| Preface |
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v | |
| Acknowledgements |
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vii | |
| Guide to using the book and online resources |
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ix | |
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xxv | |
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xxxvii | |
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1 Introduction to the Study of Contract Law |
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1 | (26) |
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1 | (3) |
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1.1.1 A `Legally Enforceable' Agreement |
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2 | (1) |
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1.1.2 The Absence of a Prescribed Format |
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2 | (1) |
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1.1.3 The Diversity of Contracts |
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2 | (1) |
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1.1.4 The Sources of Contract Terms |
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3 | (1) |
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1.1.5 Freestanding Rights from Legislation |
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3 | (1) |
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1.2 The Shape of Contract Law |
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4 | (4) |
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1.2.1 Topics Concerning the Existence of a Contract |
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4 | (1) |
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1.2.2 Topics Concerning the Content of a Contract, Performance, and Breach |
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5 | (1) |
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1.2.3 Topics Concerning the Remedies |
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5 | (1) |
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1.2.4 Topics Concerning the Ways to Escape from a Contract |
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6 | (2) |
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1.3 The Parties' Intentions |
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8 | (2) |
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1.3.1 The Objective Approach |
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8 | (1) |
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1.3.2 The Perspective of the Reasonable Person |
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9 | (1) |
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1.3.3 Residual Subjectivity |
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10 | (1) |
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1.4 Contract Law as a Foundational Subject |
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10 | (1) |
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1.5 The Legal Sources of Contract Law |
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11 | (3) |
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1.5.1 The Common Law Origin of Contract Law |
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11 | (1) |
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1.5.2 The Role of Principles from Equity |
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11 | (1) |
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1.5.3 The Use of Tort and Unjust Enrichment |
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12 | (1) |
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1.5.4 Legislation and EU Law |
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12 | (2) |
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1.6 The Application and Role of Contract Law |
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14 | (13) |
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1.6.1 The Classical Model of Contract Law |
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14 | (3) |
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1.6.2 Relational Contracts |
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17 | (1) |
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1.6.3 Good Faith and Fair Dealing |
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18 | (9) |
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PART 1 CREATING THE CONTRACT |
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2 Agreement Part I: Offer |
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27 | (26) |
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2.1 Offers and Invitations to Treat |
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27 | (2) |
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2.2 Displays of Goods in Shops |
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29 | (3) |
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2.2.1 Background to the Traditional Position |
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29 | (1) |
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2.2.2 Displays in Ordinary Shops Today |
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30 | (1) |
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2.2.3 Displays Making an Offer |
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31 | (1) |
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32 | (5) |
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2.3.1 The Rule on Ordinary Adverts |
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32 | (1) |
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2.3.2 Adverts Making an Offer |
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33 | (4) |
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2.4 Websites and E-commerce |
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37 | (1) |
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38 | (2) |
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2.5.1 How Contracts Are Made at Auctions Where Goods Have a Minimum Price |
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38 | (1) |
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2.5.2 How Contracts Are Made at Auctions without a Minimum Price |
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38 | (2) |
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2.6 The Tendering Process |
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40 | (3) |
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2.6.1 How the Contract Is Made in the Tendering Process |
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40 | (2) |
