materials.

===================

13.7

S ABOVE BUT FIre takes place after one day;s work. entire job expected to take 4 weeks.

He would have to be paid 1/20th of the rate for the work. this might be covered within the 1 500 as only 500 was needed for materials.

peter started work. therefre te failure of cojsideration is NOT total. peter did a little work. sabina cannot recover 1500. see winchup v hughes 1871. father apprenticed his son ton w watchmaker for 6 years for a premium of 6 years. watchmaer doed after a year. father culd not recover 25 because failure of consideration was not total.

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13.8

as in 13.5 but the fires takes place the day before Peter was due to complete.

the work has been substantially completed. Sabina was able to enjoyt ths albeit t very briefly. she would probablt have t pay all but one day;s worth of labour costs.

no total failure of consideration. 1 500 cannot be recovered. obligation to pay balance. does not arise until contract completed. sabia is not there under common law rules obliged to pay peter for any work.

appleby v myers 1867

law reform frustrated contract act 1943 – appies to contract between sabina and peter. this affects answers

====================================

13.9

Sabina contracts with Peter for re decoration of house sh owns. tje cost is 5 000. peter paid 1 500 up front. balance to be paid on completion. day before work starts vandals burn house. peter spent 500 on materials. what is position on distribution of losses on redecoration contarct under law reform frustrated contracts act 1943?

there was a total failure of consideration without default of either party. Therefore Peter will have to disgorge most of what he was paid. He might even have to pay back the money spent on materials. He could use those on another job.

SEction 1.2 of the act calls for up front payments to be returned. the court might consider materials money to be justly retained by Peter. there is discretion for the court. se Gamerco SA v ICM fair warning agency.

no valuable benefit was gained by Sabina. there was no unjust enrichment.

remember that common law rules. sabina would recover 1500 under tha as failure of consideration ws total.

peter woud get nowt.

under th act which applies here sabinamgets to recover ayment under sec 1.2. doifference is peter can argue tjat he should be allowed to retain some of 1500 for aterials.

the court can decie hw much he can keep. moght be relevant if he can use materias elsehwere other jobs. were materials only suitable for this contract?

=====================

13.10

as in 13.9 but fire takes place the day after Peter has done one day’s work. work to last 4 weeks

payment for one day’s work to be kept by peter and the rest returned. section 1.2

common law. peter keeps full 1500 because no total failure of consideraiton

under act postion is that sabina can get 1500 back subject to paying peters expenses.

that might be more than 500 spent n material – for example plus wages paid to pthers. could be over 1500 even

secttion 2.1

===========================

self assessment p 207

  1. give an example of self induced frustration of contract

if someone damages his ship on purpose or gets drunk so he cannot do a job.

2. can the doctrine of frustration be applied to lease of land?

Yes if the purpose of the lease is not impossible to accomplish.

3. what is the object of the law reform frustrated contracts act 1943?

to be more just than common law. to allow people to recover up front payments on a quantum meruit basis.

as 1 500 postion is same as in 13.10. difference is peter almost finsihed wor can he claim under 1.3 for the vale of the beefit he has suplied . BP exploration v hunt 1979. he will not be able to recover anythun under thisn section. benefot mst be looked at in light of frustrating event. once house is burntnther eis no value in benefot to sabina

act has not chanhed postion fromcommon law. appleby v myers 1867. positi is different f the contract was to decorate two houses. if only one was burnt down

in tahat situatin peter would be abe to recover under section 1.3 for ebenfot represented by work done on surviving house.

=======================

bernard owns mansion with 50 paintings, bernard contracts with cleaners to clean them all. 200 per painting. he pays 2 000 uup front. balance of 8 000 to be paid on completion.

there is stable in grounds. bernard runs pony holidays. christine books week holoiday for herself anc hildren 8-15 august. deposit of 150. balance of 850 to be paid at start of hols

consider effect

a. on 6 august cleaners have cleaned and rehung 4- paintings. of remaing 10 , 5 have been cleaned and are at workshop. 5 at grange uncleaned. a fire destroys all paintings in the staely home.

the work done must be paid for. work not done does not have to be paid for. law reform frustrated contracts act 1943. contarct cannot be completd. five painting have been destroyed. contrct seems frustrated. but perhaps contract s divided into many serpate obligations. price is calculated epr painting. you can argue that only final 5 painting are frustarted. bernard must pay for work done.

