{"title":"11. Illegality","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/he/9780198869986.003.0011","DOIUrl":"https://doi.org/10.1093/he/9780198869986.003.0011","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may be deemed illegal or void on grounds of public policy. This chapter examines the illegality of contracts under English law, contracts prohibited by statute (express prohibition), and contracts that are illegal in their performance. It considers contracts that are void on grounds of public policy, focusing on contracts in restraint of trade, covenants between employer and employee, exclusive dealing agreements, exclusive service agreements, and severance of the objectionable parts of covenants. The chapter also discusses the recovery of money or property transferred under an illegal contract, along with the UK Law Commission’s proposed reform of the law governing illegal contracts and the Supreme Court decision of Patel v Mirza over controversy concerning the nature of illegality, the basis for intervention in illegal contracts, and the ability to recover under an illegal contract.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126605295","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. Mistake","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/he/9780198869986.003.0008","DOIUrl":"https://doi.org/10.1093/he/9780198869986.003.0008","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter considers the area of ‘mistake’. The law distinguishes between several types of mistake. Some mistakes (‘agreement mistakes’) prevent formation of an agreement. These mistakes are mutual mistakes (where the parties are at cross purposes) and unilateral mistakes (where one party is mistaken and the other knows or ought to know this, e.g. unilateral mistake as to identity). The chapter also looks at document mistakes and specifically rectification of a written document to reflect accurately what the parties in fact agreed, and the plea of non est factum (‘this is not my deed’). Finally, a contract having no contractual allocation of risk and made under the same mistaken assumption may be void for ‘common mistake’ if the mistake is so fundamental that it ‘nullifies’ consent. This is known as ‘initial impossibility’ because the impossibility already exists when the parties agree to the contract. This chapter deals with common mistake and initial impossibility, contractual risk allocation, and the theoretical basis for the doctrine of common mistake. It discusses categories of fundamental common mistake, including res extincta, and assesses the legal effects of mistakes as to quality made by both parties. The chapter concludes by considering the relationship between common mistake and frustration.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"120 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116342787","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. Damages for breach of contract","authors":"R. Merkin, Séverine Saintier, J. Poole","doi":"10.1093/he/9780198869986.003.0014","DOIUrl":"https://doi.org/10.1093/he/9780198869986.003.0014","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Contractual damages aim to compensate the injured party for the loss suffered due to breach of contract. Damages for breach are compensatory and not punitive so that it is possible to recover only for the actual loss suffered by the injured party. This chapter considers the different measures to achieve compensation for loss suffered as a result of the breach and the limitations on the ability to be fully compensated in a breach of contract claim. It also discusses agreed damages provisions and their enforceability.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125140699","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. Breach of contract","authors":"R. Merkin, Séverine Saintier, J. Poole","doi":"10.1093/he/9780198869986.003.0013","DOIUrl":"https://doi.org/10.1093/he/9780198869986.003.0013","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. The performance obligations of the parties to a contract are determined by contractual terms. A breach of contract arises when a party fails to fully comply with a performance obligation, without lawful excuse. If a contractual obligation is strict, failure to comply constitutes a breach of contract regardless of fault. Subject to an enforceable exemption clause, the injured party is entitled to damages to compensate for the loss suffered as a result of the breach. This chapter focuses on breach of contract and its legal consequences. It discusses the election on repudiatory breach; termination or affirmation of a contract; the classification of terms: conditions, warranties, and innominate or intermediate terms; the ‘entire obligation rule’; and anticipatory breach.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115151223","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. Misrepresentation","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/he/9780198729723.003.0009","DOIUrl":"https://doi.org/10.1093/he/9780198729723.003.0009","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may include a statement that is a mere puff, a representation, or a contractual term. In the case of a representation, the maker asserts the truth of certain facts and thus induces the contract. In case of an actionable misrepresentation (an unambiguous false statement of fact which induces the other party to enter into the contract), the contract may be rendered voidable; that is, liable to be set aside or rescinded. In some instances, the injured party may claim for damages designed to restore him to his original position. This chapter examines the identification of actionable misrepresentation, duties of disclosure, types of misrepresentations, rescission as a remedy, damages for misrepresentation, including the damages available in s. 2 of the Misrepresentation Act 1967, and the effect of contributory negligence in any damages award. Finally, the chapter examines exclusion of liability for non-fraudulent misrepresentation and the effect of ‘non-reliance’ clauses in contracts. In the consumer context, it also notes the criminal offences in certain instances of misrepresentation under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the extension to include civil remedies for misleading actions.