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Annotation 1363744787724

#contract #law #terms

The classification of the terms implied by the SGA 1979 ss 13–15 (but note not s 12) as conditions has been altered as a result of s 15A, which was incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994.

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organisations or groups can only bring an action when they are claiming that their rights (as distinct legal persons) have been violated. For instance, a non-governmental organisation (NGO) cannot bring actions on behalf of people whose rights may have been violated by a contracting state. It can only bring an action when it can claim that a state is violating the rights that it enjoys itself as an organisation. Thus in [ case ], the NGO successfully complained that the interception of its communications under the Interception of Communications Act 1985, s 3(2) conferred a virtually unfettered discretion on the Ministry of Defence, which represented a breach of the ECHR, art 8.

Answer

Liberty v UK (2009) 48 EHRR 1

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on (NGO) cannot bring actions on behalf of people whose rights may have been violated by a contracting state. It can only bring an action when it can claim that a state is violating the rights that it enjoys itself as an organisation. Thus in Liberty v UK (2009) 48 EHRR 1, the NGO successfully complained that the interception of its communications under the Interception of Communications Act 1985, s 3(2) conferred a virtually unfettered discretion on the

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organisations or groups can only bring an action when they are claiming that their rights (as distinct legal persons) have been violated. For instance, a non-governmental organisation (NGO) cannot bring actions on behalf of people whose rights may have been violated by a contracting state. It can only bring an action when [...]. Thus in Liberty v UK (2009) 48 EHRR 1, the NGO successfully complained that the interception of its communications under the Interception of Communications Act 1985, s 3(2) conferred a virtually unfettered discretion on the Ministry of Defence, which represented a breach of the ECHR, art 8.

Answer

it can claim that a state is violating the rights that it enjoys itself as an organisation

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r rights (as distinct legal persons) have been violated. For instance, a non-governmental organisation (NGO) cannot bring actions on behalf of people whose rights may have been violated by a contracting state. It can only bring an action when it can claim that a state is violating the rights that it enjoys itself as an organisation. Thus in Liberty v UK (2009) 48 EHRR 1, the NGO successfully complained that the interception of its communications under the Interception of Communications Act 1985, s 3(2) conferred a

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the concept of what a 'person' is has raised some difficult issues for the ECtHR. The question of the 'right to life' of the foetus in relation to the ECHR, art 2 has proven almost impossible to resolve, and the court has arguably avoided the issue in order to take account of regional and religious sensitivities relating to abortion: [ case ].

Answer

Vô v France (2005) 40 EHRR 12

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n of the 'right to life' of the foetus in relation to the ECHR, art 2 has proven almost impossible to resolve, and the court has arguably avoided the issue in order to take account of regional and religious sensitivities relating to abortion: Vô v France (2005) 40 EHRR 12.<body><html>

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Answer

take account of regional and religious sensitivities relating to abortion

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t a 'person' is has raised some difficult issues for the ECtHR. The question of the 'right to life' of the foetus in relation to the ECHR, art 2 has proven almost impossible to resolve, and the court has arguably avoided the issue in order to take account of regional and religious sensitivities relating to abortion: Vô v France (2005) 40 EHRR 12.<body><html>

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The [ statute ] sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that domestic remedies must be exhausted before an ECHR action can be brought.

Answer

ECHR, art 35

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The ECHR, art 35 sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that domestic remedies must be exhausted before an ECHR action can be

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The ECHR, art [...] sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that domestic remedies must be exhausted before an ECHR action can be brought.

Answer

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The ECHR, art 35 sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that [...].

Answer

domestic remedies must be exhausted before an ECHR action can be brought

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In [ case ], the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to:

'… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

Answer

Lawless v Ireland (1979-80) 1 EHRR 15

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art [...] was interpreted as referring to:

'… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

Answer

15(1)

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the [ statute ] was interpreted as referring to:

'… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

Answer

ECHR, art 15(1)

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to:

'… an [...] which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

Answer

exceptional situation of crisis or emergency

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to:

'… an exceptional situation of crisis or emergency which [...] and constitutes a threat to the organised life of the community of which the State is composed.'

Answer

affects the whole population

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d><head>In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.' <html>

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to:

'… an exceptional situation of crisis or emergency which affects the whole population and [...].'

Answer

constitutes a threat to the organised life of the community of which the State is composed

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less v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.' <body><html>

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In [ case ], the ECtHR said:

'… [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.'

Answer

Soering v UK (1989) 11 EHRR 439

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In Soering v UK (1989) 11 EHRR 439, the ECtHR said: '… [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requiremen

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In Soering v UK (1989) 11 EHRR 439, the ECtHR said:

'… [I]nherent in the whole of the Convention is a search for [...].'

Answer

a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that [...]. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.

Answer

the interference with the Convention right has some basis in national law

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in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interfe

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the [ case ] case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.

Answer

Sunday Times v UK (1979-80) 2 EHRR 245

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ent that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an in

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that [...], in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.

Answer

the law is accessible

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rbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is [...]. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.

Answer

sufficiently clear

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aw. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is [...].

Answer

formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail

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be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.<body><html>

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The applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that the interference had not been prescribed by law.

Answer

Hashman and Harrup v UK (2000) 30 EHRR 241

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Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not i

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Hashman and Harrup v UK (2000) 30 EHRR 241

Answer

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Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, [...]. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that the interference had not been prescribed by law.

Answer

the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them

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ml>Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that the interference had not been prescribed by law.<html>

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Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that [...].

Answer

the interference had not been prescribed by law

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ful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that the interference had not been prescribed by law.<body><html>

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under the [ statute ]: ‘any person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention.

Answer

ECHR, art 34

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under the ECHR, art 34: ‘any person, non-governmental organisation or group of individuals [...]' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention.

Answer

claiming to be a victim of a violation

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under the ECHR, art 34: ‘any person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citi

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under the ECHR, art 34: ‘[...] claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention.

Answer

any person, non-governmental organisation or group of individuals

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under the ECHR, art 34: ‘any person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the [ statute ], there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention.

Answer

ECHR, art 1

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person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be

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Exceptionally, a person can make a claim for acts that have occurred outside the geographical jurisdiction of a contracting state. In [ case ], which concerned the bombing of Belgrade by NATO forces, the Grand Chamber of the ECtHR observed that, while the ECHR, art 1 reflects an essentially territorial notion of jurisdiction, extra-territorial jurisdiction could be recognised in some very limited circumstances.

Answer

Bankovic v Belgium (2001) 11 BHRC 435

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Exceptionally, a person can make a claim for acts that have occurred outside the geographical jurisdiction of a contracting state. In Bankovic v Belgium (2001) 11 BHRC 435, which concerned the bombing of Belgrade by NATO forces, the Grand Chamber of the ECtHR observed that, while the ECHR, art 1 reflects an essentially territorial notion of jurisdiction,

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Exceptionally, a person can make a claim for [...]. In Bankovic v Belgium (2001) 11 BHRC 435, which concerned the bombing of Belgrade by NATO forces, the Grand Chamber of the ECtHR observed that, while the ECHR, art 1 reflects an essentially territorial notion of jurisdiction, extra-territorial jurisdiction could be recognised in some very limited circumstances.

Answer

acts that have occurred outside the geographical jurisdiction of a contracting state

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Before the ECtHR in [ case ], however, the scope of jurisdiction was widened quite significantly when the Grand Chamber determined that jurisdiction under the ECHR, art 1 (and a subsequent violation of the ECHR, art 2) also applied in respect of the other five deaths. The court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base.

Answer

Al-Skeini and Others v UK [2011] ECHR 55721/07

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Before the ECtHR in Al-Skeini and Others v UK [2011] ECHR 55721/07, however, the scope of jurisdiction was widened quite significantly when the Grand Chamber determined that jurisdiction under the ECHR, art 1 (and a subsequent violation of the ECHR, ar

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Before the ECtHR in Al-Skeini and Others v UK [2011] ECHR 55721/07, however, the scope of jurisdiction was widened quite significantly when the Grand Chamber determined that jurisdiction under the ECHR, art 1 (and a subsequent violation of the ECHR, art 2) also applied in respect of the other five deaths. The court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the [...] was sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base.

Answer

extent of control and power exercised by the UK military

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, art 2) also applied in respect of the other five deaths. The court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base.<body><html>

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Before the ECtHR in Al-Skeini and Others v UK [2011] ECHR 55721/07, however, the scope of jurisdiction was widened quite significantly when the Grand Chamber determined that jurisdiction under the ECHR, art 1 (and a subsequent violation of the ECHR, art 2) also applied in respect of the other five deaths. The court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was [...].

Answer

sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base

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e court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base.<body><html>

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In the conjoined appeals of [ case ], however, the Supreme Court unanimously decided that the so-called 'Snatch Land Rover claims', similarly relating to the deaths of British servicemen operating in the field of combat in Iraq (in 2005 and 2006), did attract the protection of the Convention. Lord Hope believed that Strasbourg had partly redefined the concept of jurisdiction from the position taken in the Bankovic case to a recognition in Al-Skeini v UK that the key element was the degree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, deaths of servicemen in the battlefield fall within the jurisdiction of the ECHR, art 1, regardless of whether they are operating in areas not under the control of the contracting state.

Answer

Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41

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In the conjoined appeals of Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, however, the Supreme Court unanimously decided that the so-called 'Snatch Land Rover claims', similarly relating to the deaths of British servicemen operating in the field of combat in

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In the conjoined appeals of Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, however, the Supreme Court unanimously decided that the so-called 'Snatch Land Rover claims', similarly relating to the deaths of British servicemen operating in the field of combat in Iraq (in 2005 and 2006), did attract the protection of the Convention. Lord Hope believed that Strasbourg had partly redefined the concept of jurisdiction from the position taken in the Bankovic case to a recognition in Al-Skeini v UK that the key element was [...]. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, deaths of servicemen in the battlefield fall within the jurisdiction of the ECHR, art 1, regardless of whether they are operating in areas not under the control of the contracting state.

Answer

the degree of control and authority exercised by the relevant state over the individual

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2006), did attract the protection of the Convention. Lord Hope believed that Strasbourg had partly redefined the concept of jurisdiction from the position taken in the Bankovic case to a recognition in Al-Skeini v UK that the key element was the degree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, deaths of servicemen in

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In the conjoined appeals of Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, however, the Supreme Court unanimously decided that the so-called 'Snatch Land Rover claims', similarly relating to the deaths of British servicemen operating in the field of combat in Iraq (in 2005 and 2006), did attract the protection of the Convention. Lord Hope believed that Strasbourg had partly redefined the concept of jurisdiction from the position taken in the Bankovic case to a recognition in Al-Skeini v UK that the key element was the degree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, [...].

Answer

deaths of servicemen in the battlefield fall within the jurisdiction of the ECHR, art 1, regardless of whether they are operating in areas not under the control of the contracting state

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gree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, deaths of servicemen in the battlefield fall within the jurisdiction of the ECHR, art 1, regardless of whether they are operating in areas not under the control of the contracting state.<body><html>

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As far as standing is concerned, applicants must show that [...] in order to be a 'victim' for the purposes of the ECHR, art 34: Klass v Germany (1978) 2 EHRR 214.

Answer

they are directly affected by state action or inaction

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As far as standing is concerned, applicants must show that they are directly affected by state action or inaction in order to be a 'victim' for the purposes of the ECHR, art 34: Klass v Germany (1978) 2 EHRR 214.

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As far as standing is concerned, applicants must show that they are directly affected by state action or inaction in order to be a 'victim' for the purposes of the ECHR, art 34: [ case ].

Answer

Klass v Germany (1978) 2 EHRR 214

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Applicants must be a 'person' in the legal sense and therefore can be natural or legal persons, such as corporate bodies (e.g. [ case ]) and certain other organisations with legal personality, including trade unions and political parties.

Answer

The Sunday Times v UK (1979)

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Applicants must be a 'person' in the legal sense and therefore can be natural or legal persons, such as corporate bodies (e.g. The Sunday Times v UK (1979)) and certain other organisations with legal personality, including trade unions and political parties.

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An applicant may, however, be an indirect victim of a violation in exceptional circumstances, for instance [...].

Answer

close relatives of a deceased where complainants allege a violation of the right to life

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An applicant may, however, be an indirect victim of a violation in exceptional circumstances, for instance close relatives of a deceased where complainants allege a violation of the right to life.

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[ case ], where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held to have breached its positive obligation under the ECHR, art 8.

Answer

X and Y v The Netherlands [1985] ECHR 4

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X and Y v The Netherlands [1985] ECHR 4, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held

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X and Y v The Netherlands [1985] ECHR 4, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held [...].

Answer

to have breached its positive obligation under the ECHR, art 8

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body>X and Y v The Netherlands [1985] ECHR 4, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held to have breached its positive obligation under the ECHR, art 8.<body><html>

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In [ case ] it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions:

'[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities.

Answer

Osman v UK, (2000) 29 EHRR 245

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In Osman v UK, (2000) 29 EHRR 245 it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from

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In Osman v UK, (2000) 29 EHRR 245 it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions:

'[I]t must be established … that the authorities [...] of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

Answer

knew or ought to have known at the time

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se life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions: '[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within

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'[I]t must be established … that the authorities knew or ought to have known at the time of [...] of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

Answer

the existence of a real and immediate risk to the life

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of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions: '[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might

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'[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of [...] from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

Answer

an identified individual or individuals

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hat this obligation on the authorities was subject to the following conditions: '[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.' &#1

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'[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from [...] and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

Answer

the criminal acts of a third party

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bject to the following conditions: '[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.' The court also acknowledged, i

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'[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that [...].'

Answer

they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk

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3; '[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.' The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted i

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The UK has a reservation to the ECHR, art 2 of the First Protocol to the Convention (the 'right to education'). Note that, as with derogations, the ECtHR will not always passively accept a reservation. In [ case ], the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to amount to a 'reservation of a general character' (prohibited by the ECHR, art 57).

Answer

Belilos v Switzerland (1988) 10 EHRR 466

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The UK has a reservation to the ECHR, art 2 of the First Protocol to the Convention (the 'right to education'). Note that, as with derogations, the ECtHR will not always passively accept a reservation. In Belilos v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to am

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The UK has a reservation to the ECHR, art 2 of the First Protocol to the Convention (the 'right to education'). Note that, as with derogations, the ECtHR will not always passively accept a reservation. In Belilos v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be [...] (prohibited by the ECHR, art 57).

Answer

so vague as to amount to a 'reservation of a general character'

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assively accept a reservation. In Belilos v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to amount to a 'reservation of a general character' (prohibited by the ECHR, art 57).<body><html>

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The UK has a reservation to the ECHR, art 2 of the First Protocol to the Convention (the 'right to education'). Note that, as with derogations, the ECtHR will not always passively accept a reservation. In Belilos v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to amount to a 'reservation of a general character' (prohibited by the [ statute ]).

Answer

ECHR, art 57

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HR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to amount to a 'reservation of a general character' (prohibited by the ECHR, art 57).<body><html>

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Where a particularly important facet of an individual's existence or identity is in issue, the ECtHR will be less likely to accept that a contracting state should be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of [...] arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are seen as best placed to assess.

Answer

public emergency

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be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, econ

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Where a particularly important facet of an individual's existence or identity is in issue, the ECtHR will be less likely to accept that a contracting state should be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the [ statute ], and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are seen as best placed to assess.

Answer

ECHR, art 15

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areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental polici

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Where a particularly important facet of an individual's existence or identity is in issue, the ECtHR will be less likely to accept that a contracting state should be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases [...]. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are seen as best placed to assess.

Answer

involving national security

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cope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are

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Where a particularly important facet of an individual's existence or identity is in issue, the ECtHR will be less likely to accept that a contracting state should be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require [...], which the national authorities are seen as best placed to assess.

Answer

an appreciation of social, economic, and environmental policies

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tes. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are seen as best placed to assess.<body><html>

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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In [ case ], Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.

Answer

Handyside v UK (1976) 1 EHRR 737

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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.

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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be '[...]'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.

Answer

necessary in a democratic society

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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that [...].

Answer

interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued

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>The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.<html>

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One variation of the proportionality test involves [...]. Another variation of the test involves considering whether there was an alternative and less intrusive means of achieving the legitimate aim without interfering with the guaranteed right to the same degree.

Answer

balancing the severity of the interference to the Convention right against the legitimate aim for which the interference was made

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One variation of the proportionality test involves balancing the severity of the interference to the Convention right against the legitimate aim for which the interference was made. Another variation of the test involves considering whether there was an alternative and less intrusive means of achieving the legitimate aim without interfering with the guaranteed rig

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One variation of the proportionality test involves balancing the severity of the interference to the Convention right against the legitimate aim for which the interference was made. Another variation of the test involves considering whether there was [...].

Answer

an alternative and less intrusive means of achieving the legitimate aim without interfering with the guaranteed right to the same degree

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ation of the proportionality test involves balancing the severity of the interference to the Convention right against the legitimate aim for which the interference was made. Another variation of the test involves considering whether there was an alternative and less intrusive means of achieving the legitimate aim without interfering with the guaranteed right to the same degree.<body><html>

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Strasbourg declared in [ case ] that:

'For domestic law to meet these requirements [in Sunday Times] it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.'

Answer

Gillan and Quinton v UK (2010) 50 EHRR 45

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Strasbourg declared in Gillan and Quinton v UK (2010) 50 EHRR 45 that: 'For domestic law to meet these requirements [in Sunday Times] it must afford a measure of legal protection against arbitrary interferences by public authorities with

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Strasbourg declared in Gillan and Quinton v UK (2010) 50 EHRR 45 that:

'For domestic law to meet these requirements [in Sunday Times] it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate [...] conferred on the competent authorities and the manner of its exercise.'

Answer

with sufficient clarity the scope of any such discretion

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contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.' <body><html>

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Under the [ statute ], any contracting state may bring an application before the ECtHR against another contracting state.

Answer

ECHR, art 33

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Under the ECHR, art 33, any contracting state may bring an application before the ECtHR against another contracting state.

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A number of important cases have arisen as a result of UK military involvement in Iraq since 2003. In R (on application of Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26, the applicants were relatives of six Iraqi civilians who, it was claimed, had been killed by UK armed forces in Basra during 2003. The House of Lords decided at this point that the ECHR would extend to human rights abuses that occur outside the territorial jurisdiction of the United Kingdom in very limited situations. Their Lordships decided that the claims relating to five of the Iraqi civilians, who were all killed in the course of general security operations, could not succeed because [...]. However, the sixth Iraqi citizen, Baha Mousa, came within the jurisdiction of the UK under the ECHR, art 1, as he died as a result of injuries inflicted by UK armed forces personnel inside a detention unit controlled by British forces.

Answer

the UK did not exercise sufficient control over Iraq at the relevant time

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torial jurisdiction of the United Kingdom in very limited situations. Their Lordships decided that the claims relating to five of the Iraqi civilians, who were all killed in the course of general security operations, could not succeed because the UK did not exercise sufficient control over Iraq at the relevant time. However, the sixth Iraqi citizen, Baha Mousa, came within the jurisdiction of the UK under the ECHR, art 1, as he died as a result of injuries inflicted by UK armed forces personnel in

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A number of important cases have arisen as a result of UK military involvement in Iraq since 2003. In R (on application of Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26, the applicants were relatives of six Iraqi civilians who, it was claimed, had been killed by UK armed forces in Basra during 2003. The House of Lords decided at this point that the ECHR would extend to human rights abuses that occur outside the territorial jurisdiction of the United Kingdom in very limited situations. Their Lordships decided that the claims relating to five of the Iraqi civilians, who were all killed in the course of general security operations, could not succeed because the UK did not exercise sufficient control over Iraq at the relevant time. However, the sixth Iraqi citizen, Baha Mousa, came within the jurisdiction of the UK under the ECHR, art 1, as [...].

Answer

he died as a result of injuries inflicted by UK armed forces personnel inside a detention unit controlled by British forces

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f general security operations, could not succeed because the UK did not exercise sufficient control over Iraq at the relevant time. However, the sixth Iraqi citizen, Baha Mousa, came within the jurisdiction of the UK under the ECHR, art 1, as he died as a result of injuries inflicted by UK armed forces personnel inside a detention unit controlled by British forces.<body><html>

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The position until recently with regard to rights enjoyed by UK armed forces personnel was more restrictive. The case of [ case ] concerned Private Jason Smith, a Territorial Army soldier, who died of heatstroke while serving in Iraq in 2003. The issue was whether the ECHR applies extra- territorially to protect British troops abroad, specifically when operating in areas not under UK control. If jurisdiction could be established under the ECHR, art 1, the next issue was whether his next of kin could establish a claim in respect of his rights under the ECHR, art 2 against the Ministry of Defence. The majority in the Supreme Court held that the jurisdiction of the ECHR did not extend to protection of Jason Smith's rights under the ECHR, art 2, as he had died as a result of conditions in the field where he was operating in an area seen to be outside UK control.

Answer

R (on application of Smith) v Secretary of State for Defence [2010] UKSC 29

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The position until recently with regard to rights enjoyed by UK armed forces personnel was more restrictive. The case of R (on application of Smith) v Secretary of State for Defence [2010] UKSC 29 concerned Private Jason Smith, a Territorial Army soldier, who died of heatstroke while serving in Iraq in 2003. The issue was whether the ECHR applies extra- territorially to protect Br

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The position until recently with regard to rights enjoyed by UK armed forces personnel was more restrictive. The case of R (on application of Smith) v Secretary of State for Defence [2010] UKSC 29 concerned Private Jason Smith, a Territorial Army soldier, who died of heatstroke while serving in Iraq in 2003. The issue was whether the ECHR applies extra- territorially to protect British troops abroad, specifically when operating in areas not under UK control. If jurisdiction could be established under the ECHR, art 1, the next issue was whether his next of kin could establish a claim in respect of his rights under the ECHR, art 2 against the Ministry of Defence. The majority in the Supreme Court held that [...].

Answer

the jurisdiction of the ECHR did not extend to protection of Jason Smith's rights under the ECHR, art 2, as he had died as a result of conditions in the field where he was operating in an area seen to be outside UK control

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diction could be established under the ECHR, art 1, the next issue was whether his next of kin could establish a claim in respect of his rights under the ECHR, art 2 against the Ministry of Defence. The majority in the Supreme Court held that the jurisdiction of the ECHR did not extend to protection of Jason Smith's rights under the ECHR, art 2, as he had died as a result of conditions in the field where he was operating in an area seen to be outside UK control.<body><html>

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One way in which positive obligations can be fulfilled is by contracting states being required to enact laws in their domestic legal systems that prohibit, deter, and punish individuals who commit such violations. An example of this is provided by [ case ]

Answer

X and Y v The Netherlands

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ay in which positive obligations can be fulfilled is by contracting states being required to enact laws in their domestic legal systems that prohibit, deter, and punish individuals who commit such violations. An example of this is provided by X and Y v The Netherlands<body><html>

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According to the [ statute ], no derogation is allowed with respect to the ECHR, arts 2 (except regarding deaths resulting from lawful acts of war), 3, 4(1) and 7.

Answer

ECHR, art 15(2)

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According to the ECHR, art 15(2), no derogation is allowed with respect to the ECHR, arts 2 (except regarding deaths resulting from lawful acts of war), 3, 4(1) and 7.

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The [ statute ] allows contracting states to take measures that would interfere temporarily with the rights and freedoms protected by the ECHR and Protocols where:
(a) there is a 'public emergency threatening the life of the nation';
(b) the measure is strictly required by the exigencies of the situation;
(c) the measure is consistent with any other obligations under international law; and
(d) there has been timely written notification to the Secretary-General of the Council of Europe.

Answer

ECHR, art 15

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The ECHR, art 15 allows contracting states to take measures that would interfere temporarily with the rights and freedoms protected by the ECHR and Protocols where:

Answer

(a) there is a 'public emergency threatening the life of the nation';
(b) the measure is strictly required by the exigencies of the situation;
(c) the measure is consistent with any other obligations under international law; and
(d) there has been timely written notification to the Secretary-General of the Council of Europe.

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The ECHR, art 15 allows contracting states to take measures that would interfere temporarily with the rights and freedoms protected by the ECHR and Protocols where: (a) there is a 'public emergency threatening the life of the nation'; (b) the measure is strictly required by the exigencies of the situation; (c) the measure is consistent wit

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In [ case ], the House of Lords quashed the derogation order (and entered a section 4 declaration of incompatibility in respect of the Anti- Terrorism, Crime and Security Act 2001, ss 21–23), on the ground that the derogation measures were not 'strictly required by the exigencies of the situation'.

Answer

A and Others v Secretary of State for the Home Department [2004] UKHL 56

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In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords quashed the derogation order (and entered a section 4 declaration of incompatibility in respect of the Anti- Terrorism, Crime and Security Act 2001, ss 21–23), on th

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In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords quashed the derogation order (and entered a section 4 declaration of incompatibility in respect of the Anti- Terrorism, Crime and Security Act 2001, ss 21–23), on the ground that [...].

Answer

the derogation measures were not 'strictly required by the exigencies of the situation'

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tate for the Home Department [2004] UKHL 56, the House of Lords quashed the derogation order (and entered a section 4 declaration of incompatibility in respect of the Anti- Terrorism, Crime and Security Act 2001, ss 21–23), on the ground that the derogation measures were not 'strictly required by the exigencies of the situation'.<body><html>

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Reservations are made under the [ statute ]. Any contracting state may, at the time of signing or ratifying the ECHR, make its acceptance subject to a condition, which limits or varies the application of the ECHR to that state.

Answer

ECHR, art 57

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Reservations are made under the ECHR, art 57. Any contracting state may, at the time of signing or ratifying the ECHR, make its acceptance subject to a condition, which limits or varies the application of the ECHR to that state.</

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The ECtHR has taken the view that [...]. This empowers it to determine the exact nature and content of a given state's acceptance of its jurisdiction. A similar result occurred in Loizidou v Turkey (Preliminary Objections), (1995) 20 EHRR 99, the chief objection being that the purported 'reservation' would defeat the very object and purpose of the Convention.

Answer

it alone has responsibility for deciding what is or is not a reservation

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The ECtHR has taken the view that it alone has responsibility for deciding what is or is not a reservation. This empowers it to determine the exact nature and content of a given state's acceptance of its jurisdiction. A similar result occurred in Loizidou v Turkey (Preliminary Objections), (

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The ECtHR has taken the view that it alone has responsibility for deciding what is or is not a reservation. This empowers it to determine the exact nature and content of a given state's acceptance of its jurisdiction. A similar result occurred in [ case ], the chief objection being that the purported 'reservation' would defeat the very object and purpose of the Convention.

Answer

Loizidou v Turkey (Preliminary Objections), (1995) 20 EHRR 99

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ECtHR has taken the view that it alone has responsibility for deciding what is or is not a reservation. This empowers it to determine the exact nature and content of a given state's acceptance of its jurisdiction. A similar result occurred in Loizidou v Turkey (Preliminary Objections), (1995) 20 EHRR 99, the chief objection being that the purported 'reservation' would defeat the very object and purpose of the Convention.<body><html>

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In [ case ], concerning an interference with freedom of expression under the ECHR, art 10(1) the ECtHR explained, on the basis that this was necessary for the 'protection of morals', that:

'By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements [of morality] as well as on the "necessity" of a "restriction" or "penalty" intended to meet them … Nevertheless, Article 10(2) does not give the Contracting States an unlimited power of appreciation. The court, which, with the Commission, is responsible for ensuring the observance of those States' engagements, is empowered to give the final ruling on whether a "restriction" or "penalty" is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision.'

Answer

Handyside v UK (1976) 1 EHRR 737

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In Handyside v UK (1976) 1 EHRR 737, concerning an interference with freedom of expression under the ECHR, art 10(1) the ECtHR explained, on the basis that this was necessary for the 'protection of morals', that: &#

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In Silver v UK (1983) 5 EHRR 347, Strasbourg added that [...], as the principle of the rule of law implied that interference by the authorities with an individual's rights should be subject to effective control.

Answer

the legal basis must provide safeguards against abuse

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In Silver v UK (1983) 5 EHRR 347, Strasbourg added that the legal basis must provide safeguards against abuse, as the principle of the rule of law implied that interference by the authorities with an individual's rights should be subject to effective control.

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In [ statute ], Strasbourg added that the legal basis must provide safeguards against abuse, as the principle of the rule of law implied that interference by the authorities with an individual's rights should be subject to effective control.

Answer

Silver v UK (1983) 5 EHRR 347

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An example of prescription by law is provided by [ case ], where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable on the basis that the sanction had been set after a finding that a person had committed a breach of the peace. In these particular circumstances it was sufficiently clear that those 'bound over' were agreeing to refrain from causing further, similar breaches of the law in future.

Answer

Steel and Morris v UK (2000) 28 EHRR 603

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An example of prescription by law is provided by Steel and Morris v UK (2000) 28 EHRR 603, where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was suffici

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An example of prescription by law is provided by Steel and Morris v UK (2000) 28 EHRR 603, where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, [...] on the basis that the sanction had been set after a finding that a person had committed a breach of the peace. In these particular circumstances it was sufficiently clear that those 'bound over' were agreeing to refrain from causing further, similar breaches of the law in future.

