{"title":"3. Certainty and formalities","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0003","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0003","url":null,"abstract":"This chapter looks at the need for certainty and formalities in contracting. It explores case law which illustrates, on the one hand, that a willingness of the parties to make a contract does not necessarily amount to a legally binding agreement, whilst on the other hand, there is potential for the court to fill in any gaps to give effect to agreements. The issues surrounding an agreement which is expressed to be ‘subject to contract’ are explored in light of the recent Supreme Court case of RTS Flexible Systems Ltd. The reasons for when contract formalities may be required are also noted. There is also discussion of electronic contracting, in relation to the introduction of the Electronic Identification and Trust Services for Electronic Transactions Regulations (2016/696).","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"33 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":"126236453","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":"15. Illegality","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/he/9780198752844.003.0015","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0015","url":null,"abstract":"This chapter explores the illegality of contracts. Contracts which may fall within the scope of the restraint of trade doctrine are considered, including the Court of Appeal’s approach in Proactive Sports Management Ltd v Rooney. The chapter also looks at other reasons why a contract may be declared illegal or void at common law, such as grounds of public policy. Policy factors and the illegality defence are explored in light of recent case law and the Law Commission Final Report ‘The Illegality Defence’. Useful case law illustrations demonstrate how the courts have dealt with the issues surrounding illegality in a range of contexts, such as contracts to commit an unlawful act, contracts promoting sexual immorality, contracts prejudicial to the interests of the state, contracts prejudicial to the administration of justice and contracts promoting corruption in public life. The consequences and effects of impropriety and illegality are also looked at. The landmark case of Patel v Mirza [2016] UKSC 42, and its impact on the law, is also explored in this chapter.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"91 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":"116736904","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":"4. Consideration","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/he/9780198752844.003.0004","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0004","url":null,"abstract":"This chapter looks at the requirement of consideration; the basic idea, how it works, that it will usually not be a problem because supplying the consideration is generally the whole purpose of the contract (the ‘bargain’), but that the courts will sometimes ‘find’ consideration when none is readily apparent, and will not require it to be of adequate value. It goes on to consider performance of an existing duty by one party as consideration for a new promise by the other party, particularly in the light of the approach taken in Williams v Roffey Bros. It also looks at the related problem (and emphasizes the relationship) of a promise to forego part of a debt in return for payment of part of what is owed in the light of the traditional approach taken in Foakes v Beer, and the recognition of promissory estoppel in High Trees. The significant case of MWB Business Exchange Centres Ltd v Rock Advertising Ltd (2016) is explored in detail in this chapter.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"2 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":"115416242","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":"20. Damages","authors":"Elizabeth Macdonald, Ruth Atkins, Jens Krebs","doi":"10.1093/he/9780198752844.003.0020","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0020","url":null,"abstract":"This chapter deals with the primary remedy for breach of contract: damages. It looks at the basic test, which allows for the recovery of expectation loss, and also considers recovery of reliance loss and a restitutionary sum. The further limitations on recovery such as remoteness and the ‘duty’ to mitigate are considered, as is the distinction between liquidated damages and penalty clauses. The problem of recovering for non-financial losses—mental distress and the consumer surplus—is also addressed. Finally, the chapter looks at how the rules on penalties have been relaxed with the landmark judgments in Cavendish and ParkingEye (2015).","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"11 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":"128620751","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":"14. Duress and undue influence","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0014","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0014","url":null,"abstract":"This chapter looks at the effect of duress or undue influence on the making of a contract. The difficulty is identified of distinguishing hard bargaining from economic duress, when the ‘threat’ is to the economic interest of the party ‘threatened’. This raises the question of what amounts to an illegitimate threat; whether a threat which is not otherwise legally labelled as wrongful will suffice, and whether all threatened breaches of contract do so. The question also arises as to a test of a ‘reasonable’, or ‘practical’, alternative to agreeing. Undue influence is concerned with the surrender of decision making because of the relationship of the parties whether through domination or trust. The presumptions that arise in relation to undue influence, and when they arise, are examined. Consideration is given to the treatment of aggressive and misleading trade practices under the Consumer Protection from Unfair Trading Regulations (as amended by the Consumer Protection (Amendment) Regulations 2014).","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132822966","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":"21. Specific enforcement","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/he/9780198752844.003.0021","DOIUrl":"https://doi.org/10.1093/he/9780198752844.003.0021","url":null,"abstract":"This chapter looks at specific performance and injunctions. Specific enforcement is only available in limited circumstances. The adequacy of damages as a remedy must be addressed. Its availability is limited by issues of supervision and its general undesirability in relation to contracts for personal services. Its nature as an equitable remedy means that the courts have discretion and consideration is given to such matters as hardship, behaviour of the claimant, adequacy of consideration and mutuality.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"208 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121632864","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":"18. Performance and breach","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0018","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0018","url":null,"abstract":"This chapter covers the two contractual situations of performance and breach. First, it recognizes that most contracts are performed and completed, with the consequence that liability ceases and the obligations under the contract are discharged by performance. Some obligations may be classed as conditions precedent, or as conditions subsequent, and the order for performance may be provided for by contingent conditions. The relevance of the entire contracts rule is noted. Second, the chapter explores the injured party’s right to terminate for breach. The right to terminate for repudiatory breach and the right to terminate for anticipatory breach of contract, are both illustrated through the relevant case law which highlight the possible options available to an injured party and the consequences which may follow.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126171045","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":"11. Unfair terms in consumer contracts","authors":"E. MacDonald, R. Atkins, J. Krebs","doi":"10.1093/HE/9780198752844.003.0011","DOIUrl":"https://doi.org/10.1093/HE/9780198752844.003.0011","url":null,"abstract":"This chapter addresses the Directive on Unfair Terms in Consumer Contracts and its implementing legislation: the Unfair Terms in Consumer Contracts Regulations 1999 and the Consumer Rights Act 2015. The legislation is of broad application to unfair terms in consumer contracts. The fairness test, with its reference to good faith, and significant imbalance in the rights and obligations of the parties, is considered. The ‘core exemption’, from the fairness test, of price terms and those dealing with the main subject matter of the contract is looked at. The tensions in the different approaches to ‘core exemption’ in the Court of Appeal and the Supreme Court in Abbey National, and the different emphases on freedom of contract, and protection of the weaker party, are highlighted.","PeriodicalId":214244,"journal":{"name":"Koffman & Macdonald's Law of Contract","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131166597","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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