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Undue influence in the case of Barclays Bank v. O''Brian [1994] Lord Browne-Wilkinson was referring to cohabitees.
Question 1/a The fact that Ann and Derek are only partners as opposed to being married is irrelevant as far as undue influence is concerned. In Barclays Bank v. O''Brian [1994] Lord Browne-Wilkinson was referring to cohabitees and obviously this is the case as Ann and Derek have lived together for three years. First Ann will try to establish actual undue influence under Class 1. The burden of proof is on Ann to prove affirmatively that Derek exerted influence which goes beyond what is regarded as acceptable on her, to enter into this particular transaction (Williams v Bailey (1866)). It is always difficult to establish actual undue influence and based on the facts of the case, there is nothing to suggest that there was overbearing or improper pressure exerted on Ann, except mentioning his children seems unlikely to amount to 'emotional pressure' (as opposed to BCCI v. Aboody [1989]). However, if actual undue influence is difficult to establish, Ann will try to prove presumed undue influence under Class 2. Firstly Ann only has to show that there was a relationship of trust and confidence between her and Derek of such a nature that it is fair to presume that Derek abused that relationship in persuading Ann to enter
Contract Law
Agreement Understanding an Offer An offer may be described as an expression to another of a willingness to be legally bound by the stated terms. Three features that must be present for the offer to be legally effective: . Statement by offeror containing stated terms. The statement must contain all the elements of the proposed agreement and be sufficiently certain. 2. Statement made to another person. The offer must be made to another legal entity. 3. Offeror indicates a preparedness to be bound. The offeror must be prepared to be legally bound upon acceptance by the offeree. Offers in Bilateral Contracts A bilateral contract is one which, if accepted, is effective to bind both parties to his or her undertaking. Each party undertakes to the other party to do or refrain from doing something. Offers in Unilateral Contracts If contracts - One party (promisor) agrees to do or refrain from doing something if another party (promisee) does or refrains from doing something but the promisee does not himself undertake to do or refrain from doing that thing. A unilateral contract differs from a bilateral contract in that it does not immediately impose an obligation on either party to perform. The obligation on the offeror arises only if the offeree performs the required task. The offeree will never be under an enforceable obligation to perform. Examples: * Offers of
Assess the problems that arise through terminating and offer
Assess the problems that arise through terminating and offer There are six different ways in which an offer can be terminated, these method are, Acceptance, Rejection, Revocation, Lapse of time, Failure to comply with conditions and Death. Alongside these ways of terminating an offer come problems. The problems that can arise with some of these methods including counter offers being made, revocation of a unilateral offer and the postal rule can cause problems for acceptance and revocation. A counter offer is an offer which has been made in response to a previous offer made by the offeree to the offeror, usually during negotiations when putting together the final contract. By making a counter offer the first offer that was given now becomes void and the counter offer must now be accepted or rejected for it to be recognised as part of the contract. If the original offer has been rejected and another offer put forward in its place is also rejected then the original offer cannot then be accepted, there is no way of going back to the original offer as seen in Hyde v Wrench (1840) in which Wrench had offered to sell Hyde his farm for £1,000, but Hyde rejected this by making a counter-offer and saying he would pay £950. Wrench decided to reject Hyde’s offer therefore forming no contract. As soon as Wrench rejected this offer Hyde said he would go back to the original price
Explain what is meant by an unfair term in a contract and describe and evaluate the effect(s) thereon of the Unfair Terms in Consumer Contracts Regulations 1999
