Contract Cases II

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MISREP - active concealment naughty too - takes ship from dry dock into water to conceal rotten hull...marcus... v ted
stage ii. term of contract or not? = breach. if not misrep. test... objective intention of parties. factors that show this... statements made to other? superior knowledge/skill?-
here the landlord, opinion from such authoritative source, facts not equally known to both sides, 'impliedly states knows facts to justify opinion'john... v notsea & flat property
representation of opinion normally insufficient - this'll take 2000 sheep. - PC in nzalmost mint... v sword
doesn't matter you did not know what you were signing, signign away rights on cigarette vending machine - SIGNATURE bindingthesestrange names v grouchycornonthe
however, a misrepresentation about what you're signing/fraud will get you off the hook.. only sequins damage love..-
expression of future intention usually insufficient unless you misrepresent the current state of one's mind... 'the state of a man's mind is as much a fact as the state of his digemust induce contract, need not be sole inducement
generally, caveat emptor, you should have checked the house was uninhabitablepoet v earl, great names
grisly murder, body parts throughout house, technically, 'is there anything they have a right to know' answer no is true... no rightbill murder... v t-r
these farms are letting just fine... that IS a continuing misrep - half truth, not good enough. can't fill w/o halving price...With v O'Flanagan 1936 - sick dr gp practice down in value
stage ii. did it actually induce you? here, had a chance to check and did not, fine - misrep still activeSteve R... v not turd
this is different with commercial dealings where it may sometimes be unreasonable not to checkE v F, need not be only inducement..
the representation must be addressed to the misled party...that might be useful...
extended tort of negligence to cover claims for economic loss caused by reliance on a negligent mistatement. i. special relationship. ii. reasonable reliance
HB can even apply to non-commerce, these two were friends... still liabilityfrench hot ry.. v pra(salt/pepper...)
BARS to recission.. affirm contract. lorry...-
passage of time... when fraudlent, clock starts on discovery. if not, may start before...impossible to restitution?Clarke v Dickson - flexible
Meaning of Fraud... false rep made i. knowingly ii. without belief in truth iii. recklessly, don't care whether true-
Fraud - hairdresser - can recover what you'd have got from making a similar investment elsewhere...-
for common law negligent misstatement... can happen if... the person making it possess special knowledge/with regard to the fact stated - petrol-
the representation in context is to be regarded not as casual but to be relied upon... should go for primary docs when available. - may not work under tort but yes 2(1) - no need fbut i knew lloyds!
test for remoteness is fraudulent, not wagon mound test - under statutory misrep negligence, 2(1)... prob wrong but still with us-
suggests you CAN get damages under 2(2) even if there is a bar to recission... (obviously needs be equitable)common T W...ering on.. v TBP
NO general duty to disclose even when one party knows the other is making mistake about fact-
but not to be confused with misunderstanding about TERM - no contract madfe if A does not inform B about that...noone ever wants to court a w... hendry & not swords
DURESS - forced consent is rational, 'there is no other choice open to him' but revocable...-
economic duress - threat to break existing contract unless renegotiated, acceded to avoid financial consequences... Christmas-
must be a threat... what if subcontractor had said without renegotiating performance impossible - not necessarily a threat...-
threat of lawful action ordinarily NOT duress... entitled to withdraw credit facilities...-
if not wrongful, it must be 'immoral or unconcsionable'ex-england crick cap
'duress can exist even if the threat is one of lawful action... blackmail is often supported by a threat to do what is lawful'-
UNDUE INFLUENCE - 'relationship may be such that without more, one of them is disposed to agree to a course of action proposed by the other'-
actual - evidence required from party seeking to impeach - mere fact that domination exercised sufficient... gift of 140k back from religious influencer...m v l
presumed - parent/child, solicitor, dr, trustee, spiritual, not h/w, must be a transaction 'not readly explicable' can give Christmas presentdrawing on Allcard v skinner
Unconscionable Bargains - 'weakness on one side, usury on teh other, or extortion, or advantage taken of that weakness'just below duke...