Answer

despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable

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v UK (2000) 28 EHRR 603, where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable on the basis that the sanction had been set after a finding that a person had committed a breach of the peace. In these particular circumstances it was sufficiently clear that those 'bou

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An example of prescription by law is provided by Steel and Morris v UK (2000) 28 EHRR 603, where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable on the basis that [...]. In these particular circumstances it was sufficiently clear that those 'bound over' were agreeing to refrain from causing further, similar breaches of the law in future.

Answer

the sanction had been set after a finding that a person had committed a breach of the peace

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keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable on the basis that the sanction had been set after a finding that a person had committed a breach of the peace. In these particular circumstances it was sufficiently clear that those 'bound over' were agreeing to refrain from causing further, similar breaches of the law in future.<

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Question

Generally, for the state to lawfully interfere with a qualified Convention right, it must be shown that all three of the following circumstances apply.

Answer

(a) The interference was prescribed by, or in accordance with, the law.
(b) The interference was in pursuit of a legitimate aim.
(c) The interference was necessary in a democratic society.

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Generally, for the state to lawfully interfere with a qualified Convention right, it must be shown that all three of the following circumstances apply. (a) The interference was prescribed by, or in accordance with, the law. (b) The interference was in pursuit of a legitimate aim. (c) The interference was necessary in a democra

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In the leading case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, [2003] UKHL 37 the House of Lords gave some guidance on what constituted the scope of a core public authority. Lord Nicholls (para 7) suggested that the phrase 'public authority' in the HRA 1998, s 1 is 'essentially a reference to a body whose nature is governmental in a broad sense'. His Lordship further suggested that the following factors could be considered relevant in determining whether a body is a 'core' public authority:

Answer

(a) the possession of special powers;
(b) democratic accountability;
(c) public funding in whole or in part;
(d) an obligation to act only in the public interest;
(e) a statutory constitution

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In the leading case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, [2003] UKHL 37 the House of Lords gave some guidance on what constituted the scope of a core public authority. Lord Nicholls (para 7) suggested that the phrase 'public authority' in the HRA 1998, s 1 is 'essentially a reference to a body whose nature is governmental in a broad sense'. His Lordship further suggested that the following factors could be considered relevant in determining whether a body is a 'core' public authority: (a) the possession of special powers; (b) democratic accountability; (c) public funding in whole or in part; (d) an obligation to act only in the public interest; (e)

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Whereas 'core' public authorities are potentially bound by the ECHR in respect of all their actions, 'hybrid' public authorities are only bound by the ECHR in respect of [...].

Answer

those functions they carry out which are of a public nature

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Whereas 'core' public authorities are potentially bound by the ECHR in respect of all their actions, 'hybrid' public authorities are only bound by the ECHR in respect of those functions they carry out which are of a public nature.

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The HRA 1998, s 8(1) provides that, where a court or tribunal finds that an act of a public authority is unlawful, contrary to the HRA 1998, s 6(1), it may grant such remedy as it considers 'just and appropriate'. The power to award a remedy is, however, limited in a number of respects (see the [ statute ]). In practice, the nature of the remedy will vary greatly according to the context of the case. The normal remedies will include damages, declarations, injunctions, and the prerogative orders.

Answer

HRA 1998, s 8(1)– (4)

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ibunal finds that an act of a public authority is unlawful, contrary to the HRA 1998, s 6(1), it may grant such remedy as it considers 'just and appropriate'. The power to award a remedy is, however, limited in a number of respects (see the HRA 1998, s 8(1)– (4)). In practice, the nature of the remedy will vary greatly according to the context of the case. The normal remedies will include damages, declarations, injunctions, and the prerogativ

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Question

Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: [ statute ].

Answer

HRA 1998, s 3

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Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3.

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Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can [...]: HRA 1998, s 4.

Answer

make a declaration of incompatibility

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Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can make a declaration of incompatibility: HRA 1998, s 4.

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Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can make a declaration of incompatibility: [ statute ].

Answer

HRA 1998, s 4

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html>Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can make a declaration of incompatibility: HRA 1998, s 4.<html>

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[ case ] was the first decision in which the House of Lords declined to follow the jurisprudence of the ECtHR.

Answer

R v Spear [2002] UKHL 31

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R v Spear [2002] UKHL 31 was the first decision in which the House of Lords declined to follow the jurisprudence of the ECtHR.

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Question

In determining legal questions, including common law development, the courts must [...]: HRA 1998, s 2.

Answer

take into account relevant ECHR case law

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In determining legal questions, including common law development, the courts must take into account relevant ECHR case law: HRA 1998, s 2.

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Question

In determining legal questions, including common law development, the courts must take into account relevant ECHR case law: [ statute ].

Answer

HRA 1998, s 2

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In determining legal questions, including common law development, the courts must take into account relevant ECHR case law: HRA 1998, s 2.

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It is important to note that, where the unlawful interference with a Convention right has been provided for by statute and the court is unable to interpret the offending piece of legislation compatibly with the Convention right and makes a declaration of incompatibility instead, [...].

Answer

the public authority will not be found to have acted unlawfully

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unlawful interference with a Convention right has been provided for by statute and the court is unable to interpret the offending piece of legislation compatibly with the Convention right and makes a declaration of incompatibility instead, the public authority will not be found to have acted unlawfully.<body><html>

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Question

The [ statute ] gives effect to ECHR rights and freedoms in UK domestic law.

Answer

HRA 1998, s 1

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The HRA 1998, s 1 gives effect to ECHR rights and freedoms in UK domestic law.

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The HRA 1998, s 1 [...].

Answer

gives effect to ECHR rights and freedoms in UK domestic law

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The HRA 1998, s 1 gives effect to ECHR rights and freedoms in UK domestic law.

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The [ statute ] provides that UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right.

Answer

HRA 1998, s 2(1)

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The HRA 1998, s 2(1) provides that UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right.

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The HRA 1998, s 2(1) provides that [...].

Answer

UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right

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Question

The [ statute ] provides that:

'[S]o far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.'

Answer

HRA 1998, s 3(1)

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The HRA 1998, s 3(1) provides that: '[S]o far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.'

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Question

The HRA 1998, s 3(1) provides that:

'[S]o far as it is possible to do so, primary and subordinate legislation must [...].'

Answer

be read and given effect in a way which is compatible with Convention rights

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The approach to be taken under the HRA towards the interpretation of legislation has been controversial, as can be seen in R v A (Complainant's Sexual History) (No 2) [2001] 2 WLR 1546. The Youth Justice and Criminal Evidence Act 1999, s 41 was designed to restrict the circumstances in which evidence and questioning about a complainant's prior sexual history in trials concerning sexual offences could be permitted. The issue was whether this new provision prejudiced the defendant's right to a fair trial under the ECHR, art 6.

The House of Lords held that the Youth Justice and Criminal Evidence Act 1999, s 41 was incompatible with the right to a fair trial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a '[...] under the HRA 1998, s 3. He reasoned:

'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.'

Answer

wide' approach to interpretation

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ice and Criminal Evidence Act 1999, s 41 was incompatible with the right to a fair trial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned: '[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the langu

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'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even [...] … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.'

Answer

if there is no ambiguity in the language in the sense of the language being capable of two different meanings

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r the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned: '[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compat

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[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings

Answer

R v A (Complainant's Sexual History) (No 2) [2001] 2 WLR 1546

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ial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned: '[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compat

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'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to [...] … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.'

Answer

strive to find a possible interpretation compatible with Convention rights

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re is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques t

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'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If [...], such an impossibility will arise.'

Answer

a clear limitation on Convention rights is stated in terms

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used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.' <body><html>

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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was [ case ], where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution.

Answer

R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23

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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless there were special cir

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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should [...] unless there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution.

Answer

follow any clear and consistent jurisprudence

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meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution. </

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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless [...].

Answer

there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution

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ury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution. <body><html>

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In [ case ], the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very useful early guidance on the use of the HRA 1998, s 3:

'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.'

Answer

Re S (Children) and Re W (Care Orders) [2002] UKHL 10

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In Re S (Children) and Re W (Care Orders) [2002] UKHL 10, the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very usefu

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In Re S (Children) and Re W (Care Orders) [2002] UKHL 10, the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very useful early guidance on the use of the HRA 1998, s 3:

'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which [...] is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.'

Answer

departs substantially from a fundamental feature of an Act of Parliament

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ves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipp

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'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to [...]. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.'

Answer

have crossed the boundary between interpretation and amendment

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a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.' <body><html>

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'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where [...].'

Answer

the departure has important practical repercussions which the court is not equipped to evaluate

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rs for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.' <body><html>

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It seems therefore that, where the use of the HRA 1998, s 3 would [...], the courts will be more unwilling to use the HRA 1998, s 3.

Answer

represent a major change in the law, having far-reaching consequences

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It seems therefore that, where the use of the HRA 1998, s 3 would represent a major change in the law, having far-reaching consequences, the courts will be more unwilling to use the HRA 1998, s 3.

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In [ case ] the House of Lords used the HRA 1998, s 3to read in the additional words 'as his husband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court can interpret the language restrictively or expansively. It can read in words which change the meaning of the legislation.

Answer

Ghaidan v Godin-Mendoza [2004] UKHL 30

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In Ghaidan v Godin-Mendoza [2004] UKHL 30 the House of Lords used the HRA 1998, s 3to read in the additional words 'as his husband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. T

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In Ghaidan v Godin-Mendoza [2004] UKHL 30 the House of Lords used the HRA 1998, s 3to [...] into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court can interpret the language restrictively or expansively. It can read in words which change the meaning of the legislation.

Answer

read in the additional words 'as his husband and wife'

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In Ghaidan v Godin-Mendoza [2004] UKHL 30 the House of Lords used the HRA 1998, s 3to read in the additional words 'as his husband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was [...]. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court can interpret the language restrictively or expansively. It can read in words which change the meaning of the legislation.

Answer

the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used

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usband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court c

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Lord Hoffmann, in [ case ], made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts:

'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

Answer

R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18)

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Lord Hoffmann, in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18), made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts: 'I do not believe that section 3 of the 1998 Act was

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Lord Hoffmann, in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18), made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts:

'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that [...]. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

Answer

Parliament did not intend a statute to mean something which would be incompatible with those rights

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w (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to lo

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'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. [...]. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

Answer

the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute

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d it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statut

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'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as [...]. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

Answer

referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament

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using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, bu

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'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means [...].'

Answer

the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights

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ch they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.' <body><html>

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A more recent example of the courts applying the HRA 1998, s 3(1) is provided by [ case ]. The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part of a 'demoted' tenant. It was held by the Supreme Court that county court judges were required by the ECHR, art 8 to consider the proportionality of evicting a person from his home when granting this type of possession order. It was noted that the Housing Act 1996, s 143 had been drafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, read the word 'lawful' into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.

Answer

Pinnock v Manchester City Council [2010] UKSC 45

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A more recent example of the courts applying the HRA 1998, s 3(1) is provided by Pinnock v Manchester City Council [2010] UKSC 45. The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part

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The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part of a 'demoted' tenant. It was held by the Supreme Court that county court judges were required by the ECHR, art 8 to consider the proportionality of evicting a person from his home when granting this type of possession order. It was noted that the Housing Act 1996, s 143 had been drafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, read the word 'lawful' into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.

Answer

Pinnock v Manchester City Council [2010] UKSC 45

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A more recent example of the courts applying the HRA 1998, s 3(1) is provided by Pinnock v Manchester City Council [2010] UKSC 45. The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part of a 'demoted' tenant. It was held by the Supreme Court that county court judges were required by the ECHR, art 8 to consider the proportionality of evicting a person from his home when granting this type of possession order. It was noted that the Housing Act 1996, s 143 had been drafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, [...] into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.

Answer

read the word 'lawful'

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rafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, read the word 'lawful' into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.<body><

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in situations where the court does not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the [ statute ] regarding primary legislation and the HRA 1998, s 4(4) regarding subordinate legislation.

Answer

HRA 1998, s 4(2)

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head>in situations where the court does not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the HRA 1998, s 4(2) regarding primary legislation and the HRA 1998, s 4(4) regarding subordinate legislation.<html>

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in situations where the court does not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the HRA 1998, s 4(2) regarding primary legislation and the [ statute ] regarding subordinate legislation.

Answer

HRA 1998, s 4(4)

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s not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the HRA 1998, s 4(2) regarding primary legislation and the HRA 1998, s 4(4) regarding subordinate legislation.<body><html>

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In [ case ], the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as it was disproportionate and permitted detention of suspected international terrorists without charge or trial and discriminated on the ground of nationality or immigration status.

Answer

A and Others v Secretary of State for the Home Department [2004] UKHL 56

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In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as it

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In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as [...].

Answer

it was disproportionate and permitted detention of suspected international terrorists without charge or trial and discriminated on the ground of nationality or immigration status

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v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as it was disproportionate and permitted detention of suspected international terrorists without charge or trial and discriminated on the ground of nationality or immigration status.<body><html>

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See too the case of [ case ] where the House of Lords found the Crime (Sentences) Act 1997, s 29 to be incompatible with the ECHR, art 6(1), as it left the decision on tariffs for mandatory life term prisoners solely in the hands of the Home Secretary.

Answer

R (Anderson) v Secretary of State for the Home Department, [2002] UKHL 46

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See too the case of R (Anderson) v Secretary of State for the Home Department, [2002] UKHL 46 where the House of Lords found the Crime (Sentences) Act 1997, s 29 to be incompatible with the ECHR, art 6(1), as it left the decision on tariffs for mandatory life term prisoners sole

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The public authority may, however, appeal against a decision to make a declaration under the HRA 1998, s 4. See, for instance, the case of [ case ] where the House of Lords overturned a declaration made by the Court of Appeal that the Mental Health Act 1983, s 2 was incompatible with the ECHR, art 5 (4).

Answer

R (on the application of H) v Secretary of State for Health, [2005] UKHL 60

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The public authority may, however, appeal against a decision to make a declaration under the HRA 1998, s 4. See, for instance, the case of R (on the application of H) v Secretary of State for Health, [2005] UKHL 60 where the House of Lords overturned a declaration made by the Court of Appeal that the Mental Health Act 1983, s 2 was incompatible with the ECHR, art 5 (4).

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The [ statute ] provides that, in response to a declaration of incompatibility made under the HRA 1998, s 4 (or to a decision of the ECHR), the relevant ministers may take expedited 'remedial action' to amend the relevant legislation as necessary to remove the incompatibility, if 'there are compelling reasons for proceeding under this section'.

Answer

HRA 1998, s 10(2)

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The HRA 1998, s 10(2) provides that, in response to a declaration of incompatibility made under the HRA 1998, s 4 (or to a decision of the ECHR), the relevant ministers may take expedited 'remedial action'

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In [ case ], Lord Hope provided the following guidance with respect to the defence under the HRA 1998, s 6(2):

'The situation to which paragraph (a) is addressed arises where the effect of the primary legislation is that the authority has no alternative but to do what the legislation tells it to do. The language of the paragraph tells us that this may be the result of one provision taken by itself, or that it may be the result of two or more provisions taken together. Where more than one provision is involved, they may be part of one enactment or they may be found in several different enactments. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority. If the legislation imposes a duty to act, the authority is obliged to act in the manner which the legislation lays down even if the legislation requires it to act in a way which is incompatible with a Convention right. The authority has no discretion to do otherwise. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails over the Convention right. The defence is provided to prevent the legislation from being rendered unenforceable. The situation to which paragraph (b) is addressed on the other hand arises where the authority has a discretion, which it has the power to exercise or not to exercise as it chooses, to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights. The source of that discretion may be in a single statutory provision which confers a power on the authority which it may or may not choose to exercise.'

Answer

R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29

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In R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29, Lord Hope provided the following guidance with respect to the defence under the HRA 1998, s 6(2): 'The situation to which paragraph (a) is addressed arises where the effec

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In R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29, Lord Hope provided the following guidance with respect to the defence under the HRA 1998, s 6(2):

'The situation to which paragraph (a) is addressed arises where the effect of the primary legislation is that the authority has no alternative but to do what the legislation tells it to do. The language of the paragraph tells us that this may be the result of one provision taken by itself, or that it may be the result of two or more provisions taken together. Where more than one provision is involved, they may be part of one enactment or they may be found in several different enactments. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority. If [...]. The authority has no discretion to do otherwise. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails over the Convention right. The defence is provided to prevent the legislation from being rendered unenforceable. The situation to which paragraph (b) is addressed on the other hand arises where the authority has a discretion, which it has the power to exercise or not to exercise as it chooses, to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights. The source of that discretion may be in a single statutory provision which confers a power on the authority which it may or may not choose to exercise.'

Answer

the legislation imposes a duty to act, the authority is obliged to act in the manner which the legislation lays down even if the legislation requires it to act in a way which is incompatible with a Convention right

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ved, they may be part of one enactment or they may be found in several different enactments. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority. If the legislation imposes a duty to act, the authority is obliged to act in the manner which the legislation lays down even if the legislation requires it to act in a way which is incompatible with a Convention right. The authority has no discretion to do otherwise. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails ov

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The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistance Act 1948. The charity decided to re-develop the home which meant that certain existing residents could not remain. The residents sought judicial review of the decision, arguing that the loss of their home constituted a violation of the ECHR, art 8 (right to respect for home). The crucial question was whether the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.

Answer

R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936

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The second case to deal with the HRA 1998, s 6(3)(b) was R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistan

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The second case to deal with the HRA 1998, s 6(3)(b) was R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistance Act 1948. The charity decided to re-develop the home which meant that certain existing residents could not remain. The residents sought judicial review of the decision, arguing that the loss of their home constituted a violation of the ECHR, art 8 (right to respect for home). The crucial question was whether the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that [...]. Furthermore, although the Foundation was performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.

Answer

there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents

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the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was he

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The second case to deal with the HRA 1998, s 6(3)(b) was R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistance Act 1948. The charity decided to re-develop the home which meant that certain existing residents could not remain. The residents sought judicial review of the decision, arguing that the loss of their home constituted a violation of the ECHR, art 8 (right to respect for home). The crucial question was whether the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was [...]. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.

Answer

performing a function delegated under statutory authority, it was not itself exercising statutory powers

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of the care home. It noted that there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.<body><html>

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As indicated above, the concept of 'public authority', both core and functional, was reviewed by the House of Lords in Aston Cantlow, which was decided after Poplar and Leonard Cheshire. (Although note that these cases were not specifically overruled by the House of Lords.) The House of Lords stressed that it was [...] that should determine whether a body was a functional public authority. Lord Nicholls suggested that there should be a 'generously wide' interpretation of public function so as to further the statutory aim of promoting human rights protection. Lord Hope stated that the concept of a functional public authority:

'… has a much wider reach, and is sensitive to the facts of each case. It is the function that the person is performing that is determinative of the question whether it is a … "hybrid" [functional] public authority.'

Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one:
(a) the extent to which, in carrying out the function, the body is publicly funded; or
(b) exercising statutory power; or
(c) taking the place of central government or local authorities; or
(d) is providing a public service.

Answer

the nature of the function being performed

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ctional, was reviewed by the House of Lords in Aston Cantlow, which was decided after Poplar and Leonard Cheshire. (Although note that these cases were not specifically overruled by the House of Lords.) The House of Lords stressed that it was the nature of the function being performed that should determine whether a body was a functional public authority. Lord Nicholls suggested that there should be a 'generously wide' interpretation of public function so as to furthe

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In Aston Cantlow Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one: (4)

Answer

(a) the extent to which, in carrying out the function, the body is publicly funded; or
(b) exercising statutory power; or
(c) taking the place of central government or local authorities; or
(d) is providing a public service.

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In Aston Cantlow Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one: (a) the extent to which, in carrying out the function, the body is publicly funded; or (b) exercising statutory power; or (c) taking the place of central government or local au

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In [ case ] Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one:
(a) the extent to which, in carrying out the function, the body is publicly funded; or
(b) exercising statutory power; or
(c) taking the place of central government or local authorities; or
(d) is providing a public service.

Answer

Aston Cantlow

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To determine whether the Parochial Church Council was performing a public function in Aston Cantlow, the House of Lords stressed the importance of considering the nature of the particular act being carried out by the body in question. In the instant case, the PCC was trying to enforce an obligation to repair against the lay rectors. Their Lordships decided that this was not a public function. Lord Hope stated: 'The function which it is performing [...]'.

Answer

has nothing to do with the responsibilities which are owed to the public by the State

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by the body in question. In the instant case, the PCC was trying to enforce an obligation to repair against the lay rectors. Their Lordships decided that this was not a public function. Lord Hope stated: 'The function which it is performing has nothing to do with the responsibilities which are owed to the public by the State'.<body><html>

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The most important recent case dealing with the concept of what constitutes the performance of a public function is [case]. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer

YL v Birmingham City Council [2007] UKHL 27

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Ch

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, [...]. The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer

a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b)

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on is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summar

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company [...]. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer

carrying on a socially useful business for profit

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s, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26: 'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It re

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into [...]. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer

private law contracts with the residents in its care homes and with the local authorities with whom it does business

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es of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26: 'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislatio

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives [...], enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer

no public funding

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carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who of

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Question

The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no [...], and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer

special statutory powers

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l business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to

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Question

The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is [...] (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer

at liberty to accept or reject residents as it chooses

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her a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suita

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Question

The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to [...]. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer

charge whatever fees in its commercial judgment it thinks suitable

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es no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.' However, he stated at paragraph 28: 'The position might be different if the manage

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Question

The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if [...].'

Answer

the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises

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charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.' However, he stated at paragraph 28: 'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.' <body><html>

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A less restrictive line was taken by the Court of Appeal in the subsequent case of [ case ], where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if any of the functions that a body performs are public, it will be seen as a hybrid public authority. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether the specific act undertaken by the authority is nevertheless private in nature? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is considered public in nature, the body will be potentially liable.

Answer

R (Weaver) v London and Quadrant Housing Trust

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A less restrictive line was taken by the Court of Appeal in the subsequent case of R (Weaver) v London and Quadrant Housing Trust, where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of

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A less restrictive line was taken by the Court of Appeal in the subsequent case of R (Weaver) v London and Quadrant Housing Trust, where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if [...]. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether the specific act undertaken by the authority is nevertheless private in nature? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is considered public in nature, the body will be potentially liable.

Answer

any of the functions that a body performs are public, it will be seen as a hybrid public authority

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the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if any of the functions that a body performs are public, it will be seen as a hybrid public authority. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the

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If any of the functions that a body performs are public, it will be seen as a hybrid public authority.

Answer

R (Weaver) v London and Quadrant Housing Trust

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A less restrictive line was taken by the Court of Appeal in the subsequent case of R (Weaver) v London and Quadrant Housing Trust, where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if any of the functions that a body performs are public, it will be seen as a hybrid public authority. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether [...]? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is considered public in nature, the body will be potentially liable.

Answer

the specific act undertaken by the authority is nevertheless private in nature

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, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether the specific act undertaken by the authority is nevertheless private in nature? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is con

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The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In [ case ], the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated:

'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.)

Answer

R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93

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The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93, the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated: '… The doctrine of the "margin of appreciation" is a f

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The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93, the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated:

'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between [...]. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.)

Answer

competing interests and issues of proportionality

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rts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be

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'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of [...], much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.)

Answer

social or economic policy

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a of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.) &

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'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are [...].' (Emphasis added.)

Answer

of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection

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quires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.) <body><html>

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In the same [case] case, Lord Sumption, who gave the leading majority speech, summed up the cumulative effect of these influential cases by outlining a four-part analysis of proportionality as a concept in UK law, an approach agreed to by Lord Reed. According to Lord Sumption:

'[T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.'

Answer

Bank Mellat

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In the same Bank Mellat case, Lord Sumption, who gave the leading majority speech, summed up the cumulative effect of these influential cases by outlining a four-part analysis of proportionality as a concept in

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The elements outlined in Bank Mellat to consider when assessing whether an action is "proportionate": (4)

Answer

(i) whether its objective is sufficiently important to justify the limitation of a fundamental right;
(ii) whether it is rationally connected to the objective;
(iii) whether a less intrusive measure could have been used; and
(iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

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proportionality as a concept in UK law, an approach agreed to by Lord Reed. According to Lord Sumption: '[T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.' </

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It is also clear that where the innocent party affirms the contract in response to an anticipatory breach and subsequently commits a breach of contract himself, the repudiating party may escape liability. This is illustrated by the case of [ case ]. The House of Lords made it clear in this case that if an innocent party elects to affirm a contract, they are not absolved from further performance of their obligations under the contract. Consequently, if the innocent party fails to comply with those obligations, they will be in breach of contract and the repudiating party can escape liability for their own wrongful repudiation.

Answer

Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742

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>It is also clear that where the innocent party affirms the contract in response to an anticipatory breach and subsequently commits a breach of contract himself, the repudiating party may escape liability. This is illustrated by the case of Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742. The House of Lords made it clear in this case that if an innocent party elects to affirm a contract, they are not absolved from further performance of their obligations under the con

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It is also clear that where the innocent party affirms the contract in response to an anticipatory breach and subsequently commits a breach of contract himself, the repudiating party may escape liability. This is illustrated by the case of Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742. The House of Lords made it clear in this case that if [...]. Consequently, if the innocent party fails to comply with those obligations, they will be in breach of contract and the repudiating party can escape liability for their own wrongful repudiation.

Answer

an innocent party elects to affirm a contract, they are not absolved from further performance of their obligations under the contract

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reach of contract himself, the repudiating party may escape liability. This is illustrated by the case of Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742. The House of Lords made it clear in this case that if an innocent party elects to affirm a contract, they are not absolved from further performance of their obligations under the contract. Consequently, if the innocent party fails to comply with those obligations, they will be in breach of contract and the repudiating party can escape liability for their own wrongful r

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Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to provide such a cargo and that Avery should sail away. This was undoubtedly a breach of contract by Bowden, giving Avery the option of accepting the repudiation and suing for damages at once. However, he chose to ignore the advice and kept the ship at Odessa. Before the end of the 45-day period, the Crimean War broke out, Odessa became an enemy port and the contract became illegal and was therefore frustrated. As a consequence, Avery lost his right to sue for the breach of contract at the time when performance was due as the effects of frustration took over.

Answer

Avery v Bowden (1855) 5 E & B 714

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n the period between the affirmation and the due date for performance, the frustration will discharge the contract and the non-breaching party will lose the remedy of damages for breach of contract. This is clearly demonstrated by the case of Avery v Bowden (1855) 5 E & B 714. Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to pr

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Affirming the contract represents a risk for the innocent party as subsequent events may destroy his right of action. If, for example, the contract is frustrated (see Chapter 18) in the period between the affirmation and the due date for performance, the frustration will discharge the contract and the non-breaching party will lose the remedy of damages for breach of contract. This is clearly demonstrated by the case of Avery v Bowden (1855) 5 E & B 714. Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to provide such a cargo and that Avery should sail away. This was undoubtedly a breach of contract by Bowden, giving Avery the option of accepting the repudiation and suing for damages at once. However, he chose to ignore the advice and kept the ship at Odessa. Before the end of the 45-day period, the Crimean War broke out, Odessa became an enemy port and the contract became illegal and was therefore frustrated. As a consequence, Avery [...] as the effects of frustration took over.

Answer

lost his right to sue for the breach of contract at the time when performance was due

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ever, he chose to ignore the advice and kept the ship at Odessa. Before the end of the 45-day period, the Crimean War broke out, Odessa became an enemy port and the contract became illegal and was therefore frustrated. As a consequence, Avery lost his right to sue for the breach of contract at the time when performance was due as the effects of frustration took over.<body><html>

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Affirming the contract represents a risk for the innocent party as subsequent events may destroy his right of action. If, for example, the contract is frustrated (see Chapter 18) in the period between the affirmation and the due date for performance, the frustration will discharge the contract and the non-breaching party will lose the remedy of damages for breach of contract. This is clearly demonstrated by the case of [ case ]. Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to provide such a cargo and that Avery should sail away. This was undoubtedly a breach of contract by Bowden, giving Avery the option of accepting the repudiation and suing for damages at once. However, he chose to ignore the advice and kept the ship at Odessa. Before the end of the 45-day period, the Crimean War broke out, Odessa became an enemy port and the contract became illegal and was therefore frustrated. As a consequence, Avery lost his right to sue for the breach of contract at the time when performance was due as the effects of frustration took over.

Answer

Avery v Bowden (1855) 5 E & B 714

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In the event of a breach of condition or a breach of an innominate term with serious consequences, the innocent party has [...]. In either case, the innocent party can claim damages also.

Answer

a right to elect whether to affirm or terminate the contract

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In the event of a breach of condition or a breach of an innominate term with serious consequences, the innocent party has a right to elect whether to affirm or terminate the contract. In either case, the innocent party can claim damages also.

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Question

A condition subsequent is [...]: Head v Tattersall (1871) LR 7 Ex 7.

