Contents

Table of Statutes
Table of Secondary Legislation
Table of Cases
Chapter 1:

The Agreement to Contract

1.1
1.2
1.3
1.4
1.4.1
1.4.2
1.4.2.1
1.4.2.2
1.4.2.3
1.4.2.4
1.4.2.5
1.5
1.6
1.6.1
1.6.2
1.6.3
1.6.4
1.7
1.7.1
1.7.2
1.7.3
1.7.4
1.7.5
1.7.6
1.8
1.8.1
1.8.2
1.8.3
1.8.4
1.8.5
1.8.6
1.8.7
1.9
1.9.1
1.10

Chapter 2:

Introduction
Elements required for a valid simple contract
The phenomenon of agreement
Offer
Specific and general offers
Offers and invitations to treat
Pre-contract negotiations
Auction sales
Displays of goods for sale
Advertisements
Running a bus service
Communication of offers
Duration of offers
Revocation
Lapse of time
Death
Failure of a condition precedent
Acceptance
The fact of acceptance
Qualified acceptance and counter-offers
Requests for information compared with counter-offers
The battle of the forms
Certainty
Tenders
Communication of acceptance
Silence
Acceptance by post
Instantaneous and near instantaneous forms of
communication
Contracts concluded by using shrink wrap, click wrap or
browse wrap
Confusing communications
Cross-offers
Revocation of posted acceptance
Acceptance: a summary
Contract formation: a summary
Summary

Consideration
2.1
2.2
2.2.1
2.3
2.4
2.4.1

Introduction
Types of consideration
The principle in Lampleigh v Brathwait
Consideration must move from the promisee
Consideration must be of some value
Adequacy of consideration
i

CONTENTS

2.4.2
2.4.2.1
2.4.2.2
2.5

Chapter 3:

Intention to Create Legal Relations

3.1
3.2
3.2.1
3.2.2
3.2.3
3.3
3.4
3.5
3.6

Chapter 4:

4.3.2.4
4.3.2.5
4.3.2.6
4.3.2.7
4.3.2.8
4.3.3
4.4
4.4.1
4.5

Introduction
Express terms
Oral contracts
Written contracts: the parol evidence rule
Incorporation of statements as terms of a contract
Implied terms
Terms implied by the courts
Terms implied by statute
Implied terms as to title
The goods will correspond with their description
Common issues between satisfactory quality and fitness for
purpose
Satisfactory quality
Fitness for purpose
Sale by sample
Excluding the implied terms from consumer sales
Supply of services
Terms implied by custom
The classification of terms conditions and warranties
Innominate or intermediate terms
Summary

Exemption Clauses and Unfair Terms

5.1
5.2
5.2.1
5.2.2
5.2.3
5.3
5.3.1
5.3.2
5.3.3
5.3.4

ii

Introduction
Social and domestic arrangements
Husband and wife
Children and parents
Other social arrangements
Commercial agreements
Cases in which the existence of an intention to create legal
relations is denied by the courts or by statute
Letters of comfort
Summary

Terms of a Contract
4.1
4.2
4.2.1
4.2.2
4.2.3
4.3
4.3.1
4.3.2
4.3.2.1
4.3.2.2
4.3.2.3

Chapter 5:

Insufficiency of consideration
Performance of existing duties
Part-payment of debt
Summary

Introduction
A term of the contract?
Signature
Notice
Previous course of dealing
Construction of exemption clauses
The contra proferentem rule
Negligence
Seriousness of the breach
Common law reasons for failure

CONTENTS

5.3.4.1
5.3.4.2
5.3.4.3
5.3.4.4
5.4
5.4.1
5.4.1.1
5.4.1.2
5.4.1.3
5.4.1.4
5.4.1.5
5.4.1.6
5.4.1.7
5.5
5.6
5.7

Chapter 6:

Misrepresentation
6.1
6.2
6.2.1
6.2.2
6.2.3
6.3
6.4
6.4.1
6.4.2
6.4.3
6.5
6.5.1
6.5.2
6.5.2.1
6.5.3
6.5.3.1
6.5.3.2
6.5.3.3
6.5.3.4
6.6
6.7

Chapter 7:

Misrepresentation
Overriding undertaking
Third parties
Collateral contracts
Unfair Contract Terms Act 1977
Scope of the Act
Negligence: definition
Concept of the consumer: s12
Terms made totally ineffective
Terms subject to the test of reasonableness
The requirement of reasonableness
Secondary contracts
s13 clauses
Unfair Terms in Consumer Contracts Regulations 1999
Consumer Protection Act 1987
Summary

Introduction
The misrepresentation must be one of fact (or law?)
Statements of opinion
Statements of intention
The effect of silence
The misrepresentation must have induced the contract
The types of misrepresentation
Fraudulent misrepresentation
Negligent misrepresentation under the Misrepresentation Act
1967
Innocent misrepresentation
Remedies for misrepresentation
Affirmation
Rescission: general principles
Loss of right to rescind
Damages
Fraudulent misrepresentation
s2(1) Misrepresentation Act 1967
Innocent misrepresentation
Damages in lieu of rescission
Exclusion of liability for misrepresentations
Summary

