The High Court of Justice is bound by decisions of more senior courts, the House of Lords as well as the Court of Appeal. A High Court judge isn’t bound by decisions of other High Court judges.
With courts such as the Crown Courts, Magistrates Courts and Country Courts, then decisions aren’t usually reported because they’re bound by decisions of the higher courts. The Crown Court will deal primarily with criminal cases, the Magistrates Court will deal with a range of criminal cases as well as some civil cases and the Country Court deals with civil cases of all types. These courts don’t create precedents as decisions by the courts don’t bind any other courts.
There are benefits of precedents, are that reaching verdicts as the result of the doctrine of precedent will make the system constant. It develops an easier way to predict results of litigation as well as allowing the Legal System in England to be more flexible. The decisions can be revised and comprehensive to reflect any changes to society. The law system is clear because it’s only the ‘ratio decidendi’ that’s followed it’s easier to realise which law is getting applied.
As precedents are there the certainty as to which law is applied also what the outcome would be in a given situation. Judges can develop law without having to delay Parliament to create new laws. The doctrine will allow flexibility in the logic that judges are able to depart from precedents if it’s required.
Q2.
When looking to advise Barrymore, we must look into whether a contract has been agreed. Barrymore’s offer is his declaration of readiness to create a contract. For an offer to be created there has to be further indication of interest in creating a contract. The offer has to be capable of becoming an arrangement by acceptance and has to contain a certain promise has to be bounded and provided with specific terms being accepted and not just an offer in which to negotiate.
The display of goods in the shop is taken as ‘invitation to treat’ as in the case of Fisher v Bell (1961). Where an interest is to sell the item by any means is as good as displaying goods in shop for sale.
In the case of ‘Carlill v. Carbolic Smoke Ball Co (1893)’, the view that the court took was the advert was an offer and not just to attempt to create a contract with whole world. The judgement will stand unless by either an act of an offeror to show seriousness in the offer or as an expressed declaration of acceptance by an offeror in a what so ever promise as stated in the advertisement.
Principally this is to project invitations to the general public and to create an offer for a particular item. Therefore the advertisement again states and is constituted in law as an ‘invitation to treat’ and not as an offer to sale as shown in the case of ‘Pattridge v Crittenden’ (1968).
In the case of ‘Harris v Nickerson’ (1873) , the price that was advertised shouldn’t be held as its contracted price. The product advertised with a price was regarded as an effort to encourage offers and was merely an invitation to treat.
Although Barrymore’s interest to purchase was announced through the attempt to purchase the DVD player at the store, this act of intention can only be considered as invitation to treat.
The case of ‘Pharmaceutical Society v Boots cash chemists Ltd’ (1953), is where Boots were alleged to have sold goods without the proper supervision of the pharmacist. That meant the court believed that its display of goods was an ‘invitation to treat’, as the customer made an offer by approaching a cashier, with the cashier accepting by the action that indicated the readiness to sell. Thus it was said that no offence was there as the offer as well as acceptance was acquired where the pharmacist was located.
Q3.
This question will require the argument of offers and acceptance with the possible outcomes that can be provided to Bridges.
A contract will usually begin with an offer being accepted. The offer by a party is a statement to the offeror recognising terms of the agreement to which they’re ready to be bound to, if and when they’re accepted by the offeree.
The offer has got to be definitive and precise. The offer made can be to a person, a group of people or the whole world.
The unilateral offer made by Duval started off by being a one offer. It was made without Duval knowing whether Bridges will take up and accept it, therefore turning into a contract.
The invitation to treat by Duval is the invitation to Bridges to create an offer. Its then Bridges decision whether to agree the offer.
The agreement will only occur when Bridges acceptance is valid and follows a valid offer by Duval then the contract will be formed.
The acceptance has to be unequivocal and unconditional; in Contract Law unless acceptance is communicated there will be no contract. Silence can’t be imposed as a means of acceptance.
This scenario is concerning a counter offer. Bridges must agree to the terms of the offer. As Bridges introduced new terms to the offer then the counter offer is a new offer where Duval is can choose to either accept it or reject it.
The case of ‘Tinn v Hoffman’ (1873) illustrates this. Bridges attempt to alter the terms of his offer is a rejection to Duvals offer which is then not open to acceptance. This is shown within the case of ‘Hyde v. Wrench’ (1840).
It can be known that a simple inquiry in the terms of an offer isn’t a counter offer and will leave the original offer intact. In the case ‘Stevenson v. McLean’ (1880) it is comparable to this situation.
It can be seen that as Bridges has attempted to negotiate the terms of the offer it is a counter offer and Duval has the option to accept or reject the new offer.
