Contract Law Night Before Notes PDF
Contract Law Night Before Notes PDF
Contract Law Night Before Notes PDF
1850252740
Consideration
Something of tangible value that is given or forborne in exchange for a promise Thomas vThomas , Dunlop v- Selfridge
Need not be adequate, but must be sufficient
o Thomas , Chappell & Co. Ltd v- Nestle (Adequacy)
o Sufficiency must be something of value in the eyes of the law
ONeill v- Murphy (prayers do not constitute sufficient consideration)
Performance of existing public duty not sufficient unless something over and above
that public duty Collins v- Godefroy , Glasbrook Bros v- Glamorgan County
Council , Harris v- Sheffield United , McKerring v- Minister for Agriculture
Performance of existing contractual duty not sufficient Stilk v- Myrick , North
Ocean Shipping v- Hyundai
Part payment of a debt is insufficient The Rule in Pinnels Case , Foakes v- Beer.
Confusion / criticism / unique nature thrown up by Williams v Roffey Bros &
Nicholls (Contractors) Ltd
Forebearance may be sufficient consideration OKeeffe v- Ryanair Holdings
Must not be past consideration and must move from promisee:
o Roscorla v- Thomas , Reaffirmed in Provincial Bank of Ireland v- ODonnell and Law Society
v- OMalley. All demonstrate the rule against past consideration.
o Exceptions if implicit at the time that it was to be paid for, then may be sufficient
Lampleigh v- Braithwait / Bradford v- Roulston
o Pao On v- Lau Yiu Long - must be done at promisors request, understood that was to be
paid for, type of payment or conferment is legally enforceable.
o Must not be third party consideration Tweddle v- Atkinson , McCoubray v- Thompson
1850252740
1850252740
1850252740
Contractual Terms
Classification warranty, condition, innominate terms (Hong Kong Fir Shipping Co. v- Kawasaki)
Express Terms warranty v- representation (part of contract v- not part)
o
Key factors of determining include, when was the statement made (Routledge vMcKay), if person has special skill (Dick Bentley Productions v- Harold Smith),
importance of statement (Carey v- Irish Independent Newspapers) and whether it is
indicated that the statement can be relied upon and need not be verified (Schawl vReade)
In addition to those above, good examples of application of this test
McGuinness v- Hunter
Hummingford Motors v- Hobbs
Oscar Chess v- Williams
Bank of Ireland v- Smith
Parol Evidence Rule Not capable of contradicting, varying, adding or subtracting from the terms
of a written contract (Bank of Australasia v- Palmer). Contract is bounded by its four walls
Macklin & McDonald v- Gregan.
Exceptions have basically abolished it though, so as to avoid considerable injustice
o
o
o
o
o
If written document does not reflect entire contract Clayton Love v- B&I Steampacket
If needed to explain circumstances surrounding the agreement Revenue
Commissioners v- Maroney
If needed to explain the subject matter Chambers v- Kelly
To correct a mistake
If found that a collateral contract exists
Implied Terms either implied as matter of fact, or matter of law cannot simply do so because
of reasonableness or fairness (see generally Tradax Ireland v- Irish Grain Board)
Matter of Law
o
o
o
1850252740
Exemption Clauses
May be exclusion or limitation clause (viewed with less suspicion perhaps) Alisa Craig Fishing
v- Malvern Fishing
Must be incorporated into contract and construction will be carefully reviewed by courts to
ensure it covers the circumstances in question
Incorporation
o Signed (LEstrange v- Graucob , OConnor v- First National Building Society , Carroll
v- An Post National Lottery)
o If not signed, but reasonable steps have been taken to bring clause to attention of
affected party have they been taken?
Parker v- South Eastern Railway Co
Ryan v- Great Southern & Western Railway Co
Shea v- Great Southern Railway
o Was notice given in advance / at time of contract?
