The old common law had a doctrine of absolute contract under which contractual obligations were binding no matter what might occur (Paradine v Jane, 1647). In order to ease the hardship which this rule caused in cases where the contract could not be properly fulfilled through no fault of either party but due to occurrence of unforeseen events, the doctrine of frustration was developed. The original theory was that frustration discharged the contract through an implied term to that effect (Taylor v. Caldwell [1863], Tamplin Steamship Co. Ltd. v. Anglo-Mexican Petroleum Products Co. Ltd. [1916]), but the modern view is that the parties' actual intentions are irrelevant and that it is up to the courts to impose a just and reasonable solution (per Lord Wilberforce, National Carriers v Panalpina [1981]). I totally agree with Bingham LJ that "the object of the doctrine of frustration is to give effect to the demands of justice, to achieve a just and reasonable result" and here I will explain why. In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha... ... middle of paper ... ... of Lords in The Fibrosa (1943) which held that where there was a total failure of consideration, losses that accrued up to the frustration would be recoverable. But even after Fibrosa certain problems, such as the expenses incurred before the frustration remained. Therefore seeing that the common law was too rigid, The Law Reform (Frustrated Contracts) Act (1943) was introduced. The Act however did not sort all the problems either because, as Goff J put it in BP v. Hunt (1979) ( in relation to s.1(3)), its focus was upon the prevention of unjust enrichment and consequently it does not address itself to the recovery of reliance losses which don't result in a benefit to the other party, nor does it seek to apportion the losses between the parties.
The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ?
Darrin M. McMahon author of In Pursuit of Unhappiness (December 29, 2005), McMahon's editorial. McMahon says that Americans should be happy,” in pursuing of Unhappiness,” we seek to bring one year to its natural happy conclusion... McMahon uses pathos, and logos to prove his point. In the 9th paragraph, he writes, “who have their minds fixed other things than their own happiness,but the happiness of others” he uses pathos as he speaks about happiness in when he says that people care about others than themselves he says, “their own” which makes the person feel that people don’t care about themselves as much as they think they do. The author uses appeals like happy New Year, Christmas and etc.
[11] Ingam, T., The English Legal Process, 10th Edition (Oxford: Oxford University Press, 2004) p.224. [12] Supra at note 2, p.1. [13] Id. [14] Id. [15] Spencer, J. R., Jackson’s Machinery of Justice, 8th Edition, (Cambridge: Cambridge University Press, 1989). [16] Id.
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
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
3. Sir Frederick Bollock & F. W. Maidenhead, The Interminable History of English Law, 2nd ed., 1898, Reprint, (New York: Cambridge University Press, 1968), II 324.
Goetz, Charles J. And Scott, Robert E. Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach. Columbia Law Review, 7.4 (1977): 554-594. Print.
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’.
writing for the majority, command that the contract wasn't with the total world, however rather with people who fulfill the stipulated conditions. He relies on his construction of the document that there is no time limite of the contract.Then the Lord Bowen LJ came with a conclusion that if so :it seems to me that the advertisement was so clear and there was ample consideration for the promise, and that, thus, the plaintiffhave the right to recover her reward.
This case mentioned below is a fine example of understanding the Law of Contract in a better manner. (Gerald, 2014).
Although ADR is an appealing alternative to litigation today, throughout the early history of the United States, courts expressed much hostility toward the idea of enforcing an agreement through any alternative dispute resolution. Throughout the 1900’s, United States courts were reluctant to enforce any agreement to arbitrate an existing or future dispute unless a specific statute...
The cases between Adam v Lindsell is the case was consider when mutual assent to an mutual agreement occur in the particular circumstances of a mail contract. If nce was effective when it arrived at the address or when the defendant saw it, then no contract would have been made and sale to the third party would a mount to revocation of the offer. However, the courts held that the offer had been accepted as soon as the letter had been posted . Adam v Lindsell was indeed a contract in existence before the sale of the wool to the third party, even though the letter had not actually been received by defendant. The trial court was held that Adam’s acceptance was valid when Adam put it in the mail, and that any postponed in process of receiving the acceptance that w...
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...
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...
...ntradiction of terms. If the Court finds it unsatisfactory, doesn’t that imply that the Court already believes the authorities are not doing justice? How much “convincing” would they need? Duffy again points out the need for revision in the treaty.