4294086
Descrição
FlashCards por Amanda Young, atualizado more than 1 year ago
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Criado por Amanda Young
mais de 8 anos atrás
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| Questão | Responda |
| What is learning outcome 2? | Be able to interpret and apply implied and express contractual terms that impact on procurement and supply |
| What are the four ways in which a contract can be discharged? | Performance Agreement Breach Frustration |
| What is the general rule on performance of a contract? | The general rule is that a contract is discharged only when both parties have complied fully and exactly with the terms of the contract CL - Moore v Landauer (1927) |
| When can a party to a severable contract who has not complete the whole contract claim payment? | A |
| Is the doctrine of substantial performance a common law or an equitable doctrine? | It is a equitable doctrine CS - Hoenig v Isaacs (1952) |
| Describe the facts and the decision in the case of Charles Rickards Ltd Oppenheim. | a condition of the contract was time for performance - time was of the essence The decision was held, the buyer was able to refuse the car as the delivery date had expired. |
| Distinguish between a condition precedent and a condition subsequent. | A condition precedent is when a term is preventing it taking effect e.g. sale of land had the following term of planning permission to be obtained - if planning permission was refused the contract could be discharged as it didn't meet the term. A condition subsequent is when a term of a specific event or performance happening e.g. notice of termination of an employment contract, once notice is given by either party the contract can be discharged. |
| Will a breach of warranty ever entitle the innocent part to 'accept' the breach and end the contract? | No but may claim damages CL - Poussard v Spiers (1876) - obligations were discharged by the breach and then terminated - Singer didn't turn up for first night performance CL - Bettini v Gye (1876) - bound by the contract - Singer was unwell for practise sessions but was able to perform on opening night |
| Define frustration of contract | General rule unless otherwise agreed, a party who fails to perform his contractual obligations is in breach of contract and liable for damages CL - Paradine v Jane (1647) |
| What was decided in the case of Krell v Henry? | Frustration held - non-occurrence of the event. A room was hired for the express purpose of observing the coronation procession, this was canx due to the King's illness |
| What is the position of a party who has incurred expenses under a frustrated contract? | This is governed by the Law Reform (Frustrated Contracts) Act 1943 - All sums paid under the contract must be repaid - If one party has incurred expenses under the contract he can deduct them from the overdue sums but he can't recover expenses if there isn't a sum - If one party has received benefit he must pay for that The Act doesn't cover - if the contract has a force majeure clause - shipping contracts -contracts for insurance - contracts of sale for specific goods (perishables) |
| What is the purpose of damages? | Damages are compensatory - they are not usually intended to be punitive (to punish) |
| Where a contract provides a clause which is a genuine attempt at estimating the loss what is this clause known as? | Liquidated damages - an agreed fixed sum on breach CL - Cellulose Acetate Silk Co v Widnes Foundry (1933) |
| What is the name of the case which set out the guidelines for making the distinction between a liquidated damages clause and a penalty clause? | CL - Dunlop Pneumatic Tyre Co v New Garage (1915) New Garage sold tyres below the listed price and was in breach of a term which stated that £5 (liquidated damages) per tyre sold in breach |
| Is damages a common law or equitable remedy? | Damages is a common law remedy - if the court is assessing a claim for unliquidated damages 2 ?s arise - remoteness of damage - measure of damages |
| State the rule in Hadley v Baxendale | A carrier was given a mill-shaft to deliver to a plant manufacturer as a model for making a new shaft. The carrier delayed in delivery and unknown to him, the mill stood idle Held - the carrier was not liable for the loss of profit - it was normally practise for mill owners to have a spare shaft and carrier could be expected to realise that the delay would make the mill idle |
| Identify the two branches of the rule in Hadley v Baxendale | - general damages, which arise from the normal course of things - special damages, these don't occur naturally but both parties could foresee test is based on foresight and probability |
| If a person cannot show actual loss as a result of a breach of contract what sort of damages will the court award? | He will only be awarded nominal damages. CL - Surrey County Council v Bredero Homes Ltd (1993) SCC tried to claim damages equal to the profit BH had made by building an additional 5 houses more that the term. SCC had not suffered any loss and damages had to be nominal |
| What equitable remedy will order the defendant to carry out the terms of the contract? | Equitable remedies are at the discretion of the court and is done on specific performance and given on the basis of mutuality |
| Why will specific performance not be given in the case of contract of employment? | Because it is contrary to public policy to compel an unwilling party to maintain continuous personal relations with another |
