Bristol

Volume 1 Issue 1 February 2009

Written for students, by students

£3:00

List of Contributors

Mark A Jones (Chair and Chief Editor)Department of Law, Filton College, Bristol

Gavin Murray (2nd Editor)Department of Law, Filton College, Bristol

Aaron James & Emma WarwickStudent Chief Editors (AS/2 Law)

Articles written by AS Law students

Samir Adrissi

Patchway Cluster Kids

Dennis Okepoku

Adam Turner

Kiron Young

Nok Ndlovu

Articles written by A2 Law students

Nafisa Ahmed

Sarah Darby

Lois Howells-Ross

Gemma Jefferies

Jenny Kingston

Sean Wood

Welcome to the first edition of the Bristol Law

Review, a student law magazine that is

created for students, by students.

Each month a team of AS and A2 students

from schools and colleges in and around Bristol

will work collaboratively to produce a

comprehensive student based magazine; the

aim is to highlight areas of both the AQA and

OCR syllabus and to help students complete

useful revision guides.

This issues takes a closer look at sources of law,

including legislation, statutory interpretation

and precedent; it also highlights some of the

critical cases and statutes relating to contract

formation, vitiating factors and breach. Each

article tries to provides useful examination tips

and help students to identify the critical issues

in every topic.

There are also articles written by former

students of Filton College, reviewing life at

university and the options that are available

for students wising to pursue a career in law.

We are always looking for new writers and

welcome articles from anyone that is

interested in getting their first piece of work

officially published. The BLR will be available to

buy at £3.00 and this will cover the costs of

printing and any surplus will go towards a prize

fund for the best contribution to a particular

issue. A copy of the article will also go on a

website that is due to be launched in the

summer.

I very much look forward to receiving your

comments and hope you enjoy reading this

first edition of the BLR.

Please feel free to contact me on 01179092221

or e-mail on mark.jones@filton.ac.uk if you

have any queries or are interested in writing an

article.

Note: everything has been done to ensure the authenticity and validity of the

work produced, but we accept no responsibility for any errors or omissions in

the work and are not responsible for any reliance placed upon the

information contained in this or any subsequent issues of the BLR

editorial

Contents

Volume 1 Issue 1 February 2009

Pod Casting: The New Way to

Revise (p.3)

Bristol

Top Tips(p.21)

EU Law (p.4)

Precedent: The House of Lords &

Court of Appeal (p.9)

A 4 part review of the legislative

process & statutory

interpretation (p.5-8)

Contractual Mistake: A review

of the Great Peace (p.19)

Consideration: Williams v

Roffey Bros (p.17)

Promissory Estoppel: A review

of High Trees (p.18)

Contractual Discharge:

Performance, Agreement, Breach

and Frustration (LRFCA (1943)

(p.13-16)

Misrepresentation: A review of

the Misrepresentation Act (1967)

(p.11-12)

Career progress(p22)

4

5

6

18

News from Jan 09

(p.20)

2

Exclusion clauses: the ~Unfair

contract Terms Act (1977)

(p.10)

What is a Pod Cast, and what’s the big deal?

A‘pod cast’ is an on-demand media file that can be

automatically downloaded from the web to a computer

or portable media player, such as an iPod. Given the

ability to engage the learner via a mobile device, it is

critical that we seek to understand just how effective they

are in stimulating the learning process. Perhaps more

importantly, it is necessary to establish whether it can help

students to recall the vast amounts of principles, cases

and facts that are required to succeed in law. This article

will argue that there is sufficient evidence to suggest that

if used properly, they can at worst become a useful aide

memoir and at best, allow students to greatly improve

their powers of recollection and short-term memory.

Tracing the E-volution of Pod Casting

The technology to produce on-line media such as pod

casts have been with us for well over a decade, but have

only very recently gained in popularity, especially

amongst schools and colleges. The iPod has undoubtedly

been one of the drivers that have led to the explosion of

pod casting and students can access e-learning

resources with relative ease, and importantly, speed;

lessons can be downloaded to their MP3 devise in minutes

and can be reviewed again and again, always at their

leisure. Mainstream media such as the BBC now publish

many of their radio shows as on-demand podcasts;

teachers are now doing the same. With the creation of

open-source software like Audacity and the Apple

Garageband, it is possible even for technological novices

to simply plug in, record, upload and download audio

files. The e-volution has spread quickly and as educators it

remains important that we engage learners in a way that

suits them; the learner experience needs to be

personalised, and whether we like it or not, that means

embracing new technology.

So what’s in it for the student?

Young people have grown up with computers, and the .Net-generation are almost all digitally literate and engage with technology on a daily basis, whether that be a phone, MP3 or computer. These digital technologies allow us, as educators, another medium by which to communicate with the learner, and importantly, it can be done at their pace and on their terms. Given the creative freedom this allows, pod casting is being embraced by educators, providing another method for supporting students in their learning. The possible values of pod casts as an integral part of the studentlearning ‘toolkit’ are that they are mobile and easily accessible, popular and non-threatening. The technology is probably not a barrier to learning as students are familiar with using MP3 players for downloading and listening to music.

How exactly can Pod Casts be used to engage students ?

Pod casts can be directed towards learners or initiated by learners; the important issue is to ensure that they understand the purpose behind the exercise and how it feeds in to the overall learning outcomes. They can be used for a whole host of applications:

1) evaluative discussions 2) reviewing key cases or key facts 3) explaining ratio4) describing the development of the law5) reviewing class work / discussions 6) reviewing presentations7) identifying key issues from guest speakers or examiners8) summaries of entire topics9) reflective journals 10) revision prompts

Research has shown the benefits of podcasts include the ability to develop social networking and collaborative learning . Students can choose where and when they want to learn and those whose first language is not English may find podcasts particularly useful. Some evidence has suggested that podcasts improved the understanding of in class material. Pod casts may not work with all students or indeed may not be applicable for all teaching strategies, but what is for certain is that they are another powerful means by which we can engage the learner. That can only be a good thing...

LawreviewBristol 3

On the 1st of January 1973 the UK officially became a member of the European Union following the ratification of the European Communities Act which was given Royal Assent in 1972.

The Act allowed for the ratification of the various Treaties governing the Union.

Treaties are a type of international agreement which, once ratified by a Member State, have the full force of the law. To be ratified means to be incorporated into a member states national law; this is done automatically in the UK because section 2(1) of the European Communities Act 1972 which states that Treaties are [without further action] to be given legal effect.

However, in practice, this is rarely the case: largely due to the fact that they relate more to the structure of the Union rather than providing tangible rights or obligations.

When they do create rights which are clear, precise and unconditional (From: Van Gend en Loos v. Nederlandse Belastingadministratie (no. 26/62) [1963]) they can be relied upon; For example, Article 39 of the EU Treaty which allows for free and unfettered movement throughout the Union.

We therefore say that Treaties are potentially Directly Applicable (i.e. they could be relied upon where they provide rights which are clear, precise and unconditional).

We must, however, break this down a little further and appreciate that the Treaty may be enforced against a Member State (vertical direct effect) or against another citizen (horizontal direct effect).

Arguably one of the most important Treaty Articles is Article 234 of the Treaty of Rome; to which we will return to later.

The second most significant type of Union law is called Regulations. These are a type of secondary legislation which are made under a power conferred by Article 249 of the Treaty of Rome which states that ‘The Union has the power to issue regulations which are binding in every respect and directly applicable in each member state’ What this means is that Regulation, like treaties, are automatically given direct effect in the UK and can be directly relied upon both vertically and horizontally.

This ‘direct application’ was tested in the case of Re Tachographs: Commission v. UK (1979). This case involved an EU Regulation which required all lorries to be fitted with mechanical equipment which measures speed and distance travelled. The UK decided not to enforce the Regulation and instead leave it up to the individual lorry owners to decide; when the matter was referred to the European Court of Justice the court said: Member States have no discretion... Article 249 is explicit and Regulations are automatically law!

Directives are also a type of secondary EU legislation. However, they differ in form from regulations which are generally quite specific in providing rights and obligations, (dos and don’ts if you will).

Directives generally lack detailed or specific information and merely point Member States in the direction that the Union would like. If you consider, it is quite difficult to make rules that can effectively apply equally across all of the very diverse 27 current Member States. Take for example the minimum wage, The Union identified that all Member States must have minimum wages, however due to the socioeconomic differences between Eastern and Western European they could not practically set a figure to this minimum. Therefore they mere directed the Member States to implement ‘a minimum wage’ and thereafter left it to each State to set a figure appropriate for their economy.

Directives therefore have NO direct application and generally cannot be directly enforced by citizens of the Member States simply because the fall outside the test in Van Gend en Loos because they lack clear, precise and unconditional detail.