Olley v- Marlborough Court Ltd , Thornton v- Shoelace Parking , Spurling vBradshaw (by course of dealings)
o Narrow construction / interpretation contra proferentum (White v- Warwick /
Canada Steamship Line v- R)
o May never be exempt from a fundamental breach? Resiled from this possible if clear
enough Photo Productions Ltd v- Securicor Transport / Western Meats Ltd vNational Ice and Cold Storage
1850252740
Consumer Protection
Sale of Goods Act 1893, Sale of Goods and Supply of Services Act 1980 various details and nature
of clauses esp. on exclusion of same as well, to be known and capable of explanation, both briefly
and in more detail (dependent on question)
o Section 12 Title and implied warranties
o Section 13 Sale by Description Moore & Co. v- Landauer , Fogarty v- Dickson /
Description v- Quality Oscar Chess v- Williams
o Section 14 Quality of Goods Merchantable Quality / Fitness for Purpose Bernstein vPamson Motors , Rogers v- Parish , Wallis v- Russell
o Protection against exclusion clauses unfairly prejudicing consumer
Other legislation
o European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 key factor
and analysis on test of unfairness reg. 3(2)
o Contracts negotiated away from Business Premises 1989 Regulations
o Distance Selling EC (Protection of Consumers in Respect of Contracts made by Means of
Distance Communication) Regulations 2001Sale of Goods Act 1893, Sale of Goods and Supply
of Services Act 1980
1850252740
Misrepresentation
May be classified as fraudulent, innocent or negligent
o Fraudulent Derry v- Peek
o Negligent Hedley Byrne v- Heller
Must be as to Fact, not intention or opinion
o Wales v- Wadham
o But opinion may be actionable, if exceptional statement reasonable of being relied upon by
representee depends on circumstances
Esso Petroleum v- Marsden (yes)
Bissett v- Wilkinson (no)
Must induce the other party into the contract
o Smith v- Chadwick
o Attwood v- Small
o Darlington Properties Ltd v- Meath County Council
Silence generally insufficient as a misrepresnetation but where capable of interpretation as active
misrepresentation, it may be used / relied upon
o Gill v- McDowell
o Walters v- Morgan
Special Position of Contracts made in uberrimae fides and notion of materiality to same
o Rozanes v Bowen
o Chariot Inns Ltd v- Assicurazioni SPA
o Pan Atlantic Insurance Co v- Pine Top Insurance
o Aro Road & Land Vehicles v- Insurance Corporation of Ireland
o Kelleher v- Irish Life Assurance Company
o Keating v- New Ireland Assurance
Test has evolved to that of the reasonable proposer from the prudent insurer. Proposer in full
disclosure is just expected to be honest, not omniscient. Basis of contract clauses will be
interpreted harshly and strictly in a contra-proferentum manner
Key remedy in this event is that of rescission remember always that equitable remedy
o Consider whether contract affirmed - Re: Hop and Malt Exchange
o Consider where too long a delay in bringing claim Leaf v- International Galleries
o Consider doctrine in Seddon v- North Eastern Salt rught to rescission lost once executed
o Consider whether restittio in integram remains possible, If not rescission may be refused
Clarke v- Dickson or where to grant same would unduly prejudice the position of third
parties Anderson v- Ryan
1850252740
Mistake
Must be one of fact and not of law ignorance of the law is no defence
o OLoughlan v- OCallaghan , Cooper v- Phibbes (abolished in England in Kleinworth Benson
v- Lincoln City Council)
Common Mistake
o Mistake as to existence of subject matter (res extincta)
Courturier v- Hastie
Strickland v- Turner
Galloway v- Galloway
s.7, Sale of Goods Act 1893
o
o
o
Mutual Mistake
o No meeting of mind / no consensus ad idem
Smith v- Hughes
Wood v- Scarth (what would a reasonable man presume)
Raffles v- Wichelhaus
Mespil v- Capaldi
Unilateral Mistake
o If one party is aware, or should be aware of the others mistake
Webster v- Cecil
Hartog v- Colin and Shields
o
Mistake as to identity
Cundy v- Lindsay
Phillips v- Brooks Ltd
Ingram v- Little
Lewis v- Avery
Remedies may vary damages, should be considered though only if a warranty, or fraudulent /
negligent misrepresentation was made must also consider rectification
o Equitable remedy allowing correction Nolan v-Graves and Hamilton , Lucy v- Laurel
Construction effectively to correct terms to basis of oral contract already reached
o Also note other associated remedy for purposes of certainty of non est factum
operating to vitiate / void the contract for mistake strictly limited and applied Bank of
Ireland v- McMenamy , Saunders v- Anglia Building Society
1850252740
1850252740
Effects of Illegality
o Unlawful on its face void ab initio
Grey v- Cathcart
Murphy v- Crean
Hayden v- Sean Quinn Properties
o Performed illegally
Marles v- Philip Trant & Sons
Kavanagh v- Caulfield
Ashmore v- Dawson
o Recovery of property passed under illegal contract
Collins v- Blanton
St. John Shipping v- Rank
Hughes v- Liverpool Victoria Friendly Society
May be illegality under statute, but also under various grounds at common law
o Contracts to commit a crime or tort Everett v- Williams , Beresford v- Royal Insurance
Company , Gray v- Barr)
o Contracts to defraud the revenue Starling Securities v- Woods
o Contracts which break foreign laws
o Contracts trading with enemies of the state Ross v- Shaw
o Contracts that attempt to corrupt public officials
o Contracts promoting immorality Pearce v- Brooks
o Contracts tending to prejudice the administration of justice (Nolan v- Shiels , Keir vLeeman) includes maintenance and champerty Re: Trepca Mines , Fraser v- Buckle
Void Contracts
o Distinct from illegal contracts, as basis of public policy determining that certain provisions
should be deemed repugnant and potentially carved from the remainder of a saveable
contract
o Contracts ousting the jurisdiction of the courts (Lee v- Showmans Guild of GB , Scott vAvery)
o Contracts subverting the sanctity of marriage (MacMahon v- MacMahon , Ennis vButterly)
o Contracts in Restraint of Trade though may be viable if reasonable and in protection of a
legitimate proprietary interest application of the various case-law is key
Esso Petroleum v- Harpers Garage
John Orr Ltd v- Orr
Faccenda Chicken v- Fowler
Murgitroyd v- Purdy
Nordenfelt v- Maxim Nordenfelt (can be worldwide)
McEllistrem v- Ballymacelligott Co-Op (reasonableness of extent of restraint
treated individually on its merits)
Serverance
o Main distinction between illegal and void contracts, the latter may be saved by severing the
repugnant part out the so-called blue pencil test leaving the rest enforceable
o John Orr Ltd v- Orr
1850252740
Cannot be used to rewrite the contract, used only where a line can be drawn, without
changing the overall agreement substantially.
