placefornotes

classifying contractual terms

2007-10-28T19:50:00.001Z

A (comparatively) short post, looking at how contractual terms can be defined as warranty, condition, or innominate. Whether term is defined as warranty or condition defined by importance:

term	importance	if breached, injured party can
condition	major term at root of contract	sue for damages; terminate contract
warranty	minor, ancillary term	sue for damages only

Poussard v Spiers and Pond (1876) 1 QBD 410

actress employed as lead in operetta for season
ill so started week late
producers engaged substitute and refused her services
actress sued for breach of contract and lost
court held opening night was high importance
thus she breached condition allowing producers to terminate contract

Bettini v Gye (1876) 1 QBD 183

singer engaged for season
contract required arrival 7 days early for rehearsals but arrived 3 days early
producers tried to terminate contract
court held rehearsal terms ancillary do only right to claim damages not terminate

Parties can avoid confusion by expressly defining terms as warranties/conditions in contract.
Otherwise may be indicated by statute / judicial precedent.

Where no expression of status, get 'innominate terms':

courts look at effect breach has on contract using 'Hong Kong Fir Test'

Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd [1962] 1 All ER 474

defendant chartered ship from plaintiff for 2 years
term in contract stated ship would be 'in every way fitted for ordinary cargo service'
ship in poor state and crew incompetent
20 weeks use lost
plaintiffs admitted ship unseaworthy
defendants terminated contract
plaintiffs successfully sued for wrongful termination
reasoning: defendants were not substantially deprived of whole benefit of contract so only had right to sue for damages, not terminate

thus where term deemed innominate, rights of innocent party decided by whether they were substantially deprived of whole benefit of contract

yes - can sue for damages and terminate contracts
no - can only sue for damages

courts have tried to limit scope of concept of innominate term (see The Mihalis Angelos [1970] 3 All ER 125 )
but still in current usage (see Cehave NV v Bremner Handelsgesellschaft GmbH, The Hansa Nord [1975] 3 All ER 739 )

(these notes have been produce following my reading of Chapter 7 of Richards’ Law of Contract).

terms of contract - implied terms

2007-10-28T19:48:00.000Z

My last post looked at express terms, (terms agreed by the parties orally/in writing.

This post looks at implied terms.

Implied terms are those not agreed to by the parties orally or in writing but are introduced to contract by courts or statute to give either effect to unexpressed will of parties, or to insert a term that should reasonably be included in all contracts of that type.

If parties omit primary obligations, court can allow terms to be implied into the contract.

They can be implied either:

as a matter of fact
as a matter of law

Terms implied as a matter of fact

Give effect to unexpressed will of parties.

Must be obvious and necessary to give ‘business efficacy’ to the agreement.

Classic test = ‘Officious bystander test’.

"Prima facie that which in any contract is left to be implied and need not be expressed in something so obvious that it does 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’"

(Mackinnon LJ in Shirlaw v Southern Foundaries (1926) Ltd [1939] 2 KB 206)

The Moorcock (1889) 14 PD 64, [1886-90] All ER Rep 530

defendant allowed plaintiff to moor ship, the Moorcock, on their jetty if they paid landing charges
while ship was unloading, tide went out and Moorcock’s back was broken on rocks
plaintiff sued for damages
defendants argued they hadn’t guaranteed safety
Court of Appeal found defendants liable as implied undertaking that anchorage would be reasonably safe

2 situations where officious bystander test fails.

1) one party not aware of term

Spring v National Amalgamated Stevedores and Dockers Society [1956] 2 All ER 221

1939, defendants and union agreed rules for transferring members (‘Bridlington Agreement’)
1959, defendants admitted plaintiff in breach of Bridlington agreement
TUC ordered union to expel plaintiff
plaintiff sued for breach of contract
union argued should be term in contract stating Bridlington Agreement must be complied with
court held that plaintiff was not aware of Bridlington Agreement so would have said ‘what’s that?’ not ‘oh yes’ in officious bystander test

2) uncertainty whether both parties would have agreed to term

Shell (UK) Ltd v Lostock Garages Ltd [1976] 1 WLR 1187, [1977] 1 All ER 481

contract stated Shell would supply petrol to defendant if they bought only from Shell
price-war developed so that defendants were paying more than neighbours also supplied by shell
plaintiffs argued should be implied term that Shell would not ‘abnormally discriminate’
Court of Appeal refused claim as found Shell would not have agreed to the term