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2.6.2 The Effectiveness of Referential Bids |
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42 | (1) |
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2.7 Termination of an Offer |
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43 | (10) |
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43 | (2) |
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2.7.2 Revocation of an Offer |
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45 | (3) |
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2.7.3 Rejection: Refusal and Counter-offer |
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48 | (2) |
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2.7.4 Death of the Offeror or Offeree |
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50 | (3) |
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3 Agreement Part II: Acceptance |
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53 | (32) |
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53 | (5) |
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3.1.1 Complete Agreement to the Terms of the Offer |
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54 | (1) |
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3.1.2 Where a Method of Acceptance Is Specified |
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54 | (2) |
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3.1.3 Acceptance Must Be in Response to the Offer |
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56 | (2) |
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3.2 Communication of Acceptance |
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58 | (5) |
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3.2.1 The General Rule on Communication of Acceptance |
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58 | (1) |
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3.2.2 Instantaneous Communication and the General Rule |
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58 | (4) |
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3.2.3 Where the Instantaneous Method Is Received Outside Office Hours |
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62 | (1) |
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3.3 Communication of Acceptance: Exceptions to the General Rule |
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63 | (8) |
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63 | (5) |
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3.3.2 Where the Offeror Waives the Need for Communication of Acceptance |
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68 | (3) |
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3.3.3 Acceptance by Conduct |
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71 | (1) |
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3.4 Automated Ticket and Vending Machines |
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71 | (1) |
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3.5 Acceptance for Contracts Made through E-commerce, Websites, and Email |
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72 | (4) |
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3.5.1 Acceptance by Email |
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73 | (2) |
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75 | (1) |
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3.6 Beyond the Traditional Application of Offer and Acceptance |
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76 | (9) |
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3.6.1 The `Battle of Forms' Context |
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76 | (1) |
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3.6.2 The Traditional Approach--the Last Shot Theory |
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76 | (2) |
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3.6.3 The `Compromise Contract' Suggested by Lord Denning MR |
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78 | (1) |
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3.6.4 Alternative Suggestions |
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78 | (1) |
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3.6.5 The Most Recent Significant Case on the `Battle of Forms' |
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79 | (2) |
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3.6.6 Is the Use of Offer and Acceptance Always Necessary? |
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81 | (4) |
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4 Certainty and the Intention to Enter a Legal Relationship |
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85 | (28) |
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4.1 The Relationship between Certainty and Intention |
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85 | (1) |
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4.2 The Certainty Requirement and the Role of the Courts |
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86 | (2) |
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88 | (4) |
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4.3.1 The Facts Surrounding the Agreement |
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88 | (1) |
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4.3.2 The Significance of Performance |
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89 | (2) |
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4.3.3 Meaningless Terms Can Be Ignored |
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91 | (1) |
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4.4 Incomplete Agreements |
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92 | (3) |
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4.4.1 Incomplete Agreements as Agreements to Agree |
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92 | (2) |
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4.4.2 Where the Incomplete Agreement Can Be Made Complete |
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94 | (1) |
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4.5 Agreements to Negotiate |
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95 | (4) |
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4.5.1 Agreements to Negotiate in Good Faith |
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96 | (2) |
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4.5.2 Where the Parties Express a Duty to Negotiate in Good Faith |
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98 | (1) |
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4.5.3 Agreements Not to Negotiate with Other Parties |