Mason v- Provident Clothing and Supply Company Ltd
Marion White v- Francis
Discharge of Contracts
Agreement
o Must be mutual agreement, accord and satisfaction present.
Performance
o Entire Contract very harsh, but matter of construction whether formed or not
Nash v- Hartland , Cutter v- Powell , Coughlan v- Moroney
o Substantial Performance exception at equity
Hoenig v- Issacs , Bolton v- Mahadeva , Kincora Builders v- Cronin
If voluntarily acceded to some level of part / incomplete performance, that can
be binding Sumpter v- Hedges
Payment for part performance can also be due if contract is a divisible contract
(Taylor v- Laird , Brown v- Wood) or if complete performance is prevented
by the other party (Planche v- Colburn)
Breach
o Repudiatory Athlone Rural DC v- Campbell & Son , Hochester v- De La Tour
o Fundamental Dundalk Shopping Centre Ltd v- Roof Spray Limited. Key identifying
features seriousness and effect of breach and likelihood of recurrence in contracts
with future obligations to be performed
o Breach of Condition
Frustration
o Doctrine has evolved to deal with scenarios where obligations can no longer be
performed as a result of circumstances outside the control of either party
Paradine v- Jane
Gamble v- The Accident Insurance Company
Taylor v- Caldwell (somewhat a relaxation to avoid harsh results)
o Difference between impossibility and mere difficulty - Davis Contractors v- Fareham
UDC , Zuphen v- Kelly
o Frustration of purpose Krell v- Henry ,Herne Bay Steam Boat v- Hutton , National
Carriers Ltd v- Panalpina
o Whether event of frustration was foreseeable or not Mulligan v- Brown , McGuill vAer Lingus and United Airways , Neville & Sons Ltd v- Guardian Builders Ltd
o Self-induced frustration shall not suffice to enable a discharge of contract (Herman vOwners of SS Vicio , Maritime Fish Ltd v- Ocean Trawlers)
1850252740
Remedies
Damages
Question of causation and remoteness of damages must be considered Hadley vBaxendale . Victoria Laundry v- Newman Industries that which flows naturally, plus that
which is reasonably foreseeable from the knowledge of the party in breach, are damages
capable of recovery
st
Wilson and Dunville (1 limb)
nd
Waller v- Great Western Railway , The Heron II , Kep v- Instasun Holidays Ltd (2
limb)
Consequential loss may also be recovered, if not too remote, per earlier tests - Stoney vFoley , Leahy v- Revenue Commissioners , Malik v- BCCI (whilst rare damage for loss of
reputation may be possible)
1850252740
Dublin City Centre (Dublin 2), Templeogue (Dublin 6W) and Online
Website: www.citycolleges.ie
Phone: 01-4160034
Email: [email protected]
Head of Law: Philip Burke, LLB, BL (087 7679 576)
Faculty Manager: Pamela Morton (086 0290 412)
The next course commences Tuesday, June 4th 2013
Lectures are delivered by some of the most experienced and inspiring law lecturers in the country
and are also streamed live as well as recorded and made available for review online.
Irelands best, and most experienced FE1 law lecturers, including Brendan Foley, Philip
Burke, Mark Cockerill , Trish Cronin, Ciarn Lawlor and Ronan Lupton
The most up-to-date and comprehensive FE1 manuals
Live lectures which are also streamed live on Moodle, and are recorded for review
Exam question and solution bank
Dedicated exam review and preview classes
End of course tutorials, as well as memory and study technique classes
City centre location on South Great Georges Street, convenient for bus, LUAS, DART, etc.
Southside Dublin location in Templeogue
Study rooms and library in both locations
Limited class size
1850252740