Terms implied as a matter of law

inserts a term that should reasonably be included in all contracts of that type
obligations that arise whether the parties would have agreed to it or not
if courts find for its existence in a particular contract, that case becomes authority for inclusion in all contracts of that type

Liverpool City Council v Irwin [1976] 2 All ER 39

council let flats with tenancy agreement that set out no obligations on council re maintenance of flats
lifts broke, rubbish chutes broke
plaintiff withheld rent as protest at lack of maintenance
council brought action for possession of flat
plaintiff brought counter-action for breach of implied obligation
House of Lords implied term as matter of law
stated duty on landlord to keep common areas in ‘reasonable repair and usability’

eventually a term implied by the courts as a matter of law may be given statutory authority
key statute areas = contracts for sale of goods and standard of care in contracts for services

Sale of Goods Act 1979
Supply of Goods and Services Act 1982
Late Payment of Commercial Debts (Interest) Act 1998
Consumer Protection (Distance Selling) Regulations 2000
Sale and Supply of Goods to Consumers Regulations 2002

Terms implied under Sale of Goods Act 1979

s 12 - title

implied seller has right to sell
buyer has right to enjoy ‘quiet possession’ of goods
goods will be free of undisclosed encumbrances (interest held by someone other than owner)
applicable to consumer and private sales

Rowland v Divall [1923] 2 KB 500

4 months after purchase, buyer discovered car was stolen
returned it to true owner
sued on implied condition that he should get back full purchase price even though value depreciated in 4 months since purchase
court agreed as he had paid to be full owner as was not

s 13 - goods shall correspond with description

Beale v Taylor [1967] 1 WLR 1193

defendant advertised car in private sale as ‘Herald convertible, white, 1961, twin carbs’
private buyer later discovered it was 2 cars stuck together (description fitted rear half)
court held seller liable under s 13 even though seller didn’t know as he had relied on description’

note: reliance by buyer on description of goods must by proved (see Harlingdon & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd [1990] 1 All ER 737 )
applicable to consumer and private sales

s 14(2) -goods supplied in course of business shall be of merchantable quality

(n/a if buyer specifically told about defects or inspected before sale)
private sales not covered
but what defines ‘course of business’?

originally defined as integral or incidental to business

BUT grey area e.g. what if estate agent sells company car to private buyer
later defined as having to be regularly entered into as part of business (see R & B Customs Brokers Co. Ltd v United Dominations Trust [1988] 1 All ER 847 )
BUT too restrictive

Stevenson v Rogers [1999] 1 All ER 613

defendant fisherman sold boat to plaintiff
plaintiff claimed defendant in breach of s 14(2) of Sale of Goods Act 1979 as boat not of ‘merchantable quality’
Court of Appeal held sale was in course of defendants business so s 14(2) applicable
thus ‘course of business’ no longer requires regularity

thus no grey area – a sale is simply private or business

‘merchantable quality’ defined in s 14 (6) as:

‘fit for the purpose or purposes for which goods of that kinds are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all other relevant circumstance’

phrase ‘reasonably expect’ means buyer can’t expect second hand cars to be as good as news ones

Bartlett v Sidney Marcus Ltd [1965] 1 WLR 1013, [1965] 2 All ER 753

purchaser was told car’s clutch defective
seller offered to repair or reduce price by £25
buyer chose latter
after 300 miles, had to replace clutch & cost £45 more than expected
held car was merchantable quality as was fit for purpose and quality of second hand car

consequence of defect can also be a factor (see Bartlett v Sidney Marcus above where fact car defect could have kicked in on motorway was stated as factor in judgement).
problems with deciding merchantable quality (e.g. how long after delivery could defect b found) so changes made by Sale and Sale of Goods Act 1994 s 1

s14(3) - goods sold in course of business shall be fit for purpose

if buyer expressly/impliedly makes purpose goods are being bought for known, implied they are fit for purpose, even if not usual purpose
does not apply if buyer cannot reasonable rely on judgement of seller
see Godley v Perry [1960] 1 WLR 9, [1960] 1 All ER 36

s15 - condition implied where sale by sample

quality of bulk must be same as sample
buyer must be given opportunity to compare bulk with sample
any defects must be discoverable by reasonable examination of sample

