A promise to accept partpayment of a pre-existing date in place of a wholedebt isn’t consideration
Came from Pinnell‘s case where judge said payment of a lesssumofmoney on the daydebt is due can’t be satisfaction of a greaterdebt, credit and claim remainder of debt even if they’ve agreed that part payment will clear the debtfoakes V beer
Consideration p2
Pre-existing debt exception
Exception 1) accord and satisfaction, whether there is an agreement (accord) to end a contract and satisfaction (consid) that has been acted upon voluntry.Accepting something other than money for the wholedebt is good consideration even if it’s not of equal value must be done at the request of the creditor not the debtor
Consideration p2
Pre-existing debt exception 2
Exception 2) doctrine of promissory estoppel if one party to an existing contract agrees to vary the contract and the other partyrelies on that promise the promise or can’t go back on the agreement or they stopped from going back on the promise
CentralLondonproperty trust ltd V high treehouse ltd
consideration
Defined in Dunlop V Selfridge as ‘ an act of forbearance of one party of the promise there of is the price for which the promise of the otherparty is bought and thus given for the valueenforceable’
Executed/executory consid- executed has already been performed, executory act is yet to be performed (it’s promised)
Consideration
Consideration need not be adequate, but must be sufficient
adequacy, the idea that parties to the contract themselves agree the value of things being exchanged is accessibleThomas V Thomas,
Chapel V nestle, sufficiency consideration must be real and have some value (white V bluet), complaining isn’t consideration (ward V byham)
Consideration- past consideration is no consideration
Consid has no value when it’s already been done at the time the agreement is made
Consid must be given in return for the promise Re mcardle
Exception- the promsors express/implied request for a particular task and must be an implied understanding that the task should be paid for re Casey’spatent (his work was worth something)
Lampleigh V Braithwaite (his actions were so important fee was implied)
Consideration- past consideration is no consideration
Criteria for it to apply
express/implied request to perform task, implied promise that the promisee will be paid, performance of the task, payment of money
Consideration- performing a pre-existing duty is not consideration for a new contract
Something you’re already legally required to do, in three ways
Duty imposed under a public duty to act (Collins V Godfroy)
Duty imposed under an existing contract, doing your job (silk V Myrick)
I promise to make payment of an existing debt
Exception- however, if there’s an extraelement for newpayment there is consideration
Glasgow Brothers Glamorgan County Council- police asked to live on site
Hartley V Ponsbury half ship crew left leaving remaining crew to do more work and more danger
Consideration- performing a pre-existing duty is not consideration for a new contract
Exception, case
Williams V Roffey, Roffey had to pay Williams for existing duty because he was gaining an extra benefit of not having to pay delay fee to clients
Consumer rights at section 52
Performance within reasonable time
Service must be performed within reasonable time where the contract doesn’t expresslyfix the time for the service to be performed and doesn’t say how it’s to be fixed
Equivalent to the relevant sections of the supply of goods and services act 1982, which the CRA 2015 replaced
This term applies where the contract doesn’t have a term with respect to time and the service hasn’t been completed or is taken longer than expected
What’s considered reasonable time depending on circumstances
discharge by frustration
Actual breach- where the breach occurs at the time/during the course of employment,
either/both parties can be in breach
Victim can always claimdamages
Whether the contracts terminated will depend on the type of term, it’s been breached
Breach of any term can give rise to breach of contract
Renunciation parties of their liabilities under e.g. not paying a bill due due date
Impossibility created by their own actions hairdresser going on holiday when they have clients
Total/partial failure of performance eg delivering defective goods
Discharge by frustration extra stuff
Anticipatory breach
When a party indicates in advance, they won’t be performing their obligations as agreed
Innocent party then has a choice: sue immediately for breach of condition, or wait for time agreed for performance of the contract and surf if it doesn’t take place in honchester v De la Tour
They can sue for the full amount that losses must be mitigated
Discharge by frustration- extra stuf
Repudiatory breach
Occurs when a party commits a breach sufficiently serious that entitles the innocent party to treat the contract as if it’s been terminated
Can occur in 2 ways:
Refusal to perform the contract or
As sufficiently serious breach of an anonymous term that would be considered a breach of condition
If this is established innocent party can terminate or continue the contracting claim damages
Consumer rights act section 10
Fitness for a particular purpose
If before the contract is made the consumer makes known (expressly/impliedly) the purpose which they are contracting the goods then there will be an implied understanding that the goods will be reasonably fit for that purpose
Even if it’s not a purpose for which the goods are normally supplied
If the Buyer is relying on skill and judgement of the seller and buying and has expressed a particular purpose for which the goods are required. The implied condition will be in the contract. Bauldry V Marshall.
