University Degree: Contract Law
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- Marked by Teachers essays 4
They are:- Whether the notice and clause are incorporated into the contract? Whether UCTA and UTCCR applies? Whether Robert can claim damages on his broken arm and Rolex watch? Whether Lucy can claim damages on the stolen coat? 3.0 Application 3.1 Methods of incorporation An exclusion clause is a term of the contract which attempts to exclude or restrict one's liability which he would otherwise owe to the other. In Henderson v Stephenson1, the court held that the absence of a notice on the front of the ticket referring to clauses on its rear rendered the clauses invalid.
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In order to advise Posh as to her legal position, concerning the sale of her shares in Big Bank plc to Becks, it is of paramount importance to determine the existence, if any, of a binding contract between both parties and to what extent Posh may be bound by this. In order for a valid contract to exist, there must be present the following essential elements; agreement, consideration, and the intention to create legal relations.1 It would seem clear from the facts of the present case that there has been an agreement by both parties.
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Of all of the elements which make up the definition of theft, which are the most problematic? Discuss using case law.3 star(s)
To illustrate the difficulties over the simplest of statements, the example that 'land cannot be stolen' gives rise to a vast number of complex issues surrounding land. For example, land cannot be stolen but what if the "defendant is acting as a trustee or personal representative" (Herring, 2006)? In this case there can be theft of the land if the trustee sells more land then what is required of him. Also other issues surrounding land are things that are part of the land, for example, wild flowers, which can only be stolen if they are taken with the intent of selling them on, yet are not considered as theft if they are taken for personal gain.
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The final issue that needs to be considered is whether the offer once made can be withdrawn or revoked. The general rule is that the offer can be revoked up until the time it is accepted. The offer was announced in the Sunday sentinel and then cancelled the following day. Bel did not post her entry until Tuesday which meant that the newspaper had already revoked the offer before she had accepted it. However since Bel missed the cancellation of the offer in the Monday edition of the newspaper it can be argued that she had accepted the offer before she was made aware of the cancellation.
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Jack wants to have a conservatory built in his house. He writes to three builders, Bob, Ken and Andy, asking them to submit estimates. In the letters Jack sets down his specifications for the conservatory and, furthermore, states that he will accept the
Jack proposes that he will pay £10,000 to Ken now, rather than the full amount which falls due upon completion of the work. When Ken receives Jack's letter, he is inclined to accept Jack's proposal as he cannot afford to run the risk of a costly legal action against Jack which may result in him recovering even less than the £10,000 offered. Ken accordingly writes a letter to Jack accepting the new terms. However, just as Ken has posted the letter, he says to himself, "Damn that stingy git!
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Lucretia places a sign in the window of her red Ford Transit van, which reads for sale - 10000 low mileage great shape 1999 model full service history available
While Lucretia knew of the previous history and use of the van, she has said nothing to James. Advise James. Introduction Since only a misrepresentation but not a breach of contract can be found, James should claim under the Misrepresentation Act 1967 where possible for two reasons. It has the advantages of a lower qualifying threshold and a more generous measure of damages. In light of this, two issues will be considered. Firstly, the misrepresentation of the van's age; secondly, the issue of non-disclosure.
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The mere prescence of consideration normally implies the existence of an intention to create legal relations (Willitson-1969) if this be the case why do the two concepts co-exist?
These three elements should be treated together as indicating bargain. Thus an analysis which tries to separate out agreement (that is, offer and acceptance) from consideration is missing the point of why the courts started looking for evidence of these three elements in the first place. 'This separation of agreement from consideration has resulted in a fundamental point being overlooked. This is that the common law recognised at an early stage that usually parties do not define their intention to enter into legal relations. Consequently, the fact that they have cast their agreement into the form of bargain that is offer, acceptance, and consideration, provides an extremely practical test of that intention.
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Common mistake may be referred to as Identical Mistake, it occurs when both parties enter into a contract on the basis of a false and fundamental assumption.
The court held that there was a mutual mistake regarding the facts of the relationships and so the separation was void. In a rare situation, where the property about to be sold to party A from party B, whereby both parties believe B to own it, is in fact owned by A already(unknowingly to both parties) then the contract is void for common mistake. This was exemplified in Cooper v Phibbs 5 where there was a mistake as to title.
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A contract is a legally binding agreement between two parties that legally doesnt necessary have to be in writing, many of these contracts are known as simple or parol contracts.
The owner of the store (the defendant) then refused to sell Lefkowitz the items due to the fact that the advertisement (the offer) was only for women. (http://www.lawnix.com/cases/lefkowitz-great-minneapolis.html) Lefkowitz decided to take it to court and ultimately the court ruled in favor of Lefkowitz , and there was a unilateral business agreement, as there were clearly stated terms, intention to do business and intention communicated. "the offer was clear, definite, explicit, and left nothing open to negotiation. While the offeror has the right to modify his offer prior to acceptance, he cannot change his offer after acceptance."