i. one party at serous disadvantage ii. weakness exploited. iii. resulting transaciton not merely improvident but overreaching and oppressive-
Inequality of Bargaining power? 'not right that the strong should be allowed to push the weak to the wall'-
Er, no... none of that. does not exist. such a rule would be uncertain and undermine contractual negotiations.-
FRUSTRATION - 'to escape from injustice where such would result from enforcement of contract in literal terms after significant change in circumsatnces... some outside event... tak-
you can have force majeure clauses, entitle one or both to be excuses from contract in non-frustrating event, can be more flexible, e.g. compensation for more onerous performance, -
harsh rule - should protect yourself in the contract - contracts must be performed, even if you are kicked off your land by a german prince-
introduced exception - implied condition in contract 'that the parties be excused, if performace becomes impossible from perishing of the thing without default of the contractor'-
non-occurence of particular event - must go to root of contract - hire of flat... 2/3 unpaid when procession cancelled. discharged.-
but hire a boat.. 'actual happening of the event not made the basis of the contract' can still do cruises-
incapacity - Performance rendered radically different - ill concert pianist - discharger v d
Requisitioning of ships... must be sufficiently disruptive... if you might get a few months of service, not frustrating...football... not quite ladies product boat
Suez canal - both parties actually envisage here.. still possible to go around Cape of Good hope - if goods had been perishable, different...-
Building contract - mere unforeseen delays, 22 months and £20k more cost... not frustrated - thing undertaken NOT different from thing contracted for... 'it was not this that i coGuy... UDC... whatever that is..
Incidence of risk - partis can provide in contract for it... where not complete provision can still be frustrated. Bank_________ v bear lapel
prevention of performace in manner intended by one party alone not good enough - both must contemplate shipping from finland as necessary... not part of mutual understanding of conBB v A
Delay must be very severe, 'radically different' ps v ATP Tioxide
self induced not valid - choosing between different contracts... 'must baragin for suitable force majeure in contract'Like Maritime Fish v Ocean Trawlers 1935
inflation makes things 'radically different' - 'all times herafter' ridiculous... x20 price...Staffordshire...
negligence... doesn't rule out entirely... prima donna sitting ina draught... 'not every destruction of corpus for which one party might be said to be in some way responsbile rulesJCS v ISC
Leases ARE now subject to frustration...NC v P
obligation to pay before the event remains... Friend v P&N's Dog
harshness of that softened... recovery allowed in restitution to get money paid on consideration which had totally failed-
LR (Frustrated C) A 1943 - s.1(3) - one party received valuable benefit... 2 stages i. identification and valuation of benefit. ii. court asses what sum is justSURVIVING benefit
Discharge by breach - decision to accept must be clear and unequivocal-
one party can insist on continued perfoamcen... but not if co=op required of other party, then only damages. must show legitimate interest in performance...W&C v McG
even if you rely on a bad reason - if you had a good one you could have relied on - other party had actually committed a breach you could have relied on, you can use that...james fire n rain..... v strong tree
Forms of breach which justify discharge - anticipatory breach - you could have sued away and sailed then, but waited... Crimea then frustrated..Crimea... A v B...
Impossibility created by one party, discharges other...UCCC v C
does breach go to the root - deprive of 'substantially the whole benefit'? i. condition - terminate+d, ii. warranty - d iii. IT - depends-
s.12 - no title,terminate + D, s.14, BUSINESS only, implied terms about quality, not if defect highhlighted, s.3, buyer makes known purpose to seller, implied fitness... 14-
buckets chosen by seller, left in hot kuwait quay, compound flows, no breach. implied term of 'satisfactory quality' was satisfactory for common purpose... unusual series of eventsthese buckets were reasonable in circumstances
range rover - decides not to immediately reject for defects, gives seller 16 months, can he then rely on 14(2) - yes! generous. when not of satisfactory quality don't become so jusR the dodger(s)v P(church) - only works if in course of BUSINESS
fisherman selling a boat, fishing not boat selling.. but still Business. Generous...Robert Louis S v R (as above)
description - s.13 - you are not getting out on a technicality.. 'built in osaka' actually oshima - no... did not describe good. excessively technical... T....Lady Spencer... wealthy
you must RELY on the description, its mere existence is not enough. almost harpingdon v C hull fine arts...
