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TRANSCRIPT
The British Constitution
English Law
1. The Legislative Supremacy of Parliament
2. The Rule of Law
3. The Separation of Powers
1 Legislative Supremacy of Parliament
► Parliament can pass any legislation it wishes
and
► Only Parliament can repeal legislation which it has
passed
2 The Rule of Law (1)
Public Law
► Constitutional Law
eg. Elections and Parliament
► Administrative Law
eg. Local Councils and Ministers
► Criminal Law
All crimes are an offence against the state
Remedies:- Punishment
2 The Rule of Law (2)
Private Law – Civil
Disputes between individuals or Parties
Eg. Contract
Tort
Property
Family
Company
Employment
Remedies:- Compensation and other equitable remedies
3 The Separation of Powers
Legislative Making the Law
Executive Administering the Law by government
agencies
Judicial Power Interpreting and applying the Law
Source of Law (1)
The Common Law
The Kings Court applied local laws and customs.
12th Century these became uniform or ‘common’ hence
the Common Law, but some customs remain.
Common Law
Inflexible
Technical
Only remedy was damages
Sources of Law (2)
Equity
Petitions to the King – passed to the Lord Chancellor
► Not bound by Common Law but used fairness
► New remedies
Relief upon foreclosure of mortgages
Injunctions
Specific performance
Rescission
Rectification
Sources of Law (3)
Parliamentary Law
Sovereign over all other forms of Law
1. Acts of Parliament
2. Delegated Legislation
► Orders in Council – Ministers
► Statutory Instruments – Law Making by Ministers
and government departments
eg. Road Traffic Regulations
The Doctrine of Binding Precedent
Consistency v Rigidity
All Courts bind all lower Courts
The Court of Appeal and The Supreme Court (formally
the House of Lords) bind themselves but subject to
exceptions.
NOTE: All Courts and Parliament now subject to
European Law
ADR
Mediation
Not binding unless by agreement
Arbitration
Governed by the Arbitration Act 1996
► Binding subject to a limited right of appeal on law only
► Agreement to arbitrate is enforceable
► Private
(1) Formation of Contracts
Law of Contract
A contract is a legally binding agreement between two or
more parties whereby benefits are conferred by one party
in exchange for some rights, benefits of forbearance by
the other or others.
Elements
► Agreement (the minds must be ad idem)
► Intention to be legally bound (will be inferred in
commercial agreements)
► Consideration (not necessarily adequate)
Test of Agreement
An unambiguous offer
And
An unequivocal acceptance
NOTE
‘Subject to Contract’
Means no Contract
Chillingworth v Esche (19524) CA
Acceptance
Mode
May be written or oral unless method specified
Time
Must be within stipulated time or a reasonable time
Post
Takes effect at time of posting – even if delayed or lost
(NB Normal Business System)
Adams v Lindsell (1818)
By Silence
Ineffective
Felthouse v Brindley (1862)
Revocation of Offer
Mode
By any mode
Time
Effective only when reaches offeree
Anytime before acceptance
NB: Posting is acceptance
Byrne v Van Tienhoven (1880)
Counter Offer
Destroys the original offer
Hyde v Wrench (1840)
Acceptance by Conduct
Ress Hough Ltd – v Redland
Reinforced Plastics Ltd (1984)
And
Chichester Joinery Ltd v John
Mowlem and Co Plc (1987)
Contrast:
British Steel Corpm – v Cleveland Bridge and
Engineering Co. Ltd (1984)
Letter of Intent
Terms disputed
Privity of Contract
Tweddle v Atkinson (1861)
Only the parties to a Contract may sue or be sued on it
But:
Contracts (Rights of Third Parties) Act 1999
A stranger may sue if:
► The contract says so
► A benefit is conferred
Rights usually expressly excluded
(2) Terms
Law of Contract
Terms may be:
Express ie. Agreed
Implied by: -
1) Statute.eg>
► Sales of Goods Act 1979
► Fit for purpose
► Satisfactory quality
► Supply of Goods and Services Act 1982
► Supplier of a service to use reasonable skill and
care.
But
► Design Liability of a Builder is strict
2) By the Courts
► Business efficacy (fact)
► General riles (Law)
3) By Customer
Classification of Terms
Conditions
► Termination and/or Damages
Warranties – Damages
Innominate Terms
► Remedy according to the extent of the breach
Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen
Kaisha Ltd (1962)
(3) Mistake
Law of Contract
Common mistake – Void
Contractual assumption of an Untrue Fact
Eg: Non-existence of the subject matter
Couturier v Hastie (1856)
(Corn on ship already sold)
► Impossibility of Performance
Mutual and Unilateral Mistake – Void
Eg. 2 ships called Peerless
Raffles v Wichelhause (1864)
(4) Damages
Law of Contract
Damages – Measure
“The rule of common law is that where a party sustains a
loss by reason of breach of Contract he is, so far as
money can do it, to be placed in the same situation with
respect to damages as if the contract had been
performed”
Robinson v Harmann (1880)
Modified to as good a situation in
British Westinghouse Electric and Manufacturing Co. Ltd
v Underground Electric Railways co. London Ltd (1912)
But – reasonableness
Forsyth v Ruxley Electronics Ltd Hl (1995)
Liquidated Damages
If genuine pre-estimate and not unconscionable in
amount
► Parties bound
► Exhaustive Remedy
Dunlop Pneumatic Tyre Co. Ltd v New Garages and
Motor Co. Ltd (1915)
Actual loss irrelevant, even if in the event no loss is
suffered at all
Damages – Building Contract Cancellation
Wraight Ltd v P.H and T (Holdings) Ltd (1968)
Entitlement:
Contract sum less savings made because of
disappearance of obligations
Specific Performance
Given
When damages inadequate
eg: Sale of Land or Unique Goods
Not Given
If impracticable or impossible for Court to supervise
eg: Personal performance such as singing or Building
Work
Limitation Act 1980
Time Limits
Proceedings must be started:
Simple Contract – 6 yeards
Deed – 12 years
From the breach
(5) Discharge
Law of Contract
1 – Performance
Must be complete
Cutter v Powell (1795)
But Doctrine of substantial performance
Dakin and Co v Lee (1916)
And Tender of Performance is the equivalent of
performance
Startup v McDonald (1843)
2 – By Agreement
ie. Accord and Satisfaction
Release by each party is consideration for the release by
the other
New contract on same subject matter discharges original
Contract. (Novation)
3 – Breach of a Condition
Injured party can elect to treat Contract as at an end, and
entitlement to damages.
Anticipatory Breach
If: Manifests an intention by words of conduct to
break contract
May: Accept breach and sue forthwith
4 – Frustration
Unforeseen event rendering further performance
impracticable or impossible.
eg Taylor v Caldwell (1863) (Fire)
eg Personal incapacity
Condor v The Baron Knights (1966)
4 – Frustration
Unforeseen event rendering further performance
impracticable or impossible.
eg Taylor v Caldwell (1863) (Fire)
eg Personal incapacity
Condor v The Baron Knights (1966)