There is nevertheless some hope insofar as a citizen may be able to claim against a State for losses that they incur as a result of the State’s failure to implement the Directive. This happened in the case of Marshall v. Southampton and South West Hampshire Area Health Authority (1986) Here, Miss Marshall was required to retire at the age of 62 while men doing the same job did not have to retire until the age of 65. The Union had issued a Directive in 1976 (The Equal Treatment Directive 76/206) which the UK had failed to implement. The European Court of Justice held that the directive was sufficiently clear and precise to be relied upon thus entitling her to compensation from the state, BUT only because the State was her employer: if she had been unlucky enough to work for a private company her action would have failed on the basis that there is vertical direct effect only!

Decisions are the final type of Union law; these are issued by the European Commission under Article 249 in its role as Guardian of the Treaties. Decisions are binding only on the receiver who more often than not will be a Member State. Decisions are issued in response to queries or breaches of Treaty obligations and are generally administrative in nature.

Look out for future articles in the series!

Review Questions (1)

1. what is the difference between vertical and horizontal affect?

2. to what extent does EU law precedent over UK Law?

3. what is the impact of failing to implement an EU Directive on time?

4. what is the difference between direct and in-direct affect?

5. explain the central differences between the four types of EU applicable in the UK 4

Part 1: Law Making

The legislative

Process: a step by

step guideKiron Young explains the legislative process starting from a Bill

and ending up with Royal Assent. He gives some handy hints

on what to look out for in exams!

Issues to consider….

1. how many Acts of Parliament are passed each year?

2. what is meant by the supremacy of parliament?

3. when was the last time Royal Assent was refused?

4. what is the difference between a private and public bill?

5. what is delegated legislation?

Legislation:

Legislation is created by Parliament. Legislation is the formal enactment of rules into a document containing the law. Legislation can be referred to in one of three ways, these being; Legislation, Statute and Acts of Parliament. It does not matter which one you use as they are all the same. For legislation to be created it must go through a process which aims to ensure its suitability, appropriateness and robustness. There will generally be a reason behind why an attempt is being made to create legislation on a certain issue such as the Dangerous Dogs Act 1991. This Act was in response to deaths of children by ‘dangerous dogs’.

Often legislation starts out as a consultation paper known as ‘green paper’ where the initial proposals are set out by the government with the purpose of them being commented upon by interested parties. After the initial consultation process the green paper will be more formally drafted into a more detailed document formally known as a white paper which clearly sets out the intentions of the proposed legislation. This again will be put out for consultation for a set period of time. The whole process of legislation is as followed:

First consultation period (green paper); Second consultation period (white paper)

First reading- the title of the Bill is read

Second reading – the purpose of the Bill is debated, a majority vote has to be casted for the bill to continue.

Committee - the Bill is debated. A committee of the House of Commons. 17 to 50 mps.

Report – the Committee will report back to the House of Commons with suggested changes.

Third reading – another vote will be cast to see if the Bill needs further amending

The bill is then passed to the House of Lords where the process happens again. However, if the House of Lords refuse the Bill, the Bill is pinged back to the House of Commons for amendments. If the law is passed, it has to get Royal Assent.

To prevent the House of Lords having control of the laws they pass and reject, the House of Commons made the Parliament Act 1911 so that the House of Lords could pass the law in extreme cases. The Bill had to have waited 2 years for it to be proposed again, this was amended in 1949 to 1 year. For a bill to be passed in this way it has to follow the process of legislation again in the House of Commons as there is a new panel of mps so they may have a different out-look on the proposed bill. Here are 2 of the four most important examples of this process of the enactment of legislation:

Hunting Act 2004

Sexual Offences Act 2003

“The greatest happiness

of the greatest number is

the foundation of morals

and legislation”

Jeremy Bentham quotes

(Philosopher and Activist.

1748-1832)

5

Delegated Legislation

Delegated legislation is a law made by person or body other than parliament, but still with parliament’s authority. An example of delegated legislation would be the Criminal Justice Act 2003, which gives the Secretary of the State power to make delegated legislation in certain areas, like to enable a code of practice for the use of conditional cautions (see PACE (1984) s.66).

Types of Delegated Legislation

There are three types of delegated legislation, these being; Orders in Council, Statutory instruments and Bylaws.

The Queen and Privy Council has the authority to make Orders in Council. The Privy Council consists of the Prime Minister and other leading members of the Government. This means this type of delegated legislation allows the Government to make legislation without going through the formal parliamentary procedure. Orders in Council also allow for the Privy to make legislation in emergency situations (Emergency Powers Act 1920).

Statutory instruments are made by Government ministers, and they’re given the authority to make regulations for areas under their responsibility (Minister for Transport can deal with road traffic regulations, etc.). 3,000 statutory instruments are brought into force each year, meaning this is a major method of law making. In addition to many other Acts, the Legislative and Regulatory Reform Act 2006 give Ministers power to make any provision by order if it will remove one of the following burdens;

*Financial Cost

*Administrative inconvenience

*An obstacle to efficiency, productivity or profitability

*A Sanction which affects the carrying on of any law activity

However, Orders made under the Legislative and Regulatory Reform Act 2006 would not be used to implement constitutional reforms.

The final type of delegated legislation is Bylaws, which can be made by local authorities to cover matters in their area (County Councils can pass laws affecting the county, and District or Town Councils can pass laws affecting the district or town). Most local Bylaws would be traffic control or parking restrictions,

Delegated

Legislation: an

essential evil! Adam Turner, an AS Law student from Filton College,

provides an overview of the essential elements of

delegated legislation.

Why is Delegated Legislation Necessary?

Delegated legislation is necessary because Parliament doesn’t have the time to consider and debate every small detail of complex regulations. Also, Parliament may not understand the technical details of the situations concerned, for instance, health & safety regulations differ between industries. As well as this, the process of passing an Act of Parliament takes a very long time, so in emergencies, laws may not be passed quickly enough.

As Parliament cannot directly regulate delegated legislation themselves, they have a Delegated Powers Scrutiny Committee which was established in 1993 in the House of Lords. This Committee’s job is to consider whether the provisions of the Bills have delegated legislative power wrongly. They report their findings to the House of Lords in the Committee stage of the Bill, but the Scrutiny Committee itself has no power to amend Bills.

Delegated legislation can also be challenged on the grounds that it is ultra vires, i.e. it goes beyond the powers granted by Parliament in the enabling Act. This type of challenge would be made through the judicial review procedure, or could arise in a civil claim. Delegated legislation which is ruled as ultra vires is void and ineffective. An example of this is the case of R v Home Secretary, ex parte Fire Brigades Union (1995), in which changes made by the Home Secretary to the Criminal Injuries Compensation Scheme were held to have gone beyond the power given to him in the Criminal Justice Act 1988.

The main disadvantage of delegated legislation is that it takes law making away from the democratically elected House of Commons, allowing those who weren’t elected to make law themselves. This may be considered acceptable, providing that there is a sufficient amount of control, but as mentioned earlier, Parliament’s control is fairly limited. This criticism cannot be made of Bylaws, as the local authorities are elected by local citizens.

Exam Focus

Exam questions on delegated legislation will focus on

the following

1) describe the 3 types of delegated legislation

2) describe the controls on delegated legislation

3) explain why delegated legislation is necessary

4) describe the process of judicial review

5) discuss the advantages and disadvantages of

delegated legislation

6) discuss the advantages and disadvantages of

delegated legislation

“Delegated

Legislation is an

important and

essential part of

the English Legal

system, with over

3000 amendments

to the law made

each year…”

“You do not

examine

legislation in the

light of the

benefits it will

convey if properly

administered, but

in the light of the

wrongs it would

do and the harms

it would cause if

improperly

administered.”

6

7LawreviewBristol

tatutory Interpretation

Part 1. The 4 rules of Statutory Interpretation Samir Adrissi provides an overview of the 4 methods of statutory

interpretation, illustrating each approach with reference to key cases

Statutory interpretation, in its simplest

form is a single judge’s interpretation of a given statute. This can be effected by the punctuation used or even a single word. These can mean the difference of guilty or non-guilty verdicts. There are four main rules that judges use when interpreting law.

The Literal Rule

The literal rule was and is the dominant approach to statutory interpretation. It is fairly simple if the wording in a statue is clear then the law can be applied literally. However in recent years, there has been a move away from using the literal rule because sometimes it can bring about an absurd outcome.

A case which demonstrates this clearly is the case of London & North-Eastern Railway V Berrimen (1946). The preventions of accidents on the railways stated that it was necessary for a railway company to provide a “look-out man” while someone was “repairing or Relaying” the railway. Mrs Berrimen made a claim for compensation under the Fatal Accidents Act 1846-1908 in relation to her husband, who died while working on the railway. A look out man was supplied. The railway company argued that Mr Berrimen was “maintaining” the railway rather than Repairing or relaying” it. As a result Mrs Berrimen was not awarded any compensation due to the literal approach being used.

The Golden Rule

The golden rule, may be used to qualify the literal rule. The definition of the golden rule may be divided into the narrow meaning and the ‘wider meaning’. The narrow meaning suggest that the word is ambiguous, so judge’s will adopt an interpretation that brings about the least absurd result.

