Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0003
T. Arvind
{"title":"3. Consideration","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0003","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0003","url":null,"abstract":"This chapter discusses consideration as a requirement for an agreement to be treated as a legally binding contract. Consideration is the price one party pays for the other party’s promise or performance. The doctrine of consideration provides, in essence, that a price of some sort must be paid if an agreement is to be enforceable as a contract. This chapter begins with an analysis of the first requirement imposed by the doctrine of consideration: that the act, forbearance, promise, or commodity given in exchange for the promise should be something of value. It then examines the three different conceptual approaches used in the legal understanding of value based on the idea of economic value, benefit and detriment, and practical benefit. It also describes the ingredients of exchange and includes case in depth boxes that cover the most influential and important cases pertaining to consideration.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122179401","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0018
T. Arvind
{"title":"18. Privity and third parties","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0018","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0018","url":null,"abstract":"This chapter examines how English law, through a doctrine known as privity of contract, deals with the problem posed by contracts whose performance involves third parties. According to the doctrine of privity, a contract ordinarily only affects persons who are party to it. Third parties are neither bound by the contract nor entitled to claim rights under the contract. However, the courts and Parliament developed a number of exceptions to the strict rule of privity, each of which gives third parties a right to sue under the contract in a certain type of situation. For example, the Contracts (Rights of Third Parties) Act 1999 gives third party beneficiaries a right to enforce contract terms. This chapter first considers the problem of third party rights in contracting before discussing the effects of privity and the provisions of the Contracts (Rights of Third Parties) Act 1999 in more detail.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114632163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0009
T. Arvind
{"title":"9. Flexible terms","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0009","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0009","url":null,"abstract":"This chapter considers how parties try to build flexibility into their contracts, along with the legal hurdles they face. A contract, or contractual clause, is vague if the words the parties have chosen give no real way of deciding what the parties are required to do and whether they have done it. A contract is incomplete if it fails to deal with a matter which is so fundamental that the transaction cannot be performed without agreement being reached on it. The effect of vagueness and incompleteness is to render the clause or contract void in law. Vagueness and incompleteness are often said to be closely related to the requirement of certainty in contracting, which crops up in a number of different areas of contract law. This chapter first discusses certainty and the complex transaction, along with vagueness and open-ended clauses, before turning to incompleteness and agreements to agree.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116165770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0017
T. Arvind
{"title":"17. Non-compensatory remedies","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0017","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0017","url":null,"abstract":"This chapter considers a range of non-compensatory remedies that are available at English law in cases of breach. Non-compensatory remedies seek to respond to breach of contract in ways other than compensation. The starting point for non-monetary obligations is that breach is best remedied through the award of damages. Literal enforcement of such an obligation, through an order for specific performance or an injunction, is only awarded in exceptional circumstances. In contrast, obligations involving the payment of a definite sum of money are frequently literally enforced through the remedy of debt. This chapter first examines literal performance as a non-compensatory remedy before discussing debt, gain-based remedies, and restitution interest.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126197951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0016
T. Arvind
{"title":"16. Compensatory remedies","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0016","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0016","url":null,"abstract":"This chapter considers compensatory damages, the primary remedy for breach of contract which an affected party can seek in English law. It first examines how the courts assess and award damages based on two approaches: expectation interest and reliance interest. In particular, it looks at the various measures of damages such as the loss of profit measure, the ‘cost of cure’ and ‘difference in value’ measures, loss of amenity and disappointed expectations, and the loss of chance measure. The chapter also discusses the various ways in which compensatory remedies can be limited in law by focusing on the principles of causation, mitigation, and remoteness. Finally, it evaluates the role damages play in contract law and suggests that English law gives the parties a good deal of freedom to design remedies, which parties can use when designing contracts.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132214456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0010
T. Arvind
