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xxiii | |
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lxxv | |
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1 | (5) |
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B Termination Ab Initio and De Futuro |
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6 | (29) |
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(1) Nature and basis of the distinction |
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7 | (7) |
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(2) Termination ab initio: effects on contractual rights and obligations |
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14 | (6) |
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(3) Termination de futuro: effects on contractual rights and obligations |
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20 | (3) |
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(4) Termination ab initio and de futuro: rights to restitution |
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23 | (8) |
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31 | (4) |
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C Void and Voidable Contracts |
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35 | (22) |
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(1) Void and voidable contracts |
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36 | (3) |
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(2) Contracts valid until rescinded and contracts ineffective until ratified |
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39 | (6) |
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45 | (4) |
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49 | (8) |
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D Rescission and Transactions Ineffective in Equity |
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57 | (1) |
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57 | (10) |
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(2) Where the claimant is not a party to the impugned transaction |
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67 | (3) |
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(3) Where the claimant is a party to the impugned transaction |
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70 | (17) |
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87 | (3) |
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(5) Apparent gifts made ineffective by resulting trust |
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90 | (1) |
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(6) Other ineffective transactions |
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91 | |
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2 Rescission and Independent Claims |
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1 | (2) |
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3 | (7) |
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10 | (4) |
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D Disgorgement of Profits |
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14 | (2) |
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(1) Distinction between profit-based remedies and rescission |
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16 | (8) |
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(2) Proprietary relief absent rescission |
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24 | (3) |
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(3) Personal accountability for profits absent rescission |
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27 | |
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1 | (3) |
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4 | (30) |
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(1) The effect of fraud on contract |
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5 | (1) |
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(2) The effect of fraud on title |
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6 | (10) |
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(3) Rescission as a condition to restitution |
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16 | (14) |
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(4) Termination de futuro and ab initio |
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30 | (3) |
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(5) Role of the forms of action |
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33 | (1) |
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34 | (21) |
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34 | (3) |
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(2) Orders effecting rescission |
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37 | (3) |
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(3) The effect of fraud on contract |
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40 | (2) |
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(4) The effect of fraud on title |
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42 | (11) |
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(5) Rescission by election |
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53 | (2) |
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D The Special Case of Insurance |
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55 | (1) |
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(1) Special relationship between common law and equity |
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56 | (3) |
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(2) Chancery courts' policy of limited interference |
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59 | (4) |
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(3) Change from `void' to `voidable' |
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63 | |
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1 | (3) |
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B Types of Misrepresentation: Fraudulent, Negligent, Innocent |
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4 | (13) |
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(1) Nature of fraudulent misrepresentation |
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5 | (4) |
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(2) Importance of the distinction outside law of rescission |
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9 | (1) |
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(3) Importance in relation to rescission |
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10 | (3) |
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(4) Special vulnerability of contracts to rescission for fraud |
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13 | (4) |
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17 | (57) |
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(1) Representations of existing fact and of law |
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17 | (3) |
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(2) Representation may be a contractual term |
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20 | (6) |
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(3) Representation may be express or implied |
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26 | (2) |
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(4) Passing on information generally not a representation |
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28 | (1) |
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(5) Silence generally not a representation |
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29 | (3) |
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(6) Sources of implied representations |
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32 | (7) |
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(7) Determining what was represented (expressly and impliedly) |
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39 | (5) |