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98 | (1) |
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4.6 Intention to Create Legal Relations |
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99 | (14) |
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4.6.1 Social and Domestic Agreements |
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99 | (6) |
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4.6.2 Commercial Agreements |
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105 | (8) |
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5 Consideration and Promissory Estoppel |
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113 | (44) |
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5.1 What is `Consideration'? |
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113 | (1) |
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5.2 Consideration Does Not Have to Directly Benefit the Promisor |
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114 | (1) |
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115 | (1) |
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115 | (4) |
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5.4.1 Past Consideration and Previous Requests |
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116 | (3) |
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5.5 How Much Value Is Needed for Consideration? |
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119 | (2) |
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5.5.1 The Reasoning behind the Sufficiency Rule |
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119 | (1) |
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5.5.2 When Is Value `Sufficient'? |
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119 | (2) |
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5.6 Sufficiency: Performance of an Existing Legal Duty |
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121 | (3) |
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5.6.1 The Traditional Rule on the Performance of an Existing Legal Duty |
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121 | (1) |
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5.6.2 The Traditional Approach: Performance beyond the Existing Legal Duty |
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122 | (1) |
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5.6.3 The Limits of the Traditional Approach |
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122 | (2) |
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5.7 Performance of an Existing Contractual Obligation Owed to the Promisor |
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124 | (2) |
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5.7.1 The Traditional Rule |
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125 | (1) |
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5.7.2 The Practical Significance of the Traditional Rule |
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125 | (1) |
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5.8 Performance of an Existing Contractual Duty Owed to a Third Party |
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126 | (2) |
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5.9 Performance of a Contractual Duty Owed to the Promisor: The Modern Approach |
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128 | (7) |
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5.9.1 The Basic Rule Following Williams v Roffey |
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133 | (1) |
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5.9.2 How Did the Court of Appeal Depart from the Traditional Rule? |
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133 | (1) |
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5.9.3 The Need to Depart from the Traditional Rule |
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134 | (1) |
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5.9.4 A Wide Approach to `Practical Benefit' |
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134 | (1) |
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5.10 Part Payment of Debts |
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135 | (9) |
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5.10.1 The Leading Case on the Part Payment of Debts (Promises to Accept Less) |
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135 | (4) |
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5.10.2 Can the Williams v Roffey Approach Apply to the Part Payment of Debts? |
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139 | (5) |
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144 | (13) |
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5.11.1 The High Trees Case |
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144 | (4) |
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5.11.2 The Development of Promissory Estoppel after High Trees |
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148 | (2) |
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5.11.3 The Effect of Promissory Estoppel |
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150 | (7) |
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PART 2 THE CONTENT OF THE CONTRACT AND PERFORMANCE |
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6 The Terms of the Contract |
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157 | (45) |
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6.1 Express Terms: Oral Contracts |
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158 | (6) |
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6.1.1 The Classification of Oral Statements |
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158 | (1) |
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6.1.2 Guidance on When an Oral Statement is a Term |
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159 | (5) |
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6.2 Incorporation of Written Terms into Oral Contracts |
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164 | (10) |
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6.2.1 Incorporation by Signature |
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165 | (1) |
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6.2.2 Incorporation of Written Terms by Reasonable Notice |
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166 | (1) |
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6.2.3 Reasonable Notice and Non-standard Claimants |
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167 | (1) |