Answer

a term providing for the discharge of obligations outstanding under the contract, in the event of a specified occurrence

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A condition subsequent is a term providing for the discharge of obligations outstanding under the contract, in the event of a specified occurrence: Head v Tattersall (1871) LR 7 Ex 7.

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Question

A condition subsequent is a term providing for the discharge of obligations outstanding under the contract, in the event of a specified occurrence: [ case ].

Answer

Head v Tattersall (1871) LR 7 Ex 7

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A condition subsequent is a term providing for the discharge of obligations outstanding under the contract, in the event of a specified occurrence: Head v Tattersall (1871) LR 7 Ex 7.

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Flashcard 1373565750540

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Question

A condition precedent is [...].

Answer

a condition that must be satisfied before any rights come into existence

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A condition precedent is a condition that must be satisfied before any rights come into existence.

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A condition precedent is a condition that must be satisfied before any rights come into existence. Where the coming into existence of a contract is subject to the occurrence of a specific event, the contract is said to be subject to a condition precedent. The contract is suspended until the condition is satisfied. Where a condition precedent is not fulfilled, there is no true discharge because the rights and obligations under the contract were contingent upon an event which did not occur, i.e. the rights and obligations never came into existence: [ case ].

Answer

Pym v Campbell (1856) 6 El & Bl 379

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ed. Where a condition precedent is not fulfilled, there is no true discharge because the rights and obligations under the contract were contingent upon an event which did not occur, i.e. the rights and obligations never came into existence: Pym v Campbell (1856) 6 El & Bl 379.<body><html>

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Question

Where both parties have obligations that remain unperformed, the contract may be discharged by [...]. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854.

Answer

mutual waiver

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Where both parties have obligations that remain unperformed, the contract may be discharged by mutual waiver. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see Wi

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Flashcard 1373571517708

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Question

Where both parties have obligations that remain unperformed, the contract may be discharged by mutual waiver. This is [...]: see Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854.

Answer

a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract

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Question

Where both parties have obligations that remain unperformed, the contract may be discharged by mutual waiver. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see [ case ].

Answer

Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854

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nperformed, the contract may be discharged by mutual waiver. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854.<body><html>

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In an action for breach of contract, it is a good defence for the defendant to show that he [...]. In order for a plea of tender to be successful, the promisor must show that he unconditionally offered to perform his obligations in accordance with the terms of the contract, but that the promisee refused to accept such performance. For instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a plea of tender does not discharge the debt. However, it would prevent the creditor from claiming interest or damages on that debt subsequent to the tender of performance.

Answer

tendered performance

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In an action for breach of contract, it is a good defence for the defendant to show that he tendered performance. In order for a plea of tender to be successful, the promisor must show that he [...]. For instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a plea of tender does not discharge the debt. However, it would prevent the creditor from claiming interest or damages on that debt subsequent to the tender of performance.

Answer

unconditionally offered to perform his obligations in accordance with the terms of the contract, but that the promisee refused to accept such performance

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In an action for breach of contract, it is a good defence for the defendant to show that he tendered performance. In order for a plea of tender to be successful, the promisor must show that he unconditionally offered to perform his obligations in accordance with the terms of the contract, but that the promisee refused to accept such performance. For instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a pl

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In an action for breach of contract, it is a good defence for the defendant to show that he tendered performance. In order for a plea of tender to be successful, the promisor must show that he unconditionally offered to perform his obligations in accordance with the terms of the contract, but that the promisee refused to accept such performance. For instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a plea of tender does not discharge the debt. However, it would [...].

Answer

prevent the creditor from claiming interest or damages on that debt subsequent to the tender of performance

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r instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a plea of tender does not discharge the debt. However, it would prevent the creditor from claiming interest or damages on that debt subsequent to the tender of performance.<body><html>

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Where one party performs part of the agreed obligation, and is then prevented from completing the rest by some fault of the other party, the innocent party has two options: [...]

Answer

1. to sue for damages for breach of contract; 2. alternatively, claim a quantum meruit.

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Where one party performs part of the agreed obligation, and is then prevented from completing the rest by some fault of the other party, the innocent party has two options: 1. to sue for damages for breach of contract; 2. alternatively, claim a quantum meruit.

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Where one party has given only partial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might [...]. However, it should be noted that such an acceptance of partial performance is at the discretion of the innocent party. If the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit.

Answer

accept that part of the performance

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Where one party has given only partial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is at the discretion of the innocent party. If the innocent party voluntarily accepts partial performance, th

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Where one party has given only partial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is [...]. If the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit.

Answer

at the discretion of the innocent party

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ial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is at the discretion of the innocent party. If the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit.<body><html>

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the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit

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ns, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is at the discretion of the innocent party. If the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit.<body><html>

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Furthermore, as Lord Reid stated in [ case ], the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.

Answer

White and Carter (Councils) Ltd v McGregor

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Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-

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Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for [...] will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.

Answer

co-operation of the other contracting party

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Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party [...]. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.

Answer

requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price

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ermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Develo

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Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means [...]: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.

Answer

passive as well as active co-operation

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n of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.<body><html>

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Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: [case].

Answer

Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538

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er to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.<body><html>

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The appellant company's business was the supply of litter bins to local authorities in urban areas. It was the company's practice to attach advertisement plates to the bins, for which the advertisers would pay according to the terms of a standard form of contract. The respondent, who carried on a garage business, entered into a contract through his sales manager by which the appellant company undertook to prepare and exhibit plates advertising McGregor's business for a period of three years. The contract form was headed by a notice that it was not to be cancelled by the advertiser and one of the express conditions provided to the same effect. Immediately after this contract was signed, a letter containing the following was sent to the appellant company: 'We regret that our Mr Ward signed an order today continuing the advertisements for a further period of three years. He was unaware that our proprietor Mr McGregor does not wish to continue this form of advertisement. Please therefore cancel the order.' The appellant company did not accept the attempted cancellation and displayed the advertisements during the ensuing three years. The respondents refused to pay and the appellant company sought to recover the sum due under the contract. It was held by the House of Lords that the contract remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract. Lord Hodson stated:

It is settled as a fundamental rule of the law of contract, that repudiation by one of the parties to a contract does not itself discharge it ... It follows that, if, as here, there was no acceptance (of the breach), the contract remains alive for the benefit of both parties and the party who has repudiated can change his mind but it does not follow that the party at the receiving end of the proffered repudiation is bound to accept it before the time for performance and is left to his remedy in damages for breach.

Answer

White and Carter (Councils) Ltd v McGregor

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In White and Carter (Councils) Ltd v McGregor the appellant company's business was the supply of litter bins to local authorities in urban areas. It was the company's practice to attach advertisement plates to the bins, for which th

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In White and Carter (Councils) Ltd v McGregor the appellant company's business was the supply of litter bins to local authorities in urban areas. It was the company's practice to attach advertisement plates to the bins, for which the advertisers would pay according to the terms of a standard form of contract. The respondent, who carried on a garage business, entered into a contract through his sales manager by which the appellant company undertook to prepare and exhibit plates advertising McGregor's business for a period of three years. The contract form was headed by a notice that it was not to be cancelled by the advertiser and one of the express conditions provided to the same effect. Immediately after this contract was signed, a letter containing the following was sent to the appellant company: 'We regret that our Mr Ward signed an order today continuing the advertisements for a further period of three years. He was unaware that our proprietor Mr McGregor does not wish to continue this form of advertisement. Please therefore cancel the order.' The appellant company did not accept the attempted cancellation and displayed the advertisements during the ensuing three years. The respondents refused to pay and the appellant company sought to recover the sum due under the contract. It was held by the House of Lords that the contract [...]. Lord Hodson stated:

It is settled as a fundamental rule of the law of contract, that repudiation by one of the parties to a contract does not itself discharge it ... It follows that, if, as here, there was no acceptance (of the breach), the contract remains alive for the benefit of both parties and the party who has repudiated can change his mind but it does not follow that the party at the receiving end of the proffered repudiation is bound to accept it before the time for performance and is left to his remedy in damages for breach.

Answer

remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract

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mpted cancellation and displayed the advertisements during the ensuing three years. The respondents refused to pay and the appellant company sought to recover the sum due under the contract. It was held by the House of Lords that the contract remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract. Lord Hodson stated: It is settled as a fundamental rule of the law of contract, that repudiation by one of the parties to a contract does not itself discharge it ... It fo

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It is settled as a fundamental rule of the law of contract, that [...] ... It follows that, if, as here, there was no acceptance (of the breach), the contract remains alive for the benefit of both parties and the party who has repudiated can change his mind but it does not follow that the party at the receiving end of the proffered repudiation is bound to accept it before the time for performance and is left to his remedy in damages for breach.

Answer

repudiation by one of the parties to a contract does not itself discharge it

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he contract remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract. Lord Hodson stated: It is settled as a fundamental rule of the law of contract, that repudiation by one of the parties to a contract does not itself discharge it ... It follows that, if, as here, there was no acceptance (of the breach), the contract remains alive for the benefit of both parties and the party who has repudiated can change his mind

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There is some judicial dispute as to whether, once the innocent party has affirmed the contract, his affirmation is irrevocable. Treitel prefers the view expressed obiter in [case] that if, after the innocent party's affirmation, the party in default continues to refuse to perform, the innocent party should not be precluded from terminating the contract.

Answer

Stocznia Gdanska SA v Latvian Shipping Co (No 3)

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There is some judicial dispute as to whether, once the innocent party has affirmed the contract, his affirmation is irrevocable. Treitel prefers the view expressed obiter in Stocznia Gdanska SA v Latvian Shipping Co (No 3) that if, after the innocent party's affirmation, the party in default continues to refuse to perform, the innocent party should not be precluded from terminating the contract.</

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There is some judicial dispute as to whether, once the innocent party has affirmed the contract, his affirmation is irrevocable. Treitel prefers the view expressed obiter in Stocznia Gdanska SA v Latvian Shipping Co (No 3) that [...].

Answer

if, after the innocent party's affirmation, the party in default continues to refuse to perform, the innocent party should not be precluded from terminating the contract

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>There is some judicial dispute as to whether, once the innocent party has affirmed the contract, his affirmation is irrevocable. Treitel prefers the view expressed obiter in Stocznia Gdanska SA v Latvian Shipping Co (No 3) that if, after the innocent party's affirmation, the party in default continues to refuse to perform, the innocent party should not be precluded from terminating the contract.<body><html>

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When an innocent party is faced with a repudiatory anticipatory breach (i.e. an anticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed a period of time in order to decide between these two alternatives ([ case ]).

Answer

Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889

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an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed a period of time in order to decide between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).<body><html>

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When an innocent party is faced with a repudiatory anticipatory breach (i.e. an anticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed [...] between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).

Answer

a period of time in order to decide

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ticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed a period of time in order to decide between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).<body><html>

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When an innocent party is faced with a repudiatory anticipatory breach (i.e. an anticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under [...]. The innocent party is allowed a period of time in order to decide between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).

Answer

no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date

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When an innocent party is faced with a repudiatory anticipatory breach (i.e. an anticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed a period of time in order to decide between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).

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The charterers of a ship informed the owners of their intention to repudiate the charterparty on the grounds that the ship was not 'seaworthy' (the ship was indeed unseaworthy) and that ongoing repairs had caused serious delays (which they certainly had). The owners replied that they would treat the contract as wrongfully repudiated and that they would claim damages accordingly. The Court of Appeal found in favour of the owners: neither the unseaworthiness by itself, nor the delay caused by the owners' breach of contract, entitled the charterers to treat the charterparty as repudiated – the court took the view that the charterers could have been adequately compensated by a claim in damages. Ironically, the owners, despite their own serious breaches of contract, were then entitled to damages for the wrongful repudiation by the charterers.

Answer

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26

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For example, in the case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, the charterers of a ship informed the owners of their intention to repudiate the charterparty on the grounds that the ship was not 'seaworthy' (the ship was indeed unseaworthy) and t

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For example, in the case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, the charterers of a ship informed the owners of their intention to repudiate the charterparty on the grounds that the ship was not 'seaworthy' (the ship was indeed unseaworthy) and that ongoing repairs had caused serious delays (which they certainly had). The owners replied that they would treat the contract as wrongfully repudiated and that they would claim damages accordingly. The Court of Appeal found in favour of the owners: neither the unseaworthiness by itself, nor the delay caused by the owners' breach of contract, entitled the charterers to treat the charterparty as repudiated – the court took the view that the charterers [...]. Ironically, the owners, despite their own serious breaches of contract, were then entitled to damages for the wrongful repudiation by the charterers.

Answer

could have been adequately compensated by a claim in damages

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eal found in favour of the owners: neither the unseaworthiness by itself, nor the delay caused by the owners' breach of contract, entitled the charterers to treat the charterparty as repudiated – the court took the view that the charterers could have been adequately compensated by a claim in damages. Ironically, the owners, despite their own serious breaches of contract, were then entitled to damages for the wrongful repudiation by the charterers.<body><html>

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An implied anticipatory breach can be seen in the case of [ case ] where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the plaintiff could immediately sue the defendant on the promise, even though the father was still alive and thus the date for performance had not yet arrived.

Answer

Frost v Knight (1872) LR 7 Exch 111

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An implied anticipatory breach can be seen in the case of Frost v Knight (1872) LR 7 Exch 111 where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the

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An implied anticipatory breach can be seen in the case of Frost v Knight (1872) LR 7 Exch 111 where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the plaintiff could immediately sue the defendant on the promise, even though [...]

Answer

the father was still alive and thus the date for performance had not yet arrived.

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t promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the plaintiff could immediately sue the defendant on the promise, even though the father was still alive and thus the date for performance had not yet arrived.<body><html>

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An implied anticipatory breach can be seen in the case of Frost v Knight (1872) LR 7 Exch 111 where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the [...], even though the father was still alive and thus the date for performance had not yet arrived.

Answer

plaintiff could immediately sue the defendant on the promise

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seen in the case of Frost v Knight (1872) LR 7 Exch 111 where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the plaintiff could immediately sue the defendant on the promise, even though the father was still alive and thus the date for performance had not yet arrived.<body><html>

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Anticipatory breach may be [...].

Answer

express or implied by words or conduct

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Anticipatory breach may be express or implied by words or conduct.

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The defendant agreed to employ the plaintiff as a courier on foreign tours for a period of three months starting from 1 June. But on 11 May the defendant wrote and told the plaintiff that his services were no longer required. The plaintiff immediately sued the defendant. The defendant argued that the plaintiff should not succeed in his action unless he could show that he was ready and able to perform his obligations on 1 June. The court found in favour of the plaintiff. He had a choice as to whether to wait for the date of performance, in which case he would need to be ready to perform his obligations, or to treat the contract as immediately repudiated.

Answer

Hochster v De la Tour

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In Hochster v De la Tour the defendant agreed to employ the plaintiff as a courier on foreign tours for a period of three months starting from 1 June. But on 11 May the defendant wrote and told the plaintiff t

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In Hochster v De la Tour the defendant agreed to employ the plaintiff as a courier on foreign tours for a period of three months starting from 1 June. But on 11 May the defendant wrote and told the plaintiff that his services were no longer required. The plaintiff immediately sued the defendant. The defendant argued that the plaintiff should not succeed in his action unless he could show that he was ready and able to perform his obligations on 1 June. The court found in favour of the plaintiff. He had a choice as to [...].

Answer

whether to wait for the date of performance, in which case he would need to be ready to perform his obligations, or to treat the contract as immediately repudiated

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the defendant. The defendant argued that the plaintiff should not succeed in his action unless he could show that he was ready and able to perform his obligations on 1 June. The court found in favour of the plaintiff. He had a choice as to whether to wait for the date of performance, in which case he would need to be ready to perform his obligations, or to treat the contract as immediately repudiated.<body><html>

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Where a party indicates, in advance of the date for performance, that he will not perform his contractual obligations, this is known as anticipatory breach. A right of action will immediately accrue to the innocent party ([ case ]).

Answer

Hochster v De la Tour (1853) 2 E & B 678

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>Where a party indicates, in advance of the date for performance, that he will not perform his contractual obligations, this is known as anticipatory breach. A right of action will immediately accrue to the innocent party (Hochster v De la Tour (1853) 2 E & B 678).<html>

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immediately accrue to the innocent party

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Where a party indicates, in advance of the date for performance, that he will not perform his contractual obligations, this is known as anticipatory breach. A right of action will immediately accrue to the innocent party (Hochster v De la Tour (1853) 2 E & B 678).

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Although the right of election is well established in the law, a question about its across-the- board application was raised in [ case ], where Geys’ employers were in repudiatory breach of contract in dismissing him. Despite having been taken at once to clear his desk and escorted from the building, Geys declined to accept the contract as at an end. On the facts, this made a difference of several million euros to the ‘compensation payment’ to be made to Geys. However, the employers argued that the usual ‘elective’ rule does not apply to employment contracts; rather, in the event of a repudiatory breach of such a contract, and irrespective of the innocent party’s wishes, it was argued that the contract is automatically at an end. While support for both views—both for and against the application of the elective rule to employment contracts—could be found in an extensive and inconsistent case-law, the majority of the Supreme Court (Lord Sumption dissenting) preferred to treat the usual rule as applicable. Lord Hope, capturing the majority’s thinking, observed (at para 15): ‘The automatic theory can operate to the disadvantage of the injured party [i.e. Geys] in a way that enables the wrongdoer to benefit from his own wrong. The law should seek to avoid such an obvious injustice. Where there is a real choice as to the direction of travel, the common law should favour the direction that is least likely to do harm to the injured party.’

Answer

Société Générale v Geys [2012] UKSC 63

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Although the right of election is well established in the law, a question about its across-the- board application was raised in Société Générale v Geys [2012] UKSC 63, where Geys’ employers were in repudiatory breach of contract in dismissing him. Despite having been taken at once to clear his desk and escorted from the building, Geys declined to acc

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The innocent party must therefore make his decision to terminate the contract [...] (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'

Answer

known to the party in default

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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'A

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The innocent party must therefore make his decision to terminate the contract known to the party in default ([ case ]). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'

Answer

Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193

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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in [ case ], where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'

Answer

Howard v Pickford Tool Co Ltd [1951] 1 KB 417

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ead>The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'<html>

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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by [ who ], in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'

Answer

Asquith LJ

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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: '[...].'

Answer

An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind

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to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'<body><html>

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The general rule is that, where there is breach of a primary obligation, the other primary obligations of both parties, so far as they have not been fully performed, remain unchanged. However, to this general rule there is an important exception – where the primary obligation which has been breached is a condition or there is a breach of an innominate term with serious consequences, such breach shall entitle the innocent party to [...].

Answer

elect to put an end to all primary obligations remaining unperformed

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to this general rule there is an important exception – where the primary obligation which has been breached is a condition or there is a breach of an innominate term with serious consequences, such breach shall entitle the innocent party to elect to put an end to all primary obligations remaining unperformed. <body><html>

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The general rule is that, where there is breach of a primary obligation, [...]. However, to this general rule there is an important exception – where the primary obligation which has been breached is a condition or there is a breach of an innominate term with serious consequences, such breach shall entitle the innocent party to elect to put an end to all primary obligations remaining unperformed.

Answer

the other primary obligations of both parties, so far as they have not been fully performed, remain unchanged

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The general rule is that, where there is breach of a primary obligation, the other primary obligations of both parties, so far as they have not been fully performed, remain unchanged. However, to this general rule there is an important exception – where the primary obligation which has been breached is a condition or there is a breach of an innominate term with s

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FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to contribute to the cost. Before the leases were executed, the landlords stated orally to the tenants' association and to some individual tenants that they would repair the roofs at their own expense. At this time, the roofs were in need of repair. The landlords carried out the repairs and claimed payment according to the terms of the leases. The first defendant was an original lessee who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.

Answer

Brikom Investments Ltd v Carr [1979] QB 467

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Brikom Investments Ltd v Carr [1979] QB 467 FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to c

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Brikom Investments Ltd v Carr [1979] QB 467 FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to contribute to the cost. Before the leases were executed, the landlords stated orally to the tenants' association and to some individual tenants that they would repair the roofs at their own expense. At this time, the roofs were in need of repair. The landlords carried out the repairs and claimed payment according to the terms of the leases. The first defendant was an original lessee who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because [...], e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.

Answer

the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it

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who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an eq

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Brikom Investments Ltd v Carr [1979] QB 467 FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to contribute to the cost. Before the leases were executed, the landlords stated orally to the tenants' association and to some individual tenants that they would repair the roofs at their own expense. At this time, the roofs were in need of repair. The landlords carried out the repairs and claimed payment according to the terms of the leases. The first defendant was an original lessee who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because [...] (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.

Answer

the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases

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pplied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived thei

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Brikom Investments Ltd v Carr [1979] QB 467 FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to contribute to the cost. Before the leases were executed, the landlords stated orally to the tenants' association and to some individual tenants that they would repair the roofs at their own expense. At this time, the roofs were in need of repair. The landlords carried out the repairs and claimed payment according to the terms of the leases. The first defendant was an original lessee who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because [...]

Answer

the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.

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equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.<body><html>

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Although the principle is not entirely clear, it seems that a concession, waiver, variation, or forbearance promised by one party to the other will be enforced in equity subject to proper notice being given to the other party of the resumption of the strict contractual provisions. Proper notice will involve the honouring of any time period contained in the original concession, otherwise, equity will insist on a reasonable period of notice: [case]. There would appear to be a high degree of similarity between waiver and promissory estoppel, the general view being that they are related, yet distinct, doctrines that produce the same effects.

Answer

Charles Rickards Ltd v Oppenheim [1950] 1 All ER 420

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ven to the other party of the resumption of the strict contractual provisions. Proper notice will involve the honouring of any time period contained in the original concession, otherwise, equity will insist on a reasonable period of notice: Charles Rickards Ltd v Oppenheim [1950] 1 All ER 420. There would appear to be a high degree of similarity between waiver and promissory estoppel, the general view being that they are related, yet distinct, doctrines that produce the sa

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Although the principle is not entirely clear, it seems that a concession, waiver, variation, or forbearance promised by one party to the other will [...]. Proper notice will involve the honouring of any time period contained in the original concession, otherwise, equity will insist on a reasonable period of notice: Charles Rickards Ltd v Oppenheim [1950] 1 All ER 420. There would appear to be a high degree of similarity between waiver and promissory estoppel, the general view being that they are related, yet distinct, doctrines that produce the same effects.

Answer

be enforced in equity subject to proper notice being given to the other party of the resumption of the strict contractual provisions

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Although the principle is not entirely clear, it seems that a concession, waiver, variation, or forbearance promised by one party to the other will be enforced in equity subject to proper notice being given to the other party of the resumption of the strict contractual provisions. Proper notice will involve the honouring of any time period contained in the original concession, otherwise, equity will insist on a reasonable period of notice: Charles Rickards Ltd

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The cases show that equity has been more successful than the common law in the enforcement of a waiver or promise of forbearance. In [ case ], Bowen LJ, explained the position as follows:

If persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in suspense or abeyance for some particular time, those persons will not be allowed by a court of equity to enforce the rights until such time has elapsed, without at all events placing the parties in the same position as they were in before.

Answer

Birmingham and District Land Co v London & North Western Railway (1888) 40 Ch D 268

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The cases show that equity has been more successful than the common law in the enforcement of a waiver or promise of forbearance. In Birmingham and District Land Co v London & North Western Railway (1888) 40 Ch D 268, Bowen LJ, explained the position as follows: If persons who have contractual rights against others induce by their conduct those against whom they have such rights to beli

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On the basis that something may be destroyed in the same manner by which it was created, a contractual obligation may be discharged [...].

Answer

by agreement

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On the basis that something may be destroyed in the same manner by which it was created, a contractual obligation may be discharged by agreement.

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Some contracts are clearly intended to be divided into parts, e.g. the payment of a salary under a fixed contract of employment. Look at [ case ] as a case where the contract was divisible. This division may also be implied if not specifically referred to. However, the question as to whether a contract is divisible or entire depends upon the intention of the parties.

Answer

Rose & Frank v Crompton Bros [1923] 2 KB 261

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Some contracts are clearly intended to be divided into parts, e.g. the payment of a salary under a fixed contract of employment. Look at Rose & Frank v Crompton Bros [1923] 2 KB 261 as a case where the contract was divisible. This division may also be implied if not specifically referred to. However, the question as to whether a contract is divisible or entire dep

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Some contracts are clearly intended to be divided into parts, e.g. the payment of a salary under a fixed contract of employment. Look at Rose & Frank v Crompton Bros [1923] 2 KB 261 as a case where the contract was divisible. This division may also be implied if not specifically referred to. However, the question as to whether a contract is divisible or entire depends upon [...].

Answer

the intention of the parties

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e & Frank v Crompton Bros [1923] 2 KB 261 as a case where the contract was divisible. This division may also be implied if not specifically referred to. However, the question as to whether a contract is divisible or entire depends upon the intention of the parties.<body><html>

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A non-consumer contract, on the other hand, is regulated by the [ statute ] (as amended by Sale and Supply of Goods Act 1994). It states that, where the buyer would normally have the right to reject goods by reason of the seller's breach of the implied term, but the breach is so slight that it would be unreasonable for him to reject them, then the breach is not to be treated as a breach of condition but may be treated as a breach of warranty, giving rise to an action for damages. It is open to the parties, usually at the instigation of the buyer, to contract out of this provision.

Answer

Sale of Goods Act s 15A

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A non-consumer contract, on the other hand, is regulated by the Sale of Goods Act s 15A (as amended by Sale and Supply of Goods Act 1994). It states that, [...]. It is open to the parties, usually at the instigation of the buyer, to contract out of this provision.

Answer

where the buyer would normally have the right to reject goods by reason of the seller's breach of the implied term, but the breach is so slight that it would be unreasonable for him to reject them, then the breach is not to be treated as a breach of condition but may be treated as a breach of warranty, giving rise to an action for damages

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A non-consumer contract, on the other hand, is regulated by the Sale of Goods Act s 15A (as amended by Sale and Supply of Goods Act 1994). It states that, where the buyer would normally have the right to reject goods by reason of the seller's breach of the implied term, but the breach is so slight that it would be unreasonable for him to reject them, then the breach is not to be treated as a breach of condition but may be treated as a breach of warranty, giving rise to an action for damages. It is open to the parties, usually at the instigation of the buyer, to contract out of this provision.

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A non-consumer contract, on the other hand, is regulated by the Sale of Goods Act s 15A (as amended by Sale and Supply of Goods Act 1994). It states that, where the buyer would normally have the right to reject goods by reason of the seller's breach of the implied term, but the breach is so slight that it would be unreasonable for him to reject them, then the breach is not to be treated as a breach of condition but may be treated as a breach of warranty, giving rise to an action for damages. It is open to the parties, usually at the instigation of the buyer, to [...].

Answer

contract out of this provision

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ble for him to reject them, then the breach is not to be treated as a breach of condition but may be treated as a breach of warranty, giving rise to an action for damages. It is open to the parties, usually at the instigation of the buyer, to contract out of this provision.<body><html>

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in consumer contracts for the sale of goods, which are governed by, among other sections, the [ statute ], where the goods do not correspond exactly with their description there is a breach of this implied condition.

Answer

Sale of Goods Act s 13

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in consumer contracts for the sale of goods, which are governed by, among other sections, the Sale of Goods Act s 13, where the goods do not correspond exactly with their description there is a breach of this implied condition.

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in consumer contracts for the sale of goods, which are governed by, among other sections, the Sale of Goods Act s 13, where [...] there is a breach of this implied condition.

Answer

the goods do not correspond exactly with their description

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in consumer contracts for the sale of goods, which are governed by, among other sections, the Sale of Goods Act s 13, where the goods do not correspond exactly with their description there is [...].

Answer

a breach of this implied condition

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The case of Hoenig v Isaacs might be compared with the decision of the Court of Appeal in [ case ] where, by a contract with the defendant, the claimant undertook to install a central heating system in the defendant's house at a cost of £560. The system did not work and the defendant refused to pay any money. The cost of remedying the defects would have been £174. The Court of Appeal held that the claimant was not entitled to recover any of the contract price but, had he offered to remedy the defects, and had then done so, he would be justified in claiming the contract price.

Answer

Bolton v Mahadeva [1972] 1 WLR 1009

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The case of Hoenig v Isaacs might be compared with the decision of the Court of Appeal in Bolton v Mahadeva [1972] 1 WLR 1009 where, by a contract with the defendant, the claimant undertook to install a central heating system in the defendant's house at a cost of £560. The system did not work and the defendan

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The case of Hoenig v Isaacs might be compared with the decision of the Court of Appeal in Bolton v Mahadeva [1972] 1 WLR 1009 where, by a contract with the defendant, the claimant undertook to install a central heating system in the defendant's house at a cost of £560. The system did not work and the defendant refused to pay any money. The cost of remedying the defects would have been £174. The Court of Appeal held that [...] but, had he offered to remedy the defects, and had then done so, he would be justified in claiming the contract price.