Explain what is meant by an unfair term in a contract and describe and evaluate the effect(s) thereon of the Unfair Terms in Consumer Contracts Regulations 1999. After the Treaty of Maastricht, the European Community made a directive on Unfair Terms in Consumer Contracts 1993. This instructed member states to pass domestic legislation to provide consumer protection. As a result, the UK Government made the Unfair Terms in Consumer Contracts Regulations 1994 which have now been replaced by the Unfair Terms in Consumer Contracts Regulations 1999. The main aim of the new regulations is for UK Law to be drafted more closely to the wording of the European Legislation, to help prevent discrepancies between the two. The principle change from the 1994 regulations and the 1999 regulations are simply that more institutions are now able to enforce the legislation, beyond the Director-General of Fair Trading. An unfair term is defined in Regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 as; ' A contractual 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 consumer' 1 In addition to this Reg 6 of the same Regulations states that, ' .....the fairness of a contractual
Invitation To Treat
Invitation To Treat One of the essential requirements of a contract is agreement, which is usually analysed in terms of an offer met by an unqualified acceptance. Hairy & Black who makes the original offer is the offeror; Richard who receives it is the offeree. In this case, Hariy & Black inserts such an advertisement is making it known that they are prepared to receive offers or negotiate a contract. Item advertised on paper is considered invitations to treat. An invitation to treat is not an offer, it is merely an invitation to others to make offers. It follows that an invitation to treat cannot be accepted in such a way as to form a contract and equally the person extending the invitation is not bound to accept any offers made to them. Public Advertisement is an example of common situations involving invitation to treat. In Partridge v Crittenden (1968), a person was charged with 'offering' a wild bird for sale contrary to Protection of Birds Act 1954, after he had placed an advert relating to the sale of such birds in a magazine. However, this should be contrasted with decisions such as that in Carlill v Carbolic Smoke Ball Co (1893), where the relevant newspaper advertisement was held to be an offer. Like Carlill's case, it is a unilateral contract and not a bilateral contract. The invitation to tender of this case, if made in appropriate terms (such as that an
Plea Bargains
Plea Bargains [Name of the writer] [Name of the institution] Plea Bargains L?t u? b?gin by d?fining pl?a bargaining. Pl?a bargaining i? an ??ttl?m?nt b?tw??n th? d?f?ndant and th? pr???cut?r, and p?rmitt?d by th? c?urt judg?, in which th? d?f?ndant pl?ad? guilty ?r n? c?nt??t in ?rd?r t? hav? charg?? dr?pp?d, d?cr?a??d t? a crim? ?f l??? ??v?rity, ?r th? ??nt?nc? d?cr?a??d a? b??t a? th? thr?? ?id?? can b? in agr??m?nt up?n. Th?r? ar? f?ur diff?r?nt typ?? ?f pl?a bargain?: (1.) Charg? Bargaining, which i? wh?n th? d?f?ndant pl?ad? guilty t? a l??? ??v?r? crim? than initially ?nf?rc?d; (2.) C?urt Bargaining, which i? wh?n th? d?f?ndant pl?ad? guilty t? a ?mall?r numb?r ?f charg?; (3.) ??nt?nc? Bargaining, which i? wh?n th? d?f?ndant pl?ad? guilty und?r?tanding what th? judgm?nt t? b? giv?n will b?; (4.) Fact Bargaining, which i? wh?n th? d?f?ndant c?nf????? t? ?p?cific fact?, in ?xchang? f?r a d?al fr?m th? pr???cuti?n t? n?t pr???nt ?th?r ?p?cific fact? int? ?vid?nc?. My an?w?r a? t? wh?th?r ?r n?t th? natur? ?f a crim? ?h?uld aff?ct a d?f?ndant'? ?pp?rtunity t? pl?a bargain i?, n?, it ?h?uld n?t R?gardl??? ?f th? natur? ?f th? crim? ?ach and ?v?ry d?f?ndant ha? right? and d???rv?? a fair chanc?. Wh?th?r ?r n?t th? d?f?ndant tak?? th? pl?a bargain ?ff?r?d t? him/h?r i? up t? him/h?r. In m??t ca???, wh?n an accu??d ?ff?nd?r i? arr??t?d, th? arr??ting ?ffic?r will
Offer and Acceptance
Sheena Problem An offer is an expression of willingness to be bound by the terms of the offer once it is accepted. The offer may be made by words, in writing, conduct or a mixture of all three. An offer can be made to one person, a group of people or to the world at large, e.g. where a reward is offered for a lost item, this is normally made via an advertisement and this is seen as a unilateral offer, which is one sided (Carlill v Carbolic Smoke Ball Co.). Sheena sees an advertisement in a window which states 'All mini disc players at £ 10 to the first twenty customers on Monday morning'. Sheena wishing to accept this offer queued up all night on the Sunday and was customer number seven. Once entering the store and selecting the mini disc player, she is informed that the management has decided to end the promotion. Due to this offer being a unilateral offer, the communication of the revocation of the offer is inappropriate. The rule that revocation must be communicated was established in the case of Byrne v Van Tienhoven, where a telegraph was sent on the 11th October, but a letter withdrawing the offer was posted on the 8th October was only received on the 20th October. The offer therefore was accepted on the 11th October so the revocation was invalid. As it states in the Shuey v US that if 'the same notoriety was given to the revocation that was given to the
Contract Law - offer and acceptance.