Q4.
This question will require the argument of consideration and what outcomes, can be provided to Coleman.
The types of consideration are:
- Executor this is where there’s exchanging of a promise to implement acts or agreements in the future.
- Executed is where, if X will make a promise in exchange for an act by Y, when the act has been completed, then its executed consideration.
- Past consideration is if X voluntarily carries out an act, and Y then a promise is made, then the consideration for that promise is in the past. It is seen that any past consideration is no consideration, so it’s not valid and can’t be used to sue.
It’s likely to advise Coleman that while no contract had been agreed prior to him moving into Donats house, the believe for Coleman was that he would be paid for the work he had completed will leave the question open whether or not it is to be legally bound.
For the arrangement to become enforceable within a contract, then there has to be an intention to create the contract, as well as consideration.
As defined by Sir Fredrick Pollock, consideration is “An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable” Payment of money, the transfer of goods and the act of service all constitute consideration.
In the case of ‘Chappell & Co Ltd v. Nestle Co Ltd’ (1960), Lord Somervell stated that: ‘A contracting party can stipulate for what consideration he chooses. A peppercorn doesn’t cease to be good consideration if it is established that the promisor doesn’t like pepper and will throw away the corn.’
Consideration has to be recognised in some way. The consideration has to be sufficient and generally of a monetary value. The consideration doesn’t have to be adequate; however it needs to be sufficient enough to create a contract. In the case ‘Thomas v. Thomas’ (1842), there was a decision made so that a woman was permitted to live in a property at £1 per year.
It has to be specified at time of arrangement, although it doesn’t have to include any previous acts. In the case of ‘Re McArdle’ (1951), previous work that was carried out wasn’t seen as a consideration within that particular contract in regard to any future arrangement. If there was an arrangement between the parties was that any previous work was to have been included, then there is consideration which would have been seen as valid, this was apparent in ‘Lampleigh v. Braithwaite’ (1615) and in Re Casey’s Patents (1892).
I wouldn’t advise Coleman that a case against Donat in contract law as it isn’t possible to show that there was any intention to make a legal relationship with consideration between them.
This is because of the lack of consideration on Coleman’s part and the court would choose that as no contract was bound as no consideration had been agreed between the parties.
Q5
This question will require the argument of misrepresentation and what remedies, can be provided to Firth.
Any statements that are made during negotiations of any contract maybe incorporated as a term or, can form the basis of a collateral contract. Where Spacey stated that the Bus route has a good number of passengers, and that Peck Ltd knew that there may be a reduction in the number of passengers due to the closure of a factory on the route may be conceived as an actionable misrepresentation.
An actionable misrepresentation can be defined as an incorrect false statement of fact, whether past or exiting, which is made by one party to another whilst not being a term of the contract induces the represented to enter the contract.
The first condition to establish misrepresentation is whether the statement is to be one of facts, and not a ‘mere puff’ or vague boasts, which aren’t intended to be taken seriously.
In the case of ‘Dimmock v. Hallett’ (1866), Turner LJ said that representation that land was ‘fertile and improvable’ wouldn’t be reflected as misrepresentation than in other extreme cases. It seemed the further specific that the statement was, the more likely it was to be viewed as misrepresentation
When a false statement of opinion occurs this will not interpret a misrepresentation of facts. It is highlighted in the case of ‘Bisset v. Wilkinson’ (1927). During negotiations the owner of a farm stated to the prospective purchaser that he thought that it could possibly hold 2000 sheep. The prospective purchaser was aware of the fact that the land had never been used for this purpose. As the farm owner’s estimation was based purely an opinion, the purchases didn’t have the right to rescind the contract.
In the case of ‘Esso Petroleum Co Ltd v. Mardon’ (1976) Lord Denning highlighted that the knowledge of the facts was vital in being accountable for a misrepresentation. This is where Esso had told Mr Mardon, the prospective franchisee, that petrol station would have 200,000 customers a year. Due to the projections being wrong, Mr Mardon had the ability to claim compensation for the losses he had accrued. The main distinction between the Esso and Mr Bisset cases was that Esso were in a much better situation to know the truth.
Although this statement of ‘opinion’ isn’t generally actionable as misrepresentation, with giving an opinion one can be held to have represented that they had enhanced information about the definite facts. In the case of ‘Smith v Land and House Property Corporation’ (1884) Bowen LJ, held that Mr Smith couldn’t enforce a contract against L.H.P. to buy his property, this was because he had advertised that the current tenant, Mr Fleck, was ’most desirable‘. When in fact Mr Fleck hadn’t been making his rental payments and was declared bankrupt even though Mr Smith was aware of this. Even though ’most desirable‘ is an evaluative statement it still is a misrepresentation, because it certifies to the statement maker that he has good knowledge of certain facts.