The application of the narrow meaning can be seen in the Adler V George (1964) which the interpretation of the word “vicinity” in the official secrets act 1920 was of concern. To obstruct members of her majesty’s forces in the vicinity of a prohibited place was an offence under this act. The literal meaning of “vicinity” is close to. However the defendant was actually within the prohibited are. The defendant was found guilty as the courts did not limit themselves to a literal interpretation of the word “vicinity”.

The wider meaning, applies when the meaning of a word in an act is clear, but to adopt that meaning would result in a manifest absurdity or repugnance. Therefore the literal rule is not adopted as it would be against the public’s interest to do so (see Re Sigsworth)

The Mischief Rule

This was one of the earliest statements on statutory interpretation & required judges to consider, amongst other things, the problem(mischief) that an act had been required to remedy and the reason for the act’s approach to achieving that remedy.in its application today, the mischief rule begins by seeking the true intention of parliament & therefore the purpose of enacting the legislation. This looks beyond the literal meaning of words in the statue to ascertain the “mischief” or problem, that the act was trying to remedy. Examples of this are cases that have considered the provisions of the Street Offences Act 1959. E.g. in Smith V Hughes (1960) where a prostitute argued that she could not be convicted under the act because she was offering herself to passers-by from a window, rather than from the “public place or street” required by the act, but did not succeed in her argument.

The Purposive Approach

The purposive approach is wider than the mischief rule. According to the law commission, it looks to the “positive social purpose” of legislation rather than focusing on what the act would have been created to deal with. It is a contextual approach. The purposive approach is suggested by the human rights act 1998, it is the required form of interpretation for matters of European community law. However, use of the purposive approach can sometimes be controversial where the social purpose being recognised is one of public policy, an area generally left to parliament’s express intentions.

Key Cases

1. LNER v Berrimen

2. Adler v George

3. Smith v Hughes

4. Magor & St Mellons v Newport CC

5. INCO Europe v First choice

8

Statutory

Interpretation:

Rules of Language Four students from Patchway School consider 3 key

cases relating to the application of the rules of

language

Rules of LanguageDo you have trouble understanding the words in an act? Well so do the courts that is why they developed some rules to help them make words of phrases they don’t understand, clearer.

The rules are:

Ejusdem GenerusExpressio Unius Exclusio AtteriusNoscitur A Sociis

The words are in Latin but all will become clearer.

The Ejusdem Rule

This rule is quite hard to understand as it focuses on lists of words followed by general words, which then are limited to related items as the specific word. A good way to explain is by using the case of Powell V Kempton Park Racecourse (1899). The defendant was charged with keeping a ‘house, office, room or other place for betting’. The defendant was found not guilty as he was actually using Tattersall’s Ring that is in fact an outdoor facility. The court decided that the ‘other places’ referred to places indoors meaning the defendant was not causing any wrongdoing. The case of Allen V Emmerson (1944) is another good example to use as the rule also states that there must be at least two specific words in a list before the general word or phrase can operate the rule. In the case the two words the court heard were ‘theatres and other places of amusement’ to decide if it was applied to funfair. The court decided it was, although it is not a theatre it is a place of amusement.

Expressio Unius Exclusio Atterius

In English this simply means the mention of one thing excludes others. The court will have a list of words but they are not followed by general words that mean the Act will only apply to items within the list. Example: Tempest V Kilner (1846).The courts had to decide whether the Statute Of Frauds 1677 applied to a contract of stocks and shares. The Act itself states that a contract must be made when a sale of ‘goods, wares and merchandise’ over £10 is made. The contract would be a form of evidence in writing. As you can see the list does not mention anything along the lines of stocks and shares. The court reached a decision to hold contracts on ‘goods, wares and merchandise’ and not stocks and shares, as they are not included within the statute.

Noscitur A Sociis

Put simply this means a word is known by the company it keeps. Basically words must be looked at in context and interpreted accordingly which will involve looking at other words in the same or other sections in the Act.Example: Inland Revenue Commissioners V Frere (1965).A section within this Act has a set of rules for ‘interest, annuities or other annual interest.’ Because the first word is interest and it’s on its own which means it could be any type of interest that is paid. The court decided that the interest meant and would only mean annual interest.

We hope this helped you to understand the rules of language a lot more.

By Ellie, Lewis, Jason And B (The Cluster Kids)

LawreviewBristol

PrecedentDennis Okepoku provides an overview of how precedent

operates in the House of Lords and the Court of Appeal

Judicial Precedent

Judicial precedent embodies the idea that whenever a higher court makes a decision the lower court must follow it. Precedent is based upon the Latin maxim stare decisis which means let the decision stand; this seeks to achieve 3 things, consistency, certainty and uniformity

Uniformity is the idea that the rules should be the same everywhere; consistency should mean that the level of justice is fair and impartial and finally certainty where there must be knowledge and clarity of what the law is.

Every judgement is made up of a ratio and an obiter statement: The Ratio Decidendi is the reason for the decision and it is binding in all courts and cases related to the matter, where as the Obiter Dictum is things said by the way. This is where the court is not bound to follow the statement, but rather, is persuaded by it.

How Does the Doctrine of Precedent Apply in the House of Lords?

Before 1966 the House of Lords bound itself. This was the case in London County Council v London Tramways 1898 where the House of Lords could not change their decision to guilty as the amount of impact it would make was too much for the judicial system to cope with. It would have mean injustice to people who had not got a decision in their favour in the past which related to the case.

However, after 1966 Lord Gardiner introduced The Practice Statement which made it clear that the House of Lords could change their decisions in exceptional cases. This was because former laws might have been absurd like in RvR which overruled the decision of Lynskey J in Miller 1954 as it was not acceptable for a man to make his wife have sex with him without consent.

Before changing a decision the House of Lords must consider the impact on things like contracts settlement of property, and fiscal arrangements connected to criminal law. Perhaps more importantly the courts will consider the issues of the defendants liberty. This means that decisions in the criminal divisions of the appeallate courts are more flexible than in the civil.

Generally when faced with a conflicting decision from a previous case the Court of Appeal can decide on which case they want to follow generally they are bound to follow their precedent even if they are wrong.

Fitzpatrick v Sterling Housing Association 1997 was a case in which the Court refused the claimants right to his partner’s property as the Court of appeal were going to follow their ruling in Harrogate BC v Simpson 1986 as the Housing Act 1980 clarified that gay and lesbian couples did not have the same rights as normal married couples.

In R v Parmenter 1991 the court were faced with two incompatible rulings Spratt 1991 and Savage 1991 the Court of Appeal decided to follow Spratt as the defendant did not intend to hurt his baby son .

Balfour v Balfour conflicted Merritt v Merritt as the difference between the two cases where that in B v B there was no obvious reason to suggest that the agreement would have legal consequence however in Merritt the surrounding circumstances in the case suggested that there was intent to create legal relations so this was classed as a contract.

In conclusion judicial precedent helps keep the whole system fair and makes sure there is hardly any inconsistency as if the decisions made were always constantly changing then no one would be able to reference to how the law was applied in previous cases.

Revision Tips

If you are struggling to remember

what happened in case try to

remember something significant like

the snail in Donoghue v Stevenson is

significant and also the dried

cabbage in R v Shivpuri is also

important this could be little images

that help you remember.

Significant cases in which the law had to be changed where Donoghue v Stevenson 1932 and Grant v Australian Knitting Mills. The ratio in this case was that the manufacturer had to make sure that their product was not only adequate for the buyer but also the consumer as well .

Conway v Rimmer 1968 overruled Duncan v Cammell Laird 1942; this was where a former police officer was wrongfully prosecuted for the disclosure of police files the practice statement allowed the House of Lords to change their previous decision as they felt that it was unfair to refuse to disclose important information that would make the case fair and partial .

R v Shivpuri 1986 overruled the highly criticised decision in Anderton v Ryan 1985 (court of appeal had issued this decision so the House of Lords overruled it using the practice statement)

The reason for this was it was deemed to be so wrong it would allow people to attempt criminal activities with consent so the House of Lords overruled this to take care of the situation.

The House of Lords only use the practice statement to an extent, for example, Knuller v DPP where the House of Lords refused to use the statement to change the previous decision in 1951 even though they thought it was wrong. Instead they let Parliament create a new law instead in fact the House has only used this power 8 out of 29 times.

How the doctrine of precedent applies to the Court of Appeal

The Court of Appeal (both criminal and civil division) binds itself and all lower courts as the House of Lords is the superior court the practice statement does not apply to the Court of Appeal so in theory the house of lords can overrule any decision they make if they feel it is incorrect .

The Court of Appeal can overrule a decision if one of the 3 exceptions in Young v BAC apply

1. If the two previous decisions have no relevance or are not compatible to each other this allows The court to distinguish between the two cases this will be included as one of the reasons in the ratio.

