The presumption can be rebutted when the party received independent advice as was the case in Zamet v Hyman [1961] 3 All E.R. 933, or when it is clear that the party have intended to act in an odd way (see for example Re Brocklehurst 's Estate [1978] Ch 14 331 where there was an intention by the dceased to devalue his own estate). However the presumption will not be rebutted when the person who benefits has acted in an underhand way, such as in Hammond v Osborn [2002] EWCA Civ 885 where a carer had acted in slightly underhand way, leading to the courts finding that the gift of the whole estate was void because of undue influence. It is interesting to note that Zamet has not been followed entirely in the most recent of cases. In the case …show more content…
This means that damages are unlikely to be awarded, and instead the claimant will be entitled to a remedy such as recission, the setting aside of the contract. This limit on outcome can be seen as slightly unfair as some parties may wish for the transaction to remain in place, and they just be compensated for their loss. This would particularly be the case when there are collateral contracts in existence, meaning that a whole chain of transactions must be set aside for the original wronged party to achieve any sort of justice. In case law we see that the party is effectively hamstrung from a remedy. In The Atlantic Baron [1979] QB 705, shipbuilders increased the price of a ship they were building by 10% due to currency fluctuation. They had no contractual basis for doing so, but as the owners had a contract for the ship 's charter in place, they had to make the payment. This affirmed the contract, meaning that they could not then have it set aside. If damages were awardable, they could have sought the 10% monetary value back from the builders. Instead they were barred from a claim. The lack of flexibility here is therefore questionable justice for the wronged party, who must, for commercial or other reasons, keep the contract intact. It does not appear at all fair that some of contract law is restrained in this way whilst most other aspects are not. It is the submission of this writer that complete justice will only be found in this area when the innocent party can opt to receive damages in lieu of the recission of the contract. The law in this area requires expansion in order to be entirely
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
Non-compete agreements are usually found in employments contracts in where a company wants to prevent their employees from working for a competing company. The focus of the non-compete agreement is to protect a company’s business interest and trade secrets but, a non-compete covenant must be laboriously drafted to follow the state’s regulation in order to be enforced in court. There is an enormous discrepancy when it comes to cases that deal with non-compete agreements since it deals with revising if the non-compete agreement was lawful to begin with; courts do not have a consistent approach to this. A lot of companies request the courts to enforce the covenant but, in most cases, the agreement is unenforceable due to the unethical and unlawful
In the past recent years, we have heard in the news around cases involving assault and battery cases involving professional athletes or other celebrity figures, however, it is “not uncommon in the sport and recreation environment for a person to be harmed as a result of another’s intentional conduct, both on and off the “field of play” Cotten & Wolohan, p. 214). Nonetheless, it is important to understand that the term “liability” is often not limited to athletes-as-combatants. For example, in Law for recreation & sport managers uses an example from page 215 that discusses a youth football game regarding how a referee was attacked by three coaches and also was tackled by a 14-year-old player, resulting in charges of felony battery. Thus, Hamakawa remarks to say, ”recreation and sport managers should be aware that their organizations are not immune from incidents involving participants, parents and other spectators, coaches, and officials, security
Facts:A detective dressed in plain clothes and carried a concealed weapon approached the D from behind while another officer waited near the area. The police officer identified himself and asked if D would like to talk which he agreed to. The officer asked D which state he lived in. D didn’t specify a precise location. The officer asked whether D was carrying drugs in his travel bag which D denied to. When he denied, the other officer appeared about five feet away from D. The search failed to show signs of illegal evidence. THe police officer then asked if he was carrying on his person which he denied to. The officer asked if he can conduct a body search, D complied. The officer started from his ankles, up his leg, and passed over the crotch area. the officer felt small rock-like objects and placed D under arrest. at the station, officer unzipped Ds pants and found a plastic bag of cocaine like substances. D was
These decisions led to a partial striking down of Texas’s capital punishment statute in 1989. The Supreme Court held that the question of whether a defendant would be a “future danger” to the community did not adequately allow for consideration of the defendant’s mental retardation as a possible mitigating factor. (Penry v. Lynaugh). Some jurors might believe that a defendant like Johnny Penry with a low IQ might be more likely to commit future crimes, perhaps because he could not learn from his mistakes or be deterred by the law. That ruling forced Texas to change the way juries were instructed in death penalty cases. Juries needed to understand that a person’s mental retardation should at least be considered as reason for giving him a life sentence.
