A frustrating experience Summary of the journal article: Damages is the common remedy in cases of breach of contract. The party who is not able to perform the contract is broadly liable for damages. However, there is an exception to this principle, ie. common law doctrine of frustration. A contract is said to be discharged when performance becomes impossible, illegal or radically different from what was formerly envisaged. In other words, a contract is frustrated, when, after the contract is made, and without the default of either party, a change of circumstances occurs which renders the contract legally or physically impossible of performance. From the journal article, it is said that cases have usually been confined to uncommon situations, or situations where it would be extremely tough to arrange for another individual, or a third party to carry out the service in question. The doctrine of frustration has fallen out of vague due to the development of statutorily implied terms. In the case of Atwal v Rochester , the High Court has placed it firmly back on the agenda for sole traders, and those contracting with them. This case is a county court case. However, a point was raised which appears not to have been considered before, Her Honour Judge Kirkham ordered that the case be transferred to the High Court for the sole purpose of giving judgment. After the judgment was given, it was transferred back to the county court for all other purposes. As will be discussed, the two issues in this case were whether it is a personal contract and whether the contract was frustrated or repudiated. In Atwal case, the issue in dispute was the nature of the performance required under the construction contract. The contract was between propert... ... middle of paper ... ...t a construction may constitute a personal service contract. Any contract involving a sole trader should expressly state what is to happen in the event that the sole trader becomes ill or incapacitated. Otherwise, this will leave the affected party with no recourse against the sole trader but to go to the trouble and expense of entering into a new contract with a different contractor. The Law Reform (Frustrated Contracts) Act 1943 was applied in the Atwal case. Generally, the Act applied to commercial contracts, unless it has been expressly excluded in the terms of the contract. A party may avoid being frustrated by an unforeseen event by writing into a contract, provisions on monies and expenses paid or due. Had Mr. and Mrs. Atwal protect their position with alternative provisions, they would not be frustrated by the claim for a "just sum" for valuable work done.
In this case entitled Gulash v. Stylarama there was a contract entered regarding the construction of pools. The pool was built and constructed but after a period of time the pool began to tilt, in which that’s when Gulash decided to sue Stylarama. The suit was that Stylarama violated provisions of article 2 of the UCC (Uniform Commercial Code). Due to the fact the cost of the materials and the labor were not written out in detail but instead of in a lump sum it would make it hard to come up with a sum for the exact cost of the damages. Furthermore, since this is a contract with a mix of goods and services, article 2 of the Uniform Commercial Code would not apply the services only to the goods but the common law would to the services. And
If a breach of contract is both material and opportunistic, the injured promisee has a claim in restitution to the profit realized by the defaulting promisor as a result of the breach. Liability in restitution with disgorgement of profit is an alternative to liability for contract damages measured by injury to the promisee.
It has been stated that “a person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.” In Bowman v Fels, the courts concluded that this section of the act was not interpreted in a way by which it intended to cover or affect the ordinary conduct of litigation by legal professionals, which was the issue that arose here.
The article suggests that mutual intention should replace objective presumptions of intention to provide sufficient evidence for contract formations and argues that the Australian court system has a long way to go. It further investigates the different court hierarchies and examines the impact to them through different case law. The central argument presents that evidence of intention should be of utmost importance and considered in every case, negating a flat objective
The High Court focused primarily on the nature of the employment relationship between Vabu Pty Ltd and its cour...
"A contract is a legally enforceable promise or set of promises. In other words, when promises have the status of contract, the contracting party harmed by a breach of the contract is entitled to obtain legal remedies against the breaching party" (Mallor et al., 2015, p. 320)
The procedure is quick, simpler and cheaper than the full county court process, which is helpful to both litigants and the over worked court system. It gives individuals and small businesses a useful lever against creditors or for consumer complaints. Without it, threats to sue over small amounts would b ignored on the basis that going to court would cost more than the value of the debt or compensation claimed. Public confidence is also increased, by proving that the legal system is not only accessible to the rich and powerful. References: Law for AQA A-level textbook As Brian heap A2 2001 Catherine Elliot and Frances Quinn Seventh edition First published 2001 A-level textbook GCSE Law Brian Heap Jacqueline Martin 2001 2001 Seventh edition Second edition
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.”
The doctrine of Proprietary estoppel is developed by the Chancery Court of King John to manage the problems inherent with the rigidity of the common law, it is an equitable remedy. The doctrine contains 4 elements; assurance, reliance, detriment and unconscionability. This doctrine appears to arise from the LP (MP) Act . It was developed to avoid the uncertainties
A breach of contract is often grounds for a lawsuit,but a breach of contract is often not considered to be a tort at all, it must ordinarily be redressed under the rules for contracts , not the rules for
The construction site was in a downtown area of a large southeastern city, criss-crossed with city streets, utilities, and immediately adjacent to mid-rise and high rise buildings. Nearly all of the work was required to be constructed within temporary piling structures to limit settlement of adjacent structures. The construction contract called for seven phase releases of work areas and nine completion milestones, each milestone has its own liquidated damages penalty. The construction contract was valued at $10 million, and the duration was 545 calendar days. Following the completion of the work, the contractor filed a claim for $5.5 million and 1.1 million in interest. The authority subsequently denied the claim and the contractor, in accordance with the contract, filed an arbitration demand with the American Arbitration Association. Following the contractor’s issuance of the demand letter, the parties agreed to resolve the dispute through negotiation” (Ray,
This case mentioned below is a fine example of understanding the Law of Contract in a better manner. (Gerald, 2014).
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.
Breach of a contract – failure or refuse to perform than the contract has been breach than the other party has the right to terminate the contract.
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...