2. The previous decision was made per incuriam which basically means there was an error made.

3. The decision has been impliedly overruled by the House of Lords.

9

10

Gemma Jefferies, a student at Filton College, provides in insight into

exclusion clauses and how they are regulated by the UCTA (1977)

The Unfair Contract

Terms Act (1977)

The Unfair Contract Terms Act controls the operation of exclusion clauses in contracts. Restrictions are put upon contractual terms that individuals can agree to, to ensure contracts are not unfair. It aims to protect the consumer by removing some of the equalities in bargaining power between parties. This is done by making certain exclusions clauses invalid, by drawing a distinction between consumer dealings and inter-business dealings and also introducing a test of reasonableness. However, the Act will not cover every exclusion clause or unfair term. This Act applies to exclusions for tortious damage and also contractual breaches.

The Act lays down rules for the ways in which exclusion clauses can be used to limit liability in certain areas:

S2(1) a person cannot exclude liability for death or personal injury. For example if a contract stated it limited liability

White V John Warwick & Co

P hired a bicycle from D. A clause in the agreement stated “noting in this agreement shall render the owners liable for any personal injuries”. P was injured because of a defective saddle. D was liable for negligence as under UCTA S2(1) which states, it is not possible to exclude liability, which cases death or personal injury.

S3 states a person can avoid liability in a contract.

The law implies various terms into sale of goods contracts. Attempts to exclude these implied terms are governed by Sections 6 and 7 of UCTA. Implied terms can only be excluded in business relationships (business & business), as long as it is reasonable, not in consumer relationships (consumer & business).

S8 excludes liability for misrepresentation.

S11(5) states that the burden of proving reasonableness rests on the party seeking to rely on the exclusion clause.

The aforementioned are just some sections of the act, which outline what can and cannot be excluded. All of the above have a general restriction whereby they have to satisfy the ‘reasonableness test under S11(2) of UCTA.

UCTA doesn't define precisely what is meant by reasonable, but courts will usually take various factors into account. The requirement of reasonableness is that the term shall have been fair, having regard to all of the circumstances which were or ought (reasonably) to have been known, or ought to reasonably have been in the contemplation of the parties when the contract was made.

Schedule 2 is used as a guideline to what is reasonable and what is not, then the courts are able to decide based upon the statute:

1) The strength of the bargaining positions of the parties relative to each other

2) Whether there was an inducement to agree to a term – the party has to agree freely and voluntarily

3) Whether the individual knew or ought to have known of the existence and extent of the term

4) Where the term excludes or restricts any relevant liability if some condition is not complied with. If you didn’t meet a condition in a contract for example wearing a seatbelt

5) Whether the goods were manufactured, processed or adapted to special order of the customer. For example if a customer order a particular shade of pink for their car and it was slightly lighter, there can be no exclusion as it was adapted to you therefore it was reasonable.

UCTA is in place to help protect consumers and nevertheless aims to reach equity and justice as indicated by the reasonableness test.

“An exclusion or exemption clause

is a clause which excludes or limits

some right which one of the parties

would otherwise have had under

common law, or which reduces the

remedies available to him. During

the first three-quarters of the

twentieth century, these clauses

presented the courts with a number

of difficult problems, most of which

were resolved by the passing of the

Unfair Contract Terms Act 1977”

Example of an exclusion clause

‘The customer shall not be entitled

to withhold payment of any

amount due to the company under

the contract by reason of

any payment credit set off

counterclaim allegation of incorrect

or defective goods or for any other

reason whatsoever which

the customer may allege excuses

him from performing his

obligation hereunder.’

Stewart Gill Ltd. v Horatio Myer

(1992)

Exam Focus

Rosie, a builder, contracts with Erin to build an extension to her house. On 1st February they agree a price and a start date of 8th March. On 1st March Rosie sends Erin a full set of written terms, these include: (1) Rosie does not accept any liability for any loss or damage, however caused, and; (2) Rosie has the right to start the work at any time. Rosie eventually starts the work on 8th April. Shortly after starting the job Rosie drills through a water pipe and causes flooding to the downstairs of the house. She also leaves an electrical cable exposed, which gives Erin an electric shock. Erin asks for compensation from Rosie for the damage, the electric shock and the late start but Rosie says she has no liability for any of these things.

Advise Rosie whether she can rely on the exclusion clause in relation to any of

these claims.

11

The development of

MisrepresentationMark Jones traces the development of the law of

misrepresentation identifying the various remedies under the

common law and statute

“A misrepresentation is an untrue statement

of fact (c.f., Bissett v Wilkinson and Smith v

Land House Property Corporation) that

induces (C.f., JEB Fasteners, Museprime,

Atwood) a party into the contract with the

misrepresentor”

Rather curiously, an action for a

misrepresentation is under the Tort of deceit

and not, as one might imagine, contract

law. This is particularly significant and tortious

damages are quite different from contract,

placing you in the pre-contractual position

and not the position you would have been in

should the contract have been completed.

Historically, a person who had been induced

into a contract because of an untrue

representation had two options;

1. to argue that the representation had

become a term of the contract and to claim

for a breach of condition (Poussard v Spiers)

or a warranty (Bettini v Gye) or later, an

innominate term (Hong Kong Fur Shipping)

2. they could claim a fraudulent

misrepresentation under the tort of deceit.

However, it was notoriously difficult to prove

a fraud, both from a practical and an

evidential perspective, and as a result such

actions were seldom, successful (see Derry v

Peek).

If the courts failed to accept a claim for a

fraudulent misrepresent then equity would

offer some relief for an innocent

misrepresentation. This would only give

rescission and was at the discretion of the

court, meaning an injured party may well

not be entitled to any compensation at all.

Clearly, it was more beneficial to bring an

action in contract law and not tort that was

until the case of Hedley Byrne v Heller which

established the principle of negligent

misstatement, despite the fact the action in

the case failed due to the insertion of an

exclusion clause on the bank’s reference

(now illegal under UCTA (1977).

HB was a firm of advertising agents

who wanted to know whether one of

their clients was creditworthy. They

asked their own bank, the National

Provincial to make enquiries, and the

bank inquired of Heller, the client’s

bank. They were told ‘in confidence

and without responsibility on our part’

that the clients were good for £100,000

a year. HB relied on this statement and

lost more than £17,000 when the client

went into liquidation. They sued Heller

for negligence. It was held that the

words used by Heller meant that they

accepted no liability for their

statements and so were no liable.

However the court said obiter that

where A in the ordinary course of

business asks B for information, when it

is clear that A is relying on B to exercise

a reasonable degree of care in

answering, and B knew or ought to

have know that A was relying on him,

then B will be under a duty to take

reasonable care.

What this meant was that under the

principle in Hedley Byrne, if the injured

party were able to prove that a special

relationship existed between the parties

and there was sufficient proximity

between them, then, under tort they

owed them a duty of care for their

statements and could be sued if the

person who relied upon their statement

suffered a loss.

The case represented a clear

development in the law and would

subsequently allow greater protections

to lose who had suffered a loss as a

result of a misrepresentation. General

tortious damages would be awarded to

the misrepresentee, allowing them to

recover all foreseeable losses from the

misrepresentation.

Three years after the case of Hedley

Byrne, the Misrepresentation Act (1967)

was passed and negligent

misrepresentations placed upon a

statutory footing; what this meant was

that an individual could now bring an

action either under the common law

principle in Hedley Byrne or under

section 2(1) of the MA (1967). The most

significant aspect of the new act was

that it offered much greater protections

to the misrepresentee as the evidential

burden of proof was reversed, meaning

that the person who made the

statement now had to prove they were

not negligent. ‘If the representee

proves a misrepresentation which, if

fraudulent, would have sounded in

damages, the onus passes immediately

to the representor to prove that he had

reasonable grounds to believe the facts

represented.’ per Bridge LJ in Howard

Marine and Dredging Co Ltd v A Ogden

and Sons (Excavations) Ltd [1978]. This

case shows the difficulty in discharging

the burden of proof where the

statement was certainly checked but

not checked in the right place (see

spice Girls v Aprillia where the decision

in Howard was followed)

Section 2(1) is as follows

‘Where a person has entered into a

contract after a misrepresentation has

been made to him by another party

thereto and as a result thereof he has

suffered loss, then, if the person making

the misrepresentation would be liable

to damages in respect thereof had the

misrepresentation been made

fraudulently, that person shall be so

liable notwithstanding that the

misrepresentation was not made

fraudulently, unless he proves that he

had reasonable grounds to believe

and did believe up to the time the

contract was made that the facts

represented were true.’