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6.2.4 Reasonable Notice Must Be on a `Contractual Document' |
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168 | (1) |
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6.2.5 Reasonable Notice and Timing |
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168 | (1) |
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6.2.6 Really Onerous and Unusual Terms |
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169 | (4) |
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6.2.7 Incorporation of Terms by Previous Dealings and Trade Practice |
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173 | (1) |
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6.3 Oral Statements as Terms That Add to the Written Contract |
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174 | (3) |
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6.3.1 The Parol Evidence `Rule' |
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174 | (1) |
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6.3.2 Collateral Contracts |
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174 | (1) |
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6.3.3 Where the Contract Is Both Oral and in Writing |
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175 | (1) |
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6.3.4 `Entire Agreement' Clauses |
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176 | (1) |
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6.4 The Interpretation of Express Terms |
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177 | (10) |
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6.4.1 The Need for Terms to Be Interpreted |
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177 | (1) |
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6.4.2 The Traditional Approach to Interpretation |
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177 | (1) |
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6.4.3 The Modern `Contextual' Approach to Interpretation |
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178 | (1) |
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6.4.4 Lord Hoffman's Principles of Interpretation |
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179 | (1) |
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6.4.5 Assessment of the Principles |
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180 | (2) |
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6.4.6 The Application of the Contextual Approach to Reflect `Commercial Common Sense' |
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182 | (5) |
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187 | (15) |
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6.5.1 Terms Implied by Legislation |
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187 | (1) |
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6.5.2 Implied Terms in Contracts for the Sale of Goods |
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188 | (3) |
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6.5.3 Terms Implied by the Courts |
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191 | (1) |
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6.5.4 Terms Implied in Fact (Ad Hoc Gap Fillers) |
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191 | (2) |
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6.5.5 Are the Tests for Implying Terms in Fact (Ad Hoc Gap Fillers) Really about Interpretation? |
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193 | (2) |
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6.5.6 Recent Guidance on the Application of the Traditional Tests |
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195 | (1) |
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6.5.7 Implied Terms in Law (Standardised General Default Rules) |
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196 | (2) |
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6.5.8 The Basis of Terms Implied in Law |
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198 | (1) |
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6.5.9 Terms Implied by Local Custom or Trade Usage |
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199 | (3) |
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7 Exemption Clauses and Unfair Terms |
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202 | (45) |
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7.1 The Need to Control Exemption Clauses and Unfair Terms |
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202 | (2) |
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7.1.1 The Effect of Exemption Clauses and Unfair Terms |
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203 | (1) |
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7.1.2 The Common Law Basis for the Use of Exemption Clauses and Unfair Terms |
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203 | (1) |
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7.2 Two Types of Unfairness |
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204 | (1) |
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7.2.1 Procedural Unfairness |
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204 | (1) |
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7.2.2 Substantive Fairness |
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205 | (1) |
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7.3 Common Law Controls: Rules on the Incorporation of Terms |
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205 | (3) |
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7.3.1 The Rules on Incorporation of Terms as a Means to Control Unfairness |
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205 | (3) |
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7.3.2 The Limits of the Incorporation Rules |
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208 | (1) |
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7.4 Common Law Controls: The `Contra Proferentem' Principle of Interpretation |
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208 | (9) |
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7.4.1 The Application of the Contra Proferentem Principle |
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209 | (1) |
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7.4.2 Guidance on the Exclusion of Liability in Negligence |
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209 | (2) |
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7.4.3 What if the Only Possible Liability Is for Negligence? |