Answer

the claimant was not entitled to recover any of the contract price

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ertook to install a central heating system in the defendant's house at a cost of £560. The system did not work and the defendant refused to pay any money. The cost of remedying the defects would have been £174. The Court of Appeal held that the claimant was not entitled to recover any of the contract price but, had he offered to remedy the defects, and had then done so, he would be justified in claiming the contract price. <body><html>

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The case of Hoenig v Isaacs might be compared with the decision of the Court of Appeal in Bolton v Mahadeva [1972] 1 WLR 1009 where, by a contract with the defendant, the claimant undertook to install a central heating system in the defendant's house at a cost of £560. The system did not work and the defendant refused to pay any money. The cost of remedying the defects would have been £174. The Court of Appeal held that the claimant was not entitled to recover any of the contract price but, [...].

Answer

had he offered to remedy the defects, and had then done so, he would be justified in claiming the contract price

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cost of £560. The system did not work and the defendant refused to pay any money. The cost of remedying the defects would have been £174. The Court of Appeal held that the claimant was not entitled to recover any of the contract price but, had he offered to remedy the defects, and had then done so, he would be justified in claiming the contract price. <body><html>

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Where a contract has been substantially performed, it may be possible for the party who rendered such substantial performance to obtain [...]. When considering such a plea, the court considers the nature and extent of the defect, which is done by measuring the cost of remedying the defect against the contract price. If the defect is too serious, the party who rendered the defective performance will not be entitled to recover any money. However, if substantial performance is found to have been rendered, then the party will be entitled to the contract price subject to a deduction.

Answer

the contract price subject to a deduction to reflect the cost of remedying the defect

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Where a contract has been substantially performed, it may be possible for the party who rendered such substantial performance to obtain the contract price subject to a deduction to reflect the cost of remedying the defect. When considering such a plea, the court considers the nature and extent of the defect, which is done by measuring the cost of remedying the defect against the contract price. If the

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It is clear from a reading of Sumpter v Hedges that there had not been a voluntary acceptance of partial performance. For this to have occurred, the innocent party must have had [...].

Answer

the option to take or not to take the benefit of the work done

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It is clear from a reading of Sumpter v Hedges that there had not been a voluntary acceptance of partial performance. For this to have occurred, the innocent party must have had the option to take or not to take the benefit of the work done.

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It is clear from a reading of [ case ] that there had not been a voluntary acceptance of partial performance. For this to have occurred, the innocent party must have had the option to take or not to take the benefit of the work done.

Answer

Sumpter v Hedges

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In [ case ], because the work had been done on the innocent party's land, the court felt that the innocent party had no choice but to complete the work. He was in possession of what he could not fail to keep. If the court had found otherwise, however, the builder would have been entitled to a quantum meruit to compensate him for the value of the work done. In the event, he was entitled to compensation for the value of the materials that he had left on site that had not been incorporated into the building and which the innocent party used to complete the work. This was because the innocent party had the choice as to whether or not to use these as they could have been returned.

Answer

Sumpter v Hedges

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In Sumpter v Hedges, because [...], the court felt that the innocent party had no choice but to complete the work. He was in possession of what he could not fail to keep. If the court had found otherwise, however, the builder would have been entitled to a quantum meruit to compensate him for the value of the work done. In the event, he was entitled to compensation for the value of the materials that he had left on site that had not been incorporated into the building and which the innocent party used to complete the work. This was because the innocent party had the choice as to whether or not to use these as they could have been returned.

Answer

the work had been done on the innocent party's land

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In Sumpter v Hedges, because the work had been done on the innocent party's land, the court felt that the innocent party had no choice but to complete the work. He was in possession of what he could not fail to keep. If the court had found otherwise, however, the bu

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In Sumpter v Hedges, because the work had been done on the innocent party's land, the court felt that [...]. He was in possession of what he could not fail to keep. If the court had found otherwise, however, the builder would have been entitled to a quantum meruit to compensate him for the value of the work done. In the event, he was entitled to compensation for the value of the materials that he had left on site that had not been incorporated into the building and which the innocent party used to complete the work. This was because the innocent party had the choice as to whether or not to use these as they could have been returned.

Answer

the innocent party had no choice but to complete the work

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In Sumpter v Hedges, because the work had been done on the innocent party's land, the court felt that the innocent party had no choice but to complete the work. He was in possession of what he could not fail to keep. If the court had found otherwise, however, the builder would have been entitled to a quantum meruit to compensate him for the value of the work done. In the event, he was entitled to [...]. This was because the innocent party had the choice as to whether or not to use these as they could have been returned.

Answer

compensation for the value of the materials that he had left on site that had not been incorporated into the building and which the innocent party used to complete the work

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rk. He was in possession of what he could not fail to keep. If the court had found otherwise, however, the builder would have been entitled to a quantum meruit to compensate him for the value of the work done. In the event, he was entitled to compensation for the value of the materials that he had left on site that had not been incorporated into the building and which the innocent party used to complete the work. This was because the innocent party had the choice as to whether or not to use these as they could have been returned.<body><html>

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In Sumpter v Hedges, because the work had been done on the innocent party's land, the court felt that the innocent party had no choice but to complete the work. He was in possession of what he could not fail to keep. If the court had found otherwise, however, the builder would have been entitled to a quantum meruit to compensate him for the value of the work done. In the event, he was entitled to compensation for the value of the materials that he had left on site that had not been incorporated into the building and which the innocent party used to complete the work. This was because the innocent party had [...].

Answer

the choice as to whether or not to use these as they could have been returned

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he event, he was entitled to compensation for the value of the materials that he had left on site that had not been incorporated into the building and which the innocent party used to complete the work. This was because the innocent party had the choice as to whether or not to use these as they could have been returned.<body><html>

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In [ case ] Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the anticipatory breach if he had no 'legitimate interest, financial or otherwise', in affirming the contract and continuing with performance. Although Lord Reid's qualification was not accepted by the other members of the House of Lords, it was applied in the case of Clea Shipping Corporation v Bulk Oil International Ltd, The Alaskan Trader [1984] 1 All ER 129, where the charterers of a ship informed the owners that they had no further use for it but the owners kept the ship at readiness and fully crewed. The court held that the owners were not entitled to the hire money under the contract but only to damages for the charterer's breach as they had no legitimate interest in affirming the contract.

Answer

White and Carter (Councils) Ltd v McGregor

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In White and Carter (Councils) Ltd v McGregor Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the anticipatory breach if he had no 'legit

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In White and Carter (Councils) Ltd v McGregor Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the anticipatory breach if [...]. Although Lord Reid's qualification was not accepted by the other members of the House of Lords, it was applied in the case of Clea Shipping Corporation v Bulk Oil International Ltd, The Alaskan Trader [1984] 1 All ER 129, where the charterers of a ship informed the owners that they had no further use for it but the owners kept the ship at readiness and fully crewed. The court held that the owners were not entitled to the hire money under the contract but only to damages for the charterer's breach as they had no legitimate interest in affirming the contract.

Answer

he had no 'legitimate interest, financial or otherwise', in affirming the contract and continuing with performance

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d><head>In White and Carter (Councils) Ltd v McGregor Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the anticipatory breach if he had no 'legitimate interest, financial or otherwise', in affirming the contract and continuing with performance. Although Lord Reid's qualification was not accepted by the other members of the House of Lords, it was applied in the case of Clea Shipping Corporation v Bulk Oil International Ltd,

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In White and Carter (Councils) Ltd v McGregor Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the anticipatory breach if he had no 'legitimate interest, financial or otherwise', in affirming the contract and continuing with performance. Although Lord Reid's qualification was not accepted by the other members of the House of Lords, it was applied in the case of [ case ], where the charterers of a ship informed the owners that they had no further use for it but the owners kept the ship at readiness and fully crewed. The court held that the owners were not entitled to the hire money under the contract but only to damages for the charterer's breach as they had no legitimate interest in affirming the contract.

Answer

Clea Shipping Corporation v Bulk Oil International Ltd, The Alaskan Trader [1984] 1 All ER 129

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e had no 'legitimate interest, financial or otherwise', in affirming the contract and continuing with performance. Although Lord Reid's qualification was not accepted by the other members of the House of Lords, it was applied in the case of Clea Shipping Corporation v Bulk Oil International Ltd, The Alaskan Trader [1984] 1 All ER 129, where the charterers of a ship informed the owners that they had no further use for it but the owners kept the ship at readiness and fully crewed. The court held that the owners were

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In White and Carter (Councils) Ltd v McGregor Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the anticipatory breach if he had no 'legitimate interest, financial or otherwise', in affirming the contract and continuing with performance. Although Lord Reid's qualification was not accepted by the other members of the House of Lords, it was applied in the case of Clea Shipping Corporation v Bulk Oil International Ltd, The Alaskan Trader [1984] 1 All ER 129, where the charterers of a ship informed the owners that they had no further use for it but the owners kept the ship at readiness and fully crewed. The court held that the owners were not entitled to the hire money under the contract but only to damages for the charterer's breach as [...].

Answer

they had no legitimate interest in affirming the contract

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owners that they had no further use for it but the owners kept the ship at readiness and fully crewed. The court held that the owners were not entitled to the hire money under the contract but only to damages for the charterer's breach as they had no legitimate interest in affirming the contract.<body><html>

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It remains unclear what will constitute a legitimate interest. However, in one of the more recent authorities that discuss this criterion, [ case ], Simon J said that it will only be in extreme cases that the innocent party will not have a legitimate interest in affirmation. He stated:
(i) The burden is on the contract breaker to show that the innocent party has no legitimate interest in performing the contract rather than claiming damages.
(ii) This burden is not discharged merely by showing that the benefit to the other party is small in comparison to the loss to the contract breaker.
(iii) The exception to the general rule applies only in extreme cases where damages would be an adequate remedy and where an election to keep the contract alive would be unreasonable.

Answer

Ocean Marine Navigation Ltd v Koch Carbon Inc (The Dynamic) [2003] EWHC 1936 (Comm); [2003] 2 Lloyd's Rep. 693

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It remains unclear what will constitute a legitimate interest. However, in one of the more recent authorities that discuss this criterion, Ocean Marine Navigation Ltd v Koch Carbon Inc (The Dynamic) [2003] EWHC 1936 (Comm); [2003] 2 Lloyd's Rep. 693, Simon J said that it will only be in extreme cases that the innocent party will not have a legitimate interest in affirmation. He stated: (i) The burden is on the contract breaker

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It remains unclear what will constitute a legitimate interest. However, in one of the more recent authorities that discuss this criterion, Ocean Marine Navigation Ltd v Koch Carbon Inc (The Dynamic) [2003] EWHC 1936 (Comm); [2003] 2 Lloyd's Rep. 693, Simon J said that it will only be in extreme cases that the innocent party will not have a legitimate interest in affirmation. He stated:
(i) The burden is on [...] the contract rather than claiming damages.
(ii) This burden is not discharged merely by showing that the benefit to the other party is small in comparison to the loss to the contract breaker.
(iii) The exception to the general rule applies only in extreme cases where damages would be an adequate remedy and where an election to keep the contract alive would be unreasonable.

Answer

the contract breaker to show that the innocent party has no legitimate interest in performing

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h Carbon Inc (The Dynamic) [2003] EWHC 1936 (Comm); [2003] 2 Lloyd's Rep. 693, Simon J said that it will only be in extreme cases that the innocent party will not have a legitimate interest in affirmation. He stated: (i) The burden is on the contract breaker to show that the innocent party has no legitimate interest in performing the contract rather than claiming damages. (ii) This burden is not discharged merely by showing that the benefit to the other party is small in comparison to the loss to the contrac

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It remains unclear what will constitute a legitimate interest. However, in one of the more recent authorities that discuss this criterion, Ocean Marine Navigation Ltd v Koch Carbon Inc (The Dynamic) [2003] EWHC 1936 (Comm); [2003] 2 Lloyd's Rep. 693, Simon J said that it will only be in extreme cases that the innocent party will not have a legitimate interest in affirmation. He stated:
(i) The burden is on the contract breaker to show that the innocent party has no legitimate interest in performing the contract rather than claiming damages.
(ii) This burden is not discharged merely [...].
(iii) The exception to the general rule applies only in extreme cases where damages would be an adequate remedy and where an election to keep the contract alive would be unreasonable.

Answer

by showing that the benefit to the other party is small in comparison to the loss to the contract breaker

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erest in affirmation. He stated: (i) The burden is on the contract breaker to show that the innocent party has no legitimate interest in performing the contract rather than claiming damages. (ii) This burden is not discharged merely by showing that the benefit to the other party is small in comparison to the loss to the contract breaker. (iii) The exception to the general rule applies only in extreme cases where damages would be an adequate remedy and where an election to keep the contract alive would be unreasona

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It remains unclear what will constitute a legitimate interest. However, in one of the more recent authorities that discuss this criterion, Ocean Marine Navigation Ltd v Koch Carbon Inc (The Dynamic) [2003] EWHC 1936 (Comm); [2003] 2 Lloyd's Rep. 693, Simon J said that it will only be in extreme cases that the innocent party will not have a legitimate interest in affirmation. He stated:
(i) The burden is on the contract breaker to show that the innocent party has no legitimate interest in performing the contract rather than claiming damages.
(ii) This burden is not discharged merely by showing that the benefit to the other party is small in comparison to the loss to the contract breaker.
(iii) The exception to the general rule applies only in [...].

Answer

extreme cases where damages would be an adequate remedy and where an election to keep the contract alive would be unreasonable

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ther than claiming damages. (ii) This burden is not discharged merely by showing that the benefit to the other party is small in comparison to the loss to the contract breaker. (iii) The exception to the general rule applies only in extreme cases where damages would be an adequate remedy and where an election to keep the contract alive would be unreasonable.<body><html>

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There is no duty on the innocent party to vary the terms of the contract, and he can, accordingly, carry out his own obligations under the contract after his election to affirm: [ case ]. Once the date for performance arrives, and the guilty party still does not perform, the injured party may then accept the repudiatory breach as terminating the contract and seek the contract price.

Answer

White and Carter (Councils) Ltd v McGregor [1961] 3 All ER 1178

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There is no duty on the innocent party to vary the terms of the contract, and he can, accordingly, carry out his own obligations under the contract after his election to affirm: White and Carter (Councils) Ltd v McGregor [1961] 3 All ER 1178. Once the date for performance arrives, and the guilty party still does not perform, the injured party may then accept the repudiatory breach as terminating the contract and seek the

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There is no duty on the innocent party to vary the terms of the contract, and he can, accordingly, carry out his own obligations under the contract after his election to affirm: White and Carter (Councils) Ltd v McGregor [1961] 3 All ER 1178. Once the date for performance arrives, and the guilty party still does not perform, the injured party may then [...].

Answer

accept the repudiatory breach as terminating the contract and seek the contract price

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wn obligations under the contract after his election to affirm: White and Carter (Councils) Ltd v McGregor [1961] 3 All ER 1178. Once the date for performance arrives, and the guilty party still does not perform, the injured party may then accept the repudiatory breach as terminating the contract and seek the contract price.<body><html>

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If the innocent party elects to affirm the contract, [...]. There must be evidence of a very clear and unequivocal commitment to continuing with the contract (Yukong Line Ltd of Korea v Rendsburg Investments Corporation of Liberia [1996] 2 Lloyds Reps 604).

Answer

the contract survives and the rights of the innocent party are preserved

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If the innocent party elects to affirm the contract, the contract survives and the rights of the innocent party are preserved. There must be evidence of a very clear and unequivocal commitment to continuing with the contract (Yukong Line Ltd of Korea v Rendsburg Investments Corporation of Liberia [1996] 2 L

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If the innocent party elects to affirm the contract, the contract survives and the rights of the innocent party are preserved. There must be [...] (Yukong Line Ltd of Korea v Rendsburg Investments Corporation of Liberia [1996] 2 Lloyds Reps 604).

Answer

evidence of a very clear and unequivocal commitment to continuing with the contract

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If the innocent party elects to affirm the contract, the contract survives and the rights of the innocent party are preserved. There must be evidence of a very clear and unequivocal commitment to continuing with the contract ([ case ]).

Answer

Yukong Line Ltd of Korea v Rendsburg Investments Corporation of Liberia [1996] 2 Lloyds Reps 604

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y>If the innocent party elects to affirm the contract, the contract survives and the rights of the innocent party are preserved. There must be evidence of a very clear and unequivocal commitment to continuing with the contract (Yukong Line Ltd of Korea v Rendsburg Investments Corporation of Liberia [1996] 2 Lloyds Reps 604).<body><html>

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Where a person has a right to elect whether to affirm or to terminate the contract, he will only be bound by the course he takes if, in deciding upon that course, he [...]: Peyman v Lanjani [1985] Ch 457.

Answer

was aware not only of the facts giving rise to the right to elect, but also that the right existed

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Where a person has a right to elect whether to affirm or to terminate the contract, he will only be bound by the course he takes if, in deciding upon that course, he was aware not only of the facts giving rise to the right to elect, but also that the right existed: Peyman v Lanjani [1985] Ch 457.

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Where a person has a right to elect whether to affirm or to terminate the contract, he will only be bound by the course he takes if, in deciding upon that course, he was aware not only of the facts giving rise to the right to elect, but also that the right existed: [ case ].

Answer

Peyman v Lanjani [1985] Ch 457

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t to elect whether to affirm or to terminate the contract, he will only be bound by the course he takes if, in deciding upon that course, he was aware not only of the facts giving rise to the right to elect, but also that the right existed: Peyman v Lanjani [1985] Ch 457. <body><html>

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Question

The usual remedy for breach of contract is [...].

Answer

an award of damages, i.e. monetary compensation

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The usual remedy for breach of contract is an award of damages, i.e. monetary compensation.

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Where one party has performed his obligations in their entirety but something remains to be done by the other party, the party to whom the obligation is owed may release the other party by [...]. Furthermore, the party to whom the obligation is owed may agree with the other party to accept something different in place of the former obligation. This is known as accord and satisfaction: the subsequent agreement is the accord, and the new consideration is the satisfaction. Where there has been accord and satisfaction, the former obligation is discharged. However, where the subsequent agreement by which one party consents to accept something different in place of the original obligation is obtained under the threat that he will otherwise get nothing at all, there is no true accord and, consequently, the original obligation remains undischarged. The essential point is that, unless there is a new consideration, there can be no satisfaction, i.e. there can be no discharge of the previous agreement and no formation of an agreement in new terms.

Answer

a subsequent agreement under seal

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Where one party has performed his obligations in their entirety but something remains to be done by the other party, the party to whom the obligation is owed may release the other party by a subsequent agreement under seal. Furthermore, the party to whom the obligation is owed may agree with the other party to accept something different in place of the former obligation. This is known as accord and sati

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Where one party has performed his obligations in their entirety but something remains to be done by the other party, the party to whom the obligation is owed may release the other party by a subsequent agreement under seal. Furthermore, the party to whom the obligation is owed may agree with the other party to accept something different in place of the former obligation. This is known as [...]: the subsequent agreement is the accord, and the new consideration is the satisfaction. Where there has been accord and satisfaction, the former obligation is discharged. However, where the subsequent agreement by which one party consents to accept something different in place of the original obligation is obtained under the threat that he will otherwise get nothing at all, there is no true accord and, consequently, the original obligation remains undischarged. The essential point is that, unless there is a new consideration, there can be no satisfaction, i.e. there can be no discharge of the previous agreement and no formation of an agreement in new terms.

Answer

accord and satisfaction

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s owed may release the other party by a subsequent agreement under seal. Furthermore, the party to whom the obligation is owed may agree with the other party to accept something different in place of the former obligation. This is known as accord and satisfaction: the subsequent agreement is the accord, and the new consideration is the satisfaction. Where there has been accord and satisfaction, the former obligation is discharged. However, whe

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Where one party has performed his obligations in their entirety but something remains to be done by the other party, the party to whom the obligation is owed may release the other party by a subsequent agreement under seal. Furthermore, the party to whom the obligation is owed may agree with the other party to accept something different in place of the former obligation. This is known as accord and satisfaction: the subsequent agreement is the accord, and the new consideration is the satisfaction. Where there has been accord and satisfaction, the former obligation is discharged. However, where the subsequent agreement by which one party consents to accept something different in place of the original obligation is [...]. The essential point is that, unless there is a new consideration, there can be no satisfaction, i.e. there can be no discharge of the previous agreement and no formation of an agreement in new terms.

Answer

obtained under the threat that he will otherwise get nothing at all, there is no true accord and, consequently, the original obligation remains undischarged

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is the satisfaction. Where there has been accord and satisfaction, the former obligation is discharged. However, where the subsequent agreement by which one party consents to accept something different in place of the original obligation is obtained under the threat that he will otherwise get nothing at all, there is no true accord and, consequently, the original obligation remains undischarged. The essential point is that, unless there is a new consideration, there can be no satisfaction, i.e. there can be no discharge of the previous agreement and no formation of an agreem

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Where a contract involves the performance of a service, it is possible that the service will be provided by a third party to the contract.

In [ case ] a person had agreed to keep a carriage in repair for five years and to paint it from time to time. It was held by the court that he was not entitled to delegate performance of the contract to his partner. This was seen as a contract of personal service and it might neatly be contrasted with British Waggon Co v Lea & Co (1880) 5 QBD 149, where a contract to let out railway wagons and to keep them in repair for seven years could be vicariously performed since it did not matter to the hirer who kept the wagons in repair so long as the work was properly done. Here the judge emphasised that the work was of an ordinary nature which could be accomplished by the average workman.

Answer

Robson and Sharpe v Drummond (1831) 2 B & Ad 303

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Where a contract involves the performance of a service, it is possible that the service will be provided by a third party to the contract. In Robson and Sharpe v Drummond (1831) 2 B & Ad 303 a person had agreed to keep a carriage in repair for five years and to paint it from time to time. It was held by the court that he was not entitled to delegate performance of the contra

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Question

Where a contract involves the performance of a service, it is possible that the service will be provided by a third party to the contract.

In Robson and Sharpe v Drummond (1831) 2 B & Ad 303 a person had agreed to keep a carriage in repair for five years and to paint it from time to time. It was held by the court that he was not entitled to delegate performance of the contract to his partner. This was seen as a contract of personal service and it might neatly be contrasted with [ case ], where a contract to let out railway wagons and to keep them in repair for seven years could be vicariously performed since it did not matter to the hirer who kept the wagons in repair so long as the work was properly done. Here the judge emphasised that the work was of an ordinary nature which could be accomplished by the average workman.

Answer

British Waggon Co v Lea & Co (1880) 5 QBD 149

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for five years and to paint it from time to time. It was held by the court that he was not entitled to delegate performance of the contract to his partner. This was seen as a contract of personal service and it might neatly be contrasted with British Waggon Co v Lea & Co (1880) 5 QBD 149, where a contract to let out railway wagons and to keep them in repair for seven years could be vicariously performed since it did not matter to the hirer who kept the wagons in repair

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Question

Where a contract involves the performance of a service, it is possible that the service will be provided by a third party to the contract.

In Robson and Sharpe v Drummond (1831) 2 B & Ad 303 a person had agreed to keep a carriage in repair for five years and to paint it from time to time. It was held by the court that he was not entitled to delegate performance of the contract to his partner. This was seen as a contract of personal service and it might neatly be contrasted with British Waggon Co v Lea & Co (1880) 5 QBD 149, where a contract to let out railway wagons and to keep them in repair for seven years could be vicariously performed since [...]. Here the judge emphasised that the work was of an ordinary nature which could be accomplished by the average workman.

Answer

it did not matter to the hirer who kept the wagons in repair so long as the work was properly done

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contract of personal service and it might neatly be contrasted with British Waggon Co v Lea & Co (1880) 5 QBD 149, where a contract to let out railway wagons and to keep them in repair for seven years could be vicariously performed since it did not matter to the hirer who kept the wagons in repair so long as the work was properly done. Here the judge emphasised that the work was of an ordinary nature which could be accomplished by the average workman.<body><html>

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This rule is well illustrated by the case of [ case ]. Cutter agreed to serve on a ship from Jamaica to Liverpool. The defendant, Powell, agreed in return to pay Cutter 30 guineas (which was four times the going rate) 'provided he proceeds, continues and does his duty … from hence to the port of Liverpool'. Cutter died at sea some seven weeks into the voyage and 19 days short of Liverpool. An action by Cutter's widow to recover a proportion of the agreed contract price failed. The contract was said to be entire. Cutter was obliged to perform the given duty fully before he could demand payment. As the contract had not been completely performed, the widow was entitled to nothing.

Answer

Cutter v Powell (1796) 6 Term Rep 320

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This rule is well illustrated by the case of Cutter v Powell (1796) 6 Term Rep 320. Cutter agreed to serve on a ship from Jamaica to Liverpool. The defendant, Powell, agreed in return to pay Cutter 30 guineas (which was four times the going rate) 'provided he procee

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A contractual obligation is discharged by [...]. The promisee is entitled to the benefit of complete performance exactly according to the promisor's undertaking. Where the promisor is unable or unwilling to give more than partial performance, the general rule is that there is no discharge of the contract.

Answer

a complete performance of the undertaking

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A contractual obligation is discharged by a complete performance of the undertaking. The promisee is entitled to the benefit of complete performance exactly according to the promisor's undertaking. Where the promisor is unable or unwilling to give more than partial

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performance may be radically different for a number of reasons, three of which will be considered in this chapter: (3)

Answer

First, performance is impossible,
second, performance is illegal or prevented by government intervention, and
third, the common purpose of the contract is frustrated.

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performance may be radically different for a number of reasons, three of which will be considered in this chapter. First, performance is impossible, second, performance is illegal or prevented by government intervention, and third, the common purpose of the contract is frustrated.

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Tamplin SS Co Ltd v Anglo-Mexican Petroleum Co [1916] 2 AC 397, where the court had to decide whether the requisitioning of a ship in February 1915 frustrated a five-year charterparty which was to last until December 1917. The court held that it did not on the basis that [...]. In the circumstances, this was overly optimistic, but it nevertheless demonstrates the problems facing a court in reaching satisfactory conclusions.

Answer

the war would soon be over and thus a considerable proportion of the charterparty would remain

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ican Petroleum Co [1916] 2 AC 397, where the court had to decide whether the requisitioning of a ship in February 1915 frustrated a five-year charterparty which was to last until December 1917. The court held that it did not on the basis that the war would soon be over and thus a considerable proportion of the charterparty would remain. In the circumstances, this was overly optimistic, but it nevertheless demonstrates the problems facing a court in reaching satisfactory conclusions.<body><html>

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The doctrine of frustration cannot override [...]. Commercial contracts often contain what is known as a force majeure clause, a clause that states what will happen to the contractual relationship between the parties should a particular sets of circumstances (which could otherwise amount to frustrating events) materialise. Force majeure clauses often refer to acts of terrorism, war and 'Acts of God'. The inclusion of a force majeure clause enables the parties to allocate risks in relation to these events at the outset and may allow for the continuance of the contractual relationship in circumstances that would otherwise amount to frustration of the contract.

Answer

express and unambiguous contractual provision for the frustrating event

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The doctrine of frustration cannot override express and unambiguous contractual provision for the frustrating event. Commercial contracts often contain what is known as a force majeure clause, a clause that states what will happen to the contractual relationship between the parties should a particu

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However, in the academic literature, there is a rival explanation that hinges, not on the damage to the bargain, but on the status of the contractors. Quite simply, in the Herne Bay Steamboat case, Hutton was a Southampton businessman who contracted for the hire of The Cynthia as [...]; he was planning to take paying customers around the fleet; the contractual purpose was purely for profit. The position in Krell v Henry was quite different. Henry did not hire the room for business reasons; he wanted it in order to view the coronation procession. From a 21st century perspective, the reason for the different, and seemingly contradictory, outcomes in the two cases is glaringly obvious. The Herne Bay Steamboat case involves a business-to-business contract where the reasonable expectation is that the hirer takes the risk that there might not be as much profit in the venture as he hoped for. By contrast, in Krell v Henry, the deal is more akin to a consumer contract where the consumer-hirer can reasonably expect to enjoy a heightened level of protection against the unanticipated events that occurred.

Answer

a commercial venture. Hutton did not hire the vessel for his own pleasure

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e is a rival explanation that hinges, not on the damage to the bargain, but on the status of the contractors. Quite simply, in the Herne Bay Steamboat case, Hutton was a Southampton businessman who contracted for the hire of The Cynthia as a commercial venture. Hutton did not hire the vessel for his own pleasure; he was planning to take paying customers around the fleet; the contractual purpose was purely for profit. The position in Krell v Henry was quite different. Henry did not hire the ro

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However, in the academic literature, there is a rival explanation that hinges, not on the damage to the bargain, but on the status of the contractors. Quite simply, in the Herne Bay Steamboat case, Hutton was a Southampton businessman who contracted for the hire of The Cynthia as a commercial venture. Hutton did not hire the vessel for his own pleasure; he was planning to take paying customers around the fleet; the contractual purpose was purely for profit. The position in Krell v Henry was quite different. Henry did not hire the room for business reasons; he wanted it in order to view the coronation procession. From a 21st century perspective, the reason for the different, and seemingly contradictory, outcomes in the two cases is glaringly obvious. The Herne Bay Steamboat case involves [...] where the reasonable expectation is that the hirer takes the risk that there might not be as much profit in the venture as he hoped for. By contrast, in Krell v Henry, the deal is more akin to a consumer contract where the consumer-hirer can reasonably expect to enjoy a heightened level of protection against the unanticipated events that occurred.

