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Specific performance
Injunctions Rescission
Equitable remedies
between both parties supported by consideration such as act of god after formation of contract
of contractual obligations of the contracting Repudiation is a breach of contract which entitles the injured Occurs where a party indicates, either by words or by conduct, that he does not intend to honor his contractual obligations or commits a breach of condition or commits a breach which has very serious consequences for the injured
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Does not automatically discharge the contract, the injured Elect to treat the contract as repudiated by the other, recover damages and treat himself as being discharged from his primary '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
occurs when one party declares in advance that he will not perform his side of the bargain when the time for performance Express anticipatory breach: occurs where one of the parties declares, before the due date of performance, that they have no intention of complying with the terms of the contractual Implied anticipatory breach: but results from the situation where one of the parties does something, which makes subsequent performance of their contractual undertaking The other party may treat the contract as discharged, or continue with his obligations until actual breach occurs. Claim for damages against his actual loss without waiting for v De La Tour Wait or make preparations for performance until the actual time for performance and claim the agreed contract price White Damages are a common law remedy intended to restore the injured party to the same position he would have been in if There are two tests applied to a claim for damages
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two limbs of the The loss must arise either naturally from the breach or in a manner which the parties may reasonably be supposed to have A loss outside the usual course of events will only be
compensated if the exceptional circumstances which caused it were within the defendant’s actual or constructive knowledge '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
, the claimant, a
miller experienced a broken accessory of a mill and engaged the defendant to transport to a manufacturer as a pattern However, the defendant, due to his negligence, delayed the Such made the mill idle and the miller suffered the lost of It was decided that the claim for the loss of profit was not upheld as the defendant might expect that the claimant had a The above rule was further upheld in the case of Victoria It was decided that the claimant could only claim the damages for the loss of profit in the normal course of business; and that the claimant could not claim additional lucrative profit lost as that was beyond the normal contemplation of the defendant., the claim
succeeded as it was held that it should be within the normal contemplation of the parties that the commodity such as sugar is subject to severe market fluctuation, hence delay in transportation would definitely cause the owner of sugar to is that which will compensate for the loss incurred instead of allowing the injured party to profit from a claim.
Damages may be awarded for financial and non-financial loss.
Damages are categorized into unliquidated damages and damages is:
either expectation interest, i.e. that intended to put the claimant in the original position if the contract had been reliance interest, i.e. the position he would have been in had Anglia Television Ltd v Reed 1972
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A seller fails to the sell the goods, the buyer can go into the market to purchase equivalent goods. Seller compensate If the buyer fails to purchase the goods, the seller can sell the goods on the open market and recover any loss of income. Buyer compensate loss of incomer of the seller if sell at lower '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
Damages for mental distress can be recovered. But it is uncertain how far the courts will develop this concept
In the case of Jarvis v Swan Tours 1973, loss of pleasure per However, damages for distress, inconvenience or frustration , Alexander v Rolls Royce Motor Cars Where there has been a breach and the claimant is seeking to be put in the position he would have been in if the contract has been performed, by seeking a sum of money to ‘cure’ the defect which constituted the breach, he may be denied the cost of cure if it is wholly disproportionate to the breach. It is usually not supported. That is, so long as the breach of contract does not cause too serious consequences, cost of Electronics and In assessing the amount of damages, it is assumed that the claimant has taken reasonable steps to reduce or mitigate his The burden of proof is on the defendant to show that the claimant failed to take a reasonable opportunity of mitigation.
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is a fixed or ascertainable sum agreed by the parties at the time of contracting, payable in the event of a breach.
If they are a genuine attempt to pre-estimate the likely loss the Dunlop Pneumatic Tyre Co Ltd. V Ford Motor Co '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
A penalty clause is defined as a clause in a contract providing for a specified sum of money to be payable in the event of a If its purpose is merely to deter a potential difficulty, it will be held void and the court will proceed to assess unliquidated is defined as an order of the court directing a person to
perform an obligation. It is an equitable remedy awarded at the discretion of the court when damages would not be an Its principal use is in contracts for the sales of land, since the claimant may need the land for a particular purpose. Specific performance shall never be used in the case of
employment or other contracts involving personal services.
An injunction is a discretionary court order and equitable remedy, requiring the defendant to observe a negative restriction of a contract, i.e. an order to ban the defendant An injunction may be made to enforce a contract of personal service for which an order of specific perfomance would be Warner Bros Pictures Inc v Nelson 1937
'))' ? ? ? '))' Э ?RSY LOTGTIK IUS Rescission of a contract means that it is cancelled or rejected and the parties are restored to their pre-contract condition. Restoration to pre-contract condition is possible for each party. An innocent third party who has acquired rights in the subject matter of the contract will prevent the original transaction being The right of rescission must be exercised within a reasonable Contract may not be rescinded once a person affirms a contract.
