Expressed Terms
Barry Problem This problem is related to express terms. These are terms which the parties write down or agree to orally. The terms within a contract have been sub-divided into conditions which is a major term and warranties which are a minor term. Conditions are vital terms of the contract which, if broken, entitles the injured party to repudiate the contract. It was defined by Lord Justice Fletcher Moulton in Wallis v Pratt as 'An obligation which goes directly to the substance of the contract that its non-performance may fairly be considered by the other party as a substantial failure to perform the contract at all'. Warranties are a subsidiary term of the contract and give rise to an action in damages only. It was defined in Wallis v Pratt as 'An obligation which, though it must be performed, does not go to the root of the contract.' Whether a term is a condition or a warranty is a question of the intention of the parties to be deduced from the circumstances of the cases. A clear example is given by Justice Blackburn who ruled on two similar cases within months of one another. In the case of Bettini v Gye, the warranty cannot be repudiated, but may claim damages, whereas with Poussard v Spiers the condition can both repudiate and claim damages. The term, 'the machine is able to pick potatoes at the rate of 100 per minute' is a condition which goes to the root of
Postal Acceptance Rule
Postal Acceptance Rule Contract is formed at the time and place an acceptance is communicated to the offeror. An acceptance must correspond to the offer. There is no particular method of acceptance prescribed by law. The appropriate method of acceptance will depend on the fact of each situation. The offerees may find themselves faced with two types of situation. First the offer may dictate a method of acceptance. It may indicate that acceptance should be sent by return fax by a certain date. The second broad category is where there is no indication in the offer of an appropriate method of acceptance. The general rule followed by offeree is that acceptance may be given by the same or an equally expedient method as adopted for the making of the offer. Hence it follows that until the acceptance is received by the offeror the offer may be revoked. In the late 19th century an exception to the general agreement for communication of an acceptance arose in order to avoid the extraordinary and mischievous consequences that would follow if it might be held that the offer might be revoked at any time until the letter accepting it had actually been received. This is the postal acceptance rule. The rule as accepted in Australia is "Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post
Conveyancing: Practice and Procedure.
Conveyancing: Practice and Procedure Conveyancing matters are usually sales, purchases, or simultaneous sales and purchases. Where there is a simultaneous sale and purchase we would most strongly advise you to instruct a solicitor. This is because if all the procedures are not carried out correctly someone could be left without a roof over their head in which case, if it is due to some fault of yours, you could be held responsible for damages. The following is a brief outline of the process of conveyancing in the case of a purchase and of a sale, as a solicitor would carry them out. It will give you an insight into what is involved if you were to attempt to do it yourself, and in the case of your instructing a solicitor, it will at least give you some idea of what your solicitor is supposed to be doing for you. Purchasing a Property It is important to bear in mind that there are two distinct stages in buying a property: (1) Exchange of Contracts. This is where both parties have agreed to the transaction, and the terms of it, and they have signed and exchanged contract documents. Once this has been done both parties are committed to the transaction and will be liable for penalties in the event of their non-performance of the contractual terms. Prior to Exchange of Contracts there is no binding agreement, even if the parties have verbally agreed to proceed. (2) Completion.
Establish whether or not there is a contract between Hettie and Barbara.
The first issue to consider in order to establish whether or not there is a contract between Hettie and Barbara is to define a contract. Also, it will be useful to explain the concept of offer and acceptance, which will lead to the conclusion of whether there is a contract between the two parties, Barbara and Hettie for the sale of the grand piano. The standard definition of contract by English lawyers is that a contract is an agreement which is legally enforceable or legally recognized as creating a duty. However, one widely used definition is that in the American Restatement of Contracts: A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognises as a duty.1 In other words, a contract is essentially a two-sided bargain which can only be concluded by the action of both parties. An offer is a clear and unambiguous statement of the terms upon which the offeror is willing to contract, should the person or persons to whom the offer is addressed decide to accept. An offer may be made expressly, but it may equally be implied from the offeror's language, or it may be inferred from his conduct. An offer can be terminated before the offeree validly accepts the offer, as long as it is communicated to the offeree. An acceptance is an unqualified assent to the terms of the offer, which must
"There are occasions where terms are implied into contracts which have never been discussed by the parties. Critically consider the circumstances in which this is likely to occur"
"There are occasions where terms are implied into contracts which have never been discussed by the parties. Critically consider the circumstances in which this is likely to occur" The attitude of the courts towards terms in contracts has changed significantly from the 19th century up to the 21st century. The law of contract was previously governed by the maxim caveat emptor (let the buyer beware). It was rarely considered that there are circumstances where one party will be of inferior bargaining power. Terms will implied for one of two reasons: because a court in a later dispute is trying to give effect to a presumed intention of the parties, even though these intentions have not been expressly stated by the parties (terms implied by fact); or because the law demands that certain obligations are to be included in a contract irrespective of whether the parties have agreed on them or would naturally include them. Usually this will be the result of a statutory provision aimed to protect a particular group or level an imbalance of bargaining power - but it can also be by operation of the common law. Terms implied by fact are usually done so on the basis of individual court cases. The courts have implied term by fact in a variety of circumstances, the first being terms implied by custom or habit. This is governed by an old maxim that custom hardens into right and this was
Legal advice for Equipment Hire Limited.
