...Consideration There are many definitions of considerations but the most readily accepted is that of (Lush J in Currie v Misa) “some right, interest, benefit accruing to one party or some for bivalence, detriment, lost or responsibility given, suffered or undertaken by the other”. The price at which the promise is bought - (Dunlop v Selfridge) There are 3 types of consideration; 1. Execute; that is a promise in exchange for a performance of an act. (reward) 2. Executory; this is where there is mutual promises between the two parties, where the obligation constituting the consideration is still to be performed. 3. Pas t; where the defendant makes a promise after the act was performed. Therefore, if A out of gratitude, promises B a reward for something B had already done before A’s promise B cannot sue on the promise. B’s consideration for the promise is already over and done with, in the past. The general rule is past consideration is not consideration. (Roscorla v Thomas) Re: Mc Ardle: - however there are exceptions to the general rule; 1. Common Law Exception; past consideration will support a subsequent promise if the consideration was given at the request of the promisee. (Lampleigh v Braithwaite) N.B. In the Privy Council decision of Pao on Lau Yit Long Lord Scarmanlay down the necessary conditions to apply; a. The act must have take place at the promiser’s request. b. The parties must have understood that the act was to be remunerated, wither by...
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...completion of account’. After that, they consulted their solicitors and sued for the balance. [edit] Judgment Lord Denning MR held that the doctrine of part payment of a debt not discharging the whole ‘has come under heavy fire’ but noted that estoppel, deriving from the principle laid down in Hughes v Metropolitan Railway Co. could give relief in equity. Although in his opinion part payment of debt could satisfy a whole debt, he found that Mrs Rees had effectively held the builders to ransom. Therefore any variation of the original agreement was voidable at the instance of the debtors for duress. “ In point of law payment of a lesser sum, whether by cash or by cheque, is no discharge of a greater sum. This doctrine of the common law came under heavy fire. It was ridiculed by Sir George Jessel in Couldery v Bartram.[1] It was said to be mistaken by Lord Blackburn in Foakes v Beer.[2] It was condemned by the Law Revision Committee (1945 Cmd 5449), paras. 20 and 21 . But a remedy has been found. The harshness of the common law has been relieved. Equity has stretched out a merciful hand to help the debtor. The courts have invoked the broad principle stated by Lord Cairns in Hughes v Metropolitan Railway Co.[3] "It is the first principle upon which all courts of equity proceed, that if parties, who have entered into definite and distinct terms involving certain legal results, afterwards by their own act or with their own consent enter upon a course of negotiation which...
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...NOTTINGHAM LAW SCHOOL LL.B 2012-2013 LL.B – DISTANCE LEARNING COURSEWORK PROFORMA Please complete and submit this form as the first page of every coursework otherwise your coursework will not be accepted. |Student Number: |Tutor: | |Mark Awarded: | |(As shown on your student card) | | | | |N0455569 | | | | Subject:Law of Contract……………………… Coursework Number: Two Date of Submission: 6th January, 2013 • This form MUST be attached to the front of every coursework submission. Work without a proforma will not be accepted by the Law School Office. • All Coursework must be received by in the coursework drop box by 12 noon on the due date. • Late submissions will be subject to strict penalties as referred to in the Course Handbook. • Coursework extensions may only be granted by the Course Leader or the Deputy Course Leader, see instructions in the Course Handbook. Other tutors are not authorised to grant extensions Task On 20th November Keith, the owner of a conference hall, entered into a contract with Tech Ltd. The contract price was £15,000 under which Tech Ltd agreed to install a new high-tech multimedia projection system. It was agreed that the system had to be...
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...Formation of a Contract 3 Consideration and Promissory Estoppel 1. CONSIDERATION In general, agreements or promises are contractually binding in English law only if supported by consideration. The requirement of consideration means that each party must receive or be promised something in return for giving or promising something. Consideration is, therefore, the legal description of the element of exchange and its practical effect is to ensure that gratuitous promises are not binding whereas bargains are. So if A promises B £1000, B cannot enforce that promise because B has provided no consideration (nothing in exchange) for it. It is traditional to define consideration as a benefit to the promisor or a detriment to the promisee. So in Currie v Misa (1875) LR 10 Ex 153, 162 Lush J stated, ‘A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.’ This definition can be misleading unless one emphasises, in line with the need for an exchange, that the detriment to the promisee must be requested by the promisor. So if A promises B £1000 and B, in reliance on receiving that money, buys a car, that may constitute detrimental reliance by B but B has not thereby provided any consideration for A’s promise. In contrast, if A promises B £1000 in return for B’s car (ie A requests the car), B’s transfer of the car...