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211 | (3) |
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7.4.4 A Less Strict Approach for Limitation Clauses |
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214 | (1) |
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7.4.5 The Limits of the Contra Proferentem Principle |
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214 | (1) |
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7.4.6 The Impact of Legislation Controlling Exemption Clauses |
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215 | (1) |
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7.4.7 The Modern Contextual Approach to Interpretation and the Contra Proferentem Principle |
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216 | (1) |
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7.4.8 The Principle of Fundamental Breach |
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217 | (1) |
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7.5 Introduction to the Legislative Controls of Exemption Clauses and Other UnfairTerms |
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217 | (1) |
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7.6 The Unfair Contract Terms Act 1977 |
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218 | (12) |
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7.6.1 The Scope of the Act: The Type of Terms Covered |
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219 | (1) |
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7.6.2 The Scope of the Act: The Type of Liability Covered |
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220 | (1) |
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7.6.3 The Controls in Place by the Act |
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221 | (3) |
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7.6.4 The UCTA `Reasonableness Test' |
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224 | (2) |
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7.6.5 Factors to Consider from Schedule 2 |
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226 | (4) |
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7.7 Consumer Protection from Unfair Terms: The Consumer Rights Act 2015 |
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230 | (17) |
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7.7.1 Scope: Consumer Contracts and Notices |
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231 | (1) |
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232 | (1) |
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232 | (1) |
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7.7.4 The Effect of a Term Being `Unfair' |
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233 | (1) |
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7.7.5 The Meaning and Application of the Fairness Test |
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234 | (4) |
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7.7.6 The Transparency Requirement |
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238 | (1) |
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7.7.7 Terms Excluded from the Fairness Assessment |
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239 | (4) |
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7.7.8 The Terms Must Also Be `Transparent and Prominent' for the Core Terms Exclusion to Work |
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243 | (1) |
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7.7.9 Improved Scope under the CRA |
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243 | (1) |
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7.7.10 Enforcement Using Preventative Controls |
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244 | (3) |
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8 Breach and Termination of the Contract |
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247 | (36) |
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8.1 Performance and When It Is Required |
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247 | (3) |
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248 | (1) |
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8.1.2 Substantial Performance |
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249 | (1) |
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8.1.3 Severable (Divisible) Obligations |
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250 | (1) |
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8.2 Types of Contractual Obligation |
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250 | (2) |
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8.2.1 Strict Liability Obligations |
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250 | (2) |
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8.2.2 Fault-based Obligations |
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252 | (1) |
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8.3 The Practical Effect of `Ending a Contract' Following a Breach |
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252 | (2) |
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8.4 Making the Choice to Continue or End the Contract |
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254 | (1) |
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8.5 Ending the Contract Following a Refusal to Perform |
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255 | (7) |
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8.5.1 The Rights of the Innocent Party Following Refusal to Perform |
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256 | (3) |
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8.5.2 The Legitimate Interest in Continuing the Contract |
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259 | (2) |
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8.5.3 Acceptance of an Anticipatory Repudiatory Breach |
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261 | (1) |
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8.6 Ending the Contract Following Seriously Defective Performance |
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262 | (9) |
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8.6.1 The Traditional Classification Approach |
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263 | (1) |
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8.6.2 When Is a Term Classed as a `Condition' in Advance? |
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263 | (8) |
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8.7 Ending the Contract Based on the Effect of the Breach: Innominate Terms |