Consumer rights act section 10 p2
Fitness for a particularpurpose
There’s no need to state purpose when goods are used for ordinary remaining Grant V Australian knitting mills ltd
However, if the purchaser has a sensitivity not known to the seller then as long as the goods are fit for the normal purpose of most people there will be no breach Griffith V Peter Conway ltd
Exclusion clauses- notice+ history of prior dealings
Notice
Has the clause been effectively notified when the contract is made, (olley V MaulbroughCourt Hotel)
Has the clause been displayed where the contracts been made?
Has reasonable notice been given (Thornton V shoelaneparking)
History of prior dealings
Where the clauses have been highlighted before, if parties have dealt with each other before on the same terms from the pastHollier V rambler motors
Consumer rights act section 23
Right to repair or replacement
If section 20 isn’t exercise, they have this right
A majorfactor and deciding if repair/ replacement is disproportionate as if it would impose unreasonablecost on the compare with an alternativeremedy
If consumer requires trader to repair/replace goods must do so with reasonabletimewithoutsignificantinterference to the consumer and bear any costnecessary in doing so
This includes cost of labour, materials or posted relating to the exercise of this right
Consumer rights act section 23 p2
Consumer can’t require the trader to repair/replace the goods if it’s impossible or disproportionate compared to other remedies
Trader must carry out repairs within reasonable time, but it takes into account the nature of goods and the purpose which they were acquired
The fault complained must’ve been present at the time of delivery
consumer rights act section 11
The right relating to description
Every contract supply goes by description is to be treated as including a tenant that will match the description
The description can be implied eg goods on display fisher v bell
The description includes relevant information that must be included in any statutory info relating to good set out in the consumer contracts regulations act 2013
Where the supply of goods by reference to a model seen/examined by the consumer supplied must match the model
This has been seen to include packaging ReMoore + co + lavendercoarbitration
Consumer rights act section 24
Right to a price reduction or final right to reject
If section 23 doesn’t bring satisfaction, consumer has right to price reduction or final right to reject the goods and claim a refund under section 24
Trader can only only have oneattempt at repairs/replacement for the consumer to have this right
Any refund is subjected deduction for use
During the first six months, any deduction for use is at present limited to motor vehicles
Consumer rights act section 65
Prohibs exc/rest death/pi
General faireness of terms under section 62 act defines unfair as ….
court takes into account specificcircumstancesexisting when the term was agreed, other terms in the contract and nature of subjectmatter of the contract
Fairnesstest is supplemented by a so-called grey list of terms which may be unfair
Terms relating to subjectmatter of the contract orterms that set the price on subject to test of fairness if they’re both
Transparent (in plainwriting)+ prominent(brought to Cs attention in an obvious way
Consumer rights act section 55
Right to repeat performance
this requires the trader to perform the serves again to the extent necessary to complete its performance in accordance with the contract
If the right is demanded and assuming that performance isn’t impossible, the trader Must then provide it within reasonable time and without significant inconvenience to the consumer
The trader must also bear any necessary costs incurred in doing so such as the cost of any labour/materials
Consumer rights act section 56
Right to a price reduction
The right is to reduce the price to the consumer by an appropriate amount for the traders failure to perform the contract
This may result in the giving a refund up to the fullcontractprice
This remedy is only available in two situations:
Where completion by repeat performancesimpossible
If the consumer has asked for a repeatperformance, but the trader is in breach of the requirement to do it within reasonable time/without significant interference
consumer rights act section 49
Reasonable care and skill
A contract supply service is to be treated as including a term the trader must perform the service with reasonable care and skill
Contracts to fix bikes/do building work often include both goods and services
This is equivalent to the supply of goods and services 1982 which the CRA 2015 replaced
Here the standard of care is equivalent to the standard of care expected in a claim of negligence
This is decided on a case by case basis and can be seen in the cases of thake V Maurice and Wilson V best travel
Morality
Definition-
How rules develop
Similarities r v r
Differences
Wolford and report- Professor Hart, Lord Devlin, John Austen, lon Fuller
contract law - Pearce V brooks
tort law- brb v harrington
criminal law- stone v Dobson
Frustration
Frustrating event occurs when
Impossibility- subject matters destroyed (Taylor V Cadwell), subject matters unavailable (Jackson V Maurice insurance), person required for performance becomes ill (Robinson V David), person required becomes unavailable for other good reason(Morgan V Manor), unavoidable excessive delay ( the Nemo)