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...some unforeseen reasons and Belinda was having a wedding at the extention the next after its completion. Key issues: 1. Is there a contract between the two parties? 2. Is it a condition or warranty? 3. What are the terms? 4. How to end contract or stay in contract? 5. Can Adam or Belinda argue on basis of frustration? 6. Can the contract be mutually discharged? Relevant Law: Contract law: A contract is a legal binding agreement or promise. A person who makes a promise is called a promisor and The person to whom promise is made is made is called a promise.(1) carter, penden and Tolhurst If a contract is breached than the plaintiff receives a compensation from the party responsible for breach of contract.( Hadley v Baxendale 1854 pg 529) The terms are frustration( taylor and Caldwell 1863) and implied term. Apply the law to the facts: Is there a contract between the two parties? Yes there is a contract between the two parties. Condition: It is a term that is very important to contract. It is considered so important that non performing it may result in getting sued by the injured party. Frustration: It is the concept devised by the court to deal with situation in which an event beyond the control of the parties. Implied term: A contract may contain a number of terms that the parties or court may “read” into a contract. Can the contract be mutually discharged? Both parties have to abandon their original agreement while there is still something...
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...due to the default in payment of the amount of $35,000 as initially agreed by both parties. Under the general principle of law pertaining to this case, the partial payment of a debt is not valid consideration for a promise to forego the balance amount. The followings are three law cases to support the claim. 1. Pinnel’s Case 1602 5 Rep, 117 Court of Common Pleas Even if the claimant agrees to accept a lower payment. Partial payment is not a valid consideration for compromising the lesser amount received over the actual amount payable. 2. D & C Builders v Rees (1996) 2 WLR 28 Court of Appeal The claimants were successful to recover back the shortfall amount. The plaintiff was not able to rely on estoppel as agreement was not in place for the claimants to accept less. Moreover, the plaintiff had also deceived the claimants on their financial standing in accepting the offer. 3. Foakes V Beer (1883-84) LR 9 App Cas 605 Due the plaintiff inability to pay the interest, it was considered as part payment of a debt. However under the rule in Pinnel’ case, it cannot be regarded as a valid reason not to pay the full amount. In this scenario, Jason is still liable to be sued by Damien in the event if he had failed to pay the shortfall amount of $5,000.00. As Damien is still able to recover back the amount if he intends to pursue this matter in the Court. However, as Damian had only asked for the $5,000.00 after accepting the contract and Jason might argue that...
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...Question: Ian is the finance director at Silver Sachs, a banking ………within a company. What is the likelihood of Ian keeping his job? The position of Ian as a director of the company is one of utmost importance. Directors are tasked with managing the company in such a way as to maximise the benefits to shareholders and other stakeholders, whilst ensuring that the company complies with all applicable laws and regulations. It is, therefore, a serious matter for the company if a director is underperforming or if he or she is at odds with the strategies which the majority of the company’s management have adopted. In such circumstances, there may be no option for the company other than to seek the removal of such a director from office. In many companies, the power to remove a director from office is granted to the board of directors or to a majority shareholder under the company’s Articles of Association. For these companies, removing a director will be a relatively straightforward matter, usually requiring the board or majority shareholder to simply serve written notice on the director in question. For companies which do not have these powers enshrined in their Articles, company law provides a statutory procedure to allow shareholders to remove a director by passing an ordinary resolution at a general meeting of the company. Statutory Procedure The procedure for removing Ian by ordinary resolution is set out in sections 168 and 169 of the Companies Act 2006. A shareholder...
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...Elements of the law of contract Catharine MacMillan Richard Stone 2009 LLB 2650040 Diploma in Law 2690040 page 2 University of London External System This subject guide was prepared for the University of London External System by: u Catharine MacMillan BA (Victoria) , LLB (Queen’s, Canada), LLM (Cantab), Lecturer in Law, School of Law, Queen Mary, University of London and u Richard Stone LLB (Soton), LLM (Hull), Barrister, Professor and Head of Law, Lincoln Law School, University of Lincoln. In the 2004 edition of this guide Catharine MacMillan was primarily responsible for Chapters 1–2, 4–5, 7–8, 10–14 and 16–17. Richard Stone was primarily responsible for Chapters 3, 6, 9 and 15. Catharine MacMillan was responsible for the 2009 revision. This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide. Acknowledgements Figure 15.1 has been reproduced by kind permission of: u Figure 15.1: © Illustrated London News Picture Library. Photographs © C. MacMillan, 2003 Publications Office The External System University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londonexternal.ac.uk Published by the University of London Press ©...