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(8) What are not representations |
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44 | (18) |
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(9) Materiality of the representation |
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62 | (12) |
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D Representation must be Made by the Representor to the Representee |
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74 | (7) |
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(1) Those by whom the representation may be made |
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74 | (2) |
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(2) Those to whom the representation must be made |
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76 | (5) |
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E Representation must be False |
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81 | (19) |
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(1) Substantial correctness sufficient |
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83 | (5) |
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(2) Representation must be false at the time of reliance |
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88 | (2) |
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(3) Continuing representations and changes of circumstances |
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90 | (10) |
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F Representation must be Relied On |
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100 | (1) |
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(1) Reliance and inducement: a question of causation |
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100 | (3) |
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(2) Ambiguous statements or conduct |
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103 | (1) |
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(3) Causation: fraudulent misrepresentation |
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104 | (1) |
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(4) Causation: non-fraudulent misrepresentation |
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105 | (5) |
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(5) Presumption of reliance and onus of proof |
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110 | (4) |
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(6) Examples of non-reliance on a false representation |
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114 | (5) |
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(7) Opportunity to discover truth does not disprove reliance |
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119 | (2) |
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(8) Subsequent transactions |
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121 | |
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1 | (1) |
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B No General Duty of Disclosure |
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2 | (8) |
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(1) Exceptional cases where non-disclosure permits rescission |
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4 | (6) |
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C Course of Dealings where Disclosure is Required |
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10 | (2) |
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(1) Misrepresentation by silence |
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10 | (1) |
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11 | (1) |
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D Relationships where Disclosure is Required |
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12 | (12) |
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(1) Fiduciary relationships |
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12 | (2) |
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14 | (7) |
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(3) Relationships of trust and confidence |
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21 | (3) |
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E Transactions where Disclosure is Required |
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24 | (1) |
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24 | (17) |
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(2) Guarantees and suretyship |
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41 | (17) |
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(3) Prospective partnerships |
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58 | (1) |
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59 | (6) |
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65 | |
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6 Duress and Undue Influence |
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1 | (4) |
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5 | (70) |
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5 | (4) |
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(2) First requirement: illegitimate pressure |
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9 | (37) |
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(3) Second requirement: coercion in the sense of no practical choice or alternative |
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46 | (15) |
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(4) Third requirement: causation |
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61 | (14) |
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75 | (1) |
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75 | (1) |
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(2) Two ways of proving undue influence |
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76 | (4) |
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(3) Actual undue influence: undue influence proved directly |
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80 | (14) |
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(4) Presumed undue influence: undue influence proved with the assistance of a presumption |
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94 | (26) |
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(5) Severable transactions |
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120 | |
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7 Mistake, Impaired Capacity, and Unconscionable Bargains |
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1 | (1) |
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2 | (39) |
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7 | (5) |
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12 | (15) |
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(3) Special doctrines of rescission for mistake |
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27 | (14) |
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C Impaired Capacity: Mental Infirmity and Intoxication |
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41 | (28) |
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45 | (20) |
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(2) Drunkenness or intoxication |
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65 | (4) |
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D Unconscionable Bargains: Exploitation |
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69 | (6) |
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(1) First requirement: serious disadvantage relative to the counterparty |
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75 | (5) |
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(2) Second requirement: weakness exploited in morally culpable manner |
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80 | (9) |
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(3) Third requirement: transaction overreaching and oppressive |
