The Present Position of Practical Benefit Q. What is the present position of practical benefit keeping the following cases in mind: 1) Pinnel’s Case (1602) 2) Foakes v Beer (1884) 3) Williams v Roffey (1990) 4) Re Selectmove Ltd (1995) [IMAGE] 1) Pinnel’s Case (1602): The general rule is that if a creditor promises to discharge a debt in return for a fraction of the payment, in paying the agreed fraction, the promisee is not providing consideration for the promise, as this is merely part performance of a contractual duty already owed. Consequently, the debtor is still liable for the whole amount, as he cannot force the promissor to accept less. This is true unless the debtor provided fresh consideration for the promise. Where there was the introduction of some new element in the transaction, (at the creditor's request), then the court said it would be prepared to hold the creditor to his promise. However, the rule in Pinnel's Case can be avoided by providing "extra consideration, altering the way payment is made, by paying earlier, at a different time or place or via third party. So that, for example, would mean that the creditor was bound. In Pinnel’s Case, the court held that mere partial performance of the original obligation did not suffice to discharge the whole debt. The court found in favour of Pinnel, because part-payment of an original debt did not make for fresh consideration. Therefore the agreement was not a contract. The doctrine of consideration was also used was where alteration promises were made regarding the part payment of debts. The general rule as established in ... ... middle of paper ... ...se to pay extra and not to pay less. It should be noted, however, that the Court of Appeal in Re Selectmove were unable to distinguish Foakes v Beer (a House of Lords decision), in order to apply Williams v Roffey (Court of Appeal). It therefore remains to be seen whether the House of Lords would decide this point differently. In any event, the equitable principle of promissory estoppel may provide the debtor with relief. The Court of Appeal failed to acknowledge that its decision in Williams v Roffey was incompatible with the decision of the House of Lords in Foakes v Beer. Instead of harmonising these two lines of cases, the Court of Appeal in Re Selectmove Ltd restricted the application of the practical benefits analysis to the context of contract modification relating to only the supply of goods and services.
Peculiar means odd, strange or unusual. So how could benefits be peculiar? It’s how we as people make it to be, as Roxane Gay emphasizes in her article “Peculiar Benefits,” published in 2012. Roxane Gay argues how we must move past the dispute as to why we must recognize privilege to get past societal problems and to not allow its meaning to continue to become diluted. Gay builds a strong argument mainly through audience adaptation, language and her choice of rhetoric was effective enough to affect my perception on her point of view.
In Utilitarianism, J.S. Mill gives an account for the reasons one must abide by the principles of Utilitarianism. Also referred to as the Greatest-happiness Principle, this doctrine promotes the greatest happiness for the greatest amount of people. More specifically, Utilitarianism is a form of consequentialism, holding that the right act is that which yields the greatest net utility, or "the total amount of pleasure minus the total amount of pain", for all individuals affected by said act (Joyce, lecture notes from 03/30).
In reaching this conclusion the court drew upon the statement of Glanville Williams that “the right to contribution among co-debtors is independent of any present rights of the principle creditor.” Further, Wolmershausen v Gullick was applied as authority for the proposition that the right to contribution exists between co-sureties despite the fact that enforcement by the creditor may be barred against one debtor. Therefore, because the covenant did not extinguish Ms Lavin’s liability under the guarantee, it followed that the parties continued to share co-ordinate liabilities so as to entitle Ms Toppi to recover contribution from Ms
“Achieving meaningful use”, a statement that strikes fear in many, also leaves the questions: How do we accomplish putting everything in place to reach the mark? How is our bottom line going to be affected by the change in workflow? Is the change worth the effort? Will patient care improve? These questions, and many others, escalates dread in staff without a capable pilot navigating a well-developed implementation plan. Accomplishing Stage 1 meaningful use in my clinic was a difficult process to complete. Change, in many forms, was necessary to reach the pinnacle of achievement. This paper attempts to outline the alterations made in our clinical workflow to meet Meaningful Use Stage 1.
As with the emerging theory of capitalism in the 18th and 19th Century England, we could speak of “pleasure” as “pluses” and “pains” as “minuses.” Thus the utilitarian would calculate which actions bring about more pluses over minuses.
Utilitarianism was first brought up along the nourishing of “The Greatest Happiness Principle” introduced by Jeremy Bentham and further developed by John Stuart Mill, who was a follower of Bentham (Sweet, 2013). Based upon its principle, Utilitarianism states that to be good is to generate the greatest possible amount of happiness for the greatest number. In contrast with rational egoism, Utilitarianism focuses more on maximizing the overall net happiness of the majority. When facing a decision to make, utilitarianism provide us the evaluations of actions taken based upon their consequences (Sweet, 2013). By weighing the consequence, the model often produces more practical results.