if contractis frustrated then 1943 act applies. sect 1.2 bernard can reclaie 2 000 he paied. artistic cleaners can offset epeses but that allows hem 2000 max. f they wsh to recoe moeny for work done on 45 paintings they have to claim uder section 1.3.

appleby v myers 1867. BP exploration v hunt 1979 suggest that bernard has not received valuable benefotother tan in relation to five ainting in workship.

cntractual rate of 200 per paiting. entitles aristic to 1 000 max. that is less than 2000 tehy already received. its seems ulliekly hat if contact is frrusaetd that artistic leaners can get more than 2 000 they received already. that is at discretion of court.

b. fire means christine’s holiday party will not be able to be accommodated as planned. they will have to stay in tents. then foot and mouth means that farming will be restricted to grounds of the grange. christine wants to cancel holiday.

contract frustrated. contract would have to be radically different from how it was envisioned. she can recover money. total failure of consideration. cf, coronation cases.

has contact been frstrated? it has not been made impsisble. chrsitne can stay at grange and camp and ride ponies. is it radicall different? that deends on contract. how important were various eleents therein. it is argauble both ways

if contract is frustrated 1943 act applies. chrisitne can get under 1.2 to reclaim 150 she paid subjec to deduction of expenses by bernard to xtent cosndiering just by court

she will not ave to pay abbalce.

if contact is not frusarted then christines remdy will depend on if bernard is in breach of contactt and how serious.

contract law. performance and breach. 12.1 =========================================================

Standard

12.1 magic mountain ltd is buyng a mt on which it plans to develop a ski resort. contract for purchase needs tenders payment at 5 pm on 3 december at office

on 3 december magic moutain sends rep with cheque in time to reach office. bomb scare. rep arrives 3 hours late because of it. has repudiatory breach occurred?

would it have occurred if rep had reached office at 5.10?

would the result have been any different if moutain magic ltd called the offce to tell about bomb scare delay?

if this is strict liability then this is repudiatory breach.

if he arrived 10 mins late then this might be de minimis

calling in would probably not have made a difference.

terms on time are conditions in commerical contracts. bunge v tradax 1981. time if of the essence

lombard north central v butterworth 1987 lability tends to be strict

cause of tardieness does not matter

union earlge ltd v golden achievement ltd 1997

tighte fist is allowe to terminate for breach

is polic action frustration? but ifone party had set out earlier they wouldhave avoided this frustratio.

riks of latness assumed by party due to arrive at office.

==============================

12.2

in what circs will a party be held to have affirmed a contract? to what extent is a party’s election to terminate or affirm constrained by considerations such as reasonableness of his decision or conduct?

if he carries on performing and accepting the same despite knowing of breach

if the breach is not of a condition or important innominate term he cannot terminate. if the the breach is de minimis he cannot terminate as it would be unreasonableness. if he has not effective choice then non-termination can still be held not to be affirmation.

party affirms contract if he chooses to carry on with cintract. to affirm it he must have knowledge. innocent paryt must knw of right to elect

peyman v lanjani 1985. kanchenjunga 1990.innicentparty has tight to do wjat he wants but must mitigate losses.

payzu ltd v saunders 1919.

===================

12.3

what is the importance to the innocent party of determining the nature of the term breached by the other party?

v important. warranties can be breached without giving right to terminate.

innicent party must find out the natyre of term breached . if it is a donction, warranty or innomiate term.

if it is a warranty he can get damages . breac of conditiojn or importna innoinate temr eh can get terminate. if innocnet party chooses to terminate then and refuses to perfor more obligations where because of the nature of the breach he does not have that right then he is in breach himself.

decro wall SA v intl practioneriner sin marketing 1971.

============

12.4

in the hounslow Megarry J said that the two qualifications mentioned by lord reid in white and carter are necessarily part of the ratio decidendi of the white and carter case. is this statement correct?

hounslow LBC v twickenham garden development. 1971

hounslow entered contract with the other party to build houses. twickenham garden development given site for 4 years . architect for LBC was unhappy with progress. LBC terminated contract

Twickenahm garden development said termination was invlaid and continued building. T G D said they had licence to remain on land and that was separate to contract. T G D said LBC had not abided by natural justice and allowed T GD to be heard

the court found for T G D

there was an implied duty not to revoke licence whilst contract period was ongoing. licence was contractual

natural justice does not apply to notice periods under contract.

plaintiff did not demonstrate contract was vlaidly terminated.

