5-10 Cases Flashcards

Question

Smith v Eric Bush

Answer 1

Exemption clauses Court ruled it was unreasonable to include exemption clause, as house buyer was not in financial position to afford anything other than the bottom end of the property ladder

Answer 2

Reasonableness of entire clause Issue is whether term shall have been a fair and reasonable one to be included

Answer 3

Reasonableness of entire clause Establish what liability it is trying to exempt Look at remedies which would be available

Answer 4

Original common law rule of frustration If you agree to a contract, you have to carry out obligations no matter what Even if you didn’t have possession of your land, still have to pay rent

Answer 5

Frustrating event Government intervention ship was in requisition for a long time

Answer 6

Frustrating event Unavailability of a specific person Drummer could only do 4 nights a week

Answer 7

Frustrating event Illegality

Answer 8

Modern law frustration stemmed from this case Impossibility Neither party was at fault as music hall burned down

Answer 9

Frustrating event Non-occurrence of a fundamental event King got sick and couldn’t make coronation

Answer 10

Frustration Contract for personal services may be frustrated if one party is unable to perform through death, illness or incapacity Builder was held as personal services as family built relationship & got discount

Answer 11

Frustration Contracts for personal services Both parties expect party may be occasionally ill but assume they can perform certain amount of contract Courts look at how long person is unable to perform in relation to length of contract

Answer 12

Frustration Contracts for personal services Courts lllm at whether illness makes contract impossible to perform, or if someone else can perform on behalf

Answer 13

Frustration Contracts concerning land Warehouse deprived of purpose due to street closure for 20 months, but we’re still 3 years of lease left

Answer 14

Frustration Delay Clause only covered temporary delays and not WW1

Answer 15

Frustration More difficult/expensive Going down a different canal wouldn’t make performance radically different

Answer 16

Frustration More difficult/expensive Failure to allocate a foreseeable risk is intended to have the risk lie where it falls naturally

Answer 17

Frustration Risk allocation Risk of inability to supply rests with seller of goods and inability to perform will breach contract, despite the fault lying with supplier

Answer 18

Frustration Risk allocation Seller can transfer risk by express provision

Answer 19

Damages Basis of difference in market value intended for income generation Lost expectation will be profits lost when machinery should have been in use

Answer 20

Limits of frustration Self-inflicted frustration

Answer 21

Limits of frustration Unforeseen An event that was foreseeable but not in fact foreseen by the parties may still allow frustration

Answer 22

Money paid, due, expenses and benefits Original common law rule Nothing already paid can be recovered and money owed had to be paid

Answer 23

Misrepresentation The more important the statement to the parties, the more likely it will be considered a term

Answer 24

Misrepresentation Where an expert makes statement to an amateur, it is more likely to be a term

Answer 25

Misrepresentation Where an amateur makes a statement to an expert, it is more likely to be a mere representation

Answer 26

Mere silence is not misrepresentation

Answer 27

Misrepresentation If representation is later falsified and other party is not informed, this is misrepresentation

Answer 28

Misrepresentation If defendant encouraged claimant to rely on his assurance without external verification, this will most likely be a term

Answer 29

Misrepresentation If defendant encourages external verification, this suggests parties intended for statement not to be a term

Answer 30

Misrepresentation If defendant tells half the truth, this will be misrepresentation

Answer 31

Conduct can amount to actionable misrepresentation

Answer 32

Misrepresentation Statement must be one of fact and not opinion

Answer 33

Misrepresentation Statement of opinion may involve an implied statement that there are facts which justify the opinion “Desirable tenant”

Answer 34

Misrepresentation There must be a misstatement of existing fact, not future intention

Answer 35

If a statement is made recklessly, it is fraudulent misrepresentation

Answer 36

Fraudulent misrepresentation Burden of proof is on the claimant

Answer 37

Negligent misrepresentation S.2(1) MA 1967 You’ll be liable with negligent misrepresentation to the same extent as fraud

Answer 38

Remedies for misrepresentation Indemnity Re-imbursement for expenses incurred under terms of contract

Answer 39

Duress Have to prove duress was one reason for entering the contract Claimant was coerced into signing a deed by both threats of violence and to take his life

Answer 40

Economic duress More likely to occur and threat must be an illegitimate one Threat to breach a contract for example

Answer 41

Ingredients of duress - Lack of choice for victim - Pressure is illegitimate and significant cause of inducement

Answer 42

Bar to rescission Delay 8 months was held to be too long of a delay to raise a ground of duress

Answer 43

Actual undue influence Grandma afraid of nephew and court

Answer 44

Presumed undue influence Relationship of trust and confidence Agency had superior knowledge

Answer 45

Undue influence with third parties Wife pressured into signing mortgage to fund trading

Answer 46

Actual undue influence Third party put on notice Put on enquiry Reasonable steps

Answer 47

Presumed undue influence Not husband and wife Employee asked to secure employers company debts with her own house

5-10 Cases Flashcards

(71 cards)