Lord Selborne in the case of Wilson v Northampton and Banbury Junction Rly Co[ (1874) 9 Ch App 279.] had outlined the purpose of specific performance. His Lordship stated that specific performance will only be granted when it can by that means do more perfect and complete justice. The purpose of granting specific performance is to ensure that justice can be uphold as perfect as it could be. However, the specific performance will only be granted when there is inadequate and insufficient remedy of damages to any case of breach of
It was a cool crisp October night and a family was on their way home from a high school football game. The children were in the back seat playing quietly and the parents were having a pleasant conversation about the game. Suddenly the brakes squealed and the car skidded to an abrupt stop. What was this problem that just about caused an accident and could it have been avoided. This type of incident happens all over the United States and sometimes has a fatal ending. Deer are the cause of this problem and wildlife conservation is a way to help prevent future accidents. Wildlife conservation uses many tools that benefit animals and people. Hunting is a necessary tool used in wildlife conservation and should be considered the most effective way to control and manage the deer population.
In doing so, the court departed from the previous rulings in Lister and Sinclar which only found a personal claim. FHR has attracted academic debates, not least because the effect on unsecured creditors. In this respect, Goode 2011 finds it hardly justifiable to allow a principal to rank ahead of the unsecured creditors who have given consideration. Furthermore, Rotherham deems that the finding of constructive trust does not reflect the true intention of briber, because the bribe arguably was never intended for the principal. These points have been noted by Lord Neuberger in FHR, who opined that these should be outweighed by the principal’s proprietary claim. Firstly, the bribe money should not be in the fiduciary’s estate in the first place. Secondly, the payment as such had very often reduced the benefit of the principal relevant transaction and thus can be seen as belonging to the
This essay will examine the main cause of the demise of the derivative claim which is the possibility of pursuing a corporate relief and even costs via an unfair prejudice petition, a relief and order that was initially only available via derivative action. Further this essay will discuss as to how the boundaries between the statutory derivative action and the unfair prejudice should be drawn and what restrictions should be added to the unfair prejudice remedy under section 994 of the Companies Act 2006 so that the significance of the statutory derivative action can be reinstated.
Remember back in school when your parents would bribe you to get all A’s in your classes? Although it may seem like a good idea to pay students for grades, in the long run it just wouldn’t work out. If students were to be paid for good grades the price would be far too high, parents already pay taxes, and school is a privilege that should be taken advantage of.
Utilitarianism is a difficult topic to fathom, for it requires a large amount of questions and self-evaluation. In order to understand utilitarianism, think of bad versus bad. A principle stating that when one is faced with two difficult decisions, which choice would be less harmful for all of those involved? John Stuart Mill and Bernard Williams describe utilitarianism as pain versus pleasure or the lesser of two evils approach, and how that approach ties into ones ultimate choice. Utilitarianism is not about the pursuit of happiness, rather, it is really about picking which evil is the best evil.
The House of Lord in the UK took the approach that an agreement to arbitrate an intention to have all disputes relating to a contract including it legality resolved by arbitration. In Victoria we take the approach taken in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2009] VSC 553 “In case there is any breach of the provisions under this Agreement by either party during the effective period of this Agreement the parties hereto shall, first of all, try to settle the matter in question as soon and amicable as possible to mutual satisfaction or if not so settled within 60 days such matters will be referred to arbitration in Territory for resolution”. Justice Hargrave determined that the wording in the TCL limited the dispute clause as it arose under the distribution agreement and Justice Hargrave made it clear by saying that the interpretation of such clauses was not subject to any
Consideration is anything of value promised to another when implied a contract. It is a promise, made in writing and signed by the person to be charged.Under section 2(d) of contract act 1950 define as promise has done something promise to
The main aim of this article is to undertake a analysis of the effect that the advantage to creditors requirement has on sequestration applications. In terms of the Insolvency Act 24 of 1936 there are two processes that a debtor may sequestrate his estate. Either by voluntary surrender of his estate or by compulsory sequestration. In both these instances there is a requirement that the granting of the sequestration must be to the “advantage of the creditors”. A discharge of debtors from debts is a something yet to be realized if the advantage requirement is not relaxed. Although the Act does not outline what constitutes an advantage of creditors, the courts have interpreted it to encapsulate a benefit to creditors.