Answer

a business-to-business contract

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sons; he wanted it in order to view the coronation procession. From a 21st century perspective, the reason for the different, and seemingly contradictory, outcomes in the two cases is glaringly obvious. The Herne Bay Steamboat case involves a business-to-business contract where the reasonable expectation is that the hirer takes the risk that there might not be as much profit in the venture as he hoped for. By contrast, in Krell v Henry, the deal is more

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However, in the academic literature, there is a rival explanation that hinges, not on the damage to the bargain, but on the status of the contractors. Quite simply, in the Herne Bay Steamboat case, Hutton was a Southampton businessman who contracted for the hire of The Cynthia as a commercial venture. Hutton did not hire the vessel for his own pleasure; he was planning to take paying customers around the fleet; the contractual purpose was purely for profit. The position in Krell v Henry was quite different. Henry did not hire the room for business reasons; he wanted it in order to view the coronation procession. From a 21st century perspective, the reason for the different, and seemingly contradictory, outcomes in the two cases is glaringly obvious. The Herne Bay Steamboat case involves a business-to-business contract where the reasonable expectation is that [...]. By contrast, in Krell v Henry, the deal is more akin to a consumer contract where the consumer-hirer can reasonably expect to enjoy a heightened level of protection against the unanticipated events that occurred.

Answer

the hirer takes the risk that there might not be as much profit in the venture as he hoped for

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century perspective, the reason for the different, and seemingly contradictory, outcomes in the two cases is glaringly obvious. The Herne Bay Steamboat case involves a business-to-business contract where the reasonable expectation is that the hirer takes the risk that there might not be as much profit in the venture as he hoped for. By contrast, in Krell v Henry, the deal is more akin to a consumer contract where the consumer-hirer can reasonably expect to enjoy a heightened level of protection against the unant

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However, in the academic literature, there is a rival explanation that hinges, not on the damage to the bargain, but on the status of the contractors. Quite simply, in the Herne Bay Steamboat case, Hutton was a Southampton businessman who contracted for the hire of The Cynthia as a commercial venture. Hutton did not hire the vessel for his own pleasure; he was planning to take paying customers around the fleet; the contractual purpose was purely for profit. The position in Krell v Henry was quite different. Henry did not hire the room for business reasons; he wanted it in order to view the coronation procession. From a 21st century perspective, the reason for the different, and seemingly contradictory, outcomes in the two cases is glaringly obvious. The Herne Bay Steamboat case involves a business-to-business contract where the reasonable expectation is that the hirer takes the risk that there might not be as much profit in the venture as he hoped for. By contrast, in Krell v Henry, the deal is more akin to a consumer contract where [...].

Answer

the consumer-hirer can reasonably expect to enjoy a heightened level of protection against the unanticipated events that occurred

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to-business contract where the reasonable expectation is that the hirer takes the risk that there might not be as much profit in the venture as he hoped for. By contrast, in Krell v Henry, the deal is more akin to a consumer contract where the consumer-hirer can reasonably expect to enjoy a heightened level of protection against the unanticipated events that occurred.<body><html>

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FACTS: A private seller sold a car to a private buyer on the strength of an advertisement wherein the car was described as a 'Herald convertible, white, 1961, twin carbs'. In reality, the car was an amalgam of two cars; the back was indeed a 1961 model but the front was part of an earlier one, a fact unknown to the seller. HELD: The advertisement was part of a contractual description of the car and, consequently, the seller was liable under s 13(1).

Answer

Beale v Taylor [1967] 1 WLR 1193

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Beale v Taylor [1967] 1 WLR 1193 FACTS: A private seller sold a car to a private buyer on the strength of an advertisement wherein the car was described as a 'Herald convertible, white, 1961, twin carbs'. In reality,

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Beale v Taylor [1967] 1 WLR 1193 FACTS: A private seller sold a car to a private buyer on the strength of an advertisement wherein the car was described as a 'Herald convertible, white, 1961, twin carbs'. In reality, the car was an amalgam of two cars; the back was indeed a 1961 model but the front was part of an earlier one, a fact unknown to the seller. HELD: [...].

Answer

The advertisement was part of a contractual description of the car and, consequently, the seller was liable under s 13(1)

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wherein the car was described as a 'Herald convertible, white, 1961, twin carbs'. In reality, the car was an amalgam of two cars; the back was indeed a 1961 model but the front was part of an earlier one, a fact unknown to the seller. HELD: The advertisement was part of a contractual description of the car and, consequently, the seller was liable under s 13(1). <body><html>

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Question

In [...] dealing, a supplier may contract out subject to the restrictions of the Unfair Contract Terms Act 1977.

Answer

business-to-business

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In business-to-business dealing, a supplier may contract out subject to the restrictions of the Unfair Contract Terms Act 1977.

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Question

In business-to-business dealing, a supplier may [...].

Answer

contract out subject to the restrictions of the Unfair Contract Terms Act 1977

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In business-to-business dealing, a supplier may contract out subject to the restrictions of the Unfair Contract Terms Act 1977.

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by [...], it will always be possible for the court to circumvent the parol evidence rule, which applies only to those contracts where the written document is intended to contain the whole of the agreement.

Answer

construing a contract as partly written and partly oral

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by construing a contract as partly written and partly oral, it will always be possible for the court to circumvent the parol evidence rule, which applies only to those contracts where the written document is intended to contain the whole of t

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by construing a contract as partly written and partly oral, it will always be possible for the court to circumvent the parol evidence rule, which applies only to [...].

Answer

those contracts where the written document is intended to contain the whole of the agreement

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a period of delay between the making of the statement and the entering into of the contract will generally indicate that a statement was intended [...].

Answer

as a mere representation rather than a contractual term

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a period of delay between the making of the statement and the entering into of the contract will generally indicate that a statement was intended as a mere representation rather than a contractual term.

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The defendants made a statement regarding the quality of a house that was being sold, but the written contract made no reference to this. Nevertheless, the Court of Appeal regarded the statement as a contractual term. Here, the other factor, which was taken into account, was that the defendants, who were making the statement, were held to have special skill and knowledge.

Answer

Birch v Paramount Estates (1956), 16 EG 396

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In Birch v Paramount Estates (1956), 16 EG 396 the defendants made a statement regarding the quality of a house that was being sold, but the written contract made no reference to this. Nevertheless, the Court of Appeal regarded the

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In Birch v Paramount Estates (1956), 16 EG 396 the defendants made a statement regarding the quality of a house that was being sold, but the written contract made no reference to this. Nevertheless, the Court of Appeal regarded the statement as a contractual term. Here, the other factor, which was taken into account, was that [...].

Answer

the defendants, who were making the statement, were held to have special skill and knowledge

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the quality of a house that was being sold, but the written contract made no reference to this. Nevertheless, the Court of Appeal regarded the statement as a contractual term. Here, the other factor, which was taken into account, was that the defendants, who were making the statement, were held to have special skill and knowledge.<body><html>

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In [ case ], the Privy Council made it clear that the process of implication is available only where a binding contract has been made. The process of implication is not relevant until the formation of a contract has been completed

Answer

Scancarriers v Aotearoa International (1985)

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In Scancarriers v Aotearoa International (1985), the Privy Council made it clear that the process of implication is available only where a binding contract has been made. The process of implication is not relevant until the format

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Question

In Scancarriers v Aotearoa International (1985), the Privy Council made it clear that the process of implication is available only where [...]. The process of implication is not relevant until the formation of a contract has been completed

Answer

a binding contract has been made

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Where a term is implied on the grounds of a custom, the implication is based on the assumption that [...]. A custom can, of course, be excluded from an agreement by an express term to that effect. In British Crane Hire v Ipswich Plant [1975] QB 303, the contract involved the hiring of a crane. Both parties to the contract were in the same trade. The owner of a crane sought to rely on his usual terms, even though these were not actually stated at the time of contracting. The owner's terms were based on a model supplied by the trade association and were common in the trade. The court held that the owner’s standard terms and conditions were incorporated by a common trade custom.

Answer

it was the intention of the parties to be bound by the custom

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Where a term is implied on the grounds of a custom, the implication is based on the assumption that it was the intention of the parties to be bound by the custom. A custom can, of course, be excluded from an agreement by an express term to that effect. In British Crane Hire v Ipswich Plant [1975] QB 303, the contract involved the hiring of a

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Where a term is implied on the grounds of a custom, the implication is based on the assumption that it was the intention of the parties to be bound by the custom. A custom can, of course, be excluded from an agreement by [...]. In British Crane Hire v Ipswich Plant [1975] QB 303, the contract involved the hiring of a crane. Both parties to the contract were in the same trade. The owner of a crane sought to rely on his usual terms, even though these were not actually stated at the time of contracting. The owner's terms were based on a model supplied by the trade association and were common in the trade. The court held that the owner’s standard terms and conditions were incorporated by a common trade custom.

Answer

an express term to that effect

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d>Where a term is implied on the grounds of a custom, the implication is based on the assumption that it was the intention of the parties to be bound by the custom. A custom can, of course, be excluded from an agreement by an express term to that effect. In British Crane Hire v Ipswich Plant [1975] QB 303, the contract involved the hiring of a crane. Both parties to the contract were in the same trade. The owner of a crane sought to

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Where a term is implied on the grounds of a custom, the implication is based on the assumption that it was the intention of the parties to be bound by the custom. A custom can, of course, be excluded from an agreement by an express term to that effect. In [ case ], the contract involved the hiring of a crane. Both parties to the contract were in the same trade. The owner of a crane sought to rely on his usual terms, even though these were not actually stated at the time of contracting. The owner's terms were based on a model supplied by the trade association and were common in the trade. The court held that the owner’s standard terms and conditions were incorporated by a common trade custom.

Answer

British Crane Hire v Ipswich Plant [1975] QB 303

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implied on the grounds of a custom, the implication is based on the assumption that it was the intention of the parties to be bound by the custom. A custom can, of course, be excluded from an agreement by an express term to that effect. In British Crane Hire v Ipswich Plant [1975] QB 303, the contract involved the hiring of a crane. Both parties to the contract were in the same trade. The owner of a crane sought to rely on his usual terms, even though these were not a

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Where a term is implied on the grounds of a custom, the implication is based on the assumption that it was the intention of the parties to be bound by the custom. A custom can, of course, be excluded from an agreement by an express term to that effect. In British Crane Hire v Ipswich Plant [1975] QB 303, the contract involved the hiring of a crane. Both parties to the contract were in the same trade. The owner of a crane sought to rely on his usual terms, even though these were not actually stated at the time of contracting. The owner's terms were based on a model supplied by the trade association and were common in the trade. The court held that [...].

Answer

the owner’s standard terms and conditions were incorporated by a common trade custom

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f a crane sought to rely on his usual terms, even though these were not actually stated at the time of contracting. The owner's terms were based on a model supplied by the trade association and were common in the trade. The court held that the owner’s standard terms and conditions were incorporated by a common trade custom.<body><html>

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FACTS: An actress was under a contractual obligation to play in an operetta as from the beginning of its London run. The producers were forced to use a substitute for her, as she was ill until a week after the show opened. HELD: The obligation to perform as from the first night was a condition and the breach of it entitled the other party to terminate the contract.

Answer

Poussard v Spiers and Pond (1875-76) LR 1 QBD 410

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Poussard v Spiers and Pond (1875-76) LR 1 QBD 410 FACTS: An actress was under a contractual obligation to play in an operetta as from the beginning of its London run. The producers were forced to use a substitute for her, as she was i

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Poussard v Spiers and Pond (1875-76) LR 1 QBD 410 FACTS: An actress was under a contractual obligation to play in an operetta as from the beginning of its London run. The producers were forced to use a substitute for her, as she was ill until a week after the show opened. HELD: [...].

Answer

The obligation to perform as from the first night was a condition and the breach of it entitled the other party to terminate the contract

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1 QBD 410 FACTS: An actress was under a contractual obligation to play in an operetta as from the beginning of its London run. The producers were forced to use a substitute for her, as she was ill until a week after the show opened. HELD: The obligation to perform as from the first night was a condition and the breach of it entitled the other party to terminate the contract.<body><html>

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FACTS: A singer was under a contractual obligation to sing in a series of concerts and to take part in six days of rehearsals before the first performance. He arrived three days late, thus leaving only three days for rehearsals. HELD: The undertaking to take part in the rehearsals for six days was a warranty and not a condition. The breach entitled the other party to damages but not to terminate the contract.

Answer

Bettini v Gye (1876) 1 QBD 183

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Bettini v Gye (1876) 1 QBD 183 FACTS: A singer was under a contractual obligation to sing in a series of concerts and to take part in six days of rehearsals before the first performance. He arrived three days late, t

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Bettini v Gye (1876) 1 QBD 183 FACTS: A singer was under a contractual obligation to sing in a series of concerts and to take part in six days of rehearsals before the first performance. He arrived three days late, thus leaving only three days for rehearsals. HELD: [...]

Answer

The undertaking to take part in the rehearsals for six days was a warranty and not a condition. The breach entitled the other party to damages but not to terminate the contract.

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183 FACTS: A singer was under a contractual obligation to sing in a series of concerts and to take part in six days of rehearsals before the first performance. He arrived three days late, thus leaving only three days for rehearsals. HELD: The undertaking to take part in the rehearsals for six days was a warranty and not a condition. The breach entitled the other party to damages but not to terminate the contract. <body><html>

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The terms implied by virtue of the SGA 1979 ss [...] are classified as conditions. Note in particular s 13(1A) and s 14(6). Consequently, this creates a right to treat the contract as repudiated for any breach of these implied terms (i.e. reject the goods and claim a refund) and claim damages.

Answer

12–15

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The terms implied by virtue of the SGA 1979 ss 12–15 are classified as conditions. Note in particular s 13(1A) and s 14(6). Consequently, this creates a right to treat the contract as repudiated for any breach of these implied terms (i.e

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The terms implied by virtue of the SGA 1979 ss 12–15 are classified as [...]. Note in particular s 13(1A) and s 14(6). Consequently, this creates a right to treat the contract as repudiated for any breach of these implied terms (i.e. reject the goods and claim a refund) and claim damages.

Answer

conditions

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Second, the law might require that the buyer's rejection is 'reasonable' in the circumstances. In effect, this is the strategy adopted in the Sale of Goods Act 1979 s [...] (incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994), according to which a commercial buyer will be restricted to a remedy in damages where the seller's breach of condition is so slight as to make rejection unreasonable. Presumably, we would treat the sellers' breach in Arcos as 'slight' and, concomitantly, we would view the buyers' rejection of the timber as unreasonable.

Answer

15A

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Second, the law might require that the buyer's rejection is 'reasonable' in the circumstances. In effect, this is the strategy adopted in the Sale of Goods Act 1979 s 15A (incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994), according to which a commercial buyer will be restricted to a remedy in damages where the se

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Second, the law might require that the buyer's rejection is 'reasonable' in the circumstances. In effect, this is the strategy adopted in the Sale of Goods Act 1979 s 15A (incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994), according to which [...]. Presumably, we would treat the sellers' breach in Arcos as 'slight' and, concomitantly, we would view the buyers' rejection of the timber as unreasonable.

Answer

a commercial buyer will be restricted to a remedy in damages where the seller's breach of condition is so slight as to make rejection unreasonable

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yer's rejection is 'reasonable' in the circumstances. In effect, this is the strategy adopted in the Sale of Goods Act 1979 s 15A (incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994), according to which a commercial buyer will be restricted to a remedy in damages where the seller's breach of condition is so slight as to make rejection unreasonable. Presumably, we would treat the sellers' breach in Arcos as 'slight' and, concomitantly, we would view the buyers' rejection of the timber as unreasonable.<body><html>

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This sense does not go as far as requiring the election to be exercised reasonably; but it should not be wholly irrational or unreasonable. In one of the subsequent cases on the point, [ case ], Lloyd LJ captured the flavour of the case law when he said that the restriction will arise only exceptionally, in circumstances where 'an election to keep the contract alive would be wholly unreasonable [where] damages would be an adequate remedy, or [where the innocent party] would have no legitimate interest in making such an election' (para 17).

Answer

Reichman v Beveridge [2006] EWCA Civ 1659

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This sense does not go as far as requiring the election to be exercised reasonably; but it should not be wholly irrational or unreasonable. In one of the subsequent cases on the point, Reichman v Beveridge [2006] EWCA Civ 1659, Lloyd LJ captured the flavour of the case law when he said that the restriction will arise only exceptionally, in circumstances where 'an election to keep the contract alive would be

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Answer

an election to keep the contract alive would be wholly unreasonable [where] damages would be an adequate remedy, or [where the innocent party] would have no legitimate interest in making such an election

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or unreasonable. In one of the subsequent cases on the point, Reichman v Beveridge [2006] EWCA Civ 1659, Lloyd LJ captured the flavour of the case law when he said that the restriction will arise only exceptionally, in circumstances where 'an election to keep the contract alive would be wholly unreasonable [where] damages would be an adequate remedy, or [where the innocent party] would have no legitimate interest in making such an election' (para 17).<body><html>

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Examples of statutory implied terms are to be found, most notably, in the Sale of Goods Act [ year ] and the Supply of Goods and Services Act 1982, as amended by the Sale and Supply of Goods Act 1994.

Answer

1979

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Examples of statutory implied terms are to be found, most notably, in the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982, as amended by the Sale and Supply of Goods Act 1994.

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Examples of statutory implied terms are to be found, most notably, in the Sale of Goods Act 1979 and the Supply of Goods and Services Act [ year ], as amended by the Sale and Supply of Goods Act 1994.

Answer

1982

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FACTS: The buyer of a car discovered that it had been stolen before it had come into the possession of the seller (a car dealer). As a result, the vehicle was returned to the original owner. The buyer sued the car dealer, seeking to recover the full price he had paid for the car, irrespective of the fact that he had used the car for four months. HELD by the Court of Appeal: There was a breach of the implied condition arising under s 12 of the SGA 1979. The car dealer had no title and the buyer, who had paid to become the full owner of the car, had, therefore, received nothing from him. There was a complete failure of consideration and the full purchase price was recoverable.

Answer

Rowland v Divall [1923] 2 KB 500

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Rowland v Divall [1923] 2 KB 500 FACTS: The buyer of a car discovered that it had been stolen before it had come into the possession of the seller (a car dealer). As a result, the vehicle was returned to the original

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Rowland v Divall [1923] 2 KB 500 FACTS: The buyer of a car discovered that it had been stolen before it had come into the possession of the seller (a car dealer). As a result, the vehicle was returned to the original owner. The buyer sued the car dealer, seeking to recover the full price he had paid for the car, irrespective of the fact that he had used the car for four months. HELD by the Court of Appeal: There was a breach of the implied condition arising under [ statute ]. The car dealer had no title and the buyer, who had paid to become the full owner of the car, had, therefore, received nothing from him. There was a complete failure of consideration and the full purchase price was recoverable.

Answer

s 12 of the SGA 1979

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buyer sued the car dealer, seeking to recover the full price he had paid for the car, irrespective of the fact that he had used the car for four months. HELD by the Court of Appeal: There was a breach of the implied condition arising under s 12 of the SGA 1979. The car dealer had no title and the buyer, who had paid to become the full owner of the car, had, therefore, received nothing from him. There was a complete failure of consideration

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Question

The term implied by SGA 1979 subsection 12(1) is categorised as a condition of the contract by virtue of s[...].

Answer

12(5A)

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The term implied by SGA 1979 subsection 12(1) is categorised as a condition of the contract by virtue of s12(5A).

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Question

The term implied by SGA 1979 subsection 12(1) is [...] by virtue of s12(5A).

Answer

categorised as a condition of the contract

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The term implied by SGA 1979 subsection 12(1) is categorised as a condition of the contract by virtue of s12(5A).

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Question

If goods have a self-evident purpose, e.g. a hot water bottle or a pair of underpants, this self- evident purpose will clearly be covered by s [...] as a purpose for which the 'goods of the kind in question are commonly supplied'.

Answer

14(2B)(a)

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If goods have a self-evident purpose, e.g. a hot water bottle or a pair of underpants, this self- evident purpose will clearly be covered by s 14(2B)(a) as a purpose for which the 'goods of the kind in question are commonly supplied'.

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See also [ case ] where the retailers (along with the manufacturers) were held liable for the dermatitis caused to the wearer of woollen underpants. Clearly, they were not fit for their purpose

Answer

Grant v Australian Knitting Mills Ltd [1936] AC 85

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See also Grant v Australian Knitting Mills Ltd [1936] AC 85 where the retailers (along with the manufacturers) were held liable for the dermatitis caused to the wearer of woollen underpants. Clearly, they were not fit for their purpose</

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The SGA 1979 s [...] recognises that safety is an element of satisfactory quality. Here there is overlap with the Consumer Protection Act 1987, which provides victims of defective products with a strict liability route to the producer.

Answer

14(2B)(d)

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The SGA 1979 s 14(2B)(d) recognises that safety is an element of satisfactory quality. Here there is overlap with the Consumer Protection Act 1987, which provides victims of defective products with a strict li

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The SGA 1979 s 14(2B)(d) recognises that [...] is an element of satisfactory quality. Here there is overlap with the Consumer Protection Act 1987, which provides victims of defective products with a strict liability route to the producer.

Answer

safety

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Question

The SGA 1979 s 14(2B)(e) stipulates that [...] is an aspect of satisfactory quality.

Answer

durability

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The SGA 1979 s 14(2B)(e) stipulates that durability is an aspect of satisfactory quality.

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The SGA 1979 s [...] stipulates that durability is an aspect of satisfactory quality.

Answer

14(2B)(e)

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The SGA 1979 s 14(2B)(e) stipulates that durability is an aspect of satisfactory quality.

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Goods that can be described as durable will be those possessing '[...]'. There is no attempt to define what a reasonable time is – each case must be determined taking into account the particular goods in question.

Answer

those qualities which will enable them to last in a reasonable condition for a reasonable time

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Goods that can be described as durable will be those possessing 'those qualities which will enable them to last in a reasonable condition for a reasonable time'. There is no attempt to define what a reasonable time is – each case must be determined taking into account the particular goods in question.

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The exceptions to the implied term as to satisfactory quality are to be found in s [...]. Thus, there is no condition as regards defects specifically drawn to the buyer's attention before the contract was made, or, if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal. Nor will a condition be implied where the seller is not selling in the course of a business

Answer

14(2C)(a) and (b)

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The exceptions to the implied term as to satisfactory quality are to be found in s 14(2C)(a) and (b). Thus, there is no condition as regards defects specifically drawn to the buyer's attention before the contract was made, or, if the buyer examines the goods before the contract is ma

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The exceptions to the implied term as to satisfactory quality are to be found in s 14(2C)(a) and (b). Thus, there is no condition as regards defects [...], or, if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal. Nor will a condition be implied where the seller is not selling in the course of a business

Answer

specifically drawn to the buyer's attention before the contract was made

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The exceptions to the implied term as to satisfactory quality are to be found in s 14(2C)(a) and (b). Thus, there is no condition as regards defects specifically drawn to the buyer's attention before the contract was made, or, if [...]. Nor will a condition be implied where the seller is not selling in the course of a business

Answer

the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal

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span>The exceptions to the implied term as to satisfactory quality are to be found in s 14(2C)(a) and (b). Thus, there is no condition as regards defects specifically drawn to the buyer's attention before the contract was made, or, if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal. Nor will a condition be implied where the seller is not selling in the course of a business<body><html>

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The exceptions to the implied term as to satisfactory quality are to be found in s 14(2C)(a) and (b). Thus, there is no condition as regards defects specifically drawn to the buyer's attention before the contract was made, or, if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal. Nor will a condition be implied where [...]

Answer

the seller is not selling in the course of a business

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cts specifically drawn to the buyer's attention before the contract was made, or, if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal. Nor will a condition be implied where the seller is not selling in the course of a business<body><html>

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By virtue of s [...] a buyer under a contract for sale by sample cannot claim in respect of a defect which would have been apparent from a reasonable examination of the sample.

Answer

14(2C)(c)

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By virtue of s 14(2C)(c) a buyer under a contract for sale by sample cannot claim in respect of a defect which would have been apparent from a reasonable examination of the sample.

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By virtue of s 14(2C)(c) a buyer under a contract for sale by sample [...].

Answer

cannot claim in respect of a defect which would have been apparent from a reasonable examination of the sample

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By virtue of s 14(2C)(c) a buyer under a contract for sale by sample cannot claim in respect of a defect which would have been apparent from a reasonable examination of the sample.

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The right of the seller to exclude or restrict his liability under the Sale of Goods Act 1979 ss12, 13, 14 and 15 is controlled by s [...] and the provisions of the Unfair Contract Terms Act 1977.

Answer

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The right of the seller to exclude or restrict his liability under the Sale of Goods Act 1979 ss12, 13, 14 and 15 is controlled by s 55 and the provisions of the Unfair Contract Terms Act 1977.

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The right of the seller to exclude or restrict his liability under the Sale of Goods Act 1979 ss12, 13, 14 and 15 is controlled by s 55 and the provisions of the [ statute ].

Answer

Unfair Contract Terms Act 1977

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Under s 6(2) of the Unfair Contract Terms Act 1977, the implied undertakings as to description, quality, fitness for purpose or sample contained in the SGA 1979 ss 13–15 cannot be excluded against [...].

Answer

any person acting as a consumer

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Under s 6(2) of the Unfair Contract Terms Act 1977, the implied undertakings as to description, quality, fitness for purpose or sample contained in the SGA 1979 ss 13–15 cannot be excluded against any person acting as a consumer.

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Under [ statute ], the implied undertakings as to description, quality, fitness for purpose or sample contained in the SGA 1979 ss 13–15 cannot be excluded against any person acting as a consumer.

Answer

s 6(2) of the Unfair Contract Terms Act 1977

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Under s 6(2) of the Unfair Contract Terms Act 1977, the implied undertakings as to [ (4) ] contained in the SGA 1979 ss 13–15 cannot be excluded against any person acting as a consumer.

Answer

description, quality, fitness for purpose or sample

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The Supply of Goods and Services Act 1982 (SGSA 1982) provides for the implication of terms in: (a) certain contracts for [...]; (b) contracts for the hire of goods; and (c) contracts for the supply of services. The SGSA 1982 also governs the exclusion of such implied terms.

Answer

the transfer of property in goods

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The Supply of Goods and Services Act 1982 (SGSA 1982) provides for the implication of terms in: (a) certain contracts for the transfer of property in goods; (b) contracts for the hire of goods; and (c) contracts for the supply of services. The SGSA 1982 also governs the exclusion of such implied terms.

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The Supply of Goods and Services Act 1982 (SGSA 1982) provides for the implication of terms in: (a) certain contracts for the transfer of property in goods; (b) contracts for [...]; and (c) contracts for the supply of services. The SGSA 1982 also governs the exclusion of such implied terms.

Answer

the hire of goods

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The Supply of Goods and Services Act 1982 (SGSA 1982) provides for the implication of terms in: (a) certain contracts for the transfer of property in goods; (b) contracts for the hire of goods; and (c) contracts for [...]. The SGSA 1982 also governs the exclusion of such implied terms.

Answer

the supply of services

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<head>The Supply of Goods and Services Act 1982 (SGSA 1982) provides for the implication of terms in: (a) certain contracts for the transfer of property in goods; (b) contracts for the hire of goods; and (c) contracts for the supply of services. The SGSA 1982 also governs the exclusion of such implied terms.<html>

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It is also apparent from the decision in [ case ] that the court was influenced by the fact that the contract had been reduced into writing and yet the previous oral statement was not included. The inference drawn by the court was that the statement could not have been regarded as significant by the parties. If it had been, they would have ensured its inclusion in the written agreement. Consequently, the court concluded that the statement regarding the year of the model was never intended to be a term of the contract but a representation.

Answer

Routledge v McKay [1954] 1 WLR 615

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It is also apparent from the decision in Routledge v McKay [1954] 1 WLR 615 that the court was influenced by the fact that [...]. The inference drawn by the court was that the statement could not have been regarded as significant by the parties. If it had been, they would have ensured its inclusion in the written agreement. Consequently, the court concluded that the statement regarding the year of the model was never intended to be a term of the contract but a representation.

Answer

the contract had been reduced into writing and yet the previous oral statement was not included

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It is also apparent from the decision in Routledge v McKay [1954] 1 WLR 615 that the court was influenced by the fact that the contract had been reduced into writing and yet the previous oral statement was not included. The inference drawn by the court was that the statement could not have been regarded as significant by the parties. If it had been, they would have ensured its inclusion in the writt

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It is also apparent from the decision in Routledge v McKay [1954] 1 WLR 615 that the court was influenced by the fact that the contract had been reduced into writing and yet the previous oral statement was not included. The inference drawn by the court was that [...]. If it had been, they would have ensured its inclusion in the written agreement. Consequently, the court concluded that the statement regarding the year of the model was never intended to be a term of the contract but a representation.