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...Topic 1 Introduction and Elements of a Contract LEARNING OUTCOMES By the end of this topic, you should be able to: 1. 2. 3. 4. Identify laws and Acts which govern the formation of a contract in Malaysia; Explain the definition of a contract; Discuss the basic elements in the formation of a contract; and Analyse the legal provisions regarding each element in the formation of a contract. INTRODUCTION In this topic, you will be introduced to the laws which govern the formation of a contract in Malaysia. You should understand the definition of a contract and each basic element in the formation of a contract, which are made up of offer, acceptance, consideration, capacity, intention and certainty. Students will not only find Malaysian Acts and cases applied in the discussions, but also those from England, India and Singapore. These are facts neces sary to support your answers during the examination. With a clear understanding of all the points above, you should be able to complete all the exercises given in this topic. 2 TOPIC 1 INTRODUCTION AND ELEMENTS OF A CONTRACT 1.1 INTRODUCTION, DEFINITION AND BASIC ELEMENTS OF A CONTRACT In Malaysia, the Contracts Act 1950 (hereafter referred to as CA 1950) governs the formation of a contract. The Sale of Goods Act 1957 governs contracts for the sale of goods, whereas hire-purchase contracts are governed by the Hire-Purchase Act 1967. Apart from these Acts, students will also study English cases and...
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...TOPIC 4: INTRODUCTION TO CONTRACT LAW — ESSENTIAL ELEMENTS OF A CONTRACT — STEPS 3, 4 AND 5 Please remember to check your Bulletin Board. • Chapters 5 and 6 of Turner. • Chapters 5 and 6 of Gibson (optional). Learning objectives After you have completed the readings for this topic you should be able to: > define consideration and be able to identify when it is present; > explain and apply the legal principles relating to consideration; > explain the difference between past, executed and executory consideration; > explain and apply the doctrine of promissory estoppel; > identify contracts which must be in writing; > recognise the classes of persons who have limited contractual capacity and describe the effect that each has on simple contract; > outline the common law rules regarding contracts entered into by infants and which can be valid, voidable or void; > summarise statutory changes to the common law made in NSW and SA in relation to infants; and > outline the common law rules with regard to capacity to contract with respect to corporations and bankrupts, the mentally ill and those under the influence of alcohol. Graduate School of Business 4:2 Step 3: Consideration Consideration is something for something. Put another way, it is the price the promisee pays for the promise. For example, in the case of the purchase of a house, it is that house in exchange for the purchase price. Consideration makes the agreement in a commercial bargain. A person...
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...liability……………………………………………………12. REFERENCE LIST………………………………………………………………………..13 EXECUTIVE SUMMARY CASE STUDY 1: OFFER AND ACCEPTANCE This case involves term such as: offer, acceptance offer, difference between offer and treat, invitation of treat and acceptance of an offer by post. CASE STUDY 2: CONSIDERATION This case of study involves terms such as: part payment, principle of promissory estoppel Pinnels case (1602) and foakes beer (1884). CASE STUDY 3: INTENTION TO CREATE LEGAL RELATION This case of study involves terms such as: intention to create legal relation, domestic contract, social contract and commercial contracts. CASE STUDY 4: contractual terms This case of study involves terms such as: meaning of contractual terms, representation, types of contractual terms. CASE STUDY 5: exclusion clause This case of study involves terms such as: meaning of exclusion clause and legal rules governing the legality of the exclusion clause. CASE STUDY 6: Tort of negligence This case of study involves terms such as: Hedley Byne and Co ltd Heller and Partners ltd (1946), caparo industries v dickman, negligence and special relationship. CASE STUDY 7: vicarious liability This case of study involves terms such as:...