When the points are applied this emphasises the above it may be possible that, as Spacey had superior knowledge about the facts that aren’t equally known the statement is implied as one of fact.
The statement made to Firth which can have induced him into agreeing the contract. The initial statement is made when Spacey states that the route has 2000 passenger and it is noted in the books. This is substantial and plays a part in tempting Firth into the contract. In the case of ‘Edgington v Fitzmaurice’ (1885) that the statement was an enticement though it wasn’t the sole enticement it was sufficient enough as it was actively present in the representee’s mind.
Spacey doesn’t disclose the fact of the closure of the factory along the route. Silence doesn’t amount to misrepresentation. An example was seen in the case of ‘Keates v. Lord Cadogan’ (1851).
If representations are made during the negotiations, which then later transpire no longer to be true, then there is an onus to correct it. In the case of ‘With v. O’Flanagan’ (1936) where O'Flanagan had told Mr With that the medical practice had earned £200, however when the contract was sealed the income had dropped to £5, O'Flanagan was under a duty to correct the change. Representations are continuing.
Following Spacey’s statement made to Frith may be a misrepresentation due to the statement which was one of fact and had convinced Frith into the contract. The knowledge of the closing of the factory was applicable and should have been divulged.
From the facts Spacey knowledgeably makes a misrepresentation with regard to the statement made to Frith, therefore we can rule out innocent misrepresentation (s2 (2) Misrepresentation Act 1967).
For Frith has to prove that “a false representation has been made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false”, which was defined by Lord Herschell in ‘Derry v. Peek’ (1889). For this to apply there must be an absence of true belief by Spacey. If it is proved then damages could be evaluated on tort principles, compensation been given for the loss that was suffered plus resulting damages.
In the case of ‘Hedley Byrne v. Heller’ the House of Lords stated ‘obiter’ that in certain circumstances damages may be recoverable in tort for negligent misrepresentation which causes financial loss. The liability will depend on duty of care which arises from a special relationship between the parties. This will normally occur when the representor possesses knowledge or skill relevant to the subject matter and can reasonably foresee that the representee will rely upon it to enter into the contract.
The misrepresentation may be Negligence misrep under s 2(1) Misrepresentation Act 1967 was shown in the case of ‘Howard Marine and Dredgeing Co v. A Ogden and sons’ (1976). The claimants failed to show any reasonable grounds for overlooking the true capacity in the manual, the defendants succeeded.
When Frith has recognised the presence and kind of misrepresentation, then a remedy can be considered.
There are exceptions with the right to rescind, where the mislead party declares the intention to continue with the contract or if they do an act from which the intention may be implied. In the case of Long v. Lloyd (1958) this was highlighted
Frith may have no right to be awarded any damages because of the loss to rescind by affirmation. This has conflicting authority but wasn’t accepted in ‘Thomas Witter Ltd v. TBP Industries’ (1996). Jacob J held that he does not lose the right to claim damages, provided he had the right to rescind in the past. However the later view held by Judge Humphrey Lloyd QC in the case ‘Floods of Queensferey Ltd v. Shand construction Ltd’ (2000) didn’t follow the ruling in the Thomas Witter on the basis that the courts didn’t have jurisdiction to award any damages under s.2 (2).
In conclusion, it is apparent from the case that there has been a misrepresentation made to Frith that should he wish sought to recover damages in fraudulent misrepresentation or negligent misrepresentation, it may be possible that he is awarded damages.
Bibliography
CEM (2011) ‘Introduction to government and law in the UK’, Paper 8097. Reading; The College of Estate Management.
CEM (2011) ‘The classifications of law and the jurisdictions of the courts’, Paper 8098. Reading; The College of Estate Management.
CEM (2002) ‘Factors that affect the validity of a contract’, Paper 6032. Reading; The College of Estate Management.
CEM (2002) ‘Contents of a contract’, Paper 6033. Reading; The College of Estate Management.
CEM (2002) ‘Discharge of a contract’, Paper 6034. Reading; The College of Estate Management.
CEM (2002) ‘Remedies for breach of contract’, Paper 6035. Reading; The College of Estate Management.
CEM (2002) ‘Sale of Goods’, Paper 3467. Reading; The College of Estate Management.
www.e-lawresources.co.uk (Last accessed 25 Mar 2012).
www.lawteacher.net (Last accessed 25 Mar 2012).
www.legislation.gov.uk (Last accessed 25 Mar 2012).