Terms implied under Supply of Goods and Services Act 1982

Contracts for supply of goods:

applies to contracts for transfer of ownership of goods and contracts of service
same implied terms as in Sale of Goods Act 1979
(with Sale and Sale of Goods Act 1994 and Consumer Protection (Distance Selling) Regulations 2000 amendments)

Contracts for supply of services:

adds extra terms for supply or services to 1982 act

supplier will carry out service with reasonable care and skill

Wilson v Best Travel [1993] 1 All ER 353

plaintiff went on holiday in Greece booked through tour operator defendant
fell through glass in hotel
glass thickness was up to Greek standard but not UK standard
court held since tour operator had inspected hotel and it complied with Greek regulations, defendant not in breach of

and within reasonable period of time
where consideration not set, consumer must pay reasonable charge

Terms implied under Late Payment of Commercial Debts (Interest) Act 1998

Act arose as small businesses were suffering effects of big business paying invoices late.

Implied term that any qualifying debt carries simple interest at BOE base rate + 8%.

s 2(1) - Act only applies contracts for supply of goods and services where supplier and consumer both acting as businesses

s 3(1) - qualifying debt

qualifying debt - debt created by an obligation to pay contract price
excepted debts - debts that already carry right to interest by another Act or law

s 4 - period interest runs for

debt begins from payment date agreed between supplier and buyer
if advanced payment required on agreed date

if not linked to part-performance, debt starts on day obligation performed
if linked to part-performance, debt begins day part-performance is completed

contracts of hire, debt starts on last day of hire
in all other cases runs from either:

day supplier performs obligation, or
day supplier given notice of the debt (whichever is later)

s 5 - court can remit right to interest or apply reduced rate if consider just to do so.

Terms implied under Consumer Protection (Distance Selling) Regulations 2000

Implementation of EU Distance Selling Directive (Directive 97/7/EC)

reg 3 & 4 -defines distance contract

any time where no simultaneous physical presence of consumer and supplier
e.g. teleshopping, email, catalogues etc.

reg 5(1) -list of excepted contracts

contracts for the sale or disposition of land
construction of a building
financial services

contracts via automated vending machine
contracts via operator on public phone
auction contracts

reg 6 - list of contracts only partially covered

not covered by reg 7 - 19(1):

supply of food, beverages or goods for regular consumption supplied to work/home by regular roundsmen
accommodation, transport, leisure to be provided within specified period / on specified date

not covered by reg 19(2) - (8):

contracts for a package under Package Travel , Package Holidays and Package Tours Regulations 1992

reg 7 -info supplier must provide prior to conclusion of contract

supplier ID
supplier address (if advance payment required)
product description
price
delivery costs
payment arrangements
details of delivery / performance
period price valid
minimum contract duration (e.g. in case of mobile phone contract)
for telephone comms, ID and call purpose to be given at start of call

reg 8 - confirmation in writing to be given to consumer of all of above

PLUS:

right to cancel
return of goods requirements on cancellation (e.g. who bears cost)
after-sales service and guarantee arrangements
complaints address

must all be communicated by time goods delivered

reg 10 -method of cancellation

if left at suppliers last known address and addressed to supplier deemed to have been given on date left
cancellation by post deemed to have been given on date posted
fax and email cancellation deemed given on date sent
telephone not sufficient method of cancellation

reg 11 -cancellation/cooling off period for supply of goods

commences on day contract concluded
expires 7 working days after good received
(note: period doesn't start until info in reg 8 received - if never sent, period ends 3 months and 7 working days after goods received)

reg 12 - cancellation/cooling off period for supply of services

as reg 11 except period commences on day contract concluded rather than good

reg 13 -exceptions where consumer has no right to cancel

supply of services where

(with consumer consent) performance begun before end of cancellation period
goods custom made / personalised
perishables / fast deteriorating goods e.g. flowers
goods that go out of date quickly e.g. newspapers
copyable goods once packaging opened e.g. computer games
gaming, betting, lottery

reg 14 -return of goods on cancellation

reimburse within 30 days
return and security immediately
supplier can make reasonable charge if consumer doesn't return goods (some exceptions)

reg 15 -automatic cancellation of any related credit agreement on cancellation of contract

supplier must inform creditor immediately

reg 17 - consumer duty to retain good and take reasonable care of them

reg 19 - performance of order within 30 days of consumer order

(unless another period agreed to)
if supplier unable to perform must inform consumer and refund within 30 days of expiry of above
supplier can provide substitute good if allowed for in contract

reg 21 - fraudulent use of payment card

consumer entitled to cancel and re-credit

reg 24 -unsolicited goods

can be treated by consumer as gift
rights of sender lost (unless sent for business)
chasing payment / threatening action an offence

