{"title":"2. Formation of the contract","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0002","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0002","url":null,"abstract":"This chapter identifies the key elements required for a contract to be formed. It looks in depth at agreement, breaking it down into offer and acceptance. An offer is distinguished from an invitation to treat in principle, and specific examples of communications which are commonly identified as invitations to treat or offers are considered (eg advertisements, displays in shops, auctions, and website ‘shops’/advertisements). Termination of offers by various means, including counter-offers and revocation, are looked at. What constitutes an acceptance is addressed, and the special rule relating to the time of effectiveness of posted acceptances (‘the postal rule’) is considered, as is its extension to contexts such as e-mailed acceptances. The ‘battle of the forms’ is looked at.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115307038","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}
{"title":"19. The doctrine of frustration","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0019","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0019","url":null,"abstract":"This chapter investigates the scope of the doctrine of frustration which was developed to deal with cases where events occur after a contract is made which render the agreement illegal, or impossible to perform, or which fundamentally change the nature of the obligations undertaken by the parties. The doctrine operates within strict limits and its use is restricted in cases where, although the commercial purpose of the contract has been drastically affected by unforeseen events, the performance of the contract is still possible. The position under the Law Reform (Frustrated Contracts) Act 1943 and under the common law, including for example, the recent cases of Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting Association (Bermuda) Ltd and Olympic Airlines SA (in Special Liquidation) v ACG Acquisition XX LLC, are examined, collectively demonstrating how the doctrine currently operates.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132504410","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}
{"title":"12. Mistake","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/he/9780198752844.003.0012","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0012","url":null,"abstract":"This chapter deals with mistake. First it looks at mistake in relation to the agreement, exploring the relevance of the identity and attributes distinction and its application in case law including the important decision of the House of Lords in Shogun Finance Ltd v Hudson. The equitable jurisdiction of the courts permits a more flexible approach and this too is considered. Second, the chapter explores mistake relating to questions of performability, often referred to as common mistake. In a situation where both parties share the same misapprehension about an underlying fact, this could constitute a mistake as to the existence, or a mistake as to the quality, of the subject matter. The significance of the leading case of Great Peace Shipping Ltd and its influence on the scope of common mistake is dealt with. The possibility of a document being signed by mistake is also addressed.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133895668","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}
{"title":"1. Introduction to the study of contract law","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/he/9780198752844.003.0001","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0001","url":null,"abstract":"This chapter introduces some of the key ideas that will be encountered in the rest of the book, such as what is required for a contract. It touches upon the everyday role of contract, and that, although the book is heavily concerned with case law, contract disputes are often resolved without resort to the courts. It also introduces the idea of the evolution of contract law with the changing nature of society: the limitations placed on the use of an idea, such as ‘freedom of contract’, through recognition of the impact of inequality of bargaining power. Additionally, it alerts the reader to the impact of the EU.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124895028","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}
{"title":"17. Privity and third party rights","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0017","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0017","url":null,"abstract":"This chapter describes privity of contract, explaining the development of the doctrine and the problems associated with its application. The scope and usage of the Contracts (Rights of Third Parties) Act 1999 is discussed. The tensions inherently created by the possible freedom of the contracting parties to vary or cancel a third party’s right under an agreement are highlighted. Circumventions of, and exceptions to, the doctrine are also addressed including limitations on the doctrine which may be brought about by an assignment of contractual rights and the doctrine of agency. Finally, the issues surrounding privity and the doctrine of consideration are noted.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124135663","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}
{"title":"10. Exemption clauses and legislation","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0010","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0010","url":null,"abstract":"This chapter deals with the statutory policing of exemption clauses under the Unfair Contract Terms Act 1977 (UCTA) and addresses the changes to the law made by the Consumer Rights Act 2015. It explains the structure of UCTA and how to use it. It considers the different types of situations in which exemption clauses fall within it, under different sections (eg s2 negligence, s3 written standard terms of business, s6 and s7 goods contracts), and the need to consider whether a section renders a clause automatically ineffective or subjects it to the requirement of reasonableness. It looks at the application of the requirement of reasonableness and factors which have been identified as significant, such as the potential for insurance, the availability of alternatives, and reasons for a level of limitation. It considers the meaning of the UCTA’s definition of ‘deals as consumer’.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130467917","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}
{"title":"9. Exemption clauses","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/he/9780198752844.003.0009","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0009","url":null,"abstract":"This chapter begins the discussion of unfair terms. It deals with the common law rules relating to exemption clauses, and introduces the problems, as well as the benefits of standard form contracts. It looks at the common law rules dealing with incorporation and construction (interpretation) generally, and their use by the courts to deal with unfair exemption clauses, and the evolution of the use of such approaches in the light of legislative policing. In particular, it deals with incorporation by signature, notice (including the ‘red hand rule’), and a course of dealing, and looks at construction post-UCTA (Unfair Contract Terms Act 1977), and post-Investors, including the Canada Steamship rules and the distinction between limitation and exclusion clauses. The tension between freedom of contract and protecting the party with weaker bargaining power is emphasized. The chapter addresses how the Consumer Rights Act 2015 has impacted the law.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131858641","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}
{"title":"6. Intention to create legal relations","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/he/9780198752844.003.0006","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0006","url":null,"abstract":"This chapter considers the final element of the formation of the contract: the intention to create legal relations. There is generally no difficulty in finding this requirement is fulfilled in commercial cases, but such intention is generally assumed to be absent in domestic or social agreements. The parties’ intentions may usually reflect these assumptions, but the issue of underlying policy is addressed. In commercial situations, issues of ‘intention to create legal relations’ are more likely to arise in relation to a clause which it is claimed is intended to show that there was no such intention in relation to the particular agreement.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121390587","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}
{"title":"8. Classification of terms","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0008","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0008","url":null,"abstract":"This chapter distinguishes conditions, warranties and innominate terms in relation to the different consequences of their breach; the availability, or not, of the right to terminate for breach. It identifies the test for determining which classification applies to a particular term, relating it to the benefits and drawbacks of the condition and the innominate term categorizations: certainty/inflexibility in relation to conditions and flexibility/certainty in relation to innominate terms. Significant cases, such as Hong Kong Fir and Bunge v Tradax are looked at in detail.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121579762","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}
{"title":"13. Misrepresentation","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/he/9780198752844.003.0013","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0013","url":null,"abstract":"This chapter looks at misrepresentation. It first identifies the requirements for a misrepresentation, and highlights the situations in which the courts are willing to find misrepresentations although prima facie there are only statements of opinion which are stated not to suffice in themselves. It considers the remedy of rescission, and when it will be barred. It looks at the different ways in which damages may be provided for misrepresentation: for fraudulent misrepresentation under the tort of deceit; for negligent misrepresentation under the tort of negligent misrepresentation; and for negligent misrepresentation under s2(1) of the Misrepresentation Act 1967. It looks at the different requirements for each type, which it will be advisable to use, and what will be covered by a damages remedy for misrepresentation. Consideration is also given to remedies for aggressive and misleading trade practices under the amended Consumer Protection from Unfair Trading Regulations. The chapter also now looks at the Consumer Rights Act 2015 and its impact on the law.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125767851","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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