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271 | (4) |
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8.7.1 Guidance to Assess the Seriousness of a Breach |
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273 | (1) |
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8.7.2 Proportionality Resulting from Hongkong Fir |
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274 | (1) |
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8.7.3 The Consequential Approach before Hongkong Fir |
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274 | (1) |
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8.8 A Classification or Consequential Approach? |
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275 | (2) |
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8.9 The Right to End the Contract from Legislation |
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277 | (6) |
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PART 3 ENFORCEMENT OF THE CONTRACT |
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9 Remedies Part I: Compensatory Damages Following a Breach |
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283 | (34) |
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9.1 The Action for Damages |
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283 | (1) |
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9.2 The Aim of Damages Following a Breach |
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284 | (2) |
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9.3 Identifying the Expectation (Performance) Loss |
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286 | (6) |
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9.3.1 Consequential Losses |
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286 | (1) |
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9.3.2 The Difference in Value |
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286 | (1) |
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9.3.3 The Cost of Cure (i.e. the Cost of Repair) |
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287 | (5) |
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9.4 Expenses Claims--Compensation for Reliance on the Contract |
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292 | (4) |
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9.4.1 The Basis for Allowing Damages for Wasted Expenditure |
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292 | (2) |
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9.4.2 When Wasted Expenditure Cannot Be Claimed: The Problem with Bad Bargains |
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294 | (2) |
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9.5 Damages for a Lost Chance |
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296 | (1) |
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9.6 Damages for Non-financial Loss |
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297 | (6) |
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9.6.1 Damages for Pain and Suffering |
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297 | (1) |
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9.6.2 Damages for Physical Inconvenience |
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298 | (1) |
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9.6.3 Damages for Harm to Reputation |
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298 | (5) |
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9.7 Damages for Loss of Enjoyment (and Other Types of Mental Distress) |
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303 | (14) |
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9.7.1 The Development of the Exception Allowing Damages for Types of Mental Distress |
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303 | (3) |
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9.7.2 Loss of Enjoyment and the `Pleasurable Amenity' Award in the Ruxley Case |
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306 | (2) |
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9.7.3 The Current Position on Loss of Enjoyment (Mental Distress) Damages |
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308 | (4) |
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9.7.4 Damages for Mental Distress Caused by Physical Inconvenience or Discomfort |
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312 | (1) |
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9.7.5 Controlling the Size of the Awards for Mental Distress |
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313 | (1) |
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9.7.6 No Mental Distress from Commercial Contracts |
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314 | (3) |
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10 Remedies Part II: Principles That Can Limit the Damages Awarded Following a Breach |
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317 | (23) |
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317 | (2) |
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318 | (1) |
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318 | (1) |
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10.2 Contributory Negligence |
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319 | (1) |
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10.3 Remoteness of the Loss Claimed |
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320 | (16) |
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10.3.1 The Need for the Remoteness Principle |
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320 | (1) |
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10.3.2 The Basic Remoteness Test |
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321 | (1) |
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10.3.3 The Development of the `Reasonable Contemplation' Test |
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321 | (2) |
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10.3.4 The Standard of Contemplation--How Foreseeable Does the Loss Have to Be? |
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323 | (1) |
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10.3.5 The Loss Has to Be `Quite Likely' or a `Serious Possibility' |
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324 | (3) |
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10.3.6 Remoteness Where a Breach Results in Physical Damage |
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327 | (4) |
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10.3.7 The Knowledge That the Parties Can Expect to Have |