Terms implied under Sale and Supply of Goods to Consumers Regulations 2002

Add additional rules for consumer guarantees.

reg 15 - enforceability of 'consumer guarantee'

takes effect when goods delivered
contents must be in plain English and set out

steps for claiming
geographical scope
time limit
name and address of guarantor

if guarantor fails to comply enforcement authorities (e.g. OFT) can grant injunction as they see fit

Terms can also be implied by custom

See Hutton v Warren (1836) 1 M & W 466, [1835-42] All ER Rep 151

(these notes have been produce following my reading of Chapter 7 of Richards’ Law of Contract).

terms of contract - express terms

2007-10-19T22:53:00.000+01:00

In an oral contract, the judge must decide what parties have agreed to bas on evidence presented. But in a written contract, role of judge is to decide issues concerning term or terms in contract.

This post looks at express terms, that is terms agreed by the parties orally or in writing.

(Note: by contrast, my next post looks at implied terms which are not agreed to by the parties orally or in writing but are introduced to contract by courts or statute to give either effect to unexpressed will of parties, or insert a term that should reasonably be included in all contracts of that type).

Main problems facing courts re express terms:

are statements made by parties terms of the contract?
what evidence can parties submit to prove a contract document misstates their original intentions?

Incorporation of statements as terms of the contract

Term of contract or representation?

Term of contract:

expression of a willingness by the parties to agree to abide by that obligation
breach means parties can sue for breach of contract

Representation:

persuades other party to enter contract but not intended to be term
party can’t take action if not complied with
BUT if party makes untrue statement to induce other party to enter contract could be liable under:

tort of deceit, or
Misrepresentation Act 1967, or
innocent representation

Court decides whether term of contract or mere representation using objective approach.

Courts use several tests to decide what a ‘reasonable man’ would view the intentions of the parties to be.

1) Timing:

Time between making statement and making contract

Bannerman v White (1861) 10 CBNS 844

defendants indicated that they didn’t want hops treated with sulphur
then parties negotiated sale of hops
plaintiff gave samples
defendants asked again if treated with sulphur, plaintiffs said no
after sale, plaintiffs discovered 5/300 had been treated so repudiated contract
argued they had stressed importance about treatment and seller knew about treatment so = term of contract
plaintiff said question was in negotiations and not part of contract
jury found in favour of plaintiff defendant

Routledge v McKay [1954] 1 All ER 855

new registration book said registered 1941 but actually registered in 1932
1949, seller innocently stated to buyer that motorcycle was 1941/2 model
week later, contract of sale made which didn’t mention reg date
buyer found out real registration date and claimed damages for breach of warranty
court time between negotiations and contract too long so incorrect statement representation not term of contract

2) Reduction of contract into writing

if oral agreement later reduced to writing and statement made orally left out, courts assume omitted statement was mere representation (see Routledge v McKay above)

3) Importance of the statement

statement viewed as term is injured party wouldn’t have entered contract without it (see Bannerman v White above)

Couchman v Hill [1947] 1 All ER 103

plaintiff bought heifer at auction described in catalogue as ‘unserved’
conditions of sale stated auctioneers didn’t warrant condition or description
before sale, auctioneer, on request of plaintiff, confirmed heifer unserved
8 weeks later, heifer died from carrying calf too young
court held plaintiff could claim damages as ‘unserved’ = warranty which overrode conditions of sale

Oscar Chess Ltd v Williams [1957] 1 All ER 325

plaintiffs (motor dealers) bought car from defendants for £290
plaintiffs described car, as in reg book, as 1948 model
6 months later plaintiffs discovered it was 1939 model and sued for damages
plaintiffs’ action failed as defendants not held to have intended to bind themselves as to correctness of reg book – innocent misrepresentation

