Lord Hobhouse of Woodborough and Lord Walker of Guestingthorpe have concluded that, as the contract was the written document, the identity of the hirer falls to be ascertained by constructing that document… Lord Nicholls of Birkenhead and Lord Millet have adopted a different approach. They point out the illogicality of applying a special approach to face to face dealings... They propose elegant solution to this illogicality. Where two individuals deal with each other, by whatever medium, and agree terms of a contract, then a contract will be concluded between them, notwithstanding that one has deceived the other thinking that he has the identity of a third party. In such a situation the contract will be voidable but not void... While I was strongly attached to this solution, I find myself unable to adopt it. Per Lord Philips of Maltravers in Shogun Finance Ltd v Hudson [2003] UKHL 62; [2004] 1 AC 919 at [167]-[170]
Explain why you agree or disagree with the approach of Lord Nicholls and Millet.
It is evident from case law that the law regarding mistake has been inconsistent as a result of irregular decisions being made in cases with similar facts. In situations where a third party and their rights are concerned it is necessary to consider if the contract between A and B is void or voidable. Therefore, It is no surprise that Lord Nicholls and Lord Millet have raised an issue with the decision taken by the majority in Shogun Finance Ltd v Hudson and have deemed the law of contract to be unsatisfactory and unprincipled. However, before discussing that in depth it is important to understand the basic law of mistake. As defined by Pendleton in Vickey [1998] mistake can be a ‘misunderstanding regarding a fact, causing one or more parti...
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...bsolete, and the decisions in Ingram and Hector v Lyon will be overruled by doing so. The law is constantly changing as time goes on and it seems the time for this particular law to change has come.
In conclusion, the majorities effort to adopt a formalist approach and affirm the accuracy of Cundy do not seem like they can stand as the cracks in the decisions made have shown. Lord Nicholls and Millets approach is just more realistic and will allow judges to really look at the facts of cases rather than try their best to keep in form with the doctrine in Cundy. Taking the minorities approach is best all round as it means the law can be fairer especially when considering third parties. This area of law has been complicated for far too long, when really the confusion is unnecessary. The decision in Shogun has indeed been a missed opportunity to clarify the law (Hare).
d by agreement in the court of appeals. By applying principles to the conflicting laws, the judge is able to make the greatest social advancements by both punishing for actions causing harm and also giving hint that his honest intentions did not go unnoticed and such intentions should be upheld in society. Looking at the case R.V.Machekequonabe, it is a prime example of conflicting rules. It is always difficult to decide which rule should be followed and which should be rejected, especially in cases where cultural upbringing plays such a major role.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
"I do not mean to either excuse Vere's technical errors or to argue that technicalities are unimportant. . . . [But] to base criticism of the legal order on procedural errors is to risk explaining injustice as the acts of corrupt, or even just well-intentioned but confused individuals in positions of authority. It avoids questioning the order to which the legal system is intricately related.
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.
The liability for negligent misstatement may arise from pure economic loss. According to Steele (2010), ‘Economic losses will be regarded as “pure” if they do not flow from any personal injury to the claimant nor from physical damage to his or her property’. The boundaries between “pure” economic loss and the loss which is “consequential” from damage were established by the Court
In order to critically assess the approach of the courts in allowing damages for pure economic loss in cases of negligence. One must first outline what pure economic loss is and what it consists off. Pure economic loss can be defined as financial loss or damage to one party caused by another party due to their negligence however the negligent act that is carried out is ‘purely’ economic and has no relation to any physical damage caused to any person or property. Numerous cases illustrate pure economic loss and losses that are deemed to be ‘purely economic’ are demonstrated under the Accidents Act 1976.
HILLIARD, J. And O’SULLIVAN, J. (2012) The Law of Contract [Online] 5th Ed. Oxford: Oxford University Press. Available from - http://books.google.co.uk/ [Accessed: 2nd January 2014]
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
The basic law of a contract is an agreement between two parties or more, to deliver a service or a product. And reach a consensus about the terms and conditions that is enforced by law and a contract can be only valid if it is lawful other than that there can’t be a contract. For a contract to exist the parties must have serious intentions, agreement, contractual capacity meaning a party must be able to carry a responsibility, lawful, possibility of performance and formalities. Any duress, false statements, undue influence or unconscionable dealings could make a contract unlawful and voidable.
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
A contract is an agreement between two parties in which one party agrees to perform some actions in return of some consideration. These promises are legally binding. The contract can be for exchange of goods, services, property and so on. A contract can be oral as well as written and also it can be part oral and part written but it is useful to have written contract otherwise issues can be created in future. But both the written as well as oral contract is legally enforceable. Also if there is a breach of contract, there are certain remedies for that which are discussed later in the assignment. There are certain elements which need to be present in a contract. These elements are discussed in the detail in the assignment. (Clarke,
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...