In this case, it was Judge Zamboni's words that scorched Ava's ears – “And you, madam...you cannot commit felonies and expect reimbursement from the courts...”
An aboriginal by the name of Victor Daniel Williams, was charged in the year 1993 with the robbery of a pizza parlour. He was elected a trial by judge and jury where he pleaded not guilty to the crime. His defence was one of mistaken identity. Nevertheless the jury convicted him of robbery . At his first trial, Williams applied to question potential jurors for racial bias under s. 638 of the Code. In support of his application, he filed materials alleging widespread racism against aboriginal people in Canadian society and an affidavit which stated, in part, “[I] hope that the 12 people that try me
Holts v. Hobbs it’s not merely about inmates in prisons. In fact this case is about who had been barred from growing their beard for religious reasons while being in prison. The main issue of this case is about Religion. Another issue is whether the Department grooming policy requires petitioner Holt’s shaving his beard violate his religious beliefs, and as a result of did the Department required the government to show that they can get their desire goal without imposing a substantial burden on the exercise of religion freedom. The Arkansas Department’s grooming policy have violated the Religious Land Use and Institutionalized Act (RLUIPA).When RLUIPA was not applied to the court, this has stop the government state or local from imposing a substantial burden on an institutionalized person who wishes to express or exercise their religious
After slavery was abolished, life for African Americans changed for the better, however, they continued to face discrimination and harassment. The South and many Northern states were segregated and it was difficult for African Americans to find appropriate housing for their families due to racial covenants in most neighborhoods. During the war, families were crammed into small apartments, which were not conducive to a healthy lifestyle for a growing family. When the war was over, there were few housing choices for minorities. Oftentimes, the “unwanted minority was forced into crowded slums,” according to Irons (p. 66) and the slums were no place to raise a family. During this time, J.D. and Ethel Lee Shelley saved money to purchase a home in a family friendly neighborhood.
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.”
Case: Pascal Surocco et. al. v. John W. Geary. California Supreme Court, 3 Cal. 69; 58 Am. Dec. 385. (1853)
As humans, we have pointless arguments over things that do not matter. For example: currently, many people all over the world are arguing over whether or not water is wet. No one really cares about the true answer. It is just something to talk about. Well, meaningless arguments have always been a thing to do, but no one ever expected anything like a friendly argument to go to the Supreme Court. In 1893, a case made it all the way to the Supreme Court which argued over whether a tomato is a fruit or a vegetable (Caitlin Dewey, The Washington Post.com). Personally, I have always considered a tomato a vegetable, but technically the seeds are enclosed inside of the plant so would that make it a fruit?
...ation of beneficial interests should be considered, to find a balance between trying to find the true intentions of the party,take into consideration of both direct and indirect contributions to the property ,do justice in equity for weaker claimants by imputing and weigh the contributions wisely for a fair distribution of the beneficial interest. Being able to do all this through one particular test will be virtually impossible as the Law Commission has figured out.Hence confusion in this area will persist due to the complexity of relationships in the domestic context but the intentions of the judges to more or less provide justice instead of creating certainty of law will be a constant among the various confusions that this area tends to bring up.
Damages can fall under several different categories. Compensatory damage is directed to put the non-breaching party in the position that they had been if the breach had not occurred. Punitive damages are payments that the breaching party must submit for above and beyond the point that would fully compensate the non-breaching party. Punitive damages are meant to punish a wrongful party for particularly wrongful acts, and are rarely awarded in the business contracts environment. Nominal damages are token damages awarded when a breach occurred, but no money loss to the non-breaching party was proven. Liquidated damages are specific damages that were previously identified by the parties in the contract itself, in the event that the contract is breached. Liquidated damages should be a reasonable estimate of actual damages that might result from a
(2) Where under a contract of sale the price is payable on a day certain irrespective of delivery and the buyer wrongfully neglects or refuses to pay such price, the seller may sue him for the price although the property in the goods has not passed and the goods have not been appropriated to the contract.