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...Edith Cowan University 2011 LEGAL FRAMEWORK I LECTURE NOTES Note to reader: these lecture notes are compiled for the purposes of the unit LAW1100 Legal Framework I and are selective in nature and scope. The notes are for academic purposes only. Lecture 10 Law of Contract: Discharge of the Contract INTRODUCTION In this lecture, we will first discuss a number of ways in which a contract can be discharged (that is, brought to an end), including the right of termination for major breach of contract. We will then consider the issue of breach of contract in further detail, with a focus on the common law remedy of damages together with the principles by which the Courts can assess damages. We will then discuss the equitable remedies for breach, chiefly specific performance and injunctions, and conclude by considering the issue of expiration of time and the loss of the right to sue. On successful completion of this lecture, you should (within the scope of the course) be able to: identify the ways in which a contract may be discharged describe discharge of a contract by performance describe discharge of a contract by agreement describe discharge of a contract by operation of law describe discharge of a contract by breach describe the remedy set respectively available for breach of condition and warranty describe and understand the remedy of damages and how the quantum of damages is assessed by the Courts describe the principle of...
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...HND BUSINESS MANAGEMENT COURSE: ASPECTS OF CONTRACTS AND NEGLIGENCE FOR BUS [Type text] Page 1 Tables of contents Executive summary-----------------------------------------------------------------Introduction--------------------------------------------------------------------------Case study 1a Augustine and Christina------------------------------------------1b Augustine and Florence------------------------------------------Case study 2a Richmond consultancy business---------------------------------Case study 3 Catherine and Daniel---------------------------------------------Case study 4a Telephones supplied cannot be modified--------------------4b Telephones supplied can be modified-------------------------Case study 5 Grace and Office Supplies Ltd-------------------------------------Case study 6 Alfred and George------------------------------------------------------Case study 7a Test for a Tortfeasor as an Employee------------------------------7b Test to determine if employee’s act was during employment-Case study 8a Mary and Barnett Hospital-----------------------------------------8b Mary and Joe---------------------------------------------------------8c Mary and Thomas--------------------------------------------------Conclusion---------------------------------------------------------------Reference/Bibliography------------------------------------------------ Pages Executive summary [Type text] Page 2 This report is made of eight sections (case studies)-case...
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...is an intention to create legal relations.Why? Because it is a business relationship. In the same way if the hotel had sold our room we would consider legal action of our own. A legally binding contract needs offer, acceptance, intent to create legal relations and consideration. It is the presence of intent to create legal relations and of consideration that converts a social agreement into a legal agreement. Offer Characteristics of an offer Must be certain : Gunthing v Lynn 1831 Must be differentiated from an enquiry : Harvey v Facey 1893 Must be differentiated from an intent to trade: Pharmaceutical Society of Great Britain v Boots 1953 May be to world at large (sometimes termed a unilateral offer) : Carlill v Carbolic Smokeball Co. 1893 During the build up to an agreement there is often a period of negotiation which differentiates an offer from negotiations. e.g. Harvey v Facey and must be distinguished from an intent to trade : Fisher v Bell 1961 and Pharmaceutical Society of Great Britain v Boots Cash Chemists 1953. This is due to...
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...The law of contract A contract is an agreement giving rise to obligations which are enforced or recognized by law. A contract is a legally binding agreement which is enforceable in law. Formality: the law imposes no requirements regarding the form that a contract takes. Generally, a contract made orally is just as valid in law as written contract signed by both parties. 如果there is some good reason for doing so, 这时候law 就会impose requirements. 三种不同的requirements： 1. required to be made by deed (deed 是一个legal document专门用来create right的，formality更加的strict). 例如:有关land的interest问题，合同长度超度3年的， lack consideration的合同(这种lack consideration的合同一般认为not binding 除非made by deed) 2. required to be in writing. 例如： 有关land的sale的问题，bills of exchange（必须sighed），credit &hire-purchase(分期付款) agreements(必须contain certain information 3. required to be evidenced in writing (不需要一定in writing， 但是如果不evidenced in writing的话就会unenforceable, 必须有written evidence 来证明the agreement has been made). 例如：关于guarantee的合同 Guarantee 与indemnity（赔偿、损害保障）的区别：guarantee：如果B fails to pay, A就promise to pay，需要evidenced in writing. Indemnity: 无论出了什么事，不考虑B的liability， in any event, A都会pay for B, 是normal contract,不需要evidenced in writing。 E-commerce & formalities: a contractual offer sent by email 同样被当做being in writing,如果the name is included in the email text 就当做sender已经sign the document. Capacity: the ability to enter into a binding contract. 条件：all living sober(清醒不醉酒) adults of sound(健全完好有智力的) mind. Minor(未成年人)：lack of capacity， 通常这时候contract不是void的，对方无权enforce也不能因为那人是minor而escape...
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