4291334
Description
Flashcards by pavlina.hunt, updated more than 1 year ago
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Created by pavlina.hunt
over 8 years ago
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| Question | Answer |
| Intention to create legal relations | - commercial agreements - there is intention once a promise has been made, only rebutted when clear words to the opposite are used or extreme uncertainty of terms (Edward v Skyways Ltd); - domestic - no intention (Balfour v Balfour) unless reliance on the promise and certainty of terms (Parker v Clark). |
| Economic duress | Pao On v Lau Yiu Long - For a contract to be voidable for economic duress: - there must be a threat or pressure which is illegitimate and; - that pressure or threat must amount to a 'coercion of will that vitiates consent'. Duress renders a promise voidable and rescission possible if the victim protests imminently and avoids affirmation, i.e. does not wait too long to claim extra money paid. |
| Deed | If the promise was contained in a deed, then it is enforceable and there will be no need to show consideration. |
| Consideration (definition and types) | An act or a promise given in exchange for the promise. Consideration must mover from the promisee. - formation (whatever is asked for and given in exchange) or; - alteration (promises to pay or do more or accept less) one. |
| Formation promises (bilateral or unilateral) | - Bilateral - each party's promise is the consideration to support the promise given by the other. They are bound on the exchange of promises. - Unilateral - consideration is the performance of the requested act for earning the reward or promise. Enforced only after the act is completed. |
| Adequacy and sufficiency | - need not be adequate (Chappell & Co v Nestle - chocolate wrappers as part payment for a record) - must be sufficient = some economic value (White v Bluett - refraining from doing something that have no right to do anyway) or Thomas v Thomas for both |
| Past consideration | GP - Past C is not god C (Re McArdle - improvements carried out before promise for payment). - UNLESS A, without a prior, express promise to pay, requests that B performs services for him and, on completion, promises to reward B (Lampleigh v Brathwait; Pao On v Lau Yiu Long - D requested P not to sell 60% shares and offered protection to P after agreement D promised to indemnify P for losses) |
| Duty imposed by law | GP - duty imposed by law no good C (Collins v Godefroy - testifying in court) - UNLESS going beyond that duty giving practical benefit to the promisor (Ward v Byham - not only maintained, but also a 'well looked after and happy child'). |
| Existing contractual duty | GP - already owed to the same promisor not sufficient C (Stilk v Myrick - sailors did not do more than contracted + extortion) Exceptions: - performance of existing contractual duty owed to a TP - (New Zealand Shipping Co. Ltd); - new/additional consideration (Hartley v Possobny - legal - shipping crew beyond contract duties); (Williams v Roffey Bros - practical benefit + economic duress - no penalties for late submission to TP if subcontractor finishes on time). |
| Discharging of debt | GP: Part payment of debts/promise to accept payment of less than agreed is not good C - Pinnel’s Case, affirmed in Foakes v Beer; Re Selectmove Ltd) Exceptions: - new/additional consideration - promissory estoppel |
| Discharging of debt (new/additional consideration) | (1) Must be requested by the creditor (Pinnel's Case): - less payment before the due date; - with a chattel e.g. object instead of money even if the chattel's worth is less than what is owed; - to a different destination - Preston instead of Manchester. (2) part payment made by third party (TP) (Welby v Drake); (3) the promise is part of a composite agreement with the other creditors (Good v Cheesman). |
| Discharging of debt (promissory estoppel) | An equitable doctrine designed to prevent the promisor going back on their promise where this would be inequitable (unfair) because the promisee has relied on it. - (High Trees obiter Denning - landlord going back on his promise to accept less rent during the WW II) |
| Promissory Estoppel (requirements - High Trees) | (1) A pre-existing contract or legal obligation which is then modified; (2) There must be a clear and unambiguous promise that existing legal rights will not be enforced; (3) The promise must be intended to be binding, relied on and acted upon; (4) The promisor must have taken an action to go back on their promise; (5) It must be inequitable to allow him to do so (D & C Builders v Rees not inequitable to go back on a promise made under duress). |
| Promissory Estoppel (limitations) | - Operates only in the context of alteration promises; - Suspends, does not extinguish legal rights; - It is possible to go back to the original position with reasonable notice given and notice period expired (Tool Metal Manufacturing Co. Ltd v Tungsten Electric Co. Ltd); - Periodic payments made while the estoppel operated, will be extinguished, no requirement to pay the balance; - Equitable principles are discretionary and clean hands are required; - Shield not a sword (Combe v Combe); |
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