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Before Katie enters into a contract with her builders its important that she is aware of the different types of business agreements available to her that will safeguard her interests. The agreements can be unilateral, bilateral and standard from c
If a person signs a contractual document is bound by its terms even if they don't read it. If the document containing the clause is not signed by the injured party, they may be able to avoid its effect by proving they had insufficient notice of it. (Chapelton v Bury UDD 1940). One of the advantages of a standard form contract is that there is no need to drafting and no need to worry about uncertain terms in the contract. Standard form also spread risk equally to the organisation and the customer. A disadvantage could be that the terms are not very easy to understand, interpretation between parties can be different that can arise disputes.
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Exclusion Clauses. There are many elements to consider when attempting linking an exclusion clause with a contract. There are certain rules and regulations that even contracts themselves must abide by.
There are three ways of incorporating a clause into a contract, which will now be explored. Firstly, a clause can be incorporated by the other party's signature. This is a very common technique and is most effective as it is almost impossible for one to agree to the terms of an exemption clause without having read it first. This does not make sense.....you are bound by signature whether you have read the clause or not.....This was derived from the case of L'Estrange v Gracoub where it was held that the suppliers were not held liable for the malfunctioning of a machine they supplied because the claimant had signed the contract, which clearly dismissed their responsibility.
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"The rigid application of the Rule in Pinnel's Case has frequently caused hardship. Explain the rule and evaluate the extent to which its application has been mitigated by the development of the doctrine of promissory estoppel.
The ruling was later confirmed by the House of Lords in Foaks v Beer 5. If a debtor pays a lesser sum to the creditor that what is due, even upon the creditor's approval, the laws says that the debtor cannot be discharged from his duty to pay the full amount. This is because the creditor's promise is not supported by consideration. However if the promise is supported by 'fresh' consideration then the part payment of this debt may discharge the debtor.
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Müller procured RTS to design, manufacture, assemble, works test, deliver, install and commission, at Müllers factory, yoghurt packaging machinery. RTS produced a continuity of quotations which referred to RTS' terms and conditions of sale. Müller indicated that it wished any contract to be on its own terms and conditions of sale rather than those of RTS. RTS suggested using form MF/1 as a base for the terms and conditions as they regarded this form as neutral between employing and contracting interests. Müller took on board this suggestion and produced a first draft of the special conditions it sought to incorporate into the form MF/1, which RTS roundly rejected.
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English sales law is driven by the need for fairness and reasonableness rather than by the needs and practices of traders. Discuss.
In other words the need for freedom must be set against the value of 'protecting the weak, the foolish, and the thoughtless from imposition and oppression'.1 A consumer can be defined as a person who is not purchasing in the course of their business although it does have different definitions under different acts. UCTA applies to unfair terms in contracts whether they are consumer contracts or business-to-business contracts, although, as shown below, Parliament has seen fit to give the former type of contract much more attention than the latter.
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Third party rights contract law problem question. The given case is concerned with Harrys rights over the owl which is now in the possession of McGonagall. In advising Harry this essay shall try to establish whether there was a contract between S
Three years later Harry found out and ordered Ron to get the owl back. Advice their parties as to their rights and liabilities in contract. The given case is concerned with Harry's rights over the owl which is now in the possession of McGonagall. In advising Harry this essay shall try to establish whether there was a contract between Snape and McGonagall. However central to establishing this contract we also need to establish whether there was a contract between Harry and Snape lack of which would require the application of the principle of nemo dat quod non habet.
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Explain in the light of decided cases how the Courts understand the terms offer and acceptance in the formation of contracts.
This case has shown where an offer is in the form of a promise for an act. Since the advertisement has contained an offer of unilateral contract, the acceptance of the offer does not need to be communicated to the offeeror. Furthermore, the defendants intends to give promise to customers of the reward by stating the amount of deposit they have put in bank, the judge interpret it as an actual promise rather than a mere sales puff. An offer is different from an invitation to treat, it carries an element risk since once the offer is being made and accepted by the other party, it will be illegal for the offeror to break the contract.
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Is the common law fair ? - on one hand the common law wants to promote healthy business but at the same time stop people from misleading other people into a contact.
The Unfair Terms in Consumer Contracts Regulations 1999 on the other hand implies good faith upon the law. As you can see in Article 5 of the Unfair Terms A contract term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer2. Therefore since we know that the common law doesn't stress the good faith as much as the Unfair Terms in Consumer Contracts Regulations 1999, I will now move on and asses whether fairness is really necessary and welcome in English Law.