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89 | (4) |
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(4) Possible defence: counterparty shows that transaction was fair, just, and reasonable |
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93 | (4) |
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(5) Role of independent advice |
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97 | (6) |
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(6) Other Commonwealth jurisdictions |
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103 | |
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1 | (2) |
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B Transactions with Fiduciaries |
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3 | (31) |
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(1) Nature and basis of the fair-dealing rule |
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5 | (6) |
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(2) Scope of the fair-dealing rule |
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11 | (6) |
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(3) Compliance with the fair-dealing rule |
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17 | (17) |
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34 | (15) |
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(1) Consent to adverse duty or interest |
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38 | (4) |
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(2) Disclosure and advice |
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42 | (3) |
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45 | (1) |
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(4) Implication of counterparty |
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46 | (3) |
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49 | (23) |
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(1) Rescission at law and in equity |
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51 | (1) |
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52 | (9) |
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(3) Implication of counterparty |
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61 | (11) |
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72 | |
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1 | (2) |
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3 | (4) |
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(1) The basic rule precluding rescission |
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3 | (1) |
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4 | (1) |
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(3) Knowledge of misconduct |
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5 | (1) |
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(4) Relationship with unilateral mistake |
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6 | (1) |
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7 | (14) |
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8 | (6) |
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(2) Circumstances in which special measures must be taken |
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14 | (4) |
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(3) Special measures that immunize the security |
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18 | (3) |
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D Gratuitous Dispositions |
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21 | |
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III RESCISSION BY ELECTION AND BY COURT ORDER |
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10 Common Law, Equity, and Fusion |
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1 | (2) |
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B Persistence of the Distinction between Rescission at Law and in Equity |
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3 | (17) |
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3 | (7) |
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(2) The principle that rules of equity prevail |
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10 | (5) |
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15 | (5) |
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C Overview of the Distinctions between Rescission at Law and in Equity |
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20 | (1) |
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20 | (3) |
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(2) Grounds for rescission |
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23 | (7) |
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30 | (4) |
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(4) Differences between rescinding at law and in equity |
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34 | (5) |
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(5) Interaction between the common law and equitable doctrines |
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39 | |
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1 | (2) |
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B How an Election to Rescind is Made |
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3 | (50) |
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(1) Communicating an unequivocal intention to disaffirm |
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3 | (12) |
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(2) Conduct must be unequivocal |
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15 | (4) |
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(3) Disaffirming by pleading |
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19 | (11) |
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(4) The need for communication |
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30 | (11) |
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(5) Rescission as a defence |
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41 | (7) |
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(6) Need for a tender or return of benefits at the time of electing |
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48 | (2) |
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(7) Special requirements when defending a call on shares |
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50 | (3) |
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C Transactions Voidable at Law |
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53 | (6) |
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(1) Election effects rescission |
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53 | (4) |
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(2) Election to rescind irrevocable |
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57 | (2) |
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D Transactions Voidable only in Equity |
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59 | (1) |
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59 | (3) |
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62 | (5) |
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(3) The rescission by election line of authority |
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67 | (18) |
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(4) The `rescission by court order' line of authority |
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85 | (12) |
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(5) Other common law jurisdictions |
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97 | (10) |
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107 | (6) |
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(7) Whether election to rescind is irrevocable |
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113 | |
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12 Extinction of the Contract |
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1 | (3) |