12

This means that if the person who had

made the misrepresentation had done

so under an honest belief and that they

could prove they were in no way

negligent, then the only other remedy

available would be under s 2(2)

‘Where a person has entered into a

contract after a misrepresentation has

been made to him otherwise than

fraudulently and he would be entitled,

by reason of the misrepresentation, to

rescind the contract, then … the court

may declare the contract subsisting and

award damages in lieu of rescission, if of

the opinion that it would be equitable

to do so …’

This meant that the court of equity

could substitute an award of damages,

if, in their opinion the misrepresentee

should be entitled to end the contract;

note this is discretionary and not, as per

s 2(1), an automatic right.

The difference between an action under

the principle of Hedley Byrne and S 2(1)

was explored in the case of Royscot Trust

Ltd v Rogerson [1991]. Here, the court,

rejecting academic argument to the

contrary, the court held that the correct

measure of damages under S 2(1) was

that for the tort of deceit even though

actual fraud was not proved. Thus a

plaintiff is entitled to any loss which has

flowed from the defendant’s

misrepresentation, even if the loss could

not have been foreseen, provided that

the loss is not otherwise too remote.

In summary, 1. Actions pre-1967 were usually under contract law as it was easier to recover your losses2. The misrepresentee could bring an action for breach of condition or warranty allowing them to repudiate and sue for damages or just claim damages 3. Pre-1967 only fraudulent and innocent misrepresentations existed4. Most action for fraudulent misrepresentations failed, (Derry v Peek)5. Hedley Byrne introduced the concept of negligent misstatement6. The MA (1967) introduced negligent misrepresentation on a statutory footing7. The evidential burden of proof was reversed 8. Damages under the act allow the individual to sue for consequential losses, but not for an innocent misrepresentation. 9. The equitable remedies available under the MA (1967) can also be lost, for instance, to a affirmation (see bars to rescission)

Long v Lloyd [1958]. P was induced to buy a lorry from D after hearing representations as to its condition and a statement that it would do eleven miles to the gallon. P drove the lorry from Hampton Court to Sevenoaks. The next Wednesday he drove to Rochester, whereupon the dynamo ceased to function, .An oil leak developed. a crack appeared in one of the wheels and the petrol consumption was 5 miles per gallon. He complained to D who offered to pay half the cost of new dynamo, and this offer was accepted. The next day the lorry broke down en route to Middlesborough and P asked for his money back.

HELD:

1. The representations were innocent; 2. The journey to Rochester was not affirmation since P had to have an opportunity to test the vehicle;3. The acceptance of the money and the subsequent journey, to Middlesborough did amount to affirmation, and so rescission could not be granted.

Exam Focus 1. Assess the way that the courts approach the granting of remedies when amisrepresentation has been established. [50]

2. Discuss to what extent both the common law and equitable remedies formisrepresentation meet the needs of the parties to an action. [50]

3. ‘The definition of misrepresentation is clear but its application to real cases is lessclear.’

In the light of the definition of misrepresentation, evaluate the accuracy of the abovestatement. [50]

4. Terry has had discussions with Carmen concerning the purchase of a piece of land on which to build a house.

Carmen tells Terry that planning permission for the house he intends to build is a‘formality’. She also states that there are no drains running under the land that would affect the building of a house.

Carmen has not made any investigation concerning the two statements.

Terry purchases the piece of land and discovers that both statements are untrue.Therefore, he will incur considerable expense in obtaining planning permission and making repairs to the drains, with the result that he will suffer a large loss of profit.

Advise Terry whether he can bring an action in misrepresentation and the remedies that might be available to him. [50]

Contractual Discharge:

Part I. Performance

13

A brief overview of contractual discharge, by Nafisa Ahmed,

an A2 student at Filton College

Discharging the Contract

Normally the completion of a contract is straightforward as parties carry out their tasks as required. Discharge refers to the point where the contract is ended. There are four main different ways of ending a contract: Discharge by performance, agreement, breach and frustration. Simply put, discharge will be the point at which all obligations created by the contract have been met. However, in some circumstances not all obligations are performed but the contract is still considered to be discharged, for example when a contract is breached.

Discharge by Performance

The strict rule is that a contract is not discharged until all of the obligations have been performed. Therefore the contract is not discharged and no payment is enforceable. This can be seen in the case of Cutter v Powell (1795), where Cutter was the second mate on a ship sailing from Jamaica to Liverpool but died during the voyage. His wages were not paid and so his wife sued on a ‘quantum meruit’ basis (meaning for the amount owed). Her action failed because her husband had signed on for the complete voyage. By dying, he had failed to complete his contract and since it was an entire contract, there was no obligation on the ship owners to pay. This case highlights how injustice can be created. The use of the strict rule can also be seen in the case of Re Moore & Co. And Landuaer & Co. (1921), in which tinned fruit was sold described as being in cases of 30 tins, however when they were delivered some of the cartons contained 24 tins, although the overall total number of tins ordered was correct. The Court of Appeal, applying the strict rule, held that packaging could be included in a description and that the buyer was correct in rejecting the goods and repudiating the contract. The principle that a buyer should not be allowed to reject goods delivered when there is a slight shortfall or excess has now been incorporated in the Sale of Goods Act as S(20A) (1979).

Ways of avoiding the strict rule

The potential injustice of the rule, as seen in Cutter v Powell, has led to judges accepting exceptions when the rule does not operate. These are as follows:

A) Divisible Contracts The contract can be seen as being made up of various parts. If each part can be discharged separately then it might also be enforced separately, and the strict rule need not apply. The rule here can be particularly appropriate for instance when there is delivery by separate instalments, except where the seller has stipulated for a single payment. This can be seen in the case of Taylor v Webb (1937), where premises were leased to a tenant for rent. A term in the lease required the landlord to keep the premises in good repair. In the event the landlord failed to maintain the premises and the tenant then refused to pay the rent. In the landlord’s action the court held that the contract had divisible obligations, to lease the premises, and to repair and maintain. The contract was therefore not entire and the tenant could not legitimately refuse payment.

B) Acceptance of part-payment

Where one of the parties has performed the contract but not completely if the other side has shown willingness to accept the part performed then the strict rule will usually not apply. This exception to the rule will only apply though when the party who is victim of the part performance has a genuine choice whether or not to accept, (Sumpter v Hedges (1898)).

C) Substantial performance

If a party has done substantially what was required under the contract then the doctrine of substantial performance can apply, (Dakin & Co. v Lee (1916)). However, what is deemed to be substantial performance is a question of fact to be decided in each case. It will largely depend on what remains undone and its value in comparison to the contract as a whole, (Bolton v Mahadeva (1972)).

D) Prevention of performance

If the other party prevents a party from carrying out his obligations because of some act or omission then the strict rule cannot apply, (Planche v Colburn (1831)).

E) Tender of performance

A similar situation with slightly different consequences occurs where a party has offered to complete his obligation but the other side has unreasonably refused performance, (Startup v Macdonald (1843)).

Stipulations as to time of performance

Traditionally, a failure to perform on time would give only an action for damages but not to repudiate the contract. There are three principal occasions when time will be considered to be ‘of the essence’ and a repudiation of the contract is therefore available as a remedy:

1. When it says so in the contract2. The circumstances make it so3. One party has already failed to perform.

Cases

Cutter v Powell (1795)Re Moore & Landuaer (1921)Taylor v Webb (1937)Sumpter v Hedges (1898)Dakin & Co Ltd v Lee (1916)Bolton v Mahadeva (1972)Plance v Colburn (1831)Startup v Macdonald

14

Contractual discharge:

Part II. agreement &

breach

Lydia Njodge describes the general rules relating to contractual

agreement and breach and draws upon a range of useful case law

to back up her analysis.

Discharge by Agreement

The general rule is that if a contract is made by an agreement then it can be ended by an agreement too. In some cases the parties will simply agree to terminate a contract so that one or both parties are released from their obligations. An agreement to change the contract is a binding agreement if it is made by deed or if the promise is backed up by consideration. A distinction is generally made between bilateral discharge, in which both parties receive a benefit from the discharge, and unilateral discharge, where the change is made for the benefit of one party only. There are two potential problems with discharge by agreement; absence of consideration for the fresh agreement and lack of proper form.

Absence of consideration

In a bilateral agreement consideration is needed to make the contract in the first place, so in the new situation it is necessary to have it. Where consideration is wholly executory, (termination of the whole contract) then there is no issue with lack of consideration. For example, if A makes a contract with B to sell his coke to him for £3 but the A doesn’t give B the coke and B doesn’t give A the £3, then these two elements would be consideration for the new agreement. If however, the contract is partially executed, there is a clear problem with lack of consideration and the judge will allow a party to ‘waive’ rights help the parties to avoid broken promises.

Lack of form

Usually, an oral agreement is fine to discharge by agreement. However, the variations must be written or else will be invalid. If a new agreement is made to substitute the old one, then it must be written as well if it is to be enforceable. In a unilateral agreement, if one party fails to perform, then there could be two outcomes; firstly, the party releases the other from performance, however, this must be done by deed or else lacks consideration. Also, the principle may not survive where the party doing the releasing is getting an extra benefit as in the case of Williams v Roffey. The second outcome is accord and satisfaction. This is where there is an agreement to accept less than is legally due in order to ‘wrap things up’. This can be by introducing a new element (British Russian Gazette v Associated Ltd Newspapers Ltd (1992)) or by payment at an earlier stage as in Pinner’s case. Also, estoppel; this is where equity will not allow the party waiving the rights to break the promise.

