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Business Law, Fifth Edition
BUSINESS LAW Fifth Edition This book is supported by a Companion Website, created to keep Business Law up to date and to provide enhanced resources for both students and lecturers. Key features include: ◆ termly updates ◆ links to useful websites ◆ links to ‘ebooks’ for introductory and further reading ◆ ‘ask the author’ – your questions answered www.cavendishpublishing.com/businesslaw BUSINESS LAW Fifth Edition David Kelly, PhD Principal Lecturer in Law Staffordshire University Ann Holmes, M Phil, PGD Dean of the Law School Staffordshire University Ruth Hayward, LLB, LLM Senior Lecturer in Law Staffordshire University Fifth edition first published in Great Britain 2005 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5804 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 3/303 Barrenjoey Road, Newport, NSW 2106, Australia Email: [email protected] Website: www.cavendishpublishing.com.au © Kelly, D, Holmes, A and Hayward, R 2005 First edition 1995 Second edition 1997 Third edition 2000 Fourth edition 2002 Fifth edition 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation. -
The Modern Law of Contract
THE MODERN LAW OF CONTRACT Fifth edition This book is supported by a Companion Website, created to keep The Modern Law of Contract up to date and to provide enhanced resources for both students and lecturers. Key features include: N termly updates N self-assessment tests N links to useful websites N links to ‘ebooks’ for introductory and further reading N revision guidance N guidelines on answering questions N ‘ask the author’ – your questions answered www.cavendishpublishing.com/moderncontract THE MODERN LAW OF CONTRACT Fifth edition Professor Richard Stone, LLB, LLM Barrister, Gray’s Inn Visiting Professor, University College, Northampton Fifth edition first published in Great Britain 2002 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5804 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 3/303 Barrenjoey Road, Newport, NSW 2106, Australia This title was originally published in the Cavendish Principles series © Stone, Richard 2002 First edition 1994 Second edition 1996 Third edition 1997 Fourth edition 2000 Fifth edition 2002 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation. -
CONTRACT FORMATION (+ Intro)
CONTRACT FORMATION (+ Intro) Introduction Until 1875, Common Law and Equity courts were separate; today, this influences jurisdictional sources (eg equitaBle doctrines). EquitaBle remedies are discretionary, not of right. Injunctions, specific performance, doctrine of account are all important equitable doctrines. Several cases have diminished the CL/equity distinction – The Great Peace (2003), BCCI v Ali (2001) (when interpreting written contracts, use CL – no equitable principles). Burrows (2002) argues that equity should Be aBolished – there should be a single, unified law of obligations and property. General Principles Freedom of contract – Freedom of contract is the fundamental principles of contract law – the court will respect parties’ agreements and will not attempt to re-write them. There are three aspects: 1. All parties must make free, voluntary decisions when entering the transaction 2. Parties can, by agreement, stipulate that the agreement is not legally binding 3. Parties can and do shape the contents of the contract (assuming non-mandatory terms exist in the contract) Objective principle – Parties’ language or conduct must Be assessed according to outward reasonable meaning or appearance. - Crest Nicholson (Londinium) Limited v Akaria Investments Ltd (2010) (issue of whether a party has made an offer is to be objectively determined) Leggatt notes this principle enables courts and third parties to make sense of an agreement without exploring the messy suBjective aspects of the deal (parties’ intentions). Promisee-objectivity -
Law of Contracts 241
Law of Contracts 241 Lecture 1 – Introduction Ø Basic definition – an agreement between two or more parties involving one or more promises that are given for something in return and that the parties intend to be legally enforceable Ø Beginning of the contract is the negotiation stage – what happens before a contract is formed – the parties are talking with each other about terms Ø Negotiations depend on the power balance – as consumers don’t have much negotiation with the companies which usually provide a standard terms and conditions – while companies that negotiate with each other Ø Middle period – is the formation process – the terms of the contract – how is it to be interpreted Ø Most contracts are performed – some contracts are breached – for which law provides compensation – to recover the loss to the party(ies) who suffered a loss Ø Some contracts can be oral, but most are written – the sale of property must be in a written contract to allow for certainty Ø Parties must have an intention to create legal relations Ø Contracts are an exchange – you are doing something for me, and I do something for you – gratuitous exchanges are not considered contracts – key element is consideration in NZ law Ø Contract law doesn’t protect people from their own stupidity – for example if you sell a luxury car for $10 the court cannot protect you Lecture 2 – What are Contracts Ø Bilateral contracts – almost all contracts are bilateral – they impose obligations on both parties Ø Unilateral contracts – only one party is undertaking an obligation – -