Damages - Put them in the situation as if it had been performed... loss of gains-
cost of cure... not if unreasonable, disporporaitonate/C doesn't in tend to do work... just £2800 for lost amenity here...-
you can recover expenses incurred preparing to perform or in part performance - if profits are impossible to guage...-
however if D can prove C would not have benefited had he performed, then C cannot escape the bargain and claim in reliance instead of loss of expectancy - not taking home improvemeC&P H v M(very much in vogue)
normally, in breach, the court decides at the time of breach damages - but where circumstances prior to hearing change, here, taken into account. Gulf war - termination would have think this is wrong
cannot generally recover for mere inconvenience, but here pleasure was the purpose of the contract - disaster holidayrichard J v royal bird tours...
remoteness test for damages: recoverable i. arising naturally... usual course of things ii. reasonably in minds of both parties as PROBABLE result of itharder than RF
H v B remains the general rule, but the contract can say otherwise...Rubbishswords v nokia
no penalty clauses - if estimates losses, gives predictability, liquidated damage clause, ok. but if just punishment without loss... not allowedTyres & trainers v novel parkingspot
laundry - loss of expected profit recoverable but not highly lucrative deal.. not forseeable at date of c(remember alternatives to damages... SI & injunctions...)
ship deviated from route - should know sugar prices would fluctuate - liable for that...second bird at pond....
Rodger and hale - conventional test part ii. follow on fixture would be lost? no.... Hoff and HOpe - added requirement D must have accepted liability fo rloss... industry only for (also remember possibility of restitution)
different tests of remoteness... pigs.P v UI & C
knew that the claimant needed to display goods at show - 'must be newcastle monday certain' - recovered lost profitshomer... v L&NW
Specific performance won't be granted where damages provide adequate reliefH v Y... (not quite fielding)
contracts of personal service not generally compelled... require party to achieve result/carry activity on distinction... too vague and supervisory concerns..C-o I v A S
PRIVITY - acquisition of 3rd party rights... 'no stranger to the consideration can take advantage of a contract although made for his benefit' despite clause asking otherwise...Dunlop v Selfridge 1915 reinforced...
she could only claim because lucky enough to be administratrix too... ordered specific performance...-
but - you can get around that with a collateral contract, about paint here...-
bailment another possible way of circumventing privity...i. cause of action vs. subcontractor YES. ii. lmitation clause in that contract only binding if she express/impliedy accept-
can pre-existing contractual rights get over privity? only if 3rd party knows about them.... e.g. reflected in price -
the 2nd party can recover substantial damages if he has amoral obligaiton to make good the default himself, though no legal obligaitonThat is a nice case to learn.. J v Luke W...
'contract made for benefit of 3rd party who suffers loss, promiss recovers for them...' holiday denning-
Disproved of that last caseWI v W
agency argument might succeed if i. bill of lading makes it clear stevedores within it ii. makes it clear that carrier is agent for stevedore iii. carrier has authority for that (r-
this satisfied this... consideration was unloading the goods... contract artificially found... identifying offer to stevedore in carrier/shipper contract-
TERMS - i. we take a businesslike approach to interpretation ii. you do not look at prior negotiationsaffirmed in Chartbrook
missing just one visit is not a breach of a condition even if you use the word condition. i. businesslike approach. ii. cannot look at subsequent conduct of parties to construe con-
if obsession with detailed semantics and analysis of words flouts business commonsense, it must yield to business commonsense.'Diplock...
the key to construction of terms - reasonable person test - all background knowledge available to parties at time of contractICS...
standard terms.. i. good ones - regulate international business etc. give certainty, fairness etc. ii. bad - david and goliath situations, non negotiablegerhardt...
businesses must prove under Ucta s.11 that it was reasonable to include the clause...ellen from... v choosey...cross river
if you complete SUBSTANTIAL performance, putting in central heating, then you will get remuneration - allowing for work not done, or badly done work compensation-

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Created May 25, 2011ReportNominate
Tags:case, contract, extra, ratio