{"title":"10. Fundamental changes","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0010","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0010","url":null,"abstract":"This chapter examines the doctrines of frustration and common mistake that deal with situations where fundamental changes have occurred. Frustration and common mistake apply to situations where the parties find themselves in uncharted territory. The doctrines ask courts to determine the limits of a contract, the point where the contractual framework runs out and the contract no longer holds. This chapter first considers the impact of ‘unknown unknowns’ on the contract and the distinction between frustration and common mistake before discussing frustrating events and the consequences of frustration. It also describes three types of common mistake that render the contract void: mistakes as to the existence of the subject matter, mistakes as to the possibility of performance, and certain types of mistakes as to the quality of the subject matter. Finally, it looks at the legal consequences of common mistake and remedies for common mistake.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"237 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124294771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0011
T. Arvind
{"title":"11. Untrue statements","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0011","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0011","url":null,"abstract":"This chapter examines how English law deals with the problem of untrue statements through the doctrines of misrepresentation and unilateral mistake. It begins with an overview of contractual transactions involving at least some measure of information asymmetry and proceeds by considering the basic principles of the law of misrepresentation. It then considers the three elements of false statements: the absence of general duties to disclose relevant facts, an objective approach to construing ambiguous statements, and a distinction between statements of fact and statements of opinion. It also discusses the remedies available to the representee in the case of misrepresentation, along with two types of unilateral mistakes recognized in law: unilateral mistakes as to identity and unilateral mistakes as to terms. The chapter concludes with an analysis of misleading selling practices and statutory remedies which are available to victims of misleading selling practices under the law of unfair commercial practices.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124580698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0008
T. Arvind
{"title":"8. Filling the gaps","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0008","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0008","url":null,"abstract":"This chapter focuses on contracts which leave some issues unaddressed and the law of implied terms used by the courts to deal with such situations. It first explains the nature of implied terms and the process of implication that requires the court to strike a difficult balance, along with the tests for implication. It then considers terms implied in law, paying attention to implication by statute and at common law, before discussing terms implied in fact. More specifically, it explores the test of business efficacy, obviousness, and the officious bystander, and the approach used based on Lord Hoffmann’s judgment in the Privy Council in Attorney General of Belize v Belize Telecom. The chapter also analyses implication by custom, along with good faith and cooperation as requirements for parties to a contract.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"169 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132121311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0004
T. Arvind
{"title":"4. Contracts and informal relations","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0004","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0004","url":null,"abstract":"This chapter focuses on the requirement that the parties to a contract must have the intention to create legal relations for it to become legally binding. It considers how we decide whether the parties to a particular agreement had the intention to enter into legal relations, showing that English law operates by means of rebuttable presumptions. It then examines cases where the presumption is that the parties did not intend to create legal relations—that they intended their transaction to be merely friendly or social, rather than legal. It also discusses commercial transactions, where the presumption is reversed, and more specifically the types of commercial transactions that are structured to place them outside the bounds of legal enforcement. The chapter includes the case of Balfour v Balfour [1919] 2 KB 571 (CA).","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"293 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123449051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2019-05-16DOI: 10.1093/HE/9780198829263.003.0005
T. Arvind
{"title":"5. Non-contractual promises","authors":"T. Arvind","doi":"10.1093/HE/9780198829263.003.0005","DOIUrl":"https://doi.org/10.1093/HE/9780198829263.003.0005","url":null,"abstract":"This chapter considers how promissory and proprietary estoppel intersects with the law of contract. Where an agreement is unenforceable at contract law because some legal prerequisite or formality has not been met, that role is played by the law of estoppel. The law of estoppel works by deeming a party to be legally prevented (‘estopped’) from going back on something she has in the past asserted, promised, or accepted. The effect of estoppel is to hold the person to that past assertion or promise, by preventing her from resiling from it. This chapter first examines the context of promissory estoppel before discussing its requirements and its effect, such as suspending rights and extinguishing debts. It then explains the requirements of proprietary estoppel, namely: there must be a promise or encouragement; the promise or encouragement must induce reasonable reliance; reliance must be detrimental; and unconscionability.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117096511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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