white and carter v ,acgregor 1961

3 year contract to display adverts for macgregor on bins. contract due to expire. macgregor’s sales manager then renewed it. later that day macgregor found out and said that the sales manager had no authority to renew contract.

white and carter refeused to cancel as requested. they displayed ads and charged money

lords ruled that white and carter won. contract was valid. this was a debt. mitigation rule had no application this is not a discretionary remedy

statemnt is true. appeal heard by judges. ratio decidenti, is principel of law.

lord s tucjer and hodson were in minority but mentined restriction adumbrated by lord reid. ratio is foud in the extent to which lord reid agreed with tcker and hodson

megarry J in houslow said

withot lord reid there was no majority for the decision of the lords. I do not think ta it can be said thatb a majority ofn a bare majority is itself a majority.

==========================

12.5

could the claimant insist on performing after the defendant had repudiated the contract if he knew that all his effort and expenditure would simply be wasted?

clea shipping v Bulk Oil 1984

this is the alaskan trader. 24 month charterparty. engine breakdown after a year. repair would take months. charterers said they had no need for the vessel. owners repaired it and insisted that the contract carry on.

the ruling was that the owners had no legit interest in continuing the contract. they had done so just for more money.

defendants had behaved badly. admitted liability at last possible moment. they ahd not co operated

claimants were granted equitable and statutory rights.

there is a limit on an innocent party’s right to ignore repudiation of a contract.

so the claimants won. bulk oil int had to pay. The owners had been wrong to try to continue the contract.

dager t claiamnt in this course of action s that he will be foud to have not legit interest financial or otherwrose. in doijg so he would be putting an extar burdent on the defdantn. where ther eis no benefit to himself.

white and cartter concils ltd v mcgregor 1962

===========

12.6

what are the risks involved in not accepting an anticipatory repudiation?

if you do not and you carry on performing you might not get paid for it.

risk in not acceptng anticipatory repudtinat is that in doig so the inncnet party may forgo opportunity to claim daages i the evet that the contract is later discharged by reash of his own breahc or frustation.

================================

  1. when a party has a right to terminate a contract for breach is far from clear and should be clarified.

whether contract has been breahced depends on terms of contract.. breahc hapens when a part without lawful escuse does not perform orperforms it very poorly problem is inncne tparty has to decide f the breach is enoght to justify termination.

if breach is not enought to justify termination bt innicnet party terminatesthen he is i breach.

decro wall intl S V Practitioner sin marketing.

terms are coditions warrantis and innominae terms.

hong kong fir shippngn co ltd v kawasaki kisen kasia ltd 1962 ijvented innominate terms

innicent party has to find outwat kid ofn term is breached.

innminate term – is it important einought for terminattion

legislation coukd tidy it up. we do not want to be too rigid

courts coudgive effect to the way parties define terms.

parties shoud be clear abut what woud be eniugh reason for breach.

============================

2. rhonda is a plumber . she contracts with simon to replace plumbing for 10 K. work must be completed by deccember for Xmas bookings. in November she has not begun work. simon rings office and finds she is out on another job. simon realises correctly that rhonda cannot do work. he tells rhonda not to bother.

simon hires amanda to do plumbing. he will pay 15 000. rhonda knows she cannot do both jobs. stops other jobs. goes to do simon s job because it is more money. simon’s staff allow rhonda in to do work when simon is away. they refuse to allow amanda in

rhonda does work and wants 10 000. amanda sends bill for 15 000

rhonda did not after repudiation. this is like alaskan trader. she should not have. she will get nothing

amanda – there was anticipatory breach by simon’s staff in error. this might be seen as mistake or frustration. she gave no consideration . simon might get away with not paying her.

this is breaches and damages. whichbparty is in breach? is rhnda in breach for takng oj another job? has she renunced frst job by makig itimpossible for herself to perform?

she did nt say she was rencoungint it,

universal cargo carriers crop v cicati. britight benningtns v NW cachar tra 1923. it is clear that a reasable personw uld conclude that the contract is impossibbke to erfrom

simon maes n re enquiries about her abilityt to perform

in these circs simonn is in breach.

does rhond have the right to carry on performing ? white and carter councils ltd v mcgrego it seems she does

she needs access to simons property. she fallsminto exception inn

houslows LBC v twickenham garden develotmens ltd 1971/

simns staff grant access. is this cooperaiton on his part even withit his kwnoledge?

simn is in breach by refusing to alow amanda to perform.

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