Answer

the statement could not have been regarded as significant by the parties

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rom the decision in Routledge v McKay [1954] 1 WLR 615 that the court was influenced by the fact that the contract had been reduced into writing and yet the previous oral statement was not included. The inference drawn by the court was that the statement could not have been regarded as significant by the parties. If it had been, they would have ensured its inclusion in the written agreement. Consequently, the court concluded that the statement regarding the year of the model was never intende

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Where the party who made the statement had exclusive access to information or special knowledge as compared with the other party, this is likely to be taken into account in the latter's favour. This factor is obviously perceptible in [ case ] and, as noted above, in Birch v Paramount (1956). Perhaps the best indication of the effect of the concept of skill and knowledge can be seen in the contrasting cases of Oscar Chess Ltd v Williams [1957] 1 WLR 370 and Dick Bentley v Harold Smith [1965] 1 WLR 623.

Answer

Couchman v Hill [1947] KB 554

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>Where the party who made the statement had exclusive access to information or special knowledge as compared with the other party, this is likely to be taken into account in the latter's favour. This factor is obviously perceptible in Couchman v Hill [1947] KB 554 and, as noted above, in Birch v Paramount (1956). Perhaps the best indication of the effect of the concept of skill and knowledge can be seen in the contrasting cases of Oscar Chess Lt

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FACTS: The plaintiff, Mr Bentley, told Mr Smith, of the defendant company, that he was on the look-out for a well-vetted Bentley car. Mr Smith subsequently obtained a Bentley car and Mr Bentley went to see it. Mr Smith told Mr Bentley that the car had done 20,000 miles only since the fitting of a new engine and gearbox. The mileometer also showed 20,000 miles. Later that day, Mr Bentley took his wife to see the car and Mr Smith repeated his statement. Mr Bentley took the car out for a run and then bought it for £1,850. The car was a disappointment to Mr Bentley and it soon became clear that the car had done more than 20,000 miles since the change of engine and gearbox. HELD by the Court of Appeal: distinguishing Oscar Chess Ltd v Williams, that the statement as to the mileage was a term of the contract. The defendant was a car dealer who should be taken to have better knowledge of such matters than the plaintiff, who was not involved in the motor trade.

Answer

Dick Bentley Productions v Harold Smith [1965] 1 WLR 623

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Dick Bentley Productions v Harold Smith [1965] 1 WLR 623 FACTS: The plaintiff, Mr Bentley, told Mr Smith, of the defendant company, that he was on the look-out for a well-vetted Bentley car. Mr Smith subsequently obtained a Bentley car and Mr

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Dick Bentley Productions v Harold Smith [1965] 1 WLR 623

FACTS: The plaintiff, Mr Bentley, told Mr Smith, of the defendant company, that he was on the look-out for a well-vetted Bentley car. Mr Smith subsequently obtained a Bentley car and Mr Bentley went to see it. Mr Smith told Mr Bentley that the car had done 20,000 miles only since the fitting of a new engine and gearbox. The mileometer also showed 20,000 miles. Later that day, Mr Bentley took his wife to see the car and Mr Smith repeated his statement. Mr Bentley took the car out for a run and then bought it for £1,850. The car was a disappointment to Mr Bentley and it soon became clear that the car had done more than 20,000 miles since the change of engine and gearbox. HELD by the Court of Appeal: distinguishing Oscar Chess Ltd v Williams, that the statement as to the mileage was a term of the contract. [ reasoning ].

Answer

The defendant was a car dealer who should be taken to have better knowledge of such matters than the plaintiff, who was not involved in the motor trade

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it soon became clear that the car had done more than 20,000 miles since the change of engine and gearbox. HELD by the Court of Appeal: distinguishing Oscar Chess Ltd v Williams, that the statement as to the mileage was a term of the contract. The defendant was a car dealer who should be taken to have better knowledge of such matters than the plaintiff, who was not involved in the motor trade.<body><html>

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Here, the plaintiff required a horse for stud purposes. The plaintiff attempted to examine the defendant's horse but was told that he need not look for anything and that the horse was sound in every way. The price was agreed and delivery of the horse took place three weeks later. The horse was not in fact fit for stud purposes and the judge directed the jury to consider two points: first, did the defendant, at the time of the sale, represent that the horse was fit for stud purposes? Second, did the purchaser act on that in purchasing the horse? Both questions were answered in the affirmative and consequently, the statement was deemed to be a term of the contract.

Answer

Schawel v Reade [1913] 2 IR 81 (HL)

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Schawel v Reade [1913] 2 IR 81 (HL). Here, the plaintiff required a horse for stud purposes. The plaintiff attempted to examine the defendant's horse but was told that he need not look for anything and that the horse wa

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Schawel v Reade [1913] 2 IR 81 (HL). Here, the plaintiff required a horse for stud purposes. The plaintiff attempted to examine the defendant's horse but was told that he need not look for anything and that the horse was sound in every way. The price was agreed and delivery of the horse took place three weeks later. The horse was not in fact fit for stud purposes and the judge directed the jury to consider two points: first, did the defendant, at the time of the sale, represent that the horse was fit for stud purposes? Second, did the purchaser act on that in purchasing the horse? Both questions were answered in the affirmative and consequently, the statement was deemed [...]

Answer

to be a term of the contract.

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fendant, at the time of the sale, represent that the horse was fit for stud purposes? Second, did the purchaser act on that in purchasing the horse? Both questions were answered in the affirmative and consequently, the statement was deemed to be a term of the contract.<body><html>

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The plaintiff purchased the defendant's horse at auction. One day prior to the auction the defendant, finding the plaintiff examining the horse's legs, declared, 'You need not examine his legs: you have nothing to look for. I assure you that he is perfectly sound in every respect.' In these circumstances, the Court of Common Pleas held that the defendant's statement was not a term but a mere representation. It is usually argued that the distinction between the two cases rests on the evidence given by the defendant in the latter case that horses sold at auction were never warranted unless this was expressly stated in the catalogue.

Answer

Hopkins v Tanqueray (1854) 15 CB 130

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Hopkins v Tanqueray (1854) 15 CB 130. In Hopkins, the plaintiff purchased the defendant's horse at auction. One day prior to the auction the defendant, finding the plaintiff examining the horse's legs, declared, 'You need

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Another factor which may have been at work in [ case ] was that the defendant, by the strength of his statement, actually dissuaded the plaintiff from making further checks himself with regard to the fitness of the horse for stud purposes. This can be contrasted with Ecay v Godfrey (1947) 80 Lloyd's Rep 286 where the seller of a boat stated that it was sound but advised the buyer to have it surveyed. This advice showed that the seller did not intend that his statement should be taken as a term of the contract and that the onus of verification of the soundness of the boat lay with the purchaser.

Answer

Schawel v Reade

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Another factor which may have been at work in Schawel v Reade was that [...]. This can be contrasted with Ecay v Godfrey (1947) 80 Lloyd's Rep 286 where the seller of a boat stated that it was sound but advised the buyer to have it surveyed. This advice showed that the seller did not intend that his statement should be taken as a term of the contract and that the onus of verification of the soundness of the boat lay with the purchaser.

Answer

the defendant, by the strength of his statement, actually dissuaded the plaintiff from making further checks himself with regard to the fitness of the horse for stud purposes

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Another factor which may have been at work in Schawel v Reade was that the defendant, by the strength of his statement, actually dissuaded the plaintiff from making further checks himself with regard to the fitness of the horse for stud purposes. This can be contrasted with Ecay v Godfrey (1947) 80 Lloyd's Rep 286 where the seller of a boat stated that it was sound but advised the buyer to have it surveyed. This advice showed

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Another factor which may have been at work in Schawel v Reade was that the defendant, by the strength of his statement, actually dissuaded the plaintiff from making further checks himself with regard to the fitness of the horse for stud purposes. This can be contrasted with [ case ] where the seller of a boat stated that it was sound but advised the buyer to have it surveyed. This advice showed that the seller did not intend that his statement should be taken as a term of the contract and that the onus of verification of the soundness of the boat lay with the purchaser.

Answer

Ecay v Godfrey (1947) 80 Lloyd's Rep 286

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at work in Schawel v Reade was that the defendant, by the strength of his statement, actually dissuaded the plaintiff from making further checks himself with regard to the fitness of the horse for stud purposes. This can be contrasted with Ecay v Godfrey (1947) 80 Lloyd's Rep 286 where the seller of a boat stated that it was sound but advised the buyer to have it surveyed. This advice showed that the seller did not intend that his statement should be taken as a

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Another factor which may have been at work in Schawel v Reade was that the defendant, by the strength of his statement, actually dissuaded the plaintiff from making further checks himself with regard to the fitness of the horse for stud purposes. This can be contrasted with Ecay v Godfrey (1947) 80 Lloyd's Rep 286 where the seller of a boat stated that [...]. This advice showed that the seller did not intend that his statement should be taken as a term of the contract and that the onus of verification of the soundness of the boat lay with the purchaser.

Answer

it was sound but advised the buyer to have it surveyed

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ment, actually dissuaded the plaintiff from making further checks himself with regard to the fitness of the horse for stud purposes. This can be contrasted with Ecay v Godfrey (1947) 80 Lloyd's Rep 286 where the seller of a boat stated that it was sound but advised the buyer to have it surveyed. This advice showed that the seller did not intend that his statement should be taken as a term of the contract and that the onus of verification of the soundness of the boat lay with

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Collateral contracts can be seen as [...], as indeed, can the whole range of implied terms.

Answer

a further exception to the parol evidence rule

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Collateral contracts can be seen as a further exception to the parol evidence rule, as indeed, can the whole range of implied terms.

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Parol Evidence Rule: [...].

Answer

where one party is reasonably entitled to assume that the writing does contain all the terms of the contract, the other party will not be allowed to give evidence that it does not

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Parol Evidence Rule: where one party is reasonably entitled to assume that the writing does contain all the terms of the contract, the other party will not be allowed to give evidence that it does not.

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FACTS: The defendant was a tenant of a lock up shop and slept in the office at the back of the shop, a fact which was known to the lessor. In 1947, during negotiations for a new lease, the defendant was sent a draft of a new lease containing a covenant by the lessee 'not to permit or suffer the demised premises or any part thereof to be used as a place for lodging, dwelling or sleeping'. The plaintiff's agent told the defendant that, if he signed the lease, the plaintiff would not object to his continuing to live in the shop. The defendant therefore signed in response to this assurance. Some years later, the plaintiff sought forfeiture of the lease on the ground of breach of this covenant. HELD: As the defendant had signed the lease only because of the promise by the plaintiff's agent, he was entitled to rely on that promise as long as he was in occupation of the shop.

Answer

City and Westminster Properties Ltd v Mudd [1959] Ch 129

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City and Westminster Properties Ltd v Mudd [1959] Ch 129 FACTS: The defendant was a tenant of a lock up shop and slept in the office at the back of the shop, a fact which was known to the lessor. In 1947, during negotiations for a new lease,

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City and Westminster Properties Ltd v Mudd [1959] Ch 129 FACTS: The defendant was a tenant of a lock up shop and slept in the office at the back of the shop, a fact which was known to the lessor. In 1947, during negotiations for a new lease, the defendant was sent a draft of a new lease containing a covenant by the lessee 'not to permit or suffer the demised premises or any part thereof to be used as a place for lodging, dwelling or sleeping'. The plaintiff's agent told the defendant that, if he signed the lease, the plaintiff would not object to his continuing to live in the shop. The defendant therefore signed in response to this assurance. Some years later, the plaintiff sought forfeiture of the lease on the ground of breach of this covenant. HELD: [...].

Answer

As the defendant had signed the lease only because of the promise by the plaintiff's agent, he was entitled to rely on that promise as long as he was in occupation of the shop

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plaintiff would not object to his continuing to live in the shop. The defendant therefore signed in response to this assurance. Some years later, the plaintiff sought forfeiture of the lease on the ground of breach of this covenant. HELD: As the defendant had signed the lease only because of the promise by the plaintiff's agent, he was entitled to rely on that promise as long as he was in occupation of the shop. <body><html>

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The parties to a contract are free to classify the relative importance of the terms of their contract as they see fit. The classification of a term by the parties is not always decisive – do be aware that even where the parties describe a term as a condition, it is open to the court to hold that the parties could not have intended the term to have had this effect. This is illustrated by the case of [ case ].

Answer

Schuler v Wickman Machine Tool Sales [1974] AC 235

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is not always decisive – do be aware that even where the parties describe a term as a condition, it is open to the court to hold that the parties could not have intended the term to have had this effect. This is illustrated by the case of Schuler v Wickman Machine Tool Sales [1974] AC 235. <body><html>

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The classification of the terms implied by the SGA 1979 ss 13–15 (but note not s 12) as conditions has been altered as a result of s [...], which was incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994.

Answer

15A

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The classification of the terms implied by the SGA 1979 ss 13–15 (but note not s 12) as conditions has been altered as a result of s 15A, which was incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994.

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The classification of the terms implied by the SGA 1979 ss 13–15 (but note not s [...]) as conditions has been altered as a result of s 15A, which was incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994.

Answer

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There are some areas of commercial practice, however, where the value of certainty tends to outweigh the appeal of flexibility. In the case of [ case ], the Court of Appeal was anxious to limit the application of the Hong Kong Fir approach in relation to a very specific type of commercial clause, namely an 'expected readiness to load' clause. As far as this type of clause is concerned, the court was content to hold that this clause was not innominate but was a condition.

Answer

The Mihalis Angelos [1971] 1 QB 164

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There are some areas of commercial practice, however, where the value of certainty tends to outweigh the appeal of flexibility. In the case of The Mihalis Angelos [1971] 1 QB 164, the Court of Appeal was anxious to limit the application of the Hong Kong Fir approach in relation to a very specific type of commercial clause, namely an 'expected readiness to load

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There are some areas of commercial practice, however, where the value of certainty tends to outweigh the appeal of flexibility. In the case of The Mihalis Angelos [1971] 1 QB 164, the Court of Appeal was anxious to limit the application of the Hong Kong Fir approach in relation to a very specific type of commercial clause, namely an 'expected readiness to load' clause. As far as this type of clause is concerned, the court was content to hold that this clause was [...].

Answer

not innominate but was a condition

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plication of the Hong Kong Fir approach in relation to a very specific type of commercial clause, namely an 'expected readiness to load' clause. As far as this type of clause is concerned, the court was content to hold that this clause was not innominate but was a condition.<body><html>

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The traditional distinction between conditions and warranties is no longer regarded as exhaustive. In [ case ] the Court of Appeal held that there are many terms which, at the outset, are neither conditions nor warranties but are of an innominate or intermediate nature. A breach of such a term, if it has a minor effect, will allow the innocent party to claim damages only. A breach with more serious consequences will allow the innocent party to treat the contract as repudiated and claim damages. This represents a more flexible approach and allows the court a good deal of leeway when dealing with cases where the purported innocent party is attempting to use a trivial breach in order to extract themselves from a contractual agreement which is no longer commercially advantageous.

Answer

Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26

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The traditional distinction between conditions and warranties is no longer regarded as exhaustive. In Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 the Court of Appeal held that there are many terms which, at the outset, are neither conditions nor warranties but are of an innominate or intermediate nature. A breach of such a term, i

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The traditional distinction between conditions and warranties is no longer regarded as exhaustive. In Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 the Court of Appeal held that there are many terms which, at the outset, are neither conditions nor warranties but are of an innominate or intermediate nature. A breach of such a term, if it has a minor effect, will allow the innocent party to claim damages only. A breach with more serious consequences will allow the innocent party to [...]. This represents a more flexible approach and allows the court a good deal of leeway when dealing with cases where the purported innocent party is attempting to use a trivial breach in order to extract themselves from a contractual agreement which is no longer commercially advantageous.

Answer

treat the contract as repudiated and claim damages

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s nor warranties but are of an innominate or intermediate nature. A breach of such a term, if it has a minor effect, will allow the innocent party to claim damages only. A breach with more serious consequences will allow the innocent party to treat the contract as repudiated and claim damages. This represents a more flexible approach and allows the court a good deal of leeway when dealing with cases where the purported innocent party is attempting to use a trivial breach in

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Time is of greater or lesser importance to the parties in most kinds of contract. It is quite usual for the contracting parties to stipulate for a date for delivery for the sale of goods. Failure to comply with such a stipulation is, obviously, a breach of contract, but whether it is a breach of a condition or a warranty will depend on the intention of the parties. This intention will be assessed by reference to the express terms of the contract and, where appropriate, the nature and circumstances of the contract. A time clause in a mercantile contract is not necessarily a condition. Where a requirement as to timing is essential to the contract, [...].

Answer

the expression used is that 'time is of the essence'

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o the express terms of the contract and, where appropriate, the nature and circumstances of the contract. A time clause in a mercantile contract is not necessarily a condition. Where a requirement as to timing is essential to the contract, the expression used is that 'time is of the essence'.<body><html>

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The approach adopted in The Mihalis Angelos was approved by both the Court of Appeal and the House of Lords in the case of [ case ]. Again, the subject of contention was an 'expected readiness to load' clause. Both courts rejected any attempt to be swayed by the Hong Kong Fir test and, approving the decision in The Mihalis Angelos, declared that the clause was a condition. Lord Wilberforce stated that to find otherwise 'would fatally remove from a vital provision in the contract that certainty which is the most indispensable quality of mercantile contracts'.

Answer

Bunge Corporation v Tradax Exports SA [1981] 1 WLR 711

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The approach adopted in The Mihalis Angelos was approved by both the Court of Appeal and the House of Lords in the case of Bunge Corporation v Tradax Exports SA [1981] 1 WLR 711. Again, the subject of contention was an 'expected readiness to load' clause. Both courts rejected any attempt to be swayed by the Hong Kong Fir test and, approving the decision in Th

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in [ case ], where the Department contracted to purchase a minimum of 500 days of IT consultancy from the claimant supplier, Burton J held that, even if no services were actually required, the claimant was justified in billing the Department. The claimant was ready and willing to supply services and, applying the principles in White and Carter, he was entitled to act in this way.

Answer

E-nik Limited v Department for Communities and Local Government [2012] EWHC 3027 (Comm)

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in E-nik Limited v Department for Communities and Local Government [2012] EWHC 3027 (Comm), where the Department contracted to purchase a minimum of 500 days of IT consultancy from the claimant supplier, Burton J held that, even if no services were actually required, the cl

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in E-nik Limited v Department for Communities and Local Government [2012] EWHC 3027 (Comm), where the Department contracted to purchase a minimum of 500 days of IT consultancy from the claimant supplier, Burton J held that, [...]. The claimant was ready and willing to supply services and, applying the principles in White and Carter, he was entitled to act in this way.

Answer

even if no services were actually required, the claimant was justified in billing the Department

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body>in E-nik Limited v Department for Communities and Local Government [2012] EWHC 3027 (Comm), where the Department contracted to purchase a minimum of 500 days of IT consultancy from the claimant supplier, Burton J held that, even if no services were actually required, the claimant was justified in billing the Department. The claimant was ready and willing to supply services and, applying the principles in White and Carter, he was entitled to act in this way.<body><html>

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The defendants contracted with White and Carter for the latter to provide advertising services in relation to their (the defendants') garage business. Shortly after entering into the contract, the defendants notified White and Carter that they no longer required these services. There was no cooling-off period in this contract; the defendants were signalling a clear breach of condition. As such, it presented White and Carter with a simple choice: either to accept the defendants' repudiation, treat the contract as at an end, and sue for damages, or to affirm the contract, treating it as still in place. White and Carter decided to affirm the contract, to provide the advertising services notwithstanding the defendants' repudiation, and to bill the defendants (as per the contract) for the services so provided. The majority of the House of Lords held that White and Carter were within their rights to do this.

Answer

White and Carter (Councils) Ltd v McGregor [1962] AC 413

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In White and Carter (Councils) Ltd v McGregor [1962] AC 413, the defendants contracted with White and Carter for the latter to provide advertising services in relation to their (the defendants') garage business. Shortly after entering into the

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FACTS: The private seller of a motorcycle told the buyer, in good faith, that it was a 1941 or 1942 model. One week later, the buyer and seller entered into a contract of sale. The written memorandum of the sale did not mention the year of the model. The motor cycle was a 1930 model and the buyer sued for breach of contract. HELD: The Court of Appeal held that the lapse of time between the making of the statement and entering into the contract meant the statement as to the year of the model was a representation and not a term of the contract.

Answer

Routledge v McKay [1954] 1 WLR 615

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Routledge v McKay [1954] 1 WLR 615 FACTS: The private seller of a motorcycle told the buyer, in good faith, that it was a 1941 or 1942 model. One week later, the buyer and seller entered into a contract of sale. The writt

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Routledge v McKay [1954] 1 WLR 615

FACTS: The private seller of a motorcycle told the buyer, in good faith, that it was a 1941 or 1942 model. One week later, the buyer and seller entered into a contract of sale. The written memorandum of the sale did not mention the year of the model. The motor cycle was a 1930 model and the buyer sued for breach of contract. HELD: The Court of Appeal held that the [...].

Answer

lapse of time between the making of the statement and entering into the contract meant the statement as to the year of the model was a representation and not a term of the contract

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he buyer and seller entered into a contract of sale. The written memorandum of the sale did not mention the year of the model. The motor cycle was a 1930 model and the buyer sued for breach of contract. HELD: The Court of Appeal held that the lapse of time between the making of the statement and entering into the contract meant the statement as to the year of the model was a representation and not a term of the contract.<body><html>

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FACTS: In respect of negotiations to purchase hops, the defendants said 'if they have been treated with sulphur, I am not interested in even knowing the price of them'. When the plaintiff produced samples, the defendants again enquired whether sulphur had been used and were assured that it had not. In fact, a small amount of the crop, some five acres out of a total of 300 acres, had been treated with sulphur. The defendants treated the contract as repudiated and the question as to whether they were entitled to do so hinged upon whether it could be regarded as a condition of the agreement that the hops may be rejected if sulphur had been used. It was argued by the plaintiff that the conversation relating to the sulphur was preliminary to entering the contract and, as such, was not part of the contract. HELD: The statement was understood and intended by the parties to be a term of the contract of sale.

Answer

Bannerman v White (1861) 10 CB NS 844

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Bannerman v White (1861) 10 CB NS 844 FACTS: In respect of negotiations to purchase hops, the defendants said 'if they have been treated with sulphur, I am not interested in even knowing the price of them'. When the plaintif

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A statement may become a term of the contract where the vendor [...]. This factor was taken into account in Schawel v Reade

Answer

expressly accepts the responsibility for the soundness of the sale item in question

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A statement may become a term of the contract where the vendor expressly accepts the responsibility for the soundness of the sale item in question. This factor was taken into account in Schawel v Reade

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A statement may become a term of the contract where the vendor expressly accepts the responsibility for the soundness of the sale item in question. This factor was taken into account in [ case ]

Answer

Schawel v Reade

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FACTS: The plaintiff car dealers, Oscar Chess Ltd, agreed on a trade-in of the defendant's old car as part of the arrangement when he purchased another car from them. The registration book of the car traded in gave its date as 1948. The defendant, Williams, confirmed this date in good faith. Some months later, it was discovered that the date should have been 1939. The car was thus worth much less than the amount allowed for it in the trade-in arrangement. HELD by a majority of the Court of Appeal: The age of the car was not a term of the contract and therefore there was no breach of contract by the defendant. Here, it was clear that the skill and expertise lay in the hands of the plaintiff, the car dealers, and not in the hands of Williams who was making the statement. Consequently, the statement remained as a representation without contractual force. In contrast, in Dick Bentley Productions v Harold Smith (Motors) the skill and expertise was in the hands of the statement maker and thus the statement amounted to a term of the contract, the breach of which entitled the plaintiff to damages.

Answer

Oscar Chess Ltd v Williams [1957] 1 WLR 370

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Oscar Chess Ltd v Williams [1957] 1 WLR 370 FACTS: The plaintiff car dealers, Oscar Chess Ltd, agreed on a trade-in of the defendant's old car as part of the arrangement when he purchased another car from them. The registration bo

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Oscar Chess Ltd v Williams [1957] 1 WLR 370

FACTS: The plaintiff car dealers, Oscar Chess Ltd, agreed on a trade-in of the defendant's old car as part of the arrangement when he purchased another car from them. The registration book of the car traded in gave its date as 1948. The defendant, Williams, confirmed this date in good faith. Some months later, it was discovered that the date should have been 1939. The car was thus worth much less than the amount allowed for it in the trade-in arrangement. HELD by a majority of the Court of Appeal: The age of the car was not a term of the contract and therefore there was no breach of contract by the defendant. Here, it was clear that the skill and expertise [...]. Consequently, the statement remained as a representation without contractual force. In contrast, in Dick Bentley Productions v Harold Smith (Motors) the skill and expertise was in the hands of the statement maker and thus the statement amounted to a term of the contract, the breach of which entitled the plaintiff to damages.

Answer

lay in the hands of the plaintiff, the car dealers, and not in the hands of Williams who was making the statement

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d for it in the trade-in arrangement. HELD by a majority of the Court of Appeal: The age of the car was not a term of the contract and therefore there was no breach of contract by the defendant. Here, it was clear that the skill and expertise lay in the hands of the plaintiff, the car dealers, and not in the hands of Williams who was making the statement. Consequently, the statement remained as a representation without contractual force. In contrast, in Dick Bentley Productions v Harold Smith (Motors) the skill and expertise was in the

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Oscar Chess Ltd v Williams [1957] 1 WLR 370

FACTS: The plaintiff car dealers, Oscar Chess Ltd, agreed on a trade-in of the defendant's old car as part of the arrangement when he purchased another car from them. The registration book of the car traded in gave its date as 1948. The defendant, Williams, confirmed this date in good faith. Some months later, it was discovered that the date should have been 1939. The car was thus worth much less than the amount allowed for it in the trade-in arrangement. HELD by a majority of the Court of Appeal: The age of the car was not a term of the contract and therefore there was no breach of contract by the defendant. Here, it was clear that the skill and expertise lay in the hands of the plaintiff, the car dealers, and not in the hands of Williams who was making the statement. Consequently, the statement remained as a representation without contractual force. In contrast, in [ case ] the skill and expertise was in the hands of the statement maker and thus the statement amounted to a term of the contract, the breach of which entitled the plaintiff to damages.

Answer

Dick Bentley Productions v Harold Smith (Motors)

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hat the skill and expertise lay in the hands of the plaintiff, the car dealers, and not in the hands of Williams who was making the statement. Consequently, the statement remained as a representation without contractual force. In contrast, in Dick Bentley Productions v Harold Smith (Motors) the skill and expertise was in the hands of the statement maker and thus the statement amounted to a term of the contract, the breach of which entitled the plaintiff to damages.</

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Oscar Chess Ltd v Williams [1957] 1 WLR 370

FACTS: The plaintiff car dealers, Oscar Chess Ltd, agreed on a trade-in of the defendant's old car as part of the arrangement when he purchased another car from them. The registration book of the car traded in gave its date as 1948. The defendant, Williams, confirmed this date in good faith. Some months later, it was discovered that the date should have been 1939. The car was thus worth much less than the amount allowed for it in the trade-in arrangement. HELD by a majority of the Court of Appeal: The age of the car was not a term of the contract and therefore there was no breach of contract by the defendant. Here, it was clear that the skill and expertise lay in the hands of the plaintiff, the car dealers, and not in the hands of Williams who was making the statement. Consequently, the statement remained as a representation without contractual force. In contrast, in Dick Bentley Productions v Harold Smith (Motors) the skill and expertise was in the hands of the statement maker and thus [...], the breach of which entitled the plaintiff to damages.

Answer

the statement amounted to a term of the contract

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aking the statement. Consequently, the statement remained as a representation without contractual force. In contrast, in Dick Bentley Productions v Harold Smith (Motors) the skill and expertise was in the hands of the statement maker and thus the statement amounted to a term of the contract, the breach of which entitled the plaintiff to damages.<body><html>

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FACTS: The plaintiffs, the owners of a pier, entered into a contract with a contractor to have the pier repaired and repainted. Under the terms of this contract, the plaintiffs had the right to specify the paint to be used by the contractor. On the faith of statements made by the defendants to the plaintiffs with regard to the defendants' paint and its fitness for painting the pier, the plaintiffs specified the paint to the contractor who bought the necessary quantity from the defendants. The paint proved to be quite unsuitable for painting the pier. The plaintiffs contended that the statements made to them by the defendants with regard to the suitability of the paint were enforceable warranties given in consideration of their specifying the paint to their contractor. HELD: The defendants' statements constituted a binding warranty, the breach of which entitled the plaintiffs to damages.