Discharge by Breach

Nature of a breach of contract

A breach occurs when a party fails to perform contractual obligations. This occurs in 3 ways:V when there is failure to perform an obligationV when there is failure to perform an obligation to quality

required by the contract andV when you end an obligation without a justification

(unlawfully).

Original contractual obligations are known as ‘primary’ obligations and upon breach, these terms are simply replaced (rather that discharged) by secondary obligations. E.g. pay damages. There are two exceptions introduced for this rule. First, if a party is in breach of a fundamental obligation (one part depriving the other of a major benefit), then the whole contract is breached. Secondly, if a condition is breached, then it makes the whole contract meaningless. (see Photo Productions Ltd v Securicor Transport (1980), in which a security guard was hired by Securicor to guard the Photo Productions building).

Types of breach

There are three different types of breach. Firstly, a breach of a term. It doesn’t matter how the term is classified and it may include a minor breach or an innominate term but upon breach, there is always an action for damages available. In breach of a condition, a condition can either be expressed or implied. However, to produce the full remedies, it must be under the proper description of a condition. (Schuler v Wickman Machine Tools Sales Ltd (1973)). It also could include an innominate term where the breach was very serious to warrant repudiation by the other party (Hong Kong Fir Case (1962)). It also may include a fundamental breach. An anticipatory breach is where a party notifies the other of intention to breach the contract. Better described by anticipatory repudiation (Hochester v De La Tour (1853)).

The consequences of breachThe consequences vary depending on the type of breach. In breach of a term generally, there will be action for damages with a warranty but any attempt to repudiate obligations will be a breach. For breach of a condition, parties can sue for damages and or repudiate obligations. Before repudiation, the party repudiating must make sure that there was as sufficient breach, otherwise repudiation in itself is a breach. For anticipatory breaches, the victim party may treat this as the end of the contract and sue immediately as in Frost v knight (1872). However, the party could wait until performance is actually due as in Avery v Browden (1855). However, choosing this option leaves the victim party without remedy if he/she becomes liable for a later breach. There is also another issue of a party mistakenly treats an anticipatory breach as an actual breach and then ending the contract unlawfully.

15

The Law Reform

Frustrated Contracts Act

(1943) (LRFCA)Lois-Howells Ross reviews the impact of the LRFCA on the

development of frustration

Discharge of

contract:

FrustrationFrustration is a factor or an event which prevents a party or parties from performing something which they are bound (obliged) to do under a contract. This event must be one that is beyond the control of either party to the contract.

The original rule of Frustration stated that parties would still be bound by all of their obligations (responsibilities), even if an intervening event made performance of these obligations more difficult or even impossible to carry out under the contract. Therefore if this strict rule is applied, a party to a contract cannot be excluded from their contractual obligations even if the event prevented their performance and was completely unavoidable and beyond their control. This can be shown in the case of Paradine V Jane, whereby, Paradine tried to claim rent due from Jane under a lease (A contract to which land or property is rented for a stated period of time by the owner to a tenant). Jane had not paid the money he owed and his defence was that he was forced out to work for an army for three years of the lease. The court held that Jane was under an ‘Absolute Obligation’ to pay Paradine the rent he owed and this obligation was therefore unaffected by the intervening event (being forced out to work by the army). Courts also stated that if Jane wanted to reduce his responsibility for the event then he should have expressed this to Paradine in the lease. This is a good example of how the strict rule of Frustration can override and ignore any circumstances affecting performance in a contract and therefore, leading to potential injustice. This principle is clearly an unfair consequence as Jane shouldn’t really have had to pay the rent he ‘owed’ as he wasn’t living there at the time. You could also say that the commercial purpose of the contract was in fact lost as not many people will rent a property and yet have no intention to live in it, and even though he couldn’t avoid the responsibility he had working for the army, if he had expressed his situation of commercial reality to Paradine, he may not of had to pay the rent that he was unfairly, but rightly made to pay.

As a result of this outcome a doctrine was developed in the nineteenth century which changed the principle slightly to create exceptions to the strict rule. This doctrine stated that If a party is bound by contractual obligations, but are prevented from carrying out these obligations because of an intervening event that is beyond the control of either party, then that party may be excluded from any further performance and cannot be held liable for a breach of contact.

This nineteenth century doctrine was applied in the case of Taylor V Caldwell, whereby, Caldwell agreed to rent a Music Hall to Taylor for four days. Taylor intended to use the hall for concerts and fetes, however, after the contract was formed, but before the hall was actually used for the concerts, the music hall burnt down. Therefore any performance that would be carried out by either party was made impossible. There were also no specific (contractual) agreements for what should happen in the event of a fire and as Taylor had spent money on advertisements and preparations he tried to sue Caldwell for damages using the principle in Paradine V Jane, but failed. The ccourts held that the Commercial purpose of the contract had come to an end and therefore, no longer existed. As a result, both parties (Taylor & Caldwell) were excluded from any further performance of their duties under the contract. The decision in Taylor V Caldwell has caused much debate when contrasted with the earlier decision in Paradine.

The Courts held the payment of rent from Jane to be an ‘Absolute Obligation’ even though there was little commercial purpose left to the contract, yet, in Taylor V Caldwell, even though the commercial purpose was seen to be lost, Taylor did not have to pay his rent. This is example of judicial intervention in order to achieve individual justice.

In circumstances where the commercial purpose of a contract has disappeared as a result of an intervening event, the contract may still be held to be ‘Frustrated’, even if performance is still possible. This is otherwise known as ‘Frustration of the common venture’ commonly claimed when the essence of the bargain has been lost. This can be shown in the case of Krell V Henry whereby courts adopted the principle in Taylor V Caldwell and accepted that the contract was also ‘Frustrated’ as the ‘essence’ of the contract was to watch the coronation procession and since this was missing, the commercial purpose was lost. This decision developed in order to achieve individual justice in certain circumstances, however the effects of frustration can still be unfair and harsh.

16

Finally under Section 1(3) Courts can allow a party to recover expenses if their partial performance has conferred (provided) a valuable benefit to the other party before the frustrating event actually took place. Again this decision is made by the Courts as they determine what is ‘reasonable’ in certain circumstances. The courts must consider two key things, Firstly, They must be satisfied that the Valuable benefit gained by one party actually exists and Secondly, Once this is established, courts must then decide what an appropriate or ‘fair’ sum to reward a party in their particular circumstances. This sum however, must not exceed the value of the actual benefit gained by the other party, as per BP Exploration co (Libya) Ltd V Hunt. Besides the effectiveness of the 1943 Act, it too has its disadvantages. Firstly, the Act will not apply to contracts for the carriage of goods by sea, except time- charter parties. Secondly, the Act does not apply to insurance contracts, however this isn’t so tragic as it may sound in some cases, as some contracts, in any case, accept a risk of specific events occurring, for example, a house burning down. If this happened a sum of money would be rewarded as a form of recovery, so the exclusion of insurance contracts is also logical. Thirdly, the Act will not apply to the perishing of goods under the Sale of Goods Act 1979 and finally, parties can exclude referring to this act if they have already made communications and arrangements for what happens if a frustrating event occurs in the contract.

This can be shown in the case of Chandler V Webster, whereby a party hired a room in a position along the route of the coronation procession in order to watch it, however, in this case, unlike Krell V Henry where the room was to be paid for on the day, the room was actually paid for in advance. Courts accepted that the contract was ‘Frustrated’ however they would not allow the party to recover the money that they had already paid. Again, clearly an unfair outcome as the same frustrating event occurred, yet, Krell won and Chandler lost. A result that creates uncertainty within Law of Contract as courts expanded the law in Krell V Henry yet, restricted the law in Chandler V Webster.

The House of lords recognised the harshness of the principle in Webster and therefore developed new rules, hoping to reduce the injustice created: in the Fibrosa a contract was formed for the manufacture and delivery of machinery to a Polish company. The Polish company were required to make an advanced payment of £1,000 for the machinery. However, before performance of the delivery could be carried out it was made impossible because of the German invasion of Poland before the Second World War. The contract actually contained a ‘War Clause’ therefore courts argued that there was no frustration as the ‘War Clause’ covered the event of the invasion, however the House of Lords accepted that the ‘War Clause’ only provided for delays in delivery and inconvenience caused by war not for ‘Invasions’, that could clearly cause more dangerous consequences. Therefore adopting the modified rules of the principle, the House of Lords stated that a party could recover payments made ‘prior’ to a frustrating event as long as there was a lack of consideration. This obviously improved the on the original rule and the harshness that it created as the Polish company were able to recover the £1,000 payment that they had made. That said, even with the use of modified rules injustice was still created as the Manufacturer of the machinery lost out as he was not entitled to any payment whatsoever for the work that he had done in advance of the contract.