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B Rescission at Common Law |
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4 | (3) |
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7 | (1) |
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(1) Contract set aside by court order |
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7 | (4) |
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(2) Contract set aside by election? |
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11 | (11) |
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(3) Discretion to grant rescission |
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22 | |
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IV RESTITUTIO IN INTEGRUM |
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13 General Principles of Restitutio in Integrum |
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1 | (6) |
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7 | (7) |
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14 | (12) |
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26 | (9) |
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26 | (1) |
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27 | (2) |
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29 | (3) |
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32 | (1) |
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(5) Contribution under the Marine Insurance Act 1906 |
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33 | (1) |
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34 | (1) |
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35 | (1) |
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(1) Replacement contracts |
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35 | (1) |
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(2) Contract terminated by agreement |
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36 | |
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14 Mutual Restitution: Rescission at Law |
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1 | (1) |
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B Restitution of Benefits Transferred |
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2 | (43) |
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(1) Nature of the right to restitution |
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2 | (1) |
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(2) Restitution of property transferred |
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3 | (26) |
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(3) Substitutive restitution of property transferred |
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29 | (7) |
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(4) Restitution for money paid |
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36 | (5) |
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(5) Restitution for services provided |
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41 | (4) |
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C Counter-restitution of Benefits Received |
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45 | (1) |
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(1) Nature of the obligation to make counter-restitution |
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45 | (7) |
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(2) The need for a return or tender of benefits received |
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52 | (14) |
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(3) Security for counter-restitution |
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66 | (3) |
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(4) Counter-restitution of property received |
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69 | (7) |
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(5) Counter-restitution for money received |
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76 | (10) |
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(6) Counter-restitution for services received |
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86 | |
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15 Mutual Restitution: Rescission in Equity |
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1 | (2) |
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B Restitution of Benefits Transferred |
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3 | (41) |
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(1) Nature of the right to restitution |
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3 | (1) |
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(2) Restitution of property transferred |
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4 | (10) |
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(3) Substitutive restitution of property transferred |
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14 | (19) |
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(4) Restitution for money paid |
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33 | (6) |
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(5) Restitution for services provided |
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39 | (5) |
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C Counter-restitution of Benefits Received |
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44 | (25) |
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(1) Nature of the obligation to make counter-restitution |
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45 | (18) |
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(2) Counter-restitution of property received |
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63 | (2) |
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(3) Counter-restitution for money received |
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65 | (2) |
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(4) Counter-restitution for services received |
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67 | (2) |
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D Equitable Rescission by Election |
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69 | (1) |
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69 | (4) |
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73 | |
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1 | (1) |
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B Proprietary Claims upon Rescission at Law |
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2 | (10) |
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2 | (3) |
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5 | (5) |
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(3) Tracing into substitutes |
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10 | (2) |
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C Proprietary Claims upon Equitable Rescission |
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12 | (1) |
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(1) Title passes pending rescission |
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12 | (7) |
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19 | (6) |
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(3) When does disaffirmation confer an equitable interest? |
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25 | (16) |
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(4) Retrospective equitable title |
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41 | (4) |
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(5) Proprietary claims in respect of money paid |
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45 | (14) |
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(6) Nature of the proprietary interest arising upon equitable rescission |
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59 | |
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1 | (1) |
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B Restitution and Counter-restitution |