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331 | (1) |
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10.3.8 Intention as the Conceptual Basis of Remoteness |
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331 | (5) |
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10.4 The Duty of Mitigation |
|
|
336 | (4) |
|
11 Remedies Part III: Non-compensatory Remedies |
|
|
340 | (37) |
|
11.1 Specific Performance |
|
|
340 | (3) |
|
11.1.1 Damages Must Be Inadequate |
|
|
341 | (1) |
|
11.1.2 The Discretion of the Court |
|
|
342 | (1) |
|
11.2 Performance-based Remedies in Consumer Contracts |
|
|
343 | (1) |
|
|
|
344 | (2) |
|
11.3.1 Contracts for Personal Services |
|
|
345 | (1) |
|
11.3.2 Commercial Contracts |
|
|
346 | (1) |
|
11.4 Restitution for an Unjust Enrichment |
|
|
346 | (4) |
|
11.4.1 A Contract Cannot Exist between the Parties |
|
|
346 | (1) |
|
11.4.2 There Must Be a Total Failure of Consideration |
|
|
347 | (1) |
|
11.4.3 The Advantage of Restitution over Compensatory Damages |
|
|
348 | (1) |
|
11.4.4 Getting Paid for Services or Goods Provided |
|
|
349 | (1) |
|
11.5 Restitution for a Wrong: The Account of Profits Award |
|
|
350 | (7) |
|
11.5.1 The Traditional (General) Rule on the Account of Profits Claim |
|
|
350 | (2) |
|
11.5.2 The Very Exceptional Account of Profits Award |
|
|
352 | (5) |
|
|
|
357 | (9) |
|
11.6.1 The Application of Negotiating Damages Following Blake |
|
|
358 | (1) |
|
11.6.2 The Background Issue on the Basis of the Award |
|
|
358 | (1) |
|
11.6.3 The Compensatory Basis and Availability of the Award |
|
|
359 | (7) |
|
11.7 Agreed Damages and Penalty Clauses |
|
|
366 | (11) |
|
11.7.1 The Benefit of Agreeing Damages |
|
|
367 | (1) |
|
11.7.2 The Impact of Rules Restricting Agreed Damages |
|
|
367 | (1) |
|
11.7.3 The Traditional Rules |
|
|
367 | (2) |
|
11.7.4 The Approach Following Cavendish Square Holdings vMakdessi [ 2015] |
|
|
369 | (5) |
|
11.7.5 Forfeiture Clauses as Penalties |
|
|
374 | (3) |
|
12 Third Party Rights (the Doctrine of Privity) |
|
|
377 | (38) |
|
12.1 Third Parties and the Context of Disputes |
|
|
377 | (1) |
|
12.2 The Development of the Doctrine of Privity |
|
|
378 | (6) |
|
12.2.1 The Independent Doctrine of Privity |
|
|
380 | (2) |
|
12.2.2 The Application of the Doctrine of Privity to Exemption Clauses |
|
|
382 | (2) |
|
12.3 The Basis for Criticising the Doctrine of Privity |
|
|
384 | (1) |
|
12.4 Reasons for the Doctrine of Privity |
|
|
384 | (1) |
|
12.5 Judicial Views on Privity and the Need for Legislative Reform |
|
|
385 | (1) |
|
12.6 Ways around the Privity Rule: The Contracts (Rights of Third Parties) Act 1999 |
|
|
386 | (8) |
|
12.6.1 The Aim of the 1999 Act |
|
|
387 | (1) |
|
12.6.2 The Test for Enforcement by a Third Party |
|
|
387 | (4) |
|
12.6.3 Rules on the Parties Changing or Ending the Contract |
|
|
391 | (1) |
|
12.6.4 Defences and `Set-Offs' for the Promisor |
|
|
392 | (1) |
|
12.6.5 Protecting the Promisor from Double Liability |
|
|
393 | (1) |
|
|
|
393 | (1) |
|
12.6.7 Scope: Contracts to Which the Act Does Not Apply |
|
|
394 | (1) |
|
12.7 Ways around the Privity Rule: Common Law Developments |
|
|
394 | (6) |
|
12.7.1 The Use of a Collateral Contract |
|
|
394 | (1) |
|
|
|
395 | (3) |
|
12.7.3 Assignment of the Contract Benefit to the Third Party |
|
|
398 | (1) |
|
12.7.4 The Creation of a Trust for the Benefit of a Third Party |
|
|
398 | (1) |
|
|
|
399 | (1) |
|
12.8 Legislative Exceptions to the Privity Rule |
|
|
400 | (1) |
|
12.9 Enforcement by a Contractual Party for the Benefit of a Third Party |
|
|
401 | (14) |
|
12.9.1 Specific Performance |
|
|
401 | (1) |
|
12.9.2 Damages That Also Reflect the Loss Suffered by the Third Party |
|
|
402 | (13) |
|
PART 4 FACTORS THAT CAN END THE CONTRACT |
|
|
|
|
|
415 | (56) |
|
13.1 An Actionable Misrepresentation |
|
|
416 | (4) |
|
13.1.1 Puffery and Sales Hype |
|
|
416 | (1) |
|
13.1.2 Statements of Opinion |
|
|
416 | (2) |
|
13.1.3 Statements about Future Intentions |
|
|
418 | (1) |
|
13.1.4 Abstract Statements of Law |
|
|
419 | (1) |
|
13.2 Misrepresentation from a Failure to Reveal Facts |
|
|
420 | (4) |
|
13.2.1 Representations by Conduct |
|
|
420 | (1) |
|
13.2.2 Where Defects Are Deliberately Hidden |
|
|
421 | (1) |
|
13.2.3 Half-true Statements |
|
|
421 | (1) |
|
13.2.4 True Statements That Become False by the Time the Contract Is Entered |
|
|
422 | (2) |
|
13.2.5 Special Contracts with a Duty to Reveal Facts |
|
|
424 | (1) |
|
13.3 The Requirement of Inducement |
|
|
424 | (6) |
|
13.3.1 Where the Representee Does Not Believe the Statement |
|
|
426 | (1) |
|
13.3.2 Where the Representee Has the Accuracy of the Statement Checked before Entering the Contract |
|
|
427 | (1) |
|
13.3.3 Where the Representee Does Not Take the Opportunity to Verify a Statement |
|
|
428 | (2) |
|
13.4 The Basic Remedy of Rescission |
|
|
430 | (2) |
|
13.4.1 The Effect of Rescission |
|
|
430 | (1) |
|
13.4.2 How a Contract Can Be Rescinded |
|
|
431 | (1) |
|
13.5 How the Right to Rescind Can Be Lost |
|
|
432 | (8) |
|
13.5.1 Affirmation of the Contract |
|
|
432 | (1) |
|
|
|
433 | (2) |
|
13.5.3 Where `Restitution' Is Not Possible |
|
|
435 | (2) |
|
13.5.4 Third Party Rights Preventing Restitution |
|
|
437 | (1) |
|
13.5.5 Where Rescission Is Refused under the Misrepresentation Act 1967 |
|
|
438 | (2) |
|
13.6 Introduction to Damages for Misrepresentation |
|
|
440 | (2) |
|
13.7 Fraudulent Misrepresentation |
|
|
442 | (6) |
|
13.7.1 What Is a Fraudulent Misrepresentation? |
|
|
442 | (1) |
|
13.7.2 The Assessment of Damages |
|
|
443 | (2) |
|
13.7.3 The Point in Time to Assess the Loss Suffered |
|
|
445 | (1) |
|
13.7.4 Claims for Lost Profits |
|
|
446 | (1) |
|
13.7.5 The Duty of the Innocent Party to Mitigate the Loss |
|
|
446 | (1) |
|
13.7.6 Contributory Negligence |
|
|
447 | (1) |
|
13.8 Negligent Mis-statement (under the Tort of Negligence) |
|
|
448 | (2) |
|
13.8.1 The Recognition of Mis-statement under theTort of Negligence |
|
|
448 | (1) |
|
13.8.2 Liability in Negligence between Contractual Parties |
|
|
449 | (1) |
|
13.8.3 The Assessment of Damages |
|
|
450 | (1) |
|
13.9 Negligent Misrepresentation under the Misrepresentation Act 1967 |
|
|
450 | (5) |
|
13.9.1 Application to Contractual Parties |
|
|
451 | (1) |
|
13.9.2 Negligent Misrepresentation Defined |
|
|
451 | (1) |
|
13.9.3 The Reversed Burden of Proof |
|
|
451 | (1) |
|
13.9.4 The Assessment of Damages under s.2(1): Measure and Remoteness |
|
|
452 | (3) |
|
13.9.5 Contributory Negligence |
|
|
455 | (1) |
|
13.10 Damages in Lieu of Rescission and Innocent Misrepresentations |