The common law doctrine of Frustration was originally developed in order to avoid some of the harshness of the existing common law rules, however, in spite of that, as shown in previous cases (Chandler V Webster, the Fibrosa Case etc.) it can still lead to injustice. As a result of this Parliament passed the Law Reform (Frustrated Contracts) Act 1943. This was introduced in order to deal with the consequences of frustrating events, therefore providing a fairer outcome when deciding who should potentially suffer a loss and who is entitled to claim back anything that they may have lost.

The Law Reform (Frustrated contracts) Act 1943 deals with three main areas. Firstly, Section 1(2) Confirms the principle developed in the Fibrosa case, that money paid before performance in a contract can be recovered even if there seems to be a lack of consideration, it also states that money due under a contract must be paid as per Taylor V Caldwell. The courts must also consider situations where parties have gained a valuable benefit under the contract can limit a party’s right to recover any money paid over. Secondly under Section 1(2) Courts have the authority and freedom to reward a party if they have carried out work under a contract or even when preparing for the contract. This reduces potential unfairness that may arise. Nevertheless, there are disadvantages of this area as the sum rewarded to a party is decided by the Courts and this decision is reached by what they believe to be a ‘fair’ amount, therefore, does not consider exactly what a party may have suffered in relation to expenses and thus, does not guarantee full recovery of monies paid. Also what is seen as ‘reasonable’ to one party may not be seen as ‘reasonable’.

Discuss the extent to which the current law on frustration achieves fairness between the contracting parties. [50]

Assessment Objective 1 [25 marks]

State and explain the meaning of frustration.Intervening cause which makes the contract impossible to perform, Taylor v. Caldwell, Davis v. Fareham UDC and National Carriers v. Panelpina.Examples of frustrating events:1 destruction of subject matter, Taylor v. Caldwell;2 unavailability of subject matter, Condor v. The Barron Knights;3 impossibility of stipulated method of performance, Tsakiroglou v. Noblee Thorl (Suez Canal cases and Finelevt v. Vinaja Shipping;4 failure of specific events, Krell v. Henry, Herne Bay Steam Boat Co. v. Hutton, Amalgamated Investment Property v. John Walker;5 supervening illegality, Denny, Mott & Dickson v. James Fraser;6 leases, Cricklewood Property v. Leighton Investment Trust and National Carriers v. Panalpina;7 delay, Jackson v. Union Marine Insurance and Pioneer Shipping v. BTP Tioxide.

Assessment Objective 2 [20 marks]

Discuss the distinction between absolute obligation and frustration. Paradime v. Jane.Discuss whether this case created an absolute obligation or whether it was limited to leases, National Carriers v. Panalpina.Discuss the limitations of the doctrine of frustration:1 express provisions, Jackson v. Union Marine Insurance and Force Majeure Clauses;2 self-induced frustration, National Maritime Fish v. Ocean Trawlers and The Super Servant Two;3 loss of profit or increase in expenses, Davis v. Fareham UDC and Tsakiroglou v. Noblee Thorl.Discuss the common law position for assessing losses, Fibrosa Case and Chandler v. Webster. Application of the Law Reform (Frustrated Contracts) Act 1943, BP v. Hunt.Discuss the relationship between mistake and frustration and whether this is a valid distinction.

Historical Context...

LawreviewBristol 17

The Key Facts Roffey had a contract to build a block of flats and had sub-

contracted the carpentry work to Williams. After the work had

begun, it became apparent that Williams had underestimated

the cost of the work and was having financial difficulties.

Roffey, was concerned that the work would not be

completed on time and that as a result they would fall foul

into the penalty clause in their main contract with the owner,

agreed to pay Williams an extra payment per flat as long as

they were done on time. Williams completed the work on the

flats on time but did not receive full payment. He took Roffey

to court to sue him for damages. In the Court of Appeal,

Roffey argued that Williams was only doing what he was

contractually bound to do and so had not provided

adequate consideration.

The Ratio

It was held that where a party to an existing contract later

agrees to pay an extra "bonus" in order to ensure that the

other party performs his obligations under the contract, then

that agreement is binding if the party agreeing to pay the

bonus has thereby obtained some new practical advantage

or avoided a disadvantage. (This simply means that:

performance of a pre-existing contractual duty MAY amount

to fresh consideration as long as there is a valuable benefit for

the other party).

Handy Hint

To help understand the Ratio in this case, the

benefits that Roffey received were:

a) Making sure Williams continued his work.

b) Avoiding payment under a damages clause of

the main contract if Williams was late.

c) Avoiding the expense and trouble of getting

someone else. Therefore, Williams was entitled to

payment.

Key Cases

1. Stilk v Myrick (Performance of a pre-existing contractual

duty (PECD) will not amount to fresh consideration)

2. Hartley v Ponsonby (exceeding a pre-existing contractual

duty (PECD) will amount to fresh consideration)

3. Re Selectmove (performance of a pre-existing contractual duty cannot amount o fresh consideration in relation to debt, even if the other party derives a practical benefit)

Other cases you may which to consider include

Glasbrook v GlamorganSheffield v HarrisCollins v GodefroyShadwell v Shadwell

Issues to consider:

1) how did the courts distinguish the cases of Stilk and Hartley?

2) to what extent can it be agreed that economic duress is a

constituent part of Stilk, Hartley and Williams

3) why is the case of Williams seen by many academics as

being unfair?

4) what, if any, restrictions have been placed on the decision

in Williams?

Case Analysis: Williams v Roffey Brothers (1990). Sean Wood examines the principle in Williams, one of the

most significant cases in the ‘90s

18

Promissory Estoppel:

A guide to the key

principlesNok Ndlovu, a first year student at Filton College, provides an

overview of the common law and equitable principles

relating to promissory estoppel

Key terms: Consideration, Part payments of debts and Promissory Estoppel

Consideration

Consideration is where 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. So one party suffers detriment or the other party receives a benefit as a result of what is promised under the contract. There must be an exchange of promises. For a promise to be binding, consideration is needed under common law.

Part payment of debts

Part payment of debts is not good consideration to support a promise to discharge (pay off) a debt. It is not adequate (good enough) fulfilment of the original promise and breaks it! Payment of a lesser sum on the day in satisfaction of a greater amount cannot be any satisfaction for the whole. If you owe me £100 and then try and only pay back £50, it's not as good as what we had agreed you would pay me and owed me! However part payment of a debt + something else other than the remaining amount is acceptable as valid consideration because it goes beyond the payment of the debt. (it can serve a different or even greater beneficial purpose even if its not as expensive as the money owed.) Under the common law, a creditor who accepts partial payment as settlement for a debt can still go after the debtor for the balance. But equity has intervened and disallowed such action under certain conditions.

However part payment of a debt plus something else can be considered as good consideration because it goes beyond the mere payment of the debt. (it may serve a different and more beneficial purpose. it is sufficient as good consideration need not be adequate but sufficient.)

Under common law there is no allowance for the fact that a debtor may have relied on the creditor's promise to discharge a debt to his detriment.

Promissory Estoppel

A promise intended to be binding, intended to be acted upon and in fact acted upon and is binding so far as its terms properly apply.

Promissory Estoppel is founded on equitable (fair/impartial) principles. Estoppel is a device developed by equity courts to prevent or estop a party from going back on their promiser when the other party is relying upon that promise.

The enforceability of a promise at common law relies on consideration while the test of enforceability of a promise under equity is reliance.

History: 1) The courts of equity were created to provide remedies or solutions where common law could not.

2) The Judicature Acts 1873-75 fused common law and equitable principles.

Limitations of Promissory Estoppel:

1) There must have been an existing legal relationship between the parties e.g. a contract. Promissory estoppel in this context would only apply to the variation of an existing contract and will depend on there being consideration to support the original agreement.

2) There must have been detrimental reliance on the promise.

3) Operates as a shield (defence) not a sword (not as a cause of action.) Cannot use it to claim, (sword) but only to stop the other party going back on their word e.g. (you promised you would...) (shield) It preserves the requirement for consideration. (Combe v combe)

4) It must be inequitable (unfair, unjust) for the promisor to go back on their promise. The court will hold a pety to their promise if it would be unfair (inequitable) not to do so even in the absence of consideration. He who comes to equity must come with clean hands. e.g. if claimant has tried to black mail the defendant then the promise is not binding to the defendant (D&C Builders v Reece).

5) The doctrine suspends rights and extinguishes them also.