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2 | (30) |
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(1) Benefits derived from land and chattels |
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3 | (11) |
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14 | (1) |
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15 | (8) |
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23 | (7) |
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(5) Offsetting equivalent benefits |
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30 | (2) |
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32 | (3) |
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(1) Improvements and repairs |
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35 | (20) |
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(2) Deterioration and depreciation |
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55 | (6) |
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(3) Irrelevant detriments |
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61 | |
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18 Restitutio in Integrum Impossible |
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1 | (16) |
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3 | (6) |
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9 | (3) |
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12 | (5) |
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B The Bar at Law and in Equity |
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17 | (16) |
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18 | (9) |
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27 | (3) |
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(3) Persistence of the distinction |
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30 | (3) |
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C Where Counter-restitution Not Required |
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33 | (15) |
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(1) Benefits obtained other than under the contract |
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34 | (2) |
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36 | (1) |
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(3) Asset lost following tender |
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37 | (2) |
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39 | (1) |
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40 | (3) |
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(6) Benefits the defendant was bound to confer |
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43 | (3) |
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(7) Worthless assets and services |
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46 | (1) |
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47 | (1) |
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D Counter-restitution and Unavailable Assets |
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48 | (29) |
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(1) Counter-restitution impossible |
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48 | (4) |
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(2) Substitutive counter-restitution |
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52 | (10) |
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(3) The future of substitutive counter-restitution |
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62 | (15) |
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E Counter-restitution: Miscellaneous Issues |
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77 | (29) |
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(1) Possession, occupation, and use of asset |
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77 | (8) |
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85 | (8) |
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(3) Asset depreciated owing to market decline |
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93 | (6) |
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99 | (3) |
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(5) Other intangible benefits |
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102 | (1) |
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103 | (3) |
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F Prejudicial Change of Circumstances |
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106 | (15) |
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(1) Unjustified prejudice |
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107 | (11) |
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(2) Money committed to joint purposes |
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118 | (1) |
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(3) Reversible change of circumstances |
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119 | (2) |
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121 | (1) |
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121 | (3) |
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124 | |
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1 | (1) |
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2 | (7) |
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3 | (2) |
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(2) Rule applies to bargains |
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5 | (3) |
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(3) Unilateral dispositions |
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8 | (1) |
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C Adjustment of Insurance Contracts |
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9 | (1) |
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D Rescission Against Third Party Wrongdoers |
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10 | (7) |
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17 | (9) |
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(1) TSB Bank Pic v Camfield |
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18 | (4) |
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(2) Former exception in cases of mistaken dispositions of real property |
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22 | (4) |
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F Rescission on Terms Elsewhere in the Commonwealth |
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26 | (8) |
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(1) Australia: Vadasz v Pioneer Concrete |
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26 | (5) |
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31 | (1) |
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32 | (1) |
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33 | (1) |
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34 | |
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20 Intervention of Third Party Rights |
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1 | (5) |
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B Protection of Third Party Property Rights |
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6 | (22) |
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9 | (14) |
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23 | (5) |
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C Protection of Other Third Party Rights |
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28 | (3) |
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(1) Multilateral contracts |
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31 | (2) |
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(2) Contracts relating to the subject matter of the voidable transaction |
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33 | (3) |
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36 | |
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1 | (2) |
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B Remote Recipients Vulnerable to Rescission |