4) Special knowledge or skill

courts more likely to view as term if party has specialist knowledge

Schawel v Reade [1913] 2 IR 81

plaintiff looking for stallion examined defendant’s horse
during examination, defendant stated: “You need not look for anything: the horse is perfectly sound” so plaintiff ended exam
price agreed days later, purchase completed 3 weeks later
horse proved unfit to stud so plaintiff sued
defendant argued mere representation
court held was term of contract as defendant had specialist knowledge of condition

note re: Oscar Chess v Williams this rule explains why apparently important statement was not seen as term i.e. dealer had more knowledge

5) Parol evidence rule

= courts will not allow evidence which tries to add / vary / contradict terms of written contract
BUT number of exceptions developed
1986 Law Commission, Law of Contract: The Parol Evidence Rule, Report No. 154 stated rule no longer existed
Exceptions to parol evidence rule – can put forward evidence which shows:

Custom

a custom / trade usage

Non-operation

parties had agreed contract wouldn’t start until some vent had occurred
i.e. contract not changed, just suspended

Invalidity

lack of capacity, mistake or misrepresentation

Rectification

true intentions of parties inaccurately reflected because e.g.
parties drafted it themselves
requirements communicated poorly to lawyer
incompetent lawyer

Incompleteness

contract not intended to be complete reflection of agreement
in which case oral agreements admissible

J Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 2 All ER 930

defendant (carriers) shipped machinery for plaintiffs
used standard conditions used by trade
pre-1967, defendants used trailers and agreed machinery would always be carried below deck
1967, defendants switched to containers and assured plaintiffs machinery would still be stored below deck
BUT new standard conditions said could be stored on deck
later plaintiff’s good were washed off deck
plaintiff sued for breach of contract successfully
court held defendants could not rely on written contract only and allowed plaintiffs to adduce oral evidence

Collateral contracts

Defined by Lord Moulton in Heilbut, Symons & Co. V Buckleton [1913] AC 30 :

“It is evident, both on principle and on authority that there may be a contact the consideration for which is the making of some other contract, ‘If you will make such and such a contract, I will give you one hundred pounds’, is in every sense of the of the word a complete legal contract. It is collateral to the main contract, but each has an independent existence, ad they do not differ in respect of their possessing to the full the character and status of a contact.”

Mere representation in principal contract may still be term in collateral, secondary contract

City and Westminster Properties (1934) Ltd v Mudd [1958] 2 All ER 733

defendant rented plaintiff’s shop for 6 years and slept in adjoining annex
when lease came up for renewal, plaintiff’s added clause to use ‘showrooms, workrooms and offices only’
defendant asked if he could still sleep in annex and plaintiffs agreed so he signed lease
when he slept in annex, plaintiffs brought action for forfeiture of the lease
court held that promise not to enforce clause was collateral contract so defendant not in breach

Thus collateral contracts can have effect of altering /adding/contradicting terms in main contract.

(these notes have been produce following my reading of Chapter 7 of Richards’ Law of Contract).

contracts that require terms to be set out formally

2007-10-18T17:19:00.000+01:00

Most contracts are made informally and, generally, there is no legally requirement for contract terms to be set out in a formal document. The exceptions fall into 3 categories - contracts required to be: made by deed; made in writing; evidenced in writing.

By deed

Transaction required to be 'made under seal' usually means 'contained in a deed'.

Molten wax seal replaced by sticky red wafer.

Signature makes deed binding (Law of Property Act s 73).

No longer need for seal (Law of Property (Misc Provisions) Act s 1(1)(b)).

Law of Property Act s 1 (2) states not a deed unless:

describes itself as deed
is validly executed

Law of Property Act s 1 (3) defines 'validly executed' as signed by:

by individual in presence of witness
at his direction in presence of 2 witnesses
delivered as a deed

In writing

Consumer Credit Act 1974 (as amended by CCA 2006) requires consumer credit agreements (e.g. HP) to be laid out in a particular way.

Failure to comply renders contract unenforceable.