Contract Law- Offer and Acceptance Shabana Riaz Supervision Group 10 The given problem is concerned with whether or not an agreement has come into existence between Astonia PLC, and any of the three local companies, to sell them the widget machine. A contract is generally regarded as an agreement, which the courts will treat as binding, and where necessary, may enforce. One of the basic prerequisites for the existence of a contract is an offer and an acceptance of that offer, which together form the agreement. Most contracts are usually bilateral and an agreement comes into existence where one party makes an offer to be contractually bound by specified terms to another party who accepts the terms and communicates this to the offeror. It is the communication of the acceptance that makes the agreement binding. A contract can also be unilateral, here one party makes a conditional offer to another in return for performing or refraining from a particular act. The agreement becomes binding where the offeree performs the required act. One of the first issues raised is to establish whether the letters sent by Astonia PLC to the local companies are to be regarded as being an offer or an invitation to treat? It is important to make mention of the fact that the letters are invitations for the companies to make offers for the widget machine, that is they are invitations to tenders.
Formation of a contract
FORMATION OF A CONTRACT INTRODUCTION A contract may be defined as an agreement between two or more parties that is intended to be legally binding. The first requisite of any contract is an agreement (consisting of an offer and acceptance). At least two parties are required; one of them, the offeror, makes an offer which the other, the offeree, accepts. OFFER An offer is an expression of willingness to contract made with the intention that it shall become binding on the offeror as soon as it is accepted by the offeree. A genuine offer is different from what is known as an "invitation to treat", ie where a party is merely inviting offers, which he is then free to accept or reject. The following are examples of invitations to treat: . AUCTIONS In an auction, the auctioneer's call for bids is an invitation to treat, a request for offers. The bids made by persons at the auction are offers, which the auctioneer can accept or reject as he chooses. Similarly, the bidder may retract his bid before it is accepted. See: Payne v Cave (1789) 3 Term Rep 148 2. DISPLAY OF GOODS The display of goods with a price ticket attached in a shop window or on a supermarket shelf is not an offer to sell but an invitation for customers to make an offer to buy. See: Fisher v Bell [1960] 3 All ER 731 P.S.G.B. v Boots Chemists [1953] 1 All ER 482. 3. ADVERTISEMENTS Advertisements of goods for
Several tests have been developed to identify and categorise different types of workers.
Several tests have been developed to identify and categorise different types of workers. The basic division for our purposes is between those who are employed persons and those who are self employed, and the distinction between these categories is that the employed person works under a contract of service, while the self-employed person works under a contract for services1. An important criterion for determining whether the relationship between employer and employee exists is the extent to which a person is under the direction and control of the other party with regard to the manner in which the work is done.2 It would be improper to use this test, where professional are involved, as it is likely that the employee will be qualified in a particular field, thus making direct control of the employee difficult. For example does a football manager have the right to control how his players play on the pitch, as questioned in Walker v Crystal Palace Football Club (1909). Despite this difficulty, a refinement to this test, where the "right to control" has been used a determinant factor.3 It is clear from these cases the higher the degree of control exercisable by the employer, the more likely that a contract of service exists4, but "the greater the skill required for an employee's work the less significant is control in determining whether the employee is under a contract of