Answer

Shanklin Pier v Detel Products [1951] 2 KB 854

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Shanklin Pier v Detel Products [1951] 2 KB 854 FACTS: The plaintiffs, the owners of a pier, entered into a contract with a contractor to have the pier repaired and repainted. Under the terms of this contract, the plaintiffs had the

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Shanklin Pier v Detel Products [1951] 2 KB 854 FACTS: The plaintiffs, the owners of a pier, entered into a contract with a contractor to have the pier repaired and repainted. Under the terms of this contract, the plaintiffs had the right to specify the paint to be used by the contractor. On the faith of statements made by the defendants to the plaintiffs with regard to the defendants' paint and its fitness for painting the pier, the plaintiffs specified the paint to the contractor who bought the necessary quantity from the defendants. The paint proved to be quite unsuitable for painting the pier. The plaintiffs contended that the statements made to them by the defendants with regard to the suitability of the paint were enforceable warranties given in consideration of their specifying the paint to their contractor. HELD: [...].

Answer

The defendants' statements constituted a binding warranty, the breach of which entitled the plaintiffs to damages

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g the pier. The plaintiffs contended that the statements made to them by the defendants with regard to the suitability of the paint were enforceable warranties given in consideration of their specifying the paint to their contractor. HELD: The defendants' statements constituted a binding warranty, the breach of which entitled the plaintiffs to damages.<body><html>

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FACTS: The defendants were an advertising agency and the plaintiffs ran a library of photographic transparencies. They had not dealt with each other before. The defendants needed period photographs of the 1950s for a presentation. On 5 March 1984, they telephoned the plaintiffs, enquiring whether they had any photographs of that period which might be suitable. On the same day, the plaintiffs dispatched to the defendants 47 transparencies packed in a jiffy bag together with a delivery note. The transparencies were, however, apparently overlooked and not used. They were eventually returned on 2 April. The plaintiffs sent an invoice for the holding charge calculated at £5 per transparency per day from 19 March to 2 April, total £3,783.50. This was calculated in accordance with the terms laid out in the delivery note. The defendants refused to pay and the plaintiffs sued for the amount invoiced. The issue before the court was whether the terms of the delivery note formed part of the contract between the parties and, if so, whether the plaintiffs could enforce these terms against the defendants. HELD by the Court of Appeal: The clause could not be enforced. It was an extortionate clause which the plaintiffs had not brought to the attention of the defendants and therefore it did not become part of the contract. The defendants were ordered to pay a sum which the trial judge would have awarded on a quantum meruit on his alternative findings, i.e. the reasonable charge of £3.50 per transparency per week for the retention of the transparencies beyond a reasonable period fixed as 14 days from the date of their receipt by the defendants.

Answer

Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433

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Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 FACTS: The defendants were an advertising agency and the plaintiffs ran a library of photographic transparencies. They had not dealt with each other before. The defendants needed perio

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Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 FACTS: The defendants were an advertising agency and the plaintiffs ran a library of photographic transparencies. They had not dealt with each other before. The defendants needed period photographs of the 1950s for a presentation. On 5 March 1984, they telephoned the plaintiffs, enquiring whether they had any photographs of that period which might be suitable. On the same day, the plaintiffs dispatched to the defendants 47 transparencies packed in a jiffy bag together with a delivery note. The transparencies were, however, apparently overlooked and not used. They were eventually returned on 2 April. The plaintiffs sent an invoice for the holding charge calculated at £5 per transparency per day from 19 March to 2 April, total £3,783.50. This was calculated in accordance with the terms laid out in the delivery note. The defendants refused to pay and the plaintiffs sued for the amount invoiced. The issue before the court was whether the terms of the delivery note formed part of the contract between the parties and, if so, whether the plaintiffs could enforce these terms against the defendants. HELD by the Court of Appeal: The clause could not be enforced. [reasoning]. The defendants were ordered to pay a sum which the trial judge would have awarded on a quantum meruit on his alternative findings, i.e. the reasonable charge of £3.50 per transparency per week for the retention of the transparencies beyond a reasonable period fixed as 14 days from the date of their receipt by the defendants.

Answer

It was an extortionate clause which the plaintiffs had not brought to the attention of the defendants and therefore it did not become part of the contract

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was whether the terms of the delivery note formed part of the contract between the parties and, if so, whether the plaintiffs could enforce these terms against the defendants. HELD by the Court of Appeal: The clause could not be enforced. It was an extortionate clause which the plaintiffs had not brought to the attention of the defendants and therefore it did not become part of the contract. The defendants were ordered to pay a sum which the trial judge would have awarded on a quantum meruit on his alternative findings, i.e. the reasonable charge of £3.50 per transparenc

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However, it is still necessary to utilise the officious bystander test cautiously and to note the limitations placed upon its application. For instance, the test cannot be utilised where [...] (Spring v National Amalgamated Stevedores and Dockers Society [1956] 1 WLR 585).

Answer

one party is unaware of the term that it is sought to imply into the contract

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However, it is still necessary to utilise the officious bystander test cautiously and to note the limitations placed upon its application. For instance, the test cannot be utilised where one party is unaware of the term that it is sought to imply into the contract (Spring v National Amalgamated Stevedores and Dockers Society [1956] 1 WLR 585).

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However, it is still necessary to utilise the officious bystander test cautiously and to note the limitations placed upon its application. For instance, the test cannot be utilised where one party is unaware of the term that it is sought to imply into the contract ([ case ]).

Answer

Spring v National Amalgamated Stevedores and Dockers Society [1956] 1 WLR 585

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cessary to utilise the officious bystander test cautiously and to note the limitations placed upon its application. For instance, the test cannot be utilised where one party is unaware of the term that it is sought to imply into the contract (Spring v National Amalgamated Stevedores and Dockers Society [1956] 1 WLR 585).<body><html>

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the rule in The Moorcock was given some precision in [ case ], by MacKinnon LJ who stated: Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course'. The test has been dubbed 'the officious bystander test' and an example of its use can be seen in Gardner v Coutts & Co [1968] 1 WLR 173. Both the 'business efficacy' test, and the 'officious bystander' test attempt to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council in Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988. When implying terms in fact, one must ask what the reasonable person would understand the contract to mean rather than enquiring as to the subjective intentions of the parties.

Answer

Shirlaw v Southern Foundries [1939] 2 KB 206 CA

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the rule in The Moorcock was given some precision in Shirlaw v Southern Foundries [1939] 2 KB 206 CA, by MacKinnon LJ who stated: Prima facie [...]; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course'. The test has been dubbed 'the officious bystander test' and an example of its use can be seen in Gardner v Coutts & Co [1968] 1 WLR 173. Both the 'business efficacy' test, and the 'officious bystander' test attempt to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council in Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988. When implying terms in fact, one must ask what the reasonable person would understand the contract to mean rather than enquiring as to the subjective intentions of the parties.

Answer

that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying

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the rule in The Moorcock was given some precision in Shirlaw v Southern Foundries [1939] 2 KB 206 CA, by MacKinnon LJ who stated: Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with

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the rule in The Moorcock was given some precision in Shirlaw v Southern Foundries [1939] 2 KB 206 CA, by MacKinnon LJ who stated: Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course'. The test has been dubbed 'the officious bystander test' and an example of its use can be seen in [ case ]. Both the 'business efficacy' test, and the 'officious bystander' test attempt to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council in Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988. When implying terms in fact, one must ask what the reasonable person would understand the contract to mean rather than enquiring as to the subjective intentions of the parties.

Answer

Gardner v Coutts & Co [1968] 1 WLR 173

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bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course'. The test has been dubbed 'the officious bystander test' and an example of its use can be seen in Gardner v Coutts & Co [1968] 1 WLR 173. Both the 'business efficacy' test, and the 'officious bystander' test attempt to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council i

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the rule in The Moorcock was given some precision in Shirlaw v Southern Foundries [1939] 2 KB 206 CA, by MacKinnon LJ who stated: Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course'. The test has been dubbed 'the officious bystander test' and an example of its use can be seen in Gardner v Coutts & Co [1968] 1 WLR 173. Both the 'business efficacy' test, and the 'officious bystander' test attempt to [...], an idea that was later affirmed by the Privy Council in Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988. When implying terms in fact, one must ask what the reasonable person would understand the contract to mean rather than enquiring as to the subjective intentions of the parties.

Answer

identify what the parties ultimately intended

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'Oh, of course'. The test has been dubbed 'the officious bystander test' and an example of its use can be seen in Gardner v Coutts & Co [1968] 1 WLR 173. Both the 'business efficacy' test, and the 'officious bystander' test attempt to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council in Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988. When implying terms in fact, one mus

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the rule in The Moorcock was given some precision in Shirlaw v Southern Foundries [1939] 2 KB 206 CA, by MacKinnon LJ who stated: Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course'. The test has been dubbed 'the officious bystander test' and an example of its use can be seen in Gardner v Coutts & Co [1968] 1 WLR 173. Both the 'business efficacy' test, and the 'officious bystander' test attempt to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council in [case]. When implying terms in fact, one must ask what the reasonable person would understand the contract to mean rather than enquiring as to the subjective intentions of the parties.

Answer

Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988

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be seen in Gardner v Coutts & Co [1968] 1 WLR 173. Both the 'business efficacy' test, and the 'officious bystander' test attempt to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council in Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988. When implying terms in fact, one must ask what the reasonable person would understand the contract to mean rather than enquiring as to the subjective intentions of the parties.

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the rule in The Moorcock was given some precision in Shirlaw v Southern Foundries [1939] 2 KB 206 CA, by MacKinnon LJ who stated: Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course'. The test has been dubbed 'the officious bystander test' and an example of its use can be seen in Gardner v Coutts & Co [1968] 1 WLR 173. Both the 'business efficacy' test, and the 'officious bystander' test attempt to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council in Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988. When implying terms in fact, one must ask [...].

Answer

what the reasonable person would understand the contract to mean rather than enquiring as to the subjective intentions of the parties

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t to identify what the parties ultimately intended, an idea that was later affirmed by the Privy Council in Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] 1 WLR 1988. When implying terms in fact, one must ask what the reasonable person would understand the contract to mean rather than enquiring as to the subjective intentions of the parties.<body><html>

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FACTS: There was a contract between the defendants, who owned a Thames-side wharf and jetty, and the plaintiffs, that the plaintiffs' vessel, The Moorcock, should be unloaded and reloaded at the defendants' wharf. The Moorcock was, accordingly, moored alongside the wharf but, as the tide fell, she took to the ground and sustained damage on account of the unevenness of the river bed at that place. The plaintiffs brought this action for breach of contract. HELD: There was an implied term in the contract that the defendants would take reasonable care to see that the berth was safe as both parties must have known at the time of the agreement that if the ground were not safe the ship would be endangered when the tide ebbed. There was a breach of this implied term.

Answer

The Moorcock (1889) 14 PD 64

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The Moorcock (1889) 14 PD 64 FACTS: There was a contract between the defendants, who owned a Thames-side wharf and jetty, and the plaintiffs, that the plaintiffs' vessel, The Moorcock, should be unloaded and relo

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The Moorcock (1889) 14 PD 64 FACTS: There was a contract between the defendants, who owned a Thames-side wharf and jetty, and the plaintiffs, that the plaintiffs' vessel, The Moorcock, should be unloaded and reloaded at the defendants' wharf. The Moorcock was, accordingly, moored alongside the wharf but, as the tide fell, she took to the ground and sustained damage on account of the unevenness of the river bed at that place. The plaintiffs brought this action for breach of contract. HELD: There was an implied term in the contract that the defendants would take reasonable care to see that the berth was safe as [...]. There was a breach of this implied term.

Answer

both parties must have known at the time of the agreement that if the ground were not safe the ship would be endangered when the tide ebbed

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t of the unevenness of the river bed at that place. The plaintiffs brought this action for breach of contract. HELD: There was an implied term in the contract that the defendants would take reasonable care to see that the berth was safe as both parties must have known at the time of the agreement that if the ground were not safe the ship would be endangered when the tide ebbed. There was a breach of this implied term.<body><html>

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That said, in [ case ], where the context – underlined by the express terms of the contract – required the parties (who were 'partnering team members') to 'work together and individually in the spirit of trust, fairness and mutual co-operation', Akenhead J held that South Anglia's unexplained termination of TSG's appointment was in no way constrained by either the express provision for co-operation or by a term for good faith that TSG argued should be implied.

Answer

TSG Building Services plc v South Anglia Housing Ltd [2013] EWHC 1151 (TCC)

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That said, in TSG Building Services plc v South Anglia Housing Ltd [2013] EWHC 1151 (TCC), where the context – underlined by the express terms of the contract – required the parties (who were 'partnering team members') to 'work together and individually in the spirit of tr

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So, for example, in the famous case of [ case ] (see also 11.3.2), where the charterparty contained no such express provision, the owners were fighting a lost cause in arguing that the spirit of the deal was that the charterers should make so many regular and punctual voyages across the Atlantic. According to the charter, the charterers were required to pay agreed damages (demurrage) if they exceeded the specified (lay) days allowed in port for loading and unloading the vessel; and this is precisely what the charterers did. The fact that they did this rather than pay the freight rates that the owners expected to earn on the contract, and the fact that they did this in self-serving response to the market conditions did not amount to a breach of contract. Certainly, this was a self-interested performance of the contract; it was not co-operative; but it could not be corrected by an implied term.

Answer

Suisse Atlantique Societe d'Armament Maritime v Rotterdamsche Kolen Centrale [1967] 1 AC 361

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So, for example, in the famous case of Suisse Atlantique Societe d'Armament Maritime v Rotterdamsche Kolen Centrale [1967] 1 AC 361 (see also 11.3.2), where the charterparty contained no such express provision, the owners were fighting a lost cause in arguing that the spirit of the deal was that the charterers shou

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So, for example, in the famous case of Suisse Atlantique Societe d'Armament Maritime v Rotterdamsche Kolen Centrale [1967] 1 AC 361 (see also 11.3.2), where the charterparty contained no such express provision, the owners were fighting a lost cause in arguing that the spirit of the deal was that the charterers should make so many regular and punctual voyages across the Atlantic. According to the charter, the charterers were required to pay agreed damages (demurrage) if they exceeded the specified (lay) days allowed in port for loading and unloading the vessel; and this is precisely what the charterers did. The fact that they did this rather than pay the freight rates that the owners expected to earn on the contract, and the fact that they did this in self-serving response to the market conditions did not amount to a breach of contract. Certainly, this was a [...]; but it could not be corrected by an implied term.

Answer

self-interested performance of the contract; it was not co-operative

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ey did this rather than pay the freight rates that the owners expected to earn on the contract, and the fact that they did this in self-serving response to the market conditions did not amount to a breach of contract. Certainly, this was a self-interested performance of the contract; it was not co-operative; but it could not be corrected by an implied term.<body><html>

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So, for example, in the famous case of Suisse Atlantique Societe d'Armament Maritime v Rotterdamsche Kolen Centrale [1967] 1 AC 361 (see also 11.3.2), where the charterparty contained no such express provision, the owners were fighting a lost cause in arguing that the spirit of the deal was that the charterers should make so many regular and punctual voyages across the Atlantic. According to the charter, the charterers were required to pay agreed damages (demurrage) if they exceeded the specified (lay) days allowed in port for loading and unloading the vessel; and this is precisely what the charterers did. The fact that they did this rather than pay the freight rates that the owners expected to earn on the contract, and the fact that they did this in self-serving response to the market conditions did not amount to a breach of contract. Certainly, this was a self-interested performance of the contract; it was not co-operative; but [...].

Answer

it could not be corrected by an implied term

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earn on the contract, and the fact that they did this in self-serving response to the market conditions did not amount to a breach of contract. Certainly, this was a self-interested performance of the contract; it was not co-operative; but it could not be corrected by an implied term.<body><html>

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The classical approach to the implication of terms assumes a setting of self-interested adversarial dealing. Even in such a setting, it is safe to assume that the parties would have agreed to terms that [...]. However, if A has not expressly agreed to a term that otherwise affects his economic interests, the classical necessity test entails that it will not be implied. This means that, if B is anticipating and relying on acts of cooperation by A, they will have to be expressly bargained for.

Answer

are essential for the business efficacy of the deal

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The classical approach to the implication of terms assumes a setting of self-interested adversarial dealing. Even in such a setting, it is safe to assume that the parties would have agreed to terms that are essential for the business efficacy of the deal. However, if A has not expressly agreed to a term that otherwise affects his economic interests, the classical necessity test entails that it will not be implied. This means that, if

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The Sale of Goods Act 1979 ('SGA 1979') (as amended by the Sale and Supply of Goods Act 1994) s 12 is concerned with 'title' in the sense of the 'right to sell'. The SGA 1979 s 12(1) provides for the implication of three terms as to title to the goods, namely:

Answer

a condition that the seller has the right to sell the goods (s 12(1));
a warranty that the goods will be free from any undisclosed encumbrance (s 12(2)(a)); and
a warranty that the buyer will enjoy a right to quiet possession of the goods (s 12(2)(b)).

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The Sale of Goods Act 1979 ('SGA 1979') (as amended by the Sale and Supply of Goods Act 1994) s 12 is concerned with 'title' in the sense of the 'right to sell'. The SGA 1979 s 12(1) provides for the implication of three terms as to title to the goods, namely: a condition that the seller has the right to sell the goods (s 12(1)); a warranty that the goods will be free from any undisclosed encumbrance (s 12(2)(a)); and a warranty that the buyer

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a condition that the seller has the right to sell the goods ( SGA s [...])

Answer

12(1)

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a condition that the seller has the right to sell the goods ( SGA s 12(1))

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a warranty that the buyer will enjoy a right to quiet possession of the goods (SGA s [...])

Answer

12(2)(b)

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a warranty that the buyer will enjoy a right to quiet possession of the goods (SGA s 12(2)(b))

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For the purposes of the SGSA 1982, a 'contract for the hire of goods' means a contract under which one person bails or agrees to bail goods to another by way of hire other than any of the following:

Answer

a hire-purchase agreement
a contract under which goods are bailed in exchange for trading stamps (SGSA 1982 s 6).

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For the purposes of the SGSA 1982, a 'contract for the hire of goods' means a contract under which one person bails or agrees to bail goods to another by way of hire other than any of the following: a hire-purchase agreement a contract under which goods are bailed in exchange for trading stamps (SGSA 1982 s 6).

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For the purposes of the SGSA 1982, a 'contract for the hire of goods' means a contract under which one person bails or agrees to bail goods to another by way of hire other than any of the following:

a hire-purchase agreement
a contract under which goods are bailed in exchange for trading stamps (SGSA 1982 s [...]).

Answer

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ans a contract under which one person bails or agrees to bail goods to another by way of hire other than any of the following: a hire-purchase agreement a contract under which goods are bailed in exchange for trading stamps (SGSA 1982 s 6). <body><html>

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In any contract for the transfer of goods, terms will be implied corresponding to those that are implied in the case of contracts for the sale of goods. They are implied terms regarding title (SGSA 1982 s [...]), implied terms where transfer is by description (SGSA 1982 s 3), implied terms about quality or fitness (SGSA 1982 s 4), and implied terms where transfer is by sample (SGSA 1982 s 5).

Answer

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In any contract for the transfer of goods, terms will be implied corresponding to those that are implied in the case of contracts for the sale of goods. They are implied terms regarding title (SGSA 1982 s 2), implied terms where transfer is by description (SGSA 1982 s 3), implied terms about quality or fitness (SGSA 1982 s 4), and implied terms where transfer is by sample (SGSA 1982 s 5).<

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In any contract for the transfer of goods, terms will be implied corresponding to those that are implied in the case of contracts for the sale of goods. They are implied terms regarding title (SGSA 1982 s 2), implied terms where transfer is by description (SGSA 1982 s [...]), implied terms about quality or fitness (SGSA 1982 s 4), and implied terms where transfer is by sample (SGSA 1982 s 5).

Answer

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ansfer of goods, terms will be implied corresponding to those that are implied in the case of contracts for the sale of goods. They are implied terms regarding title (SGSA 1982 s 2), implied terms where transfer is by description (SGSA 1982 s 3), implied terms about quality or fitness (SGSA 1982 s 4), and implied terms where transfer is by sample (SGSA 1982 s 5).<body><html>

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In any contract for the transfer of goods, terms will be implied corresponding to those that are implied in the case of contracts for the sale of goods. They are implied terms regarding title (SGSA 1982 s 2), implied terms where transfer is by description (SGSA 1982 s 3), implied terms about quality or fitness (SGSA 1982 s [...]), and implied terms where transfer is by sample (SGSA 1982 s 5).

Answer

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those that are implied in the case of contracts for the sale of goods. They are implied terms regarding title (SGSA 1982 s 2), implied terms where transfer is by description (SGSA 1982 s 3), implied terms about quality or fitness (SGSA 1982 s 4), and implied terms where transfer is by sample (SGSA 1982 s 5).<body><html>

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In any contract for the transfer of goods, terms will be implied corresponding to those that are implied in the case of contracts for the sale of goods. They are implied terms regarding title (SGSA 1982 s 2), implied terms where transfer is by description (SGSA 1982 s 3), implied terms about quality or fitness (SGSA 1982 s 4), and implied terms where transfer is by sample (SGSA 1982 s [...]).

Answer

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goods. They are implied terms regarding title (SGSA 1982 s 2), implied terms where transfer is by description (SGSA 1982 s 3), implied terms about quality or fitness (SGSA 1982 s 4), and implied terms where transfer is by sample (SGSA 1982 s 5).<body><html>

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In any contract for [...], terms will be implied corresponding to those that are implied in the case of contracts for the sale of goods. They are implied terms regarding title (SGSA 1982 s 2), implied terms where transfer is by description (SGSA 1982 s 3), implied terms about quality or fitness (SGSA 1982 s 4), and implied terms where transfer is by sample (SGSA 1982 s 5).

Answer

the transfer of goods

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For the purposes of the SGSA 1982, a 'contract for the transfer of goods' means a contract under which one person transfers or agrees to transfer to another the property in goods other than any of the following:

Answer

a contract of sale of goods
a hire-purchase agreement
a contract under which the property in goods is or is to be transferred in exchange for trading stamps
a transfer made by deed for which there is no consideration other than presumed consideration
a contract intended to operate by way of security (SGSA 1982 s 1).

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For the purposes of the SGSA 1982, a 'contract for the transfer of goods' means a contract under which one person transfers or agrees to transfer to another the property in goods other than any of the following: a contract of sale of goods a hire-purchase agreement a contract under which the property in goods is or is to be transferred in exchange for trading stamps a transfer made by deed for w

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First, the law might adopt a test for legitimate rejection that hinges on there being seriously adverse consequences from the viewpoint of the buyer. If the Hong Kong Fir Shipping case were to set a general standard for withdrawal, the test would be whether the sellers' breach deprived the buyers of substantially the whole benefit of the bargain (which it manifestly did not on the facts of Arcos). In fact, following the decision in the Hong Kong Fir Shipping case, there was a period when the test was employed precisely in order to block what were seen as bad faith rejections (perhaps the best example is the decision of the Court of Appeal in [ case ]).

Answer

Cehave NV v Bremer Handels GmbH: The Hansa Nord [1976] QB 44

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following the decision in the Hong Kong Fir Shipping case, there was a period when the test was employed precisely in order to block what were seen as bad faith rejections (perhaps the best example is the decision of the Court of Appeal in Cehave NV v Bremer Handels GmbH: The Hansa Nord [1976] QB 44).<body><html>

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The case of [ case ] helps to illustrate when the SGA 1979 s 14(3) may be relied upon. In this case Borealis supplied a polymer to Balmoral for use in the making of oil tanks. The material supplied was not defective or incorrectly manufactured; it was suitable for its general purpose. No breach of s 14(2) could therefore be established. The question for the court was whether it was suitable for Balmoral's particular purpose, which was made known to Borealis, of constructing above ground static tanks to be used for storing oil over long periods. Mr Justice Clarke stated that this was a matter falling within the reach of s 14(3).

Answer

Balmoral Group Ltd v Borealis Ltd [2006] EWHC 1900 (Comm)

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The case of Balmoral Group Ltd v Borealis Ltd [2006] EWHC 1900 (Comm) helps to illustrate when the SGA 1979 s 14(3) may be relied upon. In this case Borealis supplied a polymer to Balmoral for use in the making of oil tanks. The material supplied was not d

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According to the so-called 'parol evidence rule', extrinsic evidence, oral or otherwise, may not be adduced which seeks to add, vary or contradict the terms of a written contract. Thus, in [case] it was stated that: 'parol evidence will not be admitted to prove that some particular term, which had been verbally agreed upon, had been omitted (by design or otherwise) from a written instrument constituting a valid and operative contract between the parties'.

Answer

Jacobs v Batavia & General Plantations Trust [1924] 1 Ch 287

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According to the so-called 'parol evidence rule', extrinsic evidence, oral or otherwise, may not be adduced which seeks to add, vary or contradict the terms of a written contract. Thus, in Jacobs v Batavia & General Plantations Trust [1924] 1 Ch 287 it was stated that: 'parol evidence will not be admitted to prove that some particular term, which had been verbally agreed upon, had been omitted (by design or otherwise) from a writt

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A term may be implied to give to a contract what has become known as 'business efficacy'. It is important to note that no term will be implied to give the contract efficacy, unless the implication must arise inevitably. Therefore, a term will not be implied merely on the grounds that such an implication will transform the agreement into a businesslike arrangement, but that, [...]. The concept was outlined by Bowen LJ in The Moorcock (1889) 14 PD 64.

Answer

without the implied term, the arrangement would be so unbusinesslike that sensible people could not be supposed to have entered into it

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implied to give the contract efficacy, unless the implication must arise inevitably. Therefore, a term will not be implied merely on the grounds that such an implication will transform the agreement into a businesslike arrangement, but that, without the implied term, the arrangement would be so unbusinesslike that sensible people could not be supposed to have entered into it. The concept was outlined by Bowen LJ in The Moorcock (1889) 14 PD 64.<body><html>

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A term may be implied to give to a contract what has become known as 'business efficacy'. It is important to note that no term will be implied to give the contract efficacy, unless the implication must arise inevitably. Therefore, a term will not be implied merely on the grounds that such an implication will transform the agreement into a businesslike arrangement, but that, without the implied term, the arrangement would be so unbusinesslike that sensible people could not be supposed to have entered into it. The concept was outlined by Bowen LJ in [case].

Answer

The Moorcock (1889) 14 PD 64

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ransform the agreement into a businesslike arrangement, but that, without the implied term, the arrangement would be so unbusinesslike that sensible people could not be supposed to have entered into it. The concept was outlined by Bowen LJ in The Moorcock (1889) 14 PD 64.<body><html>

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A term may be implied into an agreement on the basis that the parties have dealt with each other on many occasions over a long period of time. A term will only be implied in these circumstances where [...] (see McCutcheon v MacBrayne [1964] 1 WLR 125 and Hollier v Ramblers Motors [1972] 2 QB 71).

Answer

the dealings of the parties have followed a consistent and regular pattern

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A term may be implied into an agreement on the basis that the parties have dealt with each other on many occasions over a long period of time. A term will only be implied in these circumstances where the dealings of the parties have followed a consistent and regular pattern (see McCutcheon v MacBrayne [1964] 1 WLR 125 and Hollier v Ramblers Motors [1972] 2 QB 71).

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A term may be implied into an agreement on the basis that the parties have dealt with each other on many occasions over a long period of time. A term will only be implied in these circumstances where the dealings of the parties have followed a consistent and regular pattern (see [case] and Hollier v Ramblers Motors [1972] 2 QB 71).

Answer

McCutcheon v MacBrayne [1964] 1 WLR 125

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on the basis that the parties have dealt with each other on many occasions over a long period of time. A term will only be implied in these circumstances where the dealings of the parties have followed a consistent and regular pattern (see McCutcheon v MacBrayne [1964] 1 WLR 125 and Hollier v Ramblers Motors [1972] 2 QB 71).<body><html>

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A term may be implied into an agreement on the basis that the parties have dealt with each other on many occasions over a long period of time. A term will only be implied in these circumstances where the dealings of the parties have followed a consistent and regular pattern (see McCutcheon v MacBrayne [1964] 1 WLR 125 and [case]).

Answer

Hollier v Ramblers Motors [1972] 2 QB 71

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h each other on many occasions over a long period of time. A term will only be implied in these circumstances where the dealings of the parties have followed a consistent and regular pattern (see McCutcheon v MacBrayne [1964] 1 WLR 125 and Hollier v Ramblers Motors [1972] 2 QB 71).<body><html>

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In order to discover the unexpressed intention of the parties, the courts may take notice of the following: trade customs, the conduct of the parties, a course of dealing between the parties and the need to give 'business efficacy' to a contract. It must be emphasised that, [...]: see the House of Lords' decision in Trollope Colls v North West Regional Hospital Board [1973] 1 WLR 601.