Order of Court can be obtained to enforce contract against debtor if:

agreement is signed by debtor
debtor is given copy
debtor is informed of right to cancel

CONTRACTS FOR THE SALE OR OTHER DISPOSITION OF AN INTEREST IN LAND

Originally governed by Law of Property Act 1925 s 40

Replaced by Law of Property (Miscellaneous Provisions) Act 1989 s 2(1)

Law of Property Act 1925 s 40	changes resulting from Law of Property (Miscellaneous Provisions) Act 1989 s 2(1)
must be evidenced by note or memo; contract could be created orally as long as memo to back it up	can only be made in writing, not just evidenced in writing
identifying all parties
describing nature of consideration
describing any other terms deemed material by parties	must contain all terms expressly agreed - omission could prove fatal (but if such a term would have been implied by court anyway, omission not fatal to contract - see Farrell v Green (1974) 232 EG 587
signed by party to be charged	signed by all parties
can be 2 or more docs as long as signed memo makes sufficient ref to others	all expressly agreed terms must be incorporated in one document
if no memo, could bring the contract within doctrine of part-performance	doctrine of part-performance no longer applicable

LEASES

Deed is required to create a lease.

Exception to s 2 as described above: grant of a lease for not more than 3 years would be a legal lease even without deed as long as takes effect immediately (Law of Property Act 1925 s 54(2) )

OPTIONS

An 'option to purchase' = offer to sell where 'grantor is contractually precluded from withdrawing so long as the option remains exercisable' (Beesly v Hallwood Estates Ltd [1961] 1 All ER 90 ).

Option does not form contract.

Gives grantee right to call for conveyance (transfer of interest by means of deed) of land to themselves.

Section 2 only applies to the original contract; it does not apply to the subsequent notice mechanism (see Spiro v Glencrown Properties Ltd and Another [1991] 1 All ER 600 ).

Evidenced in writing

Only type required to be evidenced in writing = guarantee.

Guarantee:

promise by A to meet the liabilities owed to B by C if C is unable to do so
promise must be made to the creditor (see Eastwood v Kenyon (1840) 11 A & E 438, [1835-42] All ER Rep 133 )

Guarantees are governed by Statute of Frauds 1677 s 4:

"special promise to answer for the debt, default or miscarriage of another person."
unenforceable unless:

written evidence of the agreement

signed by party to be charged
contain all material terms
identify parties
describe subject matter and consideration

doctrine of part-performance not applicable

Note: provision not just limited to contractual liability.

Kirkham v Marter (1819) 2 B & Ald 613

defendant's son killed horse by aggressive riding without permission
plaintiff threatened to sue
defendant promised to pay compensation to plaintiff if he didn't sue son
plaintiff accepted but defendant didn't pay
defendant argued wasn't evidenced in writing so not binding
held Statute of Frauds could apply to tortious liability so plaintiff not liable
Abbott CJ: "an act for which the party is responsible in damages [...] falls within the meaning of the word ‘miscarriage’"

Actionstrength Ltd v International Glass Engineering and Saint Gobain Glass UK Ltd [2003] 2 All ER 615

Saint Gobain Glass (SGG) contracted International Glass Engineering (IGE) to build a glass factory
IGE contracted Actionstrength by to provide the labour
IGE were late paying Actionstrength so threatened to withdraw workers from site
SGG orally promised Actionstrength that they would pay invoices to IGE if they kept workers on site
Actionstrength left workers on site and debt increased
neither IGE nor Actionstrength paid IGE
SGG argued it was not bound by its guarantee as not evidenced in writing as required under Statute of Frauds
Court of Appeal agreed with SGG

s4 only applies to guarantees, not indemnities - what's the difference?

guarantor assumes secondary liability

will only pay debt if debtor is unable to
"If he doesn't pay you, = guarantee

guarantor assumes primary liability

promise to meet losses of creditor from principal contract
"I will see you paid"
= indemnity

Thus sometimes validity of oral contract comes down to whether promise is a guarantee or an indemnity.

Mountstephen v Lakeman (1871) LR 7 QB 196

surveyor recommended plaintiff asked to carry out sewer work
plaintiff asked Brixham Local Board of Health or its Chairman, the defendant, to “order the work or become responsible for the payment”
defendant told plaintiff “I will see you paid”
plaintiff did work
Board refused to pay arguing no agreement made
plaintiff sued defendant
defendant argued his promise was guarantee thus fell under s4 of Statue of Frauds which had not been complied with
court ruled board had not made contract, so defendant had assumed primary liability
thus defendant liable to pay debt

If the guarantee is part of a larger transaction, s 4 doesn't apply.