| In what circumstances may a remedy based on quantum meruit be awarded? | Quantum Meruit is an equitable remedy available when a contract has been part-performed and where the innocent party is prevented from completing. CL - Gilbert & Partners v Knight (1968) Awarded payment for work done and not used if extra work is completed. |
| What is meant by a) repudiation and b) affirmation of a contract? | If breaches occur it doesn't automatically terminate the contract. However the injured party may choose a) repudiation - treat the contract as terminated and claim damages b) affirmation - treat the contract the contract as operative but claim for damages |
| What is meant by a step-in clause? | Provisions for emergency 'step-in' allowing for a temporarily re-assumption of responsiblity |
| When is a seller deemed to be an unpaid seller? | the whole of the price has not been paid or tendered a bill of exchange or other negotiable instrument (eg chq) has been received as conditional payment and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise SGA 1979 s38 (1) |
| List the possible remedies of an unpaid seller | Statutory remedies Against the goods: lien, stoppage in transit and right of resale Against the buyer: action for the price and action for damages for non-acceptance |
| In what circumstances does a seller lose his right of lien? | - when he delivers the goods to a carrier without reserving the right of disposal of the goods - when the buyer or his agent lawfully obtains possession of the goods - by waiver s43 |
| When does a seller have a right of reselling the goods? | when goods are of a perishable nature he gives notice to the buyer of his intention to resell, and the buyer does not tender the price within a reasonable time he has expressly reserved a right of resale in the contract |
| Explain he facts and decision in the Romalpa case | Aluminium Industrie Vaassen BV (AIV) v Romalpa Aluminium Ltd (1976) The defendants went into liquidation and the contract stipulated that title did pass to the defendant until the goods had been paid in full - they had not paid for the goods. Claimants were entitled to recover goods belonging to them in possession of the defendant Held - reflects SGA 1979 s 17 |
| In what circumstances will retention of title clause be effective? | When: goods are still in the possession of the buyer goods are identifiable (not mixed up with other goods) goods are in their original/raw state |
| When might a buyer be given remedy of specific performance? | Statutory remedy under SGA 1976 s 52 - if the seller fails to make delivery, the buyer may recover damages for non-delivery. An equitable remedy given at the court's discretion, only if the goods were unique |
| What is lien? | SGA 1979 ss 41-43 is the right of the unpaid seller in possession of goods to retain them until the price has been paid or his debt secured or satisfied. Seller must have possession but not property |
| Why is it important not to ignore minor contractual problems? | If minor contractual problems are ignored they can escalate - result in a serious breach - set a bad example and give the impression that the organisation is 'soft' - parties may grow complacent and performance get worse |
| Distinguish between distributive and integrative approaches to negotiation | - distributive - dividing up a fixed pie - imposed solution, win'lose - integrative - expanding the pie - collaborative problem solving, win'win |
| Describe the general disadvantages of litigation | - Costly, legal fees - length of time - public - adversarial approach - damage reputation and goodwill - complex |
| What is the principle of party autonomy? | Arbitration Act 1996 - can be tailored to suit parties needs - what procedure should be adopted - how may arbitrators should hear the case - what powers arbitrators should have - whether appeals can be made to the courts on points of law |
| In what circumstances may an arbitrator lose his immunity from being sued? | If the arbitrator is acting in bad faith |
| State the advantages of arbitration over litigation. | Arbitration gives the following advantages: - held in private - less confrontational -often quicker - less expensive - greater flexibility - arbitrator selected for specialist knowledge - win'win - single process |
| Which dispute resolution process is regulated by Housing, Grants, Construction and Regeneration Act 1996? | Adjudication decision is giving within 28 days Adjudicator decision is binding until a final determination is reached by other methods |
| Describe the process of conciliation | Is a process where conflicts or grievances are aired in a discussion, facilitated by someone impartial, whose role is to manage the process Negotiation towards a mutually acceptable position - win'win outcome they are not a referee the parties do not have to be in the same room the conciliator may act as a go between decision is not legally binding - unless expressed in a contract |
| List ways in which lawyers can assist in resolving contractual disputes. | Advise on contractual law for development or variation on a contract: the implications of expressed, implied terms Assess the viability of legal action in the event of contract dispute Support client through litigation Develop enforceable settlement agreements before trial through negotiation or ADR Offer accredited commercial mediation services |
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