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Contract Law Case. Dipikas advertisement can be seen as an offer because she had stated specific terms in the offer with the television and her address and phone number. An offer is a definite promise to be bound provided certain specific terms a
Offer and acceptance is when one party makes an offer and the other party accepts it. Consideration is when both parties exchange something of value so the contract can be valid. Intention is when both parties intend to create a legal relationship of that agreement. The facts of the question indicate that it is a unilateral contract. A unilateral contract is where one party promises to do something in return for an act of the other party. If an offeree has accepted a unilateral offer and has begun completing the act but not yet finished it, revocation of that offer will not be effective.
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Contract Law problem cases. Kamil want to sell his laptop with his friend Sam. Sam agrees to buy the laptop at the price of $500, and pays Kamil. Kamil later discovers the laptop could have been sold at a higher price
Ciro and V. Goldwasser, 2006, p.86) Verbal agreements do not form a contract to some extent. In this case , they have agreement ,but the Kamil is a minor and sound equipment is not necessaries for him ,so there is no contract . Argument From the point of the view of Mamil Mcelroy, he is a minor and promised to purchase Michael's Kenwood Excelon DNX9140 sound equipment. Besides, they make a deal that Kamil will pay for the equipment in three instalments.
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Postal rule was an arbitrary choice in the 19th Century. Modern technologies make it redundant. Therefore, it should be abandoned as an obstacle to fairness in contract law.
It was arbitrary, because there was no range of choice for communication and the postal services were the only option for distance contracting. Modern technologies and inventions make it redundant and unfair. In this coursework, I have explored the advantages and disadvantages of the rule and whether it should be justified today. Postal rule is no longer needed because in the 21st Century, contracts can be concluded in seconds, using both instantaneous and non-instantaneous methods of communication with little or no risk of loss and delay.
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"[E]vidence of consideration may be needed more than once in the life of a commercial relationship. Whenever the parties need to vary the terms of the original agreement, they will need to provide fresh consideration as, in the eyes of the traditionalist
The three rules of considerations are: consideration must be sufficient, but need not be adequate; consideration must have some economic value and finally, consideration must move from the promisee. However, circumstances have been identified by the courts where they have made exceptions to the general principles of consideration. Furthermore the doctrine of consideration itself has been undermined since the enforcement of the Judicature Acts 1873-753 . As a result of which the courts are able to enforce alteration promises which vary a contract despite no fresh consideration being present.
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Exemption clauses are an agreement in a contract which helps the party to have limited or to exclude liability. It can be used unfairly which makes it a disadvantage to other partys which is why there are laws in place to limit the use of clauses and to m
All clauses need to satisfy the Unfair Contra Terms Act (1977) and pass the test of reasonableness There are three types of incorporation of clauses one being by signature other being by notice and finally incorporation by a consistent and frequent course of dealings. In this case clause has been incorporated as a term in the contract using consistent and frequent course of dealings. For the term to be incorporated the party in this case, Greased Lightning need to give reasonable time to Mr.
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Discuss the impact of the Bosman ruling on European Football. Just over 15 years ago on December 15th 1995, the European Court of Justice (ECJ) in Luxembourg passed a ruling that would dramatically change European football.
If these rules were not met a player could be suspended for up to two years virtually ruining their professional career. 1 Following what Bosman believed was an injustice on his own rights, he took legal action and the rest as you say is history. The European Court of Justice ruled in favour of Bosman and stated that players whose contracts had expired were allowed to leave their club for free. Bosman's lawyer, Jean-Louis Dupont, referred to Article 48 of the Treaty of Rome in justifying his client's case.
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Three weeks after taking delivery of the machine, it burst into flames, badly burning Heather's arm. Considerable damage was also done to Cellsoon Ltd's offices such that the company lost several thousand pounds due to the consequent disruption of its business. The fire was caused by a faulty electrical connection which was not discovered in advance due to a poor pre-delivery inspection carried out by Rodney, one of Zero Plc's employees. Advise Heather. ............................................................................... There are three stages, which the exclusion clause must pass for it to be binding on the parties, the first two stages are at common law, and the third stage considers applicable statutory provisions.
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Essay on Construction Contract scenario. Ram Solutions (The Contractor), delivering a 15m new build science centre (The Project) on an existing occupied secondary school site for Southampton City Council (The Client), within the UK.
Identify and justify a choice of a preferred dispute resolution technique. iii) Analyse how the parties are likely to view each other once the dispute resolution technique has run its course. Were the alternatives feasible? Do not include the chosen standard form of contract with your answer but ensure that it is fully referenced. Where you include extracts from the literature or clauses/judgments from case law in your answer make sure they are clearly distinguished from the body of your answer by, for example, setting them in bold italics. Do not include unnecessary detail or padding.
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