Contract Law Contract Law
SEVENTH EDITION SEVENTH CASE EDITION Contract Law Contract Law Catherine Elliott & Frances Quinn N R A O V I G A T The bestselling Elliott and Quinn series of law textbooks includes reliable POWERED BY and concise texts on Criminal Law, Contract Law, Tort Law and the English Legal System. The authors draw on their extensive experience to bring an unbeatable combination of authority, readability and clarity to this series of student-friendly texts. Written in a lively and engaging style, each book: ● explains the relevant law logically and clearly ● helps students to succeed in assessments and improve their legal skills ● looks at the context of law-making and its future direction This text is supported by mylawchamber which includes: It is essential for students on law and commercial degree programmes For students: regular case and legislation to have a clear understanding of contract law, yet the subject can updates, web-links, interactive self-test be diffi cult to grasp for the newcomer. This book clarifi es the essential questions, key term fl ashcards and a concepts behind the law, making it easier for you to understand and glossary. apply the legal rules. Each chapter also includes discussion of problems For lecturers: a testbank of multiple-choice with the current law and also considers the forces affecting contract questions that can be used to assess law today, such as the increase of e-commerce and the growing students’ progress. impact of Europe, and how the law may need to reform to meet All located at: modern needs. www.mylawchamber.co.uk/elliottquinn CASE NEW TO THIS EDITION ● Leading case boxes help you identify and remember key cases N and rulings R A O V I G A T POWERED BY ● Chapter introductions identify core themes and concepts to Visit www.pearsoned.co.uk/casenavigator remember for unique online support that helps ● Topical issue boxes to help put the legal system into context improve case reading and analysis skills in ● More diagrams to visually explain points and processes of law Contract Law. -
The Modern Law of Contract
THE MODERN LAW OF CONTRACT Fifth edition Professor Richard Stone, LLB, LLM Barrister, Gray’s Inn Visiting Professor, University College, Northampton Fifth edition first published in Great Britain 2002 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5804 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 3/303 Barrenjoey Road, Newport, NSW 2106, Australia This title was originally published in the Cavendish Principles series © Stone, Richard 2002 First edition 1994 Second edition 1996 Third edition 1997 Fourth edition 2000 Fifth edition 2002 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Cavendish Publishing Limited, at the address above. You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer. British Library Cataloguing in Publication Data Stone, Richard, 1951 – The modern law of contract 1 Contracts I Title 346'.02 Library of Congress Cataloguing in Publication Data Data available ISBN 1-85941-667-5 1 3 5 7 9 10 8 6 4 2 Printed and bound in Great Britain PREFACE My aim in writing this book has been to produce a comprehensive, but readable, account of what I have termed ‘the modern law of contract’. -
How to Approach a Contract Problem with Exclusion Clauses
Formation: Offer and Acceptance How do we know if a contract exists? Offer and acceptance Consideration Intention to be legally bound Certainty of the contract and its terms Some contracts need to be in a certain form Capacity to enter into contract, e.g. a young person cannot enter into a contract Offer: Intention to contract is unequivocal. Agreement: a consensus (meeting of the minds) amongst all parties about the arrangement. There must be objective evidence of the agreement Not subjective, there is no agreement if you don’t say or indicate clear agreement/undertaking. Making a commitment: There is an immediate readiness to be bound/undertake obligation/ assume responsibility e.g. language showing commitment or conduct ----- Invitation to Treat (Invitation to Make Offers) Harvey v Facey [1893] Provision of information, not an offer. Fisher v Bell [1961] Shop window invites offers but is not an offer itself. Only providing an example of things they sell, could be out of stock which is unfair on the shop. A shop is a place of bargaining, not of definite sales, and you can haggle about the price (outdated in modern conditions). ‘Snapping-up’ cases Ex. Online shopping at Argos The price + description of a TV set is put on the website £2.99. Customer bought 200 units, and Argos confirmed payment + delivery. Q: Is the website the same as the shop window? ‘Add to basket’ = offer, payment confirmation = acceptance One party knows/should have known about the other’s mistake. In selling, the customer makes the offer. All points above show an immediate readiness to be bound.