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The law of T orts
Causation Defences
Avoid Reduce Limit
'but for' test Remoteness of damages
Novus actus interveniens
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A tort is a civil wrong and the person wronged sues in a civil No previous transaction or contractual relationship need Tort can be distinguished from other legal wrongs that: It is not a breach of contract. In tort no previous transaction or contractual relationship need exist.
It is not a crime, where the objective of proceedings is to punish the offender rather than compensate the victim.
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As a tort is a breach of a legal duty, there is no liability Passing-off is the use of a name, mark or description by one business that misleads a consumer to believe that their business is that of another, it chance of genuine HFC Bank v Midland Bank——company name
Negligence is the most important modern tort.
It is used to describe carelessly carrying out an act and breaking a legal duty of care owed to another causing them To succeed in an action for negligence the claimant must The defendant breached that duty of care, and
, the claimant suffered injury, damage or loss
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Donoghue v Stevenson 1932, the House of Lords ruled that a person might owe a duty of care to another with whom he had no contractual relationship. Basic Rule: the question of whether or not a duty of care exists in any situation is generally decided by the courts on a , with each new case setting a precedent '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
Donoghue was given a bottle of ginger beer by a friend, who had purchased it for her. After drinking half the contents, she noticed that the bottle contained a decomposing snail and suffered nervous shock as a result. Under contract law, Donoghue was unable to sue the manufacturer per the However, in the end the claimant successfully sued the
manufacturer for damages as the then House of Lords decided neighbour ’, to
persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected.
However, the above definition of ‘neighbour’ is so wide that Caparo Industries plc v Dickman 1990 further Was there a relationship of proximity between the parties?Considering the circumstances, is it fair, just and The standard of reasonable care requires that the person concerned should do what a reasonable man would do, and should not do what a reasonable man would not do. Blythe v
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2. Basic rules pertaining to the breach of duty include:A reasonable man takes greater precautions when the risk of injury is Taylor 1992a local authority was held to be negligent when children ate poisonous berries in a park. A warning notice was not considered to be The young, old or disabled may be more susceptible more serious Paris v Stepney Borough '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
2. Basic rules pertaining to the breach of duty include:If the cost or disruption caused to eliminate the danger far exceeds the risk of it occurring, it is likely that defendants will be found not to have breached their duty if they do not implement them.
, the defendant should not be held for tort of negligence as the employer did all that was necessary to If the defendant is a professional carrying on their profession, e.g. an ACCA member, then the court will judge their actions against a
reasonable person possessing the same skill in their line of work, rather 2. Basic rules pertaining to the breach of duty include:?The defendant can be protected from liability for his risky action provided The defendant is deemed to have met his duty of care so long as he can proved that his actions are in line with common practice or custom, unless the common practice itself is found to be negligent.
Can be defined as ‘The thing speaks for itself’. If an accident occurs which appears to be most likely caused by negligence, the court may apply this maxim and infer negligence from mere proof of the The burden of proof is reversed and the defendant must prove that The claimant must demonstrate the following to rely on this The thing which caused the injury was under the management The accident would not have occurred if those in control used It is often applied in medical case. In the case of Mahon v , a surgeon was required to prove that leaving a swab inside a patient after an operation was not negligent .
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The claimant must demonstrate that he suffered injury or loss These losses include: personal injury, damage to property, To satisfy the requirement that harm must be caused by i.e. If it was not ‘but for’ the other’s actions they would not have Thus the claimants are unable to claim for any harm that would have happened to them anyway irrespective of the defendant’s actions. See '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
The impact of the defendant’s negligence can be further
restricted where it can be proved that ‘novus actus interveniens ?the Wagon Mound , The defendants were not found liable for fire damage as the actual cause of the fire was held too remote. The remoteness test can be passed if some harm is
foreseeable even if the exact nature of the injuries could not
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Special relationships Hedley Byrne v Heller
Professional Negligence
Negligent misstatements
Negligence is used to describe carelessly carrying out an act and breaking a legal duty of care owed to another causing To succeed in an action for negligence the claimant must The defendant breached that duty of care, and
, the claimant suffered injury, damage or
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A client requests a professional opinion from their The accountant/auditor gives an opinion acting in a The client relies upon the opinion, when it is deemed The client suffers an economic loss as a result of reliance upon '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
‘The duty of care when accounts are prepared extends only to the members of a company. This does not extend to members as individuals, or to potential purchasers of The duty of care of accountants is held to be higher when advising on takeovers and other financial advices.ADT Ltd. v BDO Binder Hamlyn 1995, the defendant signed an unqualified audit report to a company, BSG. The claimant, as a potential buyer of BSG, read the audit report and after a meeting with the auditor purchased BSG. It was subsequently alleged that the BSG was
65m. The claimant successfully sued for the Per the Companies Act 2006 (CA 2006) it is now negligence, default, breach of duty or breach of trust occurring in the course of the audit of accounts ?