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3 | (26) |
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4 | (4) |
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(2) Those taking with notice |
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8 | (14) |
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(3) Assignee of a chose in action |
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22 | (5) |
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27 | (2) |
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29 | (11) |
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(1) Basis of the claim against volunteers and those taking with notice |
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29 | (2) |
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(2) Basis of the claim against assignees of a chose in action |
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31 | (4) |
|
(3) No new claim to rescind upon disposition to remote recipient |
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35 | (1) |
|
(4) Need to rescind original transaction |
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|
36 | (1) |
|
(5) Remote recipient in no better position than original transferee |
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|
37 | (3) |
|
D Consequences of Recovery |
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|
40 | (15) |
|
(1) Avoidance of original contract |
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41 | (1) |
|
(2) No avoidance of contract with the remote recipient |
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|
42 | (1) |
|
(3) Restitution from the original transferee |
|
|
43 | (2) |
|
(4) Counter-restitution to the original transferee |
|
|
45 | (3) |
|
(5) Restitution from the remote recipient |
|
|
48 | (2) |
|
(6) No counter-restitution to the remote recipient |
|
|
50 | (4) |
|
(7) Remote recipient's rights against his transferor |
|
|
54 | (1) |
|
E Protection of Bona Fide Purchasers |
|
|
55 | (1) |
|
(1) Common law and equitable doctrines of bona fide purchase |
|
|
55 | (8) |
|
(2) Protection of purchaser of legal title |
|
|
63 | (1) |
|
(3) Protection of purchaser of equitable title |
|
|
64 | (7) |
|
|
71 | |
|
22 Succeeding to Rights to Rescind |
|
|
|
|
1 | (4) |
|
|
5 | (3) |
|
|
5 | (1) |
|
(2) Beneficiary under a will |
|
|
6 | (1) |
|
|
7 | (1) |
|
|
8 | (1) |
|
D Assignment and Conveyance |
|
|
9 | (1) |
|
|
9 | (2) |
|
(2) Second conveyance of same property |
|
|
11 | |
|
|
|
|
|
|
1 | (3) |
|
B Nature and Justification |
|
|
4 | (10) |
|
|
4 | (6) |
|
|
10 | (4) |
|
C Affirming Party must be Free from the Vitiating Factor |
|
|
14 | (21) |
|
(1) Pressure and exploitation |
|
|
14 | (4) |
|
(2) Misrepresentation, mistake, and non-disclosure |
|
|
18 | (17) |
|
D Need for Awareness of Right to Rescind |
|
|
35 | (22) |
|
(1) Uncertainty as to whether electing party must know rights |
|
|
35 | (5) |
|
(2) Awareness of rights required in England |
|
|
40 | (2) |
|
(3) Awareness of rights not required in other parts of the Commonwealth |
|
|
42 | (9) |
|
(4) Whether knowledge of right to rescind should be required |
|
|
51 | (2) |
|
|
53 | (1) |
|
(6) Deliberately failing to inquire into rights |
|
|
54 | (1) |
|
(7) Proving knowledge of rights |
|
|
55 | (2) |
|
|
57 | (4) |
|
F Unequivocal Words or Conduct |
|
|
61 | (37) |
|
|
61 | (3) |
|
(2) Application of the general principle |
|
|
64 | (27) |
|
(3) Effect of reservation of rights |
|
|
91 | (6) |
|
(4) Possibility of affirming after an election to rescind |
|
|
97 | (1) |
|
G Intention to Affirm is not Required |
|
|
98 | (5) |
|
|
98 | (3) |
|
(2) Where affirming conduct is not known to other party |
|
|
101 | (1) |
|
(3) Relation to awareness of rights |
|
|
102 | (1) |
|
H Affirmation is Generally Irrevocable |
|
|
103 | (7) |
|
|
103 | (1) |
|
(2) Exception where subsequent discovery of new ground for rescission |
|
|
104 | (6) |
|
I Onus of Proof and Pleading |
|
|
110 | (1) |
|
|
110 | (1) |
|
|
111 | |
|
|
|
|
1 | (2) |
|
B The Different Doctrines Engaged by Delay |
|
|
3 | (35) |
|
(1) Waiver by affirmation and by acquiescence |
|
|
3 | (11) |
|
|
14 | (8) |
|
(3) Statute of limitations applied directly |
|
|
22 | (3) |
|
(4) Statute of limitations applied by analogy |
|
|
25 | (12) |
|
|
37 | (1) |
|
C When Delay Bars Rescission |
|
|
38 | (78) |
|
(1) Freedom from the vitiating factor |
|
|
38 | (19) |
|
(2) Need for awareness of rights |
|
|
57 | (7) |
|
(3) Unreasonable delay after emancipation from the vitiating factor |
|
|
64 | (7) |
|
(4) What amounts to unreasonable delay |
|
|
71 | (38) |
|
(5) The significance of prejudice |
|
|
109 | (7) |
|
|
116 | |
|
25 Bankruptcy and Winding Up |
|
|
|
|
1 | (1) |
|
B Bankruptcy and Winding Up Generally |
|
|
2 | (19) |
|
(1) No general bar to rescission |
|
|
2 | (2) |
|
(2) Supervening bankruptcy: rescinding to assert a proprietary claim |
|
|
4 | (4) |
|
(3) Supervening bankruptcy: rescinding to assert a personal claim |
|
|
8 | (3) |
|
(4) Rescission as a defence against the trustee in bankruptcy |
|
|
11 | (1) |
|
(5) Contracting with an undischarged bankrupt |
|
|
12 | (5) |
|
(6) Whether right to rescind survives discharge from bankruptcy |
|
|
17 | (1) |
|
|
18 | (3) |
|
C Winding Up as a Bar to Shareholder's Rescission |
|
|
21 | (1) |
|
|
21 | (3) |
|
|
24 | (7) |
|
|
31 | (11) |
|
|
42 | (20) |
|
(5) When winding up commences |
|
|
62 | (1) |
|
(6) Operation of the bar before winding up |
|
|
63 | (6) |
|
(7) Steps to be taken to prevent the bar operating |
|
|
69 | (8) |
|
|
77 | |
|
|
|
|
1 | (1) |
|
|
2 | (10) |
|
|
2 | (1) |
|
|
3 | (1) |
|
(3) Entire agreement clauses |
|
|
4 | (2) |
|
(4) No representation clauses |
|
|
6 | (3) |
|
|
9 | (3) |
|
C Misrepresentation Act 1967 |
|
|
12 | (22) |
|
(1) Section 3 of the Misrepresentation Act 1967 |
|
|
13 | (1) |
|
(2) Scope of section 3 of the Misrepresentation Act 1967 |
|
|
14 | (9) |
|
(3) Requirement of reasonableness |
|
|
23 | (11) |
|
D Consumer Protection Legislation |
|
|
34 | |
|
27 Bars for Non-Fraudulent Misrepresentation |
|
|
|
|
1 | (4) |
|
B Transfer of Title to Real Property |
|
|
5 | (13) |
|
|
5 | (5) |
|
(2) Abolition of the bar in England and Wales |
|
|
10 | (2) |
|
(3) Partial abolition of the bar in Australia |
|
|
12 | (1) |
|
(4) Abolition of the bar in New Zealand |
|
|
13 | (1) |
|
|
14 | (2) |
|
(6) Hong Kong and Singapore |
|
|
16 | (2) |
|
C Transfer of Title to Personal Property |
|
|
18 | (18) |
|
|
18 | (10) |
|
(2) Abolition of the bar in England and Wales |
|
|
28 | (1) |
|
|
29 | (2) |
|
|
31 | (1) |
|
|
32 | (2) |
|
(6) Hong Kong and Singapore |
|
|
34 | (2) |
|
D Incorporation as a Contractual Term |
|
|
36 | (12) |
|
|
36 | (3) |
|
(2) Abolition of the bar in England and Wales |
|
|
39 | (1) |
|
|
40 | (4) |
|
|
44 | (1) |
|
|
45 | (1) |
|
(6) Hong Kong and Singapore |
|
|
46 | (2) |
|
E Contracts for the Sale of Goods |
|
|
48 | |
|
(1) Bar on rescinding all sales of goods |
|
|
48 | (6) |
|
(2) Rescission barred when contractual right to reject is lost |
|
|
54 | |
|
28 Disproportionate Effect: Section 2(2) of the Misrepresentation Act 1967 |
|
|
|
|
1 | (5) |
|
B Conditions to the Exercise of the Power |
|
|
6 | (4) |
|
C Grounds on which the Power may be Exercised |
|
|
10 | (5) |
|
|
15 | (21) |
|
|
22 | (3) |
|
(2) Two mistaken theories |
|
|
25 | (11) |
|
E Disproportionate Effect and the Fair-dealing Rule |
|
|
36 | |
|
|
|
|
|
|
1 | (1) |
|
|
2 | (61) |
|
|
2 | (6) |
|
|
8 | (5) |
|
(3) Discretion to reject and to reclaim a gift |
|
|
13 | (2) |
|
(4) Special vulnerability of gifts to rescission |
|
|
15 | (9) |
|
(5) Significance of how the gift is made and what is given |
|
|
24 | (3) |
|
(6) Gifts made by conduct |
|
|
27 | (13) |
|
|
40 | (12) |
|
(8) Dispositions of another's assets: powers of appointment |
|
|
52 | (3) |
|
|
55 | (1) |
|
(10) Assimilation of gifts to disadvantageous contracts |
|
|
56 | (7) |
|
|
63 | (570) |
|
|
64 | (4) |
|
|
68 | (4) |
|
|
72 | (11) |
|
(4) Cancellation of deeds |
|
|
83 | (550) |
Index |
|
633 | |