Contract Law The law of contract recognises that an agreement is dependent on consent and this, therefore, implies that an agreement obtained by threats or undue persuasion will be insufficient. Many contracts in practise involve a degree of 'arm twisting' and this raises the question as to what level of pressure is acceptable to exert over another contracting party? This problem is dealt with by the common law doctrine of duress and the equitable doctrine of undue influence. The courts have developed these doctrines over a long period of time and since the Judicature Act 1873 it has been the duty of all courts to administer both doctrines concurrently. Both common law and equity agree that a party cannot be held to a contract unless he is a 'free agent'. A party who is subject to duress or undue influence is said to have had his will 'overborne' so that he is incapable of making a free choice or even acting voluntarily. It has been argued that the way in which these doctrines have been developed has meant that not enough importance is placed on whether the contract is fair or not. It is the aim of this essay to analyse the development in the law of duress and undue influence and determine the validity of this argument. The common law doctrine of duress allows a party to avoid any promise extorted from him by terror or violence. A contract that has been made under such circumstances is said to have been made under duress. If duress is established it has the effect of rendering the contract voidable. As mentioned previously, agreement in the law of contract depends upon consent. The juristic basis for duress is that agreement obt... ... middle of paper ... ...[1976] 1 Lloyd's Rep 293 [13] North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 [14] Atlas Express Ltd v Kafco (Importers and Distribution) Ltd [1989] QB 833 [15] CTN Cash and Carry Ltd v Gallaher Ltd [1994] 4 All ER 714 [16] Pao On v Lau Yiu Long [1979] QB 705 [17] Tate v Williamson [1866] 2 Ch App 55 [18] Allcard v Skinner [1877] 36 Ch D 145 [19] Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 [20] Lloyds Bank v Bundy [1975] QB 326 [21] National Westminster v Morgan [1985] 1 All ER 821 [22] Goldsworthy v Brickell [1987] Ch 378 [23] BCCI v Aboody [1990] [24] Barclays Bank v O'Brien [1993] 4 All ER 417 [25] CIBC v Pitt [1993] 4 All ER 433 [26] Massey v Midland Bank [1995] 1 All ER 929 [27] Banco Exterieur Internacionale v Mann [1995] 1 All ER 936
When discussing the concept of contract law, there exist two bodies of legal rules that may apply to the contract. These bodies are the common law of contracts and Article 2 of the Uniform Commercial Code or the UCC. The common law of contracts is court made and is constantly changing, but the UCC is required in every state within the U.S.A. It is important to know which one to use and when, as well as what the differences between them are.
Whether oral or written, the contract must manifest a mutual intent to be bound expressed in a manner capable of being understood, and include a definite offer, unconditional acceptance and consideration.” (Express Contract 2016) The above definition is a much clearer explanation with key elements outlined; 1. mutual intent, 2, expressed in a manner capable of being understood, 3. definite offer, 4. unconditional acceptance and 5. Consideration.
-up to the individual to decide whether they contract or not and on what term (McMillan)
Contract laws had two problems which are old contract law principles often did not reflect modern business practices, and law had become different from one state to another. On many legal topics, contacts law included the national government has had a little to say and has allowed the state to act individually. The UCC was made as an effort to answer two problems. I was a proposal written by legal scholars not a law drafted by members of congress or stat legislatures. The scholars at the American law institute and the national conference of commissioners on uniform state laws had great ideas but they had no legal authority to make anyone do anything. Over time, lawmakers in al fifty states were persuaded to adopt many parts of the Uniform Commercial Code. They responded to persuasive arguments such as businesses will benefit if most commercial transactions are governed by the modern and efficient contract law principles that are outlined in the uniform commercial code. Also businesses everywhere will be able to operate more efficiently, and transactions will be more convenient, if the law surrounding most of their transactions is the same in all fifty states. The main focus is in the article 2 of the uniform commercial code book.
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.”
In his article he states that “a contract implies mutually, an agreement or at least the outward appearance of an agr...
As mentioned earlier, there are certain requirements which must be met for a contract to be valid; requirements needed include agreement, consideration, contractual capacity and legality. For an agreement to be valid there must be an offer and acceptance present. In other words, there must be an intent known and understood for the contact to have an agreement. With that being said, there is no
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]
Contractual agreement has always been viewed in terms of offer and acceptance. The universal principle to contract law has always been parties may get into an agreement in whichever way they deem fit and they are subject to certain terms as they choose. As far as legal requirements vital to their formation are binding contracts may be formed. Moreover a binding agreement may be manifested in terms of writing or in verbal form.
This case mentioned below is a fine example of understanding the Law of Contract in a better manner. (Gerald, 2014).
The issue in this case is whether there is a legally binding contract between Roland and Bernie. The things that needs to be considered is whether there is an agreement between Roland and Bernie. If there is an offer and acceptance, then there is an existence of agreement. According to Section 2(a) of the Contract Act 1950, offer can be defines as when one person implies his/her willingness to another in order to acquire their consent. (Abdullah et al, 2011) The person who make the offer is known as ‘offeror’ or ‘promisor’. (Lee and Detta, 2009) An offer can be made in the method of orally, by conduct, writing or by the mixture of these forms. An offer must require an effective communication with offeree. The formation of contract when offeree accepted the proposal. (Dass, 2005)
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
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,
1 a.) Consideration within contract law means that a seller promises to provide goods in exchange the buyer will provide money. This is sometimes referred to as “the price paid for a person’s promise”. A definition for consideration was set out in the case of Currie v. Misa (1875) LR 10 Ex 153 it was defined in the following way: “A valuable consideration, in the sense of the law, may consist either of 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”. (Legal sectary journal, 12/01/2016)
One of the last remaining strongholds of classical contract law is the notion that contracts require offer and acceptance therefore, in order for a contract to become binding, offer, acceptance, consideration and intention to create legal relations must exist. However contracts are formed in different ways for each different circumstance. (Shawn Bayern, Offer and Acceptance in Modern Contract Law: A Needles Concept, 103 Cal. L. Rev. 67, 102 (2015)