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132811480","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":"5. Content of the contract and principles of interpretation","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/HE/9780198816980.003.0006","DOIUrl":"https://doi.org/10.1093/HE/9780198816980.003.0006","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines what the parties to a contract have undertaken to do; that is, the terms of the contract, and the principles determining how the courts interpret the meaning of those contractual terms. It considers whether pre-contractual statements are terms or mere representations. The chapter then turns to written contracts, focusing on the parol evidence rule, entire agreement clauses, and the effect of signature on the contractual document. It also discusses oral contracts and incorporation of written terms in such contracts by means of signature, reasonable notice, consistent course of dealing, and common knowledge of the parties. In addition to express terms, this chapter looks at how terms are implied, particularly terms implied by the courts—terms implied in law and terms implied in fact. There is discussion of the typical implied terms in sale and supply contracts in the B2B and B2C context. Finally, this chapter focuses on the principles governing the interpretation of contractual terms.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121870490","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":"2. Agreement","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/he/9780199687237.003.0002","DOIUrl":"https://doi.org/10.1093/he/9780199687237.003.0002","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract is a legally enforceable agreement. This chapter explains how the existence of an agreement is determined. After considering how the courts assess whether an agreement has been, using subjective and objective methods, it discusses the precise criteria used to determine agreement, namely offer and acceptance. The chapter defines offers and distinguishes them from invitations to treat. It focuses on identifying acceptances and distinguishing acceptances from responses which are not a mirror image of the offer, such as counter-offers. Much emphasis is placed on explaining the communication principles applicable to acceptances—postal and instantaneous communications, including email. The chapter explains revocations of offers and the communication principles applicable to revocations. The courts will enforce an agreement only if it is sufficiently certain in its terms. the This chapter therefore considers how the courts deal with vagueness and incompleteness, including agreements to agree and whether there can ever be a duty to negotiate in good faith. It also examines the position where there is no contract due to uncertainty, but there has been performance. Finally, the chapter distinguishes bilateral and unilateral contracts and the special principles applicable to unilateral contracts.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115206141","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. Discharge by frustration: subsequent impossibility","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/HE/9780198816980.003.0012","DOIUrl":"https://doi.org/10.1093/HE/9780198816980.003.0012","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122014235","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. Duress, undue influence, and unconscionable bargains","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/HE/9780198816980.003.0015","DOIUrl":"https://doi.org/10.1093/HE/9780198816980.003.0015","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines further vitiating factors which relate to the way in which the contract was entered into and render it voidable. It discusses the doctrines of duress and undue influence and whether contracts are affected by a general doctrine of unconscionability relating to the manner of formation and content relative to the nature and position of the contracting parties. The doctrine of economic duress allows for any contract to be set aside where unlawful threats to financial position were made in order to secure agreement. This doctrine is still evolving but represents a mechanism to prevent the enforceability of promises not freely given. Under the doctrine of undue influence, a contract may be set aside if one party has put unfair and improper pressure on the other in the negotiations leading up to the contract. The courts of equity have developed undue influence as one of the grounds of relief to prevent abuse of the influence of one person over another, particularly where the influence results from the nature of the relationship between the parties. The chapter examines types of undue influence, actual undue influence, presumed (or evidential) undue influence, undue influence exercised by a third party, the legal effect of undue influence, and the relationship between undue influence and unconscionability.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116534580","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. Remedies providing for specific relief and restitutionary remedies","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/HE/9780198816980.003.0010","DOIUrl":"https://doi.org/10.1093/HE/9780198816980.003.0010","url":null,"abstract":"\u0000 Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with remedies providing for specific relief and so-called ‘restitutionary’ remedies. It first considers debt claims (agreed sums), before turning to specific performance and injunctions. It concludes by discussing restitution—recovery where there has been a total failure of consideration, and recovery on a quantum meruit (as where a contract fails to materialize)—following the Supreme Court decision of Morris-Garner and another v One Step (Support Ltd) and its impact on Wrotham Park damages and the availability and nature of the account of profits in Attorney-General v Blake.","PeriodicalId":337386,"journal":{"name":"Poole's Casebook on Contract Law","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115475419","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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