Case of of the High Trees case (lead authority)

In 1937 the plaintiffs let a block of flats to the defendants for 99 years at a rent of 32,500 pa In 1940 the plaintiffs agreed to reduce the rent to £1,250 pa as many of the flats were unlet because of the war. At the end of the war, the plaintiffsdemanded the full rent for the last two quarters of 1945 (and thereafter). Denning J upheld their claim as the agreement was obviously only meant to last during the war. However, he said obiter that if the plaintiffs had tried to claim the full rent they had relinquished during the war, they would have beenunsuccessful on the basis of Hughes v Metropolitan Railway.

19

The Great PeaceJenny Kingston examines the impact of the Great Peace

on the law relating to common mistakes

Key FactsA ship called the Cape Providence was sailing from Brazil to China, in the South Indian

Ocean, when it encountered difficulties which resulted in the possibility that it may not be

able to finish its journey. The owners naturally sought assistance and located a tug, but this

was unable to reach them for 6 days. This may have been too late, so as a stop gap they

were informed of a nearer ship called Great Providence, which could have been there in

12 hours, to provide assistance in getting the crew off in the case of an emergency. It later

transpired that the Great Peace was some 38 hours from a possible rendezvous and the

owners of the Cape Providence claimed that their contract was void for common mistake

and that their contractual obligations should be rescinded in equity. The case went to the

Court of Appeal where the court had to consider the earlier decision of Solle v Butcher.

Here a flat was let for £250 p.a., as both parties thought it was free from

rent control. In fact it was subject to the Rent Acts and the maximum

rent was £140 p.a. Had the landlord known this, the rent could have

been raised to £250 before the lease was granted because of

improvements which had been made. It could not be altered during the

currency of the lease. In granting relief the court gave the option to the

tenant of full rescission of the contract or continuing in occupation at a

rent of £250 p.a.

The parties to a lease mistakenly believed that it was not subject to the

Rent Restrictions Acts. This was not enough, however, to make it void at

law (It was, however, voidable in equity).

The Court of Appeal reviewed the earlier precedents of Solle v Butcher and Bell v Lever

Brothers and came to the following judgement

Held: Upholding the decision of the court at first instance, the Court of Appeal held that the

ships were not that far apart that the contract could not have been performed.

Furthermore, it was not essentially different from that which the parties had intended. The

contract was therefore, not void at law nor was it possible for equity to set aside a contract

on such terms.

“... the ships were not

that far apart that the

contract could not have

been performed. The

contract was not

essentially different from

that which the parties

had intended… the

contract was not void at

law nor was it possible

for equity to set aside a

contract on terms”

Key Cases

1. Solle v Butcher (1950)

2. Bell v Lever Bros (1932)

3. Magee v Pennine Insurance (1969)

Questions to consider:

1) how has the courts’ approach to common mistakes developed up to and including the

case of the Great Peace?

2) why have the courts refused to accept that a contact can be held void for common

mistake in both common law and now equity?

3) are there any other remedies available to a party of a common mistake after the

decision in the Great Peace?

LawreviewBristol

aw in ActionVolume 1 Issue 1 February 2009

The first of four new dedicated drug courts announced by

Justice Secretary Jack Straw was launched in Barnsley

today. The new court will tackle the problem of drug

abusing offenders who commit low-level crime to fund

their addiction.

When an offender is found guilty and sent to the

dedicated drug court to be sentenced, the same

magistrate or district judge will sentence the offender and

review the progress of offenders on community orders with

a drug rehabilitation requirement. Offenders will also be

required to undergo regular drug tests.

An investigation by the Sunday Times newspaper has

made allegations of bribery against four members of the

House of Lords, Britain's unelected upper legislative body.

The paper says it has secretly made recordings of Lord

Truscott admitting to making a recent energy bill more

favorable to a client who markets "smart" electricity

meters.

The Sunday Times also alleges that Lord Taylor of

Blackburn had claimed to have made changes to a bill to

help Experian, a credit reference agency. The paper adds

that Lords Moonie and Snape had agreed to take

payments from undercover journalists.

The Daily Telegraph reports that Baroness Royall of

Blaisdon, the Leader of the House of Lords, issued a

statement saying "I am deeply concerned about these

allegations. I have spoken to the members who are the

subject of them and I shall be pursuing these matters with

the utmost vigor".

The AFP news agency notes that the Lords' Code of

Conduct requires that members "must never accept any

financial inducement as an incentive or reward for

exercising parliamentary influence". The Sunday Times says

that there have been "persistent rumours" that lobbyists

have switched to concentrating on the Lords rather than

the Commons because "MPs are under greater scrutiny".

The credit crunch is making wills written in healthier economic times out of date and in urgent need of updating, says the Law Society.

With home values plummeting and other investments struggling, many assets in a person's will have lost value.

Paul Marsh, President of the Law Society, says:

'Those wanting to leave friends and family in a secure position after they pass away might find that what they have left in their will has considerably less value than when their solicitor wrote it. With homes losing value people may need to look again at their wills especially if they have included tax planning provisions which are no longer appropriate.

Next week Debbie Purdy goes to the Court of Appeal seeking clarification on the law of assisted suicide. The Suicide Act 1961 states that anyone who “aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide”, shall be liable for up to 14 years imprisonment if convicted.

The statute makes plain that no proceedings will be instituted except by or with the consent of the Director of Public Prosecutions (DPP). The requirement that the DPP should consent to the prosecution is an important factor, intended to secure consistency, prevent abuse, provide central control and take account of mitigating factors.

For this reason, Purdy, who has multiple sclerosis, wants the DPP to publish a prosecuting policy on assisting suicide. She has decided that when her suffering becomes unbearable and the quality of her life is no longer worth living, she wishes to exercise personal autonomy in deciding whether to have an assisted death. Purdy will have to travel overseas to a place where assisted dying is already legal such as Belgium, the Netherlands, Luxembourg or the US state of Oregon. One of the main legal arguments centers on whether Article 8 of the European Convention on Human Rights is engaged. Article 8 protects the right to respect for private and family life, and was narrowly interpreted by the House of Lords case in Diane Pretty’s case, although the European Court of Human Rights later took a different view. It is indisputable that Article 8 should cover personal autonomy and decisions about the quality of one’s life. If Article 8 is engaged, then the question arises as to whether the state can legitimately interfere with that right?

Researched by Sean Wood

20

1. when startin

g your revisio

n

programme, wri

te a list of

all of the

key cases a

nd then brea

k them down

by

Name

Facts (ao1)

Ratio (ao2)

Similar / contras

ting cases

Start this p

rocess at

least 6-8 w

eeks

before the

examinatio

n

2. students all learn in different ways. Why not try

creating your own Podcasts of key cases or

principles and play them back to yourself via

your MP3. After a while you should practice

writing your answers and compare them with the

audio file.

Share audio files with other students and break

down the amount of revision you have to do as

an individual

3. start the planning process early. Plan to have all of the relevant information at least 5 weeks in advance. This will then leave you enough time to work on the exam skills necessary for G152/G156

You should practice exam papers every single week and use the examiners mark schemes to review your own progress.

LawreviewBristol

4. When preparing your revision notes, use a variety of different pens to indicate when you have

1. understood

2. recalled

3. applied

4. evaluated

A particular topic or case. Use your notes alongside and in conjunction with mind maps

21

The decision of what course to take at university is a

daunting task. The knowledge that this choice will affect

your future career can seem overwhelming, but this

need not be the case. A law degree can open up a

world of opportunities. Whether you wish to pursue a

career in law, or move into a different industry or

profession, a law degree can illustrate to your potential

employers that you are hardworking, committed and

reliable.

Whilst studying Law at university, students are able to

participate in mooting, current awareness debates,

develop their knowledge of different fields of law and

encourage participation in legal workshops. But it’s not

only the highly regarded status of a law degree that can

make students stand out. Students have the chance to

join law Societies, increasing their job prospects through

organisation of workshops, making connections and

expanding key skills in advocacy (not forgetting to

mention a few socials and sporting events along the

way). Law schools also offer voluntary seminars to

attend, allowing you the prospect to listen to key figures

in law, for example Judges, to hear an inside, hands-on

view of the legal system.

The desire to pursue a career in law is driven through a

passion to create social change, effect legal precedent

and protect fundamental human rights. The practice of

law requires an extensive range of questioning, analysis

and communication skills: It is necessary to have a

genuine interest in what factors influence society and

how the United Kingdom is governed, not just

accepting, but questioning the reasons for this.

By studying a law degree at university, from mooting to

making friends, seminars to socials, a law degree can

open a world of possibilities and put you on the first step

towards a successful future.

LawreviewBristol

Sarah Darby, a recent graduate and former

student of Filton College, reviews her time at

Sheffield University studying on the LLB (hons) programme

tudying Law at Uni

versity

22

Win a cash prize of £50

Filton College is proud to sponsor the BLR essay writing

competition. Students must submit an essay of no more than

1500 words on a topic of their choice; you can write about a

case, statute or principle, but it must include appropriate

references and a bibliography. The last date for submission is

the end of April and the winning essay will be published in

the May Edition of the BLR.

We await your entries and wish you the very best of luck,

Regards

23