2 ways this can happen:

del credere agent

agent refers clients to principal
guarantees to pay principal if the client is unable to
(usually in return for higher commission)

protection of property

see Cockburn CJ in Fitzgerald v Dressler (1859) 7 CBNS 374:
"if there be something more than a mere undertaking to pay the debt of another, as where the property in consideration of the giving up of which the party enters into the undertaking is in point of fact his own or is property in which he has some interest, the case is not within the provision of the statute".

(This post draws in part from my notes on Chapter 6 of Richards' Law of Contract)

placefornotes passes 1,000 hits

2007-10-17T19:01:00.000+01:00

A small milestone, but I thought it worth posting that since its creation on September 9th 2007, placefornotes has achieved over 1,000 hits. These hits came from 219 unique visitors from 33 different countries/territories.

How do I know all this? Google Analytics. If you want to comprehensively track traffic through your site, I recommend checking it out.

capacity to enter into a contract

2007-10-17T15:44:00.000+01:00

If parties enter into a contract, the law generally assumes that all have the capacity to do so. This post looks at these restrictions on certain groups, looking first at individuals and then corporations.

Individuals

Law has a traditional model of a natural person & capacity comes into question when an individual deviates from that model:

sane
sober
adult
male (this requisite now disappeared from law)

Drunks

Contract voidable if:

drunkeness prevents party from understanding transaction, and
other party is aware of this

Drunk will still be required to pay reasonable price for necessaries (see Sale of Goods Act 1979, s 3 (2)).

Note: necessaries are not essentials, they are goods suitable to the condition in life of the party and his/her requirements at time of delivery (see Sale of Goods Act 1979, s 3 (3)).

Contract will become enforceable if drunk ratifies contract once sober.

Mentally disordered persons

If certified insane under Part VII of Mental Health Act 1983

property falls under control of court
thus any attempt to dispose of property not binding
Trietel suggests this thus applies to all contracts since all essentially deal with property

If not certified insane, contract voidable if:

mentally disordered party did not understand transaction, and
other party aware of disorder

In this case, mentally disordered person will still be required to pay reasonable price for necessaries.

But if seller didn't know, can claim full price (see Sale of Goods Act 1979, s 3 (2)).

Contract will become enforceable if mentally disordered party ratifies contract once well.

Minors

Minor (or infant) = anyone under the age of 18 (see Family Law Reform Act, s 1).

Whether contract on minor binding or voidable depends on circumstances:

BINDING CONTRACTS

Contracts for necessaries:

Minor must pay reasonable price for necessaries.
To claim, plaintiff must prove:

goods are capable of being necessaries

see Ryder v Wombwell (1868) LR 4 Exch 32

minor not already adequately supplied

see Nash v Inman [1908] 2 KB 1

goods have been sold and delivered

suggests executory contract unenforceable
but executory contact held as binding in Roberts and Gray [1913] 1 KB 520

Note: if contract deemed too harsh or onerous, can be voided even if 3 conditions met

Fawcett v Smethurst (1914) 84 LJ KB 473

minor hired car to move luggage
contract of hire was a necessary
but term making him liable for damage whether or not caused by his neglect deemed harsh and onerous
thus contract ruled void

Beneficial contracts of service:

same rules as for goods, except executory contracts enforceable
adverse terms do not invalidate whole contract
binding as long as substantially for minor's benefit

Clements v LNWR [1894] 2 QB 482

minor joined railway
joined company's insurance scheme
relinquished right to sure under Employer Liability Act 1880 if injured
scheme covered more types of accident but lower level of compensation
held agreement of benefit to minor thus binding

De Francesco v Barnum (1890) 45 Ch D 430

14 year old girl apprenticed to plaintiff
deed stated girl at his total disposal
not bound to maintain her or employ her
if employed, could pay her very little
needed consent to work and to marry
plaintiff could terminate without notice
court ruled harsh and onerous thus unenforceable

VOIDABLE CONTRACTS

A voidable contract = contract where unbound party may repudiate the contract, thus making it void.