|
|
455 | (4) |
|
13.10.1 When Does the Judge Have the Power to Award Damages? |
|
|
456 | (1) |
|
13.10.2 The Measure of Damages under s.2(2) |
|
|
457 | (2) |
|
13.11 Misrepresentation and Consumer Contracts |
|
|
459 | (2) |
|
13.11.1 Remedies Following Liability for an Unfair Practice |
|
|
460 | (1) |
|
13.11.2 Removal of Damages under s.2(1) of the Misrepresentation Act |
|
|
461 | (1) |
|
13.12 Exemption Clauses and Misrepresentation |
|
|
461 | (10) |
|
13.12.1 Exemption Clauses Covering All Types of Misrepresentation |
|
|
462 | (1) |
|
13.12.2 The Issue of `Entire Agreement' and `Non-reliance' Clauses |
|
|
463 | (4) |
|
13.12.3 Exemption Clauses in Consumer Contracts |
|
|
467 | (4) |
|
|
|
471 | (29) |
|
14.1 The General Role of the Law on Duress |
|
|
471 | (1) |
|
14.2 Background and the Shape of Common Law Duress |
|
|
472 | (1) |
|
14.3 Duress of the Person |
|
|
473 | (1) |
|
14.4 Duress of Goods or Property |
|
|
474 | (2) |
|
|
|
476 | (11) |
|
14.5.1 Illegitimate Pressure Arising from a Threat to Breach |
|
|
477 | (3) |
|
14.5.2 Threat of Unlawful Industrial Action |
|
|
480 | (1) |
|
14.5.3 Compulsion of With The Old Strict Requirement of an Overborn Will |
|
|
481 | (2) |
|
14.5.4 Rejection of `Overborn Will' Requirement |
|
|
483 | (1) |
|
14.5.5 Compulsion of Will: No Practical Alternative and Causation |
|
|
484 | (3) |
|
|
|
487 | (9) |
|
14.6.1 Illegitimate Pressure from a Threat of Lawful Action |
|
|
487 | (6) |
|
14.6.2 `Illegitimacy' for Lawful Act Duress outside of the Commercial Context |
|
|
493 | (2) |
|
14.6.3 Compulsion of Will from a Threat of Lawful Action |
|
|
495 | (1) |
|
|
|
496 | (4) |
|
15 Undue Influence, Unconscionability, and Equality of Bargaining Power |
|
|
500 | (34) |
|
15.1 The Uncertain Basis of Undue Influence |
|
|
501 | (1) |
|
15.2 Actual Undue Influence |
|
|
502 | (1) |
|
15.3 Presumed Undue Influence |
|
|
503 | (1) |
|
15.4 Presumed Undue Influence: Protected (Special) Relationships |
|
|
504 | (4) |
|
15.5 Presumed Undue Influence: All Other Relationships |
|
|
508 | (5) |
|
15.5.1 Trust and Confidence Arising from Vulnerability and Reliance on Advice |
|
|
508 | (2) |
|
15.5.2 Trust and Confidence Arising from Physical Dependence and Reliance |
|
|
510 | (1) |
|
15.5.3 Trust and Confidence Indicated by the Transaction |
|
|
511 | (1) |
|
15.5.4 A Relationship of Trust and Confidence Arising from Being Part of an Institutional Hierarchy |
|
|
512 | (1) |
|
15.5.5 Trust and Confidence: Love and Affection and Reliance on Financial Matters |
|
|
512 | (1) |
|
15.6 Presuming Undue Influence: The Transaction Must Call for an Explanation |
|
|
513 | (5) |
|
15.6.1 The Old Requirement of a Manifest Disadvantage |
|
|
514 | (1) |
|
15.6.2 The Difficulty in Dealing with Spouses |
|
|
515 | (2) |
|
15.6.3 The Absence of Legal Advice |
|
|
517 | (1) |
|
15.7 Rebutting the Presumption of Undue Influence |
|
|
518 | (1) |
|
15.8 Situations Involving Three Parties |
|
|
519 | (6) |
|
15.8.1 The Background and Issues |
|
|
519 | (2) |
|
15.8.2 The Basic Mechanism--Constructive Notice |
|
|
521 | (1) |
|
15.8.3 The Development of Constructive Notice from Etridge |
|
|
522 | (1) |
|
15.8.4 Reasonable Steps for the Bank to Take to Avoid Constructive Notice |
|
|
523 | (1) |
|
15.8.5 Guidance for Solicitors |
|
|
524 | (1) |
|
15.9 Remedies for Undue Influence |
|
|
525 | (1) |
|
15.10 Exploitation of Weakness, Unconscionability, and Inequality of Bargaining Power |
|
|
526 | (1) |
|
15.11 Lord Denning's Principle of Inequality of Bargaining Power |
|
|
527 | (1) |
|
15.12 The Consumer Protection from Unfair Trading Practices Regulations 2008 |
|
|
528 | (6) |
|
16 Frustration of the Contract |
|
|
534 | (41) |
|
16.1 The Development of the Frustration Principle |
|
|
535 | (4) |
|
16.1.1 The Original Approach: `Absolute Contracts' |
|
|
535 | (1) |
|
16.1.2 The Origin and Basis of Frustration |
|
|
535 | (1) |
|
16.1.3 The Legal Basis of Frustration |
|
|
536 | (3) |
|
16.1.4 The Basic Requirements for Frustration |
|
|
539 | (1) |
|
16.2 The Grounds for Frustration |
|
|
539 | (6) |
|
16.2.1 Physical Impossibility |
|
|
539 | (6) |
|
|
|
545 | (2) |
|
16.4 Impossibility of a Common (Shared) Purpose |
|
|
547 | (7) |
|
16.5 Limits to the Application of the Frustration Principle |
|
|
554 | (6) |
|
16.5.1 Greater Expense or Difficulty |
|
|
554 | (2) |
|
16.5.2 Fault and Self-induced Impossibility |
|
|
556 | (2) |
|
16.5.3 Foreseeability of the Event |
|
|
558 | (2) |
|
16.6 Force Majeure Clauses |
|
|
560 | (1) |
|
16.7 The Effects of Frustration--the Resulting Remedy |
|
|
561 | (14) |
|
16.7.1 The Traditional Common Law Position |
|
|
562 | (2) |
|
16.7.2 The Law Reform (Frustrated Contracts) Act 1943 |
|
|
564 | (11) |
|
|
|
575 | (40) |
|
17.1 Introduction to Mistakes Preventing the Formation of an Agreement |
|
|
576 | (1) |
|
|
|
576 | (1) |
|
17.3 Cross-purposes (Mutual Mistake) Resulting from a Latent Ambiguity |
|
|
577 | (1) |
|
|
|
578 | (8) |
|
17.4.1 Where One Party Appears to Know the Other Has Made a Mistake about a Term |
|
|
578 | (2) |
|
17.4.2 Introduction to Mistake as to the Identity of a Party |
|
|
580 | (6) |
|
17.5 The Leading Case on Mistake as to Identity |
|
|
586 | (5) |
|
17.5.1 The Approach Adopted by the Minority |
|
|
586 | (2) |
|
17.5.2 The Current Approach (Adopted by the Majority) |
|
|
588 | (3) |
|
17.6 Introduction to Common Mistake |
|
|
591 | (1) |
|
17.7 The Basic Test and Requirements for Common Mistake |
|
|
592 | (5) |
|
17.7.1 The Parties Must Have Assumed That a State of Affairs Existed |
|
|
592 | (1) |
|
17.7.2 The Non-existence of the State of Affairs Must Make Performance Impossible or Radically Different |
|
|
593 | (1) |
|
17.7.3 The Risk of the Non-existence Must Not Have Been Accepted by One of the Parties |
|
|
594 | (1) |
|
17.7.4 A Party Must Not Be at Fault for the Non-existence of the State of Affairs |
|
|
595 | (1) |
|
17.7.5 Policy and the Need for the Assumption to Be Fundamental |
|
|
595 | (1) |
|
17.7.6 Summary of the Requirements for Common Mistake |
|
|
596 | (1) |
|
17.8 The Juristic (Legal) Basis of Common Mistake |
|
|
597 | (1) |
|
17.9 Types of Common Mistake |
|
|
598 | (6) |
|
17.9.1 A Mistake about the Existence of the Subject Matter of the Contract |
|
|
598 | (2) |
|
17.9.2 Mistake as to Title or Ownership |
|
|
600 | (1) |
|
17.9.3 Mistakes as to Quality |
|
|
600 | (2) |
|
17.9.4 The Application of the Restrictive Approach to Quality |
|
|
602 | (2) |
|
17.10 Common Mistake in Equity |
|
|
604 | (5) |
|
17.11 Equitable `Rectification' for Common Mistake |
|
|
609 | (1) |
|
17.12 The Non Est Factum Defence |
|
|
610 | (5) |
| Index |
|
615 | |