Answer

where the parties have made an unambiguous express provision in their contract, the court will not imply a term to the contrary

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d intention of the parties, the courts may take notice of the following: trade customs, the conduct of the parties, a course of dealing between the parties and the need to give 'business efficacy' to a contract. It must be emphasised that, where the parties have made an unambiguous express provision in their contract, the court will not imply a term to the contrary: see the House of Lords' decision in Trollope Colls v North West Regional Hospital Board [1973] 1 WLR 601.<body><html>

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In order to discover the unexpressed intention of the parties, the courts may take notice of the following: trade customs, the conduct of the parties, a course of dealing between the parties and the need to give 'business efficacy' to a contract. It must be emphasised that, where the parties have made an unambiguous express provision in their contract, the court will not imply a term to the contrary: see the House of Lords' decision in [case].

Answer

Trollope Colls v North West Regional Hospital Board [1973] 1 WLR 601

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eed to give 'business efficacy' to a contract. It must be emphasised that, where the parties have made an unambiguous express provision in their contract, the court will not imply a term to the contrary: see the House of Lords' decision in Trollope Colls v North West Regional Hospital Board [1973] 1 WLR 601.<body><html>

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Under [statute], the implied undertaking as to title contained in the SGA 1979 s 12 cannot be restricted or excluded.

Answer

s 6(1) of the Unfair Contract Terms Act 1977

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Under s 6(1) of the Unfair Contract Terms Act 1977, the implied undertaking as to title contained in the SGA 1979 s 12 cannot be restricted or excluded.

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Under s 6(1) of the Unfair Contract Terms Act 1977, the implied undertaking as to title contained in the SGA 1979 s 12 [...].

Answer

cannot be restricted or excluded

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Under s 6(1) of the Unfair Contract Terms Act 1977, the implied undertaking as to title contained in the SGA 1979 s 12 cannot be restricted or excluded.

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As against a person dealing [...], s 6(3) of the Unfair Contract Terms Act 1977 states that any contract term purporting to exclude or restrict liability in respect of the implied terms contained in the SGA 1979 ss 13–15, is subject to the requirement of reasonableness.

Answer

otherwise than as a consumer

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As against a person dealing otherwise than as a consumer, s 6(3) of the Unfair Contract Terms Act 1977 states that any contract term purporting to exclude or restrict liability in respect of the implied terms contained in the SGA 1979 ss 13

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As against a person dealing otherwise than as a consumer, [statute] states that any contract term purporting to exclude or restrict liability in respect of the implied terms contained in the SGA 1979 ss 13–15, is subject to the requirement of reasonableness.

Answer

s 6(3) of the Unfair Contract Terms Act 1977

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As against a person dealing otherwise than as a consumer, s 6(3) of the Unfair Contract Terms Act 1977 states that [...].

Answer

any contract term purporting to exclude or restrict liability in respect of the implied terms contained in the SGA 1979 ss 13–15, is subject to the requirement of reasonableness

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As against a person dealing otherwise than as a consumer, s 6(3) of the Unfair Contract Terms Act 1977 states that any contract term purporting to exclude or restrict liability in respect of the implied terms contained in the SGA 1979 ss 13–15, [...].

Answer

is subject to the requirement of reasonableness

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gainst a person dealing otherwise than as a consumer, s 6(3) of the Unfair Contract Terms Act 1977 states that any contract term purporting to exclude or restrict liability in respect of the implied terms contained in the SGA 1979 ss 13–15, is subject to the requirement of reasonableness.<body><html>

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The fact that the innominate term is alive and well (as is the test from Hong Kong Fir) can be discerned from a further Court of Appeal decision, that in [ case ]. In this case, Lord Denning MR explained that:

The task of the court can be stated simply in the way in which Upjohn LJ stated it [in the Hong Kong Fir case]. First, see whether the stipulation, on its true construction, is a condition strictly so called, that is a stipulation such that, for any breach of it, the other party is entitled to treat himself as discharged. Second, if it is not such a condition, then look to the extent of the actual breach which has taken place. If it is such as to go to the root of the contract, the other party is entitled to treat himself as discharged; but otherwise not. To this may be added an anticipatory breach. If one party, before the day on which he is due to perform his part, shows by his words or conduct that he will not perform it in a vital respect when the day comes, the other party is entitled to treat himself as discharged.

Answer

The Hansa Nord [1976] QB 44

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The fact that the innominate term is alive and well (as is the test from Hong Kong Fir) can be discerned from a further Court of Appeal decision, that in The Hansa Nord [1976] QB 44. In this case, Lord Denning MR explained that: The task of the court can be stated simply in the way in which Upjohn LJ stated it [in the Hong Kong Fir case]. First, see wh

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Question

The fact that the innominate term is alive and well (as is the test from Hong Kong Fir) can be discerned from a further Court of Appeal decision, that in The Hansa Nord [1976] QB 44. In this case, Lord Denning MR explained that:

The task of the court can be stated simply in the way in which Upjohn LJ stated it [in the Hong Kong Fir case]. First, see whether the stipulation, on its true construction, is a condition strictly so called, that is a stipulation such that, for any breach of it, the other party is entitled to treat himself as discharged. Second, if it is not such a condition, then [...]. To this may be added an anticipatory breach. If one party, before the day on which he is due to perform his part, shows by his words or conduct that he will not perform it in a vital respect when the day comes, the other party is entitled to treat himself as discharged.

Answer

look to the extent of the actual breach which has taken place. If it is such as to go to the root of the contract, the other party is entitled to treat himself as discharged; but otherwise not

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ether the stipulation, on its true construction, is a condition strictly so called, that is a stipulation such that, for any breach of it, the other party is entitled to treat himself as discharged. Second, if it is not such a condition, then look to the extent of the actual breach which has taken place. If it is such as to go to the root of the contract, the other party is entitled to treat himself as discharged; but otherwise not. To this may be added an anticipatory breach. If one party, before the day on which he is due to perform his part, shows by his words or conduct that he will not perform it in a vital r

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In Schuler v Wickman Machine Tool Sales [1974] AC 235, Wickman was given sole distribution rights in the UK of Schuler's panel presses for a period of four and a half years. Clause 7(b) of the agreement provided that: 'It shall be a condition of this agreement that (i) [Wickman] shall send its representatives to visit [the six largest UK motor manufacturers] at least once in every week for the purpose of soliciting orders for panel presses ... ' Wickman's representatives failed to make a number of these visits and Schuler claimed that this failure was a breach of condition under clause 7(b) and, as such, was a material breach, as defined under clause 11(a) of the agreement, which entitled Schuler to terminate the agreement. It was held by the House of Lords that clause 7(b) was not a condition as [...].

Answer

the parties could not have intended that a single breach, however trivial, would entitle the innocent party to terminate the contract

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h of condition under clause 7(b) and, as such, was a material breach, as defined under clause 11(a) of the agreement, which entitled Schuler to terminate the agreement. It was held by the House of Lords that clause 7(b) was not a condition as the parties could not have intended that a single breach, however trivial, would entitle the innocent party to terminate the contract.<body><html>

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The traditional division of terms into conditions and warranties was adopted in the drafting of the Sale of Goods Act 1893, where a condition was defined in s 11 as [...]; a warranty was defined as a term 'the breach of which may give rise to a claim for damages but not a right to reject the goods and treat the contract as repudiated'. The Act provided, by s 62, that a warranty was 'collateral to the main purpose of the contract'. These definitions were included without alteration in the Sale of Goods Act 1979 ('SGA 1979') and remain unaffected by the Sale and Supply of Goods Act 1994.

Answer

a term 'the breach of which may give rise to a right to treat the contract as repudiated'

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The traditional division of terms into conditions and warranties was adopted in the drafting of the Sale of Goods Act 1893, where a condition was defined in s 11 as a term 'the breach of which may give rise to a right to treat the contract as repudiated'; a warranty was defined as a term 'the breach of which may give rise to a claim for damages but not a right to reject the goods and treat the contract as repudiated'. The Act provided

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The traditional division of terms into conditions and warranties was adopted in the drafting of the Sale of Goods Act 1893, where a condition was defined in s 11 as a term 'the breach of which may give rise to a right to treat the contract as repudiated'; a warranty was defined as a term 'the breach of which may give rise to a claim for damages but not a right to reject the goods and treat the contract as repudiated'. The Act provided, by s 62, that a warranty was [...]. These definitions were included without alteration in the Sale of Goods Act 1979 ('SGA 1979') and remain unaffected by the Sale and Supply of Goods Act 1994.

Answer

'collateral to the main purpose of the contract'

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e contract as repudiated'; a warranty was defined as a term 'the breach of which may give rise to a claim for damages but not a right to reject the goods and treat the contract as repudiated'. The Act provided, by s 62, that a warranty was 'collateral to the main purpose of the contract'. These definitions were included without alteration in the Sale of Goods Act 1979 ('SGA 1979') and remain unaffected by the Sale and Supply of Goods Act 1994.<body></ht

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Another device that takes the problem out of the ambit of the parol evidence rule is the use of [...]. By using this device, the court may hold that there are in fact two contracts: the written contract to which the parol evidence rule does apply and the oral collateral contract to which the rule does not apply. The basis for the latter is that an extrinsic oral assurance is given, the consideration for that promise being that the recipient then enters into the main written agreement: clearly a benefit to the other party.

Answer

collateral contracts

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Another device that takes the problem out of the ambit of the parol evidence rule is the use of collateral contracts. By using this device, the court may hold that there are in fact two contracts: the written contract to which the parol evidence rule does apply and the oral collateral contract to wh

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the trend of the case law is to resist reliance on entire agreement clauses where this is seen as an attempt to dodge liability for misrepresentations. So, for example in [ case ], Rix LJ, referring to the earlier cases, said (at para 94):

No doubt all such cases are only authority for each clause's particular wording:
nevertheless it seems to me that there are certain themes which deserve recognition. Among them is that the exclusion of liability for misrepresentation has to be clearly stated. It can be done by clauses which state the parties' agreement that there have been no representations made; or that there has been no reliance on any representations; or by an express exclusion of liability for misrepresentation. However, save in such contexts, and particularly where the word 'representations' takes its place alongside other words expressive of contractual obligation, talk of the parties' contract superseding such prior agreement will not by itself absolve a party of misrepresentation where its ingredients can be proved.

The lesson to be taken from Axa is that the courts will not lightly read an 'entire agreement' clause as an exclusion of liability for misrepresentation. Moreover, even if a clause is read as an exclusion, it will have to survive the statutory test of reasonableness under s 3 of the Misrepresentation Act 1967 (see Chapter 13).

Answer

Axa Sun Life Services plc v Campbell Martin Ltd and Others [2011] EWCA Civ 133

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the trend of the case law is to resist reliance on entire agreement clauses where this is seen as an attempt to dodge liability for misrepresentations. So, for example in Axa Sun Life Services plc v Campbell Martin Ltd and Others [2011] EWCA Civ 133, Rix LJ, referring to the earlier cases, said (at para 94): No doubt all such cases are only authority for each clause's particular wording: nevertheless it seems to

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the trend of the case law is to resist reliance on entire agreement clauses where this is seen as an attempt to dodge liability for misrepresentations. So, for example in Axa Sun Life Services plc v Campbell Martin Ltd and Others [2011] EWCA Civ 133, Rix LJ, referring to the earlier cases, said (at para 94):

No doubt all such cases are only authority for each clause's particular wording:
nevertheless it seems to me that there are certain themes which deserve recognition. Among them is [...]. It can be done by clauses which state the parties' agreement that there have been no representations made; or that there has been no reliance on any representations; or by an express exclusion of liability for misrepresentation. However, save in such contexts, and particularly where the word 'representations' takes its place alongside other words expressive of contractual obligation, talk of the parties' contract superseding such prior agreement will not by itself absolve a party of misrepresentation where its ingredients can be proved.

Answer

that the exclusion of liability for misrepresentation has to be clearly stated

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ng to the earlier cases, said (at para 94): No doubt all such cases are only authority for each clause's particular wording: nevertheless it seems to me that there are certain themes which deserve recognition. Among them is that the exclusion of liability for misrepresentation has to be clearly stated. It can be done by clauses which state the parties' agreement that there have been no representations made; or that there has been no reliance on any representations; or by an express e

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No doubt all such cases are only authority for each clause's particular wording:
nevertheless it seems to me that there are certain themes which deserve recognition. Among them is that the exclusion of liability for misrepresentation has to be clearly stated. It can be done by clauses which state the parties' agreement that there have been no representations made; or that there has been no reliance on any representations; or by an express exclusion of liability for misrepresentation. However, save in such contexts, and particularly where the word 'representations' takes its place alongside other words expressive of contractual obligation, talk of the parties' contract superseding such prior agreement will not by itself absolve a party of misrepresentation where its ingredients can be proved.

The lesson to be taken from Axa is that the courts will not lightly read an 'entire agreement' clause as an exclusion of liability for misrepresentation. Moreover, even if a clause is read as an exclusion, it will have to [...] s 3 of the Misrepresentation Act 1967 (see Chapter 13).

Answer

survive the statutory test of reasonableness under

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proved. The lesson to be taken from Axa is that the courts will not lightly read an 'entire agreement' clause as an exclusion of liability for misrepresentation. Moreover, even if a clause is read as an exclusion, it will have to survive the statutory test of reasonableness under s 3 of the Misrepresentation Act 1967 (see Chapter 13).<body><html>

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No doubt all such cases are only authority for each clause's particular wording:
nevertheless it seems to me that there are certain themes which deserve recognition. Among them is that the exclusion of liability for misrepresentation has to be clearly stated. It can be done by clauses which state the parties' agreement that there have been no representations made; or that there has been no reliance on any representations; or by an express exclusion of liability for misrepresentation. However, save in such contexts, and particularly where the word 'representations' takes its place alongside other words expressive of contractual obligation, talk of the parties' contract superseding such prior agreement will not by itself absolve a party of misrepresentation where its ingredients can be proved.

Answer

s 3 of the Misrepresentation Act 1967

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a is that the courts will not lightly read an 'entire agreement' clause as an exclusion of liability for misrepresentation. Moreover, even if a clause is read as an exclusion, it will have to survive the statutory test of reasonableness under s 3 of the Misrepresentation Act 1967 (see Chapter 13).<body><html>

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Alternatively, the collateral contract may be between only one of the parties to the other contract and a third party, as in [ case ]. The rules governing the discovery of the presumed intention of the parties will be applied. Thus, where A enters a contract with B on the faith of an express promise by C, there is a collateral contract between A and C. This principle is of general application, but it is of special significance with respect to the relationship between a guarantor and the principal debtor, and to the relationship between dealer and hirer in contracts of hire-purchase.

Answer

Shanklin Pier v Detel Products [1951] 2 KB 854

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Alternatively, the collateral contract may be between only one of the parties to the other contract and a third party, as in Shanklin Pier v Detel Products [1951] 2 KB 854. The rules governing the discovery of the presumed intention of the parties will be applied. Thus, where A enters a contract with B on the faith of an express promise by C, there is a

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No implied condition as to fitness for a particular purpose arises where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgment. In the case of [...] the claim under s 14(3) ultimately failed because, although Balmoral had made known its particular purpose and the material supplied by Borealis was not fit for this purpose, it was held that Balmoral could not reasonably rely on Borealis. Balmoral was in a position of greater expertise and it was for them to gauge the suitability of the seller's material for their particular purpose.

Answer

Balmoral Group Ltd v Borealis Ltd

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ad>No implied condition as to fitness for a particular purpose arises where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgment. In the case of Balmoral Group Ltd v Borealis Ltd the claim under s 14(3) ultimately failed because, although Balmoral had made known its particular purpose and the material supplied by Borealis was not fit for this purpose, it was he

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No implied condition as to fitness for a particular purpose arises where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgment. In the case of Balmoral Group Ltd v Borealis Ltd the claim under s 14(3) ultimately failed because, although Balmoral had made known its particular purpose and the material supplied by Borealis was not fit for this purpose, it was held that Balmoral could not reasonably rely on Borealis. [ reasoning ].

Answer

Balmoral was in a position of greater expertise and it was for them to gauge the suitability of the seller's material for their particular purpose

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the claim under s 14(3) ultimately failed because, although Balmoral had made known its particular purpose and the material supplied by Borealis was not fit for this purpose, it was held that Balmoral could not reasonably rely on Borealis. Balmoral was in a position of greater expertise and it was for them to gauge the suitability of the seller's material for their particular purpose.<body><html>

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The previous case law on the point of durability had been somewhat unclear. In [ case ], Lord Reid stated with reference to s 14(3) (but presumably equally applicable to s 14(2)) that it was 'a continuing warranty that the goods will continue to be fit for that purpose for a reasonable time after delivery'. Whatever the previous position, it is now clear that durability will need to be a feature of goods in order to be classified as satisfactory.

Answer

Lambert v Lewis [1982] AC 225

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The previous case law on the point of durability had been somewhat unclear. In Lambert v Lewis [1982] AC 225, Lord Reid stated with reference to s 14(3) (but presumably equally applicable to s 14(2)) that it was 'a continuing warranty that the goods will continue to be fit for that purpose f

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The previous case law on the point of durability had been somewhat unclear. In Lambert v Lewis [1982] AC 225, Lord Reid stated with reference to s 14(3) (but presumably equally applicable to s 14(2)) that it was '[...]'. Whatever the previous position, it is now clear that durability will need to be a feature of goods in order to be classified as satisfactory.

Answer

a continuing warranty that the goods will continue to be fit for that purpose for a reasonable time after delivery

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d><head>The previous case law on the point of durability had been somewhat unclear. In Lambert v Lewis [1982] AC 225, Lord Reid stated with reference to s 14(3) (but presumably equally applicable to s 14(2)) that it was 'a continuing warranty that the goods will continue to be fit for that purpose for a reasonable time after delivery'. Whatever the previous position, it is now clear that durability will need to be a feature of goods in order to be classified as satisfactory.<html>

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Prior to the amending of the Sale of Goods Act 1979 the term 'merchantable quality' had been utilised rather than the term 'satisfactory quality'. The problem with 'merchantable quality' was that it was concerned almost exclusively with the fitness of goods for their purpose and ignored other, non-functional characteristics. A particular problem with the old definition was that it seemed to take no account of minor or cosmetic defects: the SGA 1979 s [...] specifically remedy this weakness.

Answer

14(2B)(b) and (c)

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lmost exclusively with the fitness of goods for their purpose and ignored other, non-functional characteristics. A particular problem with the old definition was that it seemed to take no account of minor or cosmetic defects: the SGA 1979 s 14(2B)(b) and (c) specifically remedy this weakness.<body><html>

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FACTS: There was a retail sale of a hot water bottle. The bottle burst and injured the buyer's wife. The buyer brought this action to recover damages for the medical expenses incurred. HELD: The seller was in breach of the implied condition as to fitness for purpose, the purpose being self-evident in the case of goods of this kind.

Answer

Priest v Last [1903] CA 148

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Priest v Last [1903] CA 148 FACTS: There was a retail sale of a hot water bottle. The bottle burst and injured the buyer's wife. The buyer brought this action to recover damages for the medical expenses incurred.

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Thornton v Shoe Lane Parking [1971] 2 QB 163
FACTS: The plaintiff drove his car to a multi-storey automatic car park that he had never used before. The machine issued the plaintiff with a ticket that stated that the ticket was issued 'subject to the conditions of issue as displayed on the premises'. The plaintiff drove into the car park without reading the words on the ticket or those displayed on a pillar opposite the ticket machine. When he returned, he was severely injured while attempting to put his belongings into his car. The defendant company claimed that the ticket was a contractual document and that it incorporated a condition exempting them, inter alia, from liability for injury to the customer occurring when the customer's motor vehicle was in the car park. HELD by the Court of Appeal: The plaintiff was not bound by the exemption clause because [...].

Answer

reasonable notice of it was not given either before or at the time of contracting

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orated a condition exempting them, inter alia, from liability for injury to the customer occurring when the customer's motor vehicle was in the car park. HELD by the Court of Appeal: The plaintiff was not bound by the exemption clause because reasonable notice of it was not given either before or at the time of contracting.<body><html>

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the rule that a party who signs a contract will be bound by their signature is subject to the proviso that there has been no fraud or misrepresentation.

Answer

Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805

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the rule that a party who signs a contract will be bound by their signature is subject to the proviso that there has been no fraud or misrepresentation. In Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805, it was held that a party may be prevented from relying on incorporation of an exemption clause through signature of a docum

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Secondly, where a person signs a document under a fundamental mistake, through no fault of their own, [...], the common law remedy of non est factum ('this is not my deed') may make the contract void.

Answer

as to the character or effect of the proposed contract

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Secondly, where a person signs a document under a fundamental mistake, through no fault of their own, as to the character or effect of the proposed contract, the common law remedy of non est factum ('this is not my deed') may make the contract void.

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A party may attempt to rely on an exemption clause in an agreement, and yet the legal rules that govern exemption clauses may render the clause unenforceable. When we are considering the enforceability of an exemption clause, we need to consider three levels of control: (3)

Answer

Incorporation: is the exemption clause part of the contract?
Construction: is the clause, as drafted, effective in excluding or limiting liability?
Statutory controls: what is the effect on the clause of the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999?

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A party may attempt to rely on an exemption clause in an agreement, and yet the legal rules that govern exemption clauses may render the clause unenforceable. When we are considering the enforceability of an exemption clause, we need to consider three levels of control. Incorporation : is the exemption clause part of the contract? Construction : is the clause, as drafted, effective in excluding or limiting liability? Statutory controls : what is the eff

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Incorporation must occur (a) at or before the time of contracting, and (b) the clause must [...].

Answer

appear on a contractual document

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Incorporation must occur (a) at or before the time of contracting, and (b) the clause must appear on a contractual document.

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Incorporation must occur (a) [...], and (b) the clause must appear on a contractual document.

Answer

at or before the time of contracting

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Incorporation must occur (a) at or before the time of contracting, and (b) the clause must appear on a contractual document.

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UCTA s 11(2) directs us to look to [ statute ] for 'Guidelines' for the application of the reasonableness test which are said to be relevant to ss 6 and 7. Due to their factual relevancy, however, they may be used more widely as confirmed in Stewart Gill Ltd v Horatio Myer & Co Ltd [1992] 1 QB 600.

Answer

Sch 2 UCTA

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UCTA s 11(2) directs us to look to Sch 2 UCTA for 'Guidelines' for the application of the reasonableness test which are said to be relevant to ss 6 and 7. Due to their factual relevancy, however, they may be used more widely as co

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UCTA s 11(2) directs us to look to Sch 2 UCTA for 'Guidelines' for the application of the reasonableness test which are said to be relevant to ss 6 and 7. Due to their factual relevancy, however, they may be used more widely as confirmed in [ case ].

Answer

Stewart Gill Ltd v Horatio Myer & Co Ltd [1992] 1 QB 600

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UCTA s [...] directs us to look to Sch 2 UCTA for 'Guidelines' for the application of the reasonableness test which are said to be relevant to ss 6 and 7. Due to their factual relevancy, however, they may be used more widely as confirmed in Stewart Gill Ltd v Horatio Myer & Co Ltd [1992] 1 QB 600.

Answer

11(2)

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The general rule is that exemption clauses will be construed [...]. This means that if there is any doubt as to the meaning and scope of the exemption clause, the ambiguity will be resolved against the party (known as the 'proferens') seeking to rely upon it. The courts have held that clear words must be used if they are to excuse one party from its liability.

Answer

contra proferentem

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The general rule is that exemption clauses will be construed contra proferentem. This means that if there is any doubt as to the meaning and scope of the exemption clause, the ambiguity will be resolved against the party (known as the 'proferens') seeking to rely

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The general rule is that exemption clauses will be construed contra proferentem. This means that if there is any doubt as to the meaning and scope of the exemption clause, the ambiguity will be resolved against the party (known as the 'proferens') seeking to rely upon it. The courts have held that [...].

Answer

clear words must be used if they are to excuse one party from its liability

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d contra proferentem. This means that if there is any doubt as to the meaning and scope of the exemption clause, the ambiguity will be resolved against the party (known as the 'proferens') seeking to rely upon it. The courts have held that clear words must be used if they are to excuse one party from its liability.<body><html>

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A document is also a contractual one if [...]. See also Grogan v Robin Meredith Plant Hire [1996] CLC 1127, where the Court of Appeal sought to distinguish between a document having contractual force and one that merely evidences contractual performance.

Answer

it would be obvious to a reasonable person that it is intended to have this effect, or if the document is of a kind that generally contains contractual terms

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A document is also a contractual one if it would be obvious to a reasonable person that it is intended to have this effect, or if the document is of a kind that generally contains contractual terms. See also Grogan v Robin Meredith Plant Hire [1996] CLC 1127, where the Court of Appeal sought to distinguish between a document having contractual force and one that merely evidences

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A document is also a contractual one if it would be obvious to a reasonable person that it is intended to have this effect, or if the document is of a kind that generally contains contractual terms. See also [ case ], where the Court of Appeal sought to distinguish between a document having contractual force and one that merely evidences contractual performance.

Answer

Grogan v Robin Meredith Plant Hire [1996] CLC 1127

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l>A document is also a contractual one if it would be obvious to a reasonable person that it is intended to have this effect, or if the document is of a kind that generally contains contractual terms. See also Grogan v Robin Meredith Plant Hire [1996] CLC 1127, where the Court of Appeal sought to distinguish between a document having contractual force and one that merely evidences contractual performance.<html>

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The question is whether the person to whom it was handed could reasonably know that it was intended to have contractual effect. This will be the case where [...].

Answer

the document is delivered in such circumstances as to give the individual reasonable notice of the fact that it contains terms

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The question is whether the person to whom it was handed could reasonably know that it was intended to have contractual effect. This will be the case where the document is delivered in such circumstances as to give the individual reasonable notice of the fact that it contains terms.

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The doctrine of privity of contract establishes that, at common law, a party outside the contract cannot benefit from its terms. Nor can that party have an obligation imposed upon it by the contract. The doctrine applies to [...].

Answer

an exemption clause in just the same way it would to any other kind of clause

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body>The doctrine of privity of contract establishes that, at common law, a party outside the contract cannot benefit from its terms. Nor can that party have an obligation imposed upon it by the contract. The doctrine applies to an exemption clause in just the same way it would to any other kind of clause.<body><html>

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The doctrine of privity of contract establishes that, at common law, [...]. The doctrine applies to an exemption clause in just the same way it would to any other kind of clause.

Answer

a party outside the contract cannot benefit from its terms. Nor can that party have an obligation imposed upon it by the contract

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The doctrine of privity of contract establishes that, at common law, a party outside the contract cannot benefit from its terms. Nor can that party have an obligation imposed upon it by the contract. The doctrine applies to an exemption clause in just the same way it would to any other kind of clause.

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A discretionary trust or power for ‘friends’ is [...] as indicated by Lord Upjohn in Re Gulbenkian’s ST because one cannot lay down precise requirements for a ‘friend’, yet Browne-Wilkinson J did so in Re Barlow’s WT.

Answer

void for uncertainty

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A discretionary trust or power for ‘friends’ is void for uncertainty as indicated by Lord Upjohn in Re Gulbenkian’s ST because one cannot lay down precise requirements for a ‘friend’, yet Browne-Wilkinson J did so in Re Barlow’s WT.

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Question

A discretionary trust or power for ‘friends’ is void for uncertainty as indicated by Lord Upjohn in [...] because one cannot lay down precise requirements for a ‘friend’, yet Browne-Wilkinson J did so in Re Barlow’s WT.

Answer

Re Gulbenkian’s ST

status	not learned	measured difficulty	37% [default]	last interval [days]
repetition number in this series	0	memorised on		scheduled repetition
scheduled repetition interval		last repetition or drill

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Flashcard 1373959228684

Tags

#certainties #equity #law

Question

A discretionary trust or power for ‘friends’ is void for uncertainty as indicated by Lord Upjohn in Re Gulbenkian’s ST because one cannot lay down precise requirements for a ‘friend’, yet Browne-Wilkinson J did so in [case].

Answer

Re Barlow’s WT

status	not learned	measured difficulty	37% [default]	last interval [days]
repetition number in this series	0	memorised on		scheduled repetition
scheduled repetition interval		last repetition or drill

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/head>A discretionary trust or power for ‘friends’ is void for uncertainty as indicated by Lord Upjohn in Re Gulbenkian’s ST because one cannot lay down precise requirements for a ‘friend’, yet Browne-Wilkinson J did so in Re Barlow’s WT.<html>

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Flashcard 1373961063692

Tags

#certainties #equity #law

Question

This does not seem to apply to powers on the basis that while the court cannot positively compel trustees to exercise powers of appointment, it can positively compel trustees to exercise their discretionary trust powers, so the court must be in a position to carry out its positive function – see Templeman J in [case] who concluded ‘that a power cannot be uncertain merely because it is wide in ambit.’

Answer

Re Manisty’s Settlement [1974] Ch 17

status	not learned	measured difficulty	37% [default]	last interval [days]
repetition number in this series	0	memorised on		scheduled repetition
scheduled repetition interval		last repetition or drill

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cannot positively compel trustees to exercise powers of appointment, it can positively compel trustees to exercise their discretionary trust powers, so the court must be in a position to carry out its positive function – see Templeman J in Re Manisty’s Settlement [1974] Ch 17 who concluded ‘that a power cannot be uncertain merely because it is wide in ambit.’<body><html>

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