Where minor acquires interest of a permanent nature (e.g. shares, lease, partnership):

binding and valid unless minor chooses to repudiate contact while still a minor, or within a reasonable time of acquiring majority
'reasonable time' depends on circumstances (see Edwards v Carter [1893] AC 360 )
while free from future obligations following repudiation, not clear if minor is liable for obligations already accrued
to recover moneys following repudiation, minor must show total failure of consideration

Steinberg v Scala [1923] 2 Ch 42

plaintiff applied for shares in a company
paid amount due on allotment and first call
did not receive any dividends nor attend any meetings
share did not increase in value
18 months after allotment, plaintiff sought to repudiate and reclaim moneys paid
action failed as shares were allotted in return for moneys paid thus no total failure of consideration

Trading contract - where minor enters contract during course of their trade/profession:

only become biding if ratified by minor upon reaching majority
to ratify, minor (now adult) makes unilateral confirmation of earlier promise made

TORTIOUS LIABILITY

Adult could evade minor's immunity from contractual liability by expressing action in tortious terms.

e.g. tort of deceit if person induces other party into contract by making fraudulent statement of fact.

But tort action will be barred if wrongful act committed by minor is within contemplation of void contract.

RESTITUTION

Doctrine of restitution = minor should not be enriched by own fraud.

Situation	Rule
obtains goods by fraud and still has them	restitution will be ordered
obtains goods by fraud but has sold/exchanged them	position unsettled; compare Stocks v Wilson [1913] 2 KB 235 with A Leslie v Sheill [1914] 3 KB 607 )
obtains loan by fraud	liable to account for actual cash still held; unclear if items bought with moneys are recoverable

Note: Minor's Contacts Act 1987 s 3 (1):

where contract in unenforceable against person due to minority or repudiation by minor, court has power to make minor return property (or property representing that acquired) to the plaintiff, where it is 'just and equitable to do so'.

GUARANTEES

Infants Relief Act 1987: guarantor liable for minor's contractual obligation even if unenforceable or repudiated.

Does not apply to necessaries as minor would be liable to pay reasonable price for them anyway.

Guarantor can still recover losses against minor, but is in same position as any other creditor.

Corporations

2 types of corporation:

chartered corporations

created by royal charter
same capacity as private individual
except if comp makes contract unauthorised by charter, charter may be revoked
but contract remains valid

statutory corporations

most modern corporations created by/under authority of statute
most Incorporated under Companies Act 1985
either private / public, and
either ltd by shares / ltd by guarantee

Doctrine of Ultra Vires

Doctrine of ultra vires = an act by company that goes beyond powers conferred on it is invalid.

Limits of company set out in:

relevant act of parliament (if created by statute)
objects clause in the memorandum of association (if created under 1985 Act)

Designed to protect:

investors
creditors
3rd parties

BUT anyone who deals with the company is deemed to have constructive notice of contents of object clause.

Thus deemed to have known contract ultra vires whether they read objects clause or not.

Ashbury Railway Carriage Co. Ltd v Riche (1875) LR 7 HL 653

objects clause authorised company to make and sell railway plant and railway stock
directors bought concession to build railway and assigned it to Belgian company
building railways not in object clause so contract was ultra vires the company
thus Belgian company deemed to have constructive notice and thus failed in attempt to sue for breach of contract

Re Jon Beauforte Ltd [1953] Ch 131

objects clause authorised company to make clothes
started new venture making veneer panels
ordered coke for new business
order made on headed paper stating company was veneer panel maker
company went into liquidation
coke suppliers failed in action to recover moneys
reasoning: letter head showed purpose coke to be used for and supplier had constructive notice of objects clause
thus contract ultra vires
ruling may have been different without letterhead (as was indication of intended use)

Loans of money can present a complication to the doctrine of ultra vires.

Introductions Ltd v National Provincial Bank Ltd [1970] Ch 199

objects clause authorised company to provide entertainment and accommodation during Festival of Britain
company went into pig breeding
obtained loan from bank for that purpose
bank argued borrowing of money was an object of the company
Court of Appeal rejected this stating power to borrow merely means to achieve object
thus loan ultra vires and void

Avoiding effects of doctrine of Ultra Vires

Doctrine limits ability of companies to expand operations.

Thus businessmen developed techniques to circumvent it.

In response, s 35 of Companies Act 1985 meant:

if person deemed to be acting in good faith, a company cannot raise ultra vires as defense against