Frustration p2
Frustration can’t occur if, self induced (maritime national Fish V ocean), more difficult/less beneficial (Davis contractors V Fareham)
Remedies, law reform frustration act 1943
Exclusion clause
Definition- controversial terms of a contract that seek to reduce/eliminate a parties liability in certain circumstances, its purpose is to remove/reduce financial liability if certain events occur during a contract olley V malbrough Court hotel
Limitation clause, attempts to restrict extent of liability rather than excluded entirely
Exclusion clause
Establish if term is part of contract, can be done in three ways 1) signature has the party signed the contract, if so it may be considered they are accepting all terms of the contract whether they’ve read it or not l’strange v gracoup
However Curtis V chemical cleaning, if a party relying on an exclusion clause in a written document ask the other party to sign it and in response to a question from the other party miss represents the effect of the clause it will be interpreted as misrepresentation and not in a written document
exclusion clause
CRA
Section 31
Section 57
Section 65
Section 62
Acceptance
Definition, a final and unconditional agreement to all terms of the offer, must be positive and unqualified and communicated to the offeror but acceptance can’t be through silence (felthouse V bindley)
When does acceptance occur, general rule is when it’s communicated to the offeror but there are three circumstances needing consideration:
Acceptance by conduct (carlil v carbolic smoke ball), business contracts, job proceeds before the formal contract is agreed in all of its detail with numerous offers/counter offers
Acceptance p2
Postal rules, acceptance takes place once it’s posted as long as Adams V lindsell rules apply:
Rules only apply post as usual/expected means of communication
Must be addressed in stamped
The offeree must be able to prove the letter was posted
Rules then apply even if the letter is never received (household fire insurance V Grant)
Electronic means of communication- acceptance occurs when the offeror is aware of the acceptance
Sections which set out exclusion clauses- s31
Prohibits a term excluding or limiting liability, including for the following sections of the act act with respect to the sale of goods:
s9 to be of satisfactory quality
s10, good to be fit for a particular purpose
s11, good to be as described
s14, good too match a model seen or examined
s15, installation as part of conformity of the goods with the contract
Sections which set out exclusion clauses- s57
Prohibits atom excluding or limiting liability for the supply of services under the following sections of the act
s49, service to be performed with reasonable care and skill
s50, info about trader or service to be binding
s51, reasonable price
s52, reasonable time
Intention to create legal relations
Definition, parties to a contract expressly impliedly agreed that the contract is legally binding and therefore enforceable in court
Court colon enforce contract where there is an intention to be legally bound, which is obsessed objectively
Business agreements, Presumed to be legally binding, doesn’t take into account that presumption can be rebutted by showing the opposite is the case, can be seen in gentlemen agreements which is usually discovered by a term that states the contract is binding in honour as in (Jones V Vernon pools)
Intention to create legal relations p2
Intention can be negated by express wording, e.g. subject to contract (confettirecords V Warnermusic)
Free gifts and prizes (mcgowen V radioburton) where this is to promote a business it can still be held as legallybinding ( esso V customs and exercise)
Social and domesticagreements-presumed there’s no intention to be legallybound,Balfour V Balfour (not legally enforceable as the agreement was made at an amicablepoint of relationship), merit V merit (agreement made after divorce was held to create intention to create legal relations
Intention to create legal relations p3
Family being close usually doesn’t amount to itclr (Jones V padavaton)
If money is changed, hands, it’s more likely to be a business agreement (simpkins V pays)
Economic duress
Definition- where a party enters the contract as a result of financial threats
Coercion of will- in the case of paoon V lauyilongLordscarman stated for coercion of will to apply the court must consider 4 criteria:
Did the person who claims to be coercedProtest at any time
Did they have any reasonablealternativeopen to them
Did they have access to independent advice
Did they take reasonablesteps to avoid the contract
Economic duress
Illegitimate pressure- this is when a threaten party has no reasonable alternative open to them and they are being threatened by an unlawful action such as breaking the contract (CTN cash and carry V Gallaher)
Remedies- the effect of finding economic duress is to make the contract voidable, thus the contract remains valid until set aside by the injured party
Injured party can seek damages in contract but court at their discretion can award the equitable remedy of restitution and recision
economic duress
Restitution and rescission
Rescission - must be claimed asap after duress has stopped
Restitution seeks to put injured party back in the position they would’ve been in if not for the improper action