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In the event that an auditor comes to rely on such a clause they may then be required to prove the liability amount is ‘fair and reasonable’. In determining such amounts the courts (b) The nature and purpose of the auditor’s contractual (c) The professional standards expected of him
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The liability limitation agreement must be approved on an annual basis; with the company able to withdraw from the agreement via an ordinary resolution at any point before
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Employer's duties Employee's duties
Contractual duties
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A contract of service is different from a contract for services, usually because the parties express the agreement to be one of is an individual who has entered into, or works is a contract of service or apprenticeship, whether express or implied, and (if it is is any individual who works for an employer, whether under a contract of employment, or any other contract where an individual undertakes to do or perform Three tests must be passed to identify a contract of service:
Cassidy v Ministry of Health 1951
Ready Mixed Concrete (South East) v The employee agrees to provide his own work and skill in return The employee agrees, either expressly or impliedly, that he will be subject to a degree of control exercisable by the employer
The other provisions of the contract are consistent with its being a Self-employed Class 2 & 4 NIC
Directly responsible No employment protection
Liability for contractor’s acts is severely limited unless there is
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Self-employed terms under contract of service are not applicable Must register VAT Contractor’s pay is non-preferential as well as non-secured creditors Same common law and legislation applies to independent contractors
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An employment contract is a contract of service that can be As of an express employment contract, it can either oral or Implied terms usually arise out of custom and practice within a are formed in the same way as other contracts and can be written, oral or a combination.of starting work the employee must including:
to provide for the care and safety of the employee
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Statutory duties of an employer in the following areas: Equal Pay Act 1970 and the National Minimum ——Sexual Discrimination
The Working Time Regulations 1998
Many rights given to employees under the Employment Rights Act 1996 are only available if an employee has a Basic rule is that a year is twelve calendar months. When an employee works for a ‘new’ employer due to the transfer of business, this change represents no break in the
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Remedies
Damages Statutory remedies
employment in breach of contract,expiry of a fixed be served,or When employment is terminated by notice, the period given statutory minimum period as Not less than one week’s notice for employees serving one One week’s notice for each year of continuous employment for employees serving two years or more but less than twelve years Not less than twelve weeks’ notice for employees serving for
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Dismissal is the word used to describe termination of an '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
, which is where the employer dismisses the employee without notice. He may do this if the employee has committed a serious breach of contract. The employer incurs no liability if there is sufficient
justification for employee’s commitment of a serious breach Otherwise, the employee may claim a remedy for wrongful , the
employee successfully sued for wrongful dismissal as the claimant’s use of obscene words was provoked by the own , the employer, although willing to continue the employment, repudiates some essential term(s) of the contract to compel the employee to resign. It is up to the employee to prove there was sufficiently unfair behaviour by the employer to constitute a material breach of a) changing terms of the contract without consultation
b) making significant changes to the location of work at short Where the employer has summarily dismissed an employee without notice, there may be a claim for damages at The only effective remedies available is the damages
representing the loss of earnings if proper notice had been Also the wronged party is expected to mitigate his loss by
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as below:
Misconduct e.g. acceptance of a secret commission, disclosure Immorality to affect the reputation of the business, e.g. lack of '))' ? ? ? '))' Э ?RSY LOTGTIK IUS
is a statutory claim made by ?qualified ?unfairly dismissed ?. Anyone who satisfies the following criteria has the right ?not to be There are certain situations where the above qualification is waived after dismissal, including pregnancy, trade union membership, where discrimination is proved, or applying for flexible working arrangements. These reasons are Additionally it is worth noting however that there are a number of persons who are automatically unable to make a claim for unfair dismissal, including members of the police and A dismissed employee must bring a claim to an
within three months of dismissal. At this hearing the employer must prove they had to dismiss the A dismissal is treated as caused by redundancy if the only or The employer has ceased, or intends to cease, to carry on the The requirement of that business for employees to carry on the work done by the employee have ceased or diminished.
, a radio producer’s fixed term contract was not renewed and the employer advertised for a radio
producer with more experience. It was held by the EAT that the less experienced radio producer was indeed redundant as the requirement for her level of services had diminished.
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from having a right to redundancy They do not fit the definition of ‘employee’ per statute They have not been continuously employed for two years They have been or could be dismissed for misconduct An offer to renew the contract is unreasonably refused The employee leaves before being made redundant
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is essentially a breach of contract. As such the employee may make a (a) Employment tribunal for claims up to ￡25,000(b) County or High Court for claims over ￡25,000
In relation to a successful claim for unfair dismissal, an Employment Tribunal may award any one of the following The dismissed employee is treated as not having been dismissed in the first place, ie, return to the same job without any break.The dismissed employee is re-employed under a new contract of Compensation awarded by the employment tribunal made in calculated on the basis of the employee’s age, length of continuous for any additional loss of earnings, expenses and benefits on common may be applied by the tribunal as a punitive action against employer