To: Equipment Hire Limited From: XXX Legal Advisors Subject: Legal Advice Date: 02/06/04 Abstract Equipment Hire Limited (EHL) is a business whose service is to hire out plant and equipment to both business and individuals. Sunil, a window cleaner by trade, regularly hires ladders from EHL. Sunil hired a ladder from the company to paint the outside of his house upon which he paid £50 deposit and was issued with a receipt stating an exclusion cause: 'Conditions of Hire: EHL accepts no responsibility for any loss or damage suffered as a result of use of the equipment. Hirers use the equipment at their own risk' Unfortunately due to a defect, Sunil fell of the ladder and landed on his personal radio, which was irreparably damaged, and suffered a broken leg. EHL seek legal advice as to their liability for damages, if any, concerning Sunil's broken leg and the damaged stereo. .0 Introduction To establish damages owing in the incident concerning the client, EHL, and their customer Sunil, the following report aims to advise EHL and distinguish differences in liability of damages regarding Sunil as a consumer and as a business. In this case EHL are attempting to exclude liability for damages with their exclusion cause. This report explores the legal rules that control contracts for The Supply of Goods and Services Act 1982, The Unfair Contract Terms Act 1977 and The
Detention and interrogation
.2 Assignment Roxanne Slevin Explain how Tom could make a complaint against the police and consider whether he could sue the police The police are accountable to the Chief Constable and the Local Police Authority (LPA); this is made up of local councillors and magistrates. The function of this is to maintain an efficient and effective force, which are all effectively answerable to the Home Secretary. They are not above the law and therefore must operate within the law. They have specific powers and their behaviour is regulated by the codes of practice contained in PACE. However, on the event that a police officer does not abide by these rules, under PACE, a complaint can be made to the force to the Independent Police Complaints Commission 2004 (IPPC). If a criminal offence is found then the DPP is informed, who will decide whether to proceed with a prosecution. There are two means of redress: the complaints process and civil action. In order to lodge a complaint, the complainant needs to submit it in writing to the police force in question. The chief constable then decides how the complaint should be dealt. This could either be by means of an informal resolution or a formal resolution. An informal resolution is merely an apology and an explanation; as long as this is satisfactory then this is acceptable. If the complainant is still unhappy, or it involves a serious
LAW OF CONTRACT. LAW 103. THE CONTENT OF THE CONTRACT.
LAW OF CONTRACT. LAW 103. THE CONTENT OF THE CONTRACT. . CONTRACTUAL TERMS. The terms of a contract identify the rights and obligations of each party under that contract. A contract is merely a collection of terms - duties and rights and penalties, some of which may be in writing and some of which may be oral. Terms create contractual obligations for breach of which an action lies. Terms may be either express or implied. Express terms. Express terms are those which are specifically agreed by the parties. Implied terms. Implied terms are those which form part of the contract but they have not been specifically agreed between the parties during the negotiations for that contract. Terms may be implied into the contract in a number of ways;- Terms implied through custom and practice. Perhaps a most obvious example here would be the fact that contracts in the baking industry that make reference to the term 'dozen' may actually mean thirteen rather than twelve as that is a custom within that industry. "It has long been settled that, in commercial transactions, extrinsic evidence of custom and usage is admissible to annex incidents to written contract, in matters with respect to which they are silent... and this has been done upon the principle of presumption that, in such transactions, the parties did not mean to express in writing the whole of the contract by which
Company law
Company law (I)Who have the control of the company Management Control: In this case, Ian, Martin and Peter are directors and so they own the general power of managing the company by acting as the agents of the company. By Table A, Articles 82, the directors may exercise all powers of the company not required by the ordinance or the articles to be exercised by the company in general meeting. Also, if the directors act within the powers given to them by Art 82 (or by some similar article), the courts have generally upheld the view that the directors are not bound to obey resolutions passed by shareholders at a general meeting. This is because the articles constitute a contract by which the members agree that the directors will manage the company and they generally have no right to overrule BOD. As a result, the three directors can ignore resolutions of the general meeting on matters of management unless there is an amendment made in the articles (Automatic Self Cleaning Filter Syndicate Co Ltd v Cuninghame (1906) UK.) However, there are some exceptional situations: . If the directors act beyond the powers given to them by the company's articles, the members may challenge the validity of their decisions (Tang Kam Yip v Yau Kung School (1986)). 2. The directors are unwilling or unable to act or exercise the powers vested in it, the members may do so. (Marshall's Valve Gear
Contract law
BUSINESS LAW On 1 January, Kenny writes to Elaine offering to sell Elaine her car for $50,000. On 5 January, Elaine writes back and offers to pay $40,000. On 8 January, Kenny replies in writing that he will take $45,000. On12 January, Elaine writes to Kenny and asks whether the car radio is included in the price. On 15 January, Kenny writes to Elaine and tells her that the car radio is not included. On 19 January, Kenny writes to Elaine and tells her that he has decided not to sell his car. On the same day, Elaine writes to Kenny accepting the offer of 8 January. Is there a contract between the parties? Assume that all letters were posted on the day they were written and delivered following day. For a valid contract to exist there must be offer and acceptance. An offer is a statement of willingness to be bound by the terms of the offer. Kenny's letter construed as an offer to sell car for $50,000. Acceptance is final and unqualified assent to terms proposed by offeror and must be mirror image of the offer. Elaine writes back and offers to pay $40,000. This is not the mirror image of the offer and thus no acceptance from Elaine. In addition there must be an intention from both parties to create legal relations in a contract. Kenny and Elaine are in the commercial agreement and involved a business matter. In the case of Edwards v Skyways, the law presumes that there