Duress and Undue Influence

7.1
7.2
7.2.1
7.2.2
7.3
7.4
7.4.1
7.4.2
7.4.3

Introduction
Duress at common law
The development of the doctrine
Economic duress
The effects of duress
The equitable notion of undue influence
Actual undue influence
Undue influence where a relationship of trust and confidence
exists
Undue influence exercised by a third party
iii

CONTENTS

7.4.4
7.5
7.6
7.7

Chapter 8:

Illegality
8.1
8.2
8.3
8.4
8.5
8.6
8.7
8.7.1
8.7.2
8.7.3
8.7.4
8.7.5
8.7.6
8.8
8.9
8.9.1
8.9.2
8.10
8.10.1
8.10.2
8.10.3
8.10.3.1
8.10.3.2
8.10.3.3
8.10.3.4
8.11
8.12

Chapter 9:

Introduction
Contracts to commit a crime
Contracts to commit a civil wrong
Subject-matter ordered for an unlawful purpose
Unlawful manner of performance
Contracts to indemnify against liability for unlawful acts
Contracts contrary to public policy
Contracts tending to lead to corruption in public life
Contracts promoting sexual immorality
Contracts prejudicial to the administration of justice
Trading with the enemy
Contracts relating to matrimonial matters
Contracts to oust the jurisdiction of the courts
Contracts restricting personal liberty
Contracts in restraint of trade
The test of reasonableness
Different types of covenant
The effects of illegality
The intention of the parties
Contracts unlawful per se
Recovery of money or property
Withdrawal from the illegal contract
The statutory authorisation of restitution
Parties not in pari delicto (equally wrong)
Restitution without reliance on the illegal contract
Severance
Summary

Privity of Contract
9.1
9.2
9.3
9.3.1
9.3.2
9.3.3
9.3.4
9.3.5
9.3.6
9.3.7
9.4
9.4.1
9.4.2
9.4.3
9.5

iv

The effects of undue influence and bars to relief

Inequality of bargaining power and unconscionability
Statutory protection afforded to consumers
Summary

Introduction
The general rule
Exceptions: third party rights
Contracts (Rights of Third Parties) Act 1999
Collateral contracts
Statutes
Equity
Damages on behalf of another
The law of agency
s56 Law of Property Act 1925
Exceptions: third party obligations
Obligations concerning land
Obligations concerning personal property (chattels)
Privity and exemption/exclusion clauses
Summary

CONTENTS

Chapter 10: Discharge of Contract

10.1
10.2
10.2.1
10.2.2
10.2.3
10.2.4
10.2.5
10.2.6
10.3
10.3.1
10.3.2
10.3.3
10.3.4
10.3.5
10.3.6
10.3.7
10.4
10.5
10.5.1
10.5.2
10.5.3
10.5.4
10.5.5
10.6

Introduction
Discharge by performance: terms of the contract
Severable contracts or obligations
Voluntary acceptance of partial performance
Substantial performance
Prevention of performance by the promisee
Tender of performance
Time of performance
Discharge by agreement
Bilateral discharge
Accord and satisfaction
Rescission
Variation
Waivers
Provision in the contract for discharge
Unilateral discharge
Discharge by breach
Discharge by frustration
The development of the doctrine
Examples of possible frustrating events
Limitations on the scope of the doctrine
The effects of frustration at common law
The Law Reform (Frustrated Contracts) Act 1943
Summary

Chapter 11: Remedies for Breach of Contract

11.1
11.2
11.3
11.4
11.5
11.5.1
11.5.2
11.5.3
11.5.4
11.6
11.7
11.8
11.9
11.10
11.11
11.11.1
11.11.1.1
11.11.1.2
11.11.1.3
11.11.1.4
11.11.2
11.11.2.1
11.12

Introduction
Basis for an award for damages
Damages: remoteness of damage
Causation
Quantum of damages: general principles
Time for assessment of loss
The market value rules
The effect of taxation
Speculative damages
Damages for non-pecuniary losses and the consumer surplus
Mitigation of loss
Contributory negligence
Liquidated damages and penalties
Deposits and part-payments
Equitable remedies
Specific performance
Effect of a decree of specific performance on other remedies
Mutuality
Specific performance in particular situations
Defences to specific performance
Injunctions
Restrictions
Damages in equity: Chancery Amendment Act 1858 (Lord
Cairns Act)

CONTENTS

11.12.1
11.13
11.13.1
11.13.2
11.14

Measure of damages under s50 Senior Courts Act 1981

Limitation of actions: basic rules
Fraud and mistake
Disabilities and minors
Summary

Answers to Self-assessment Questions

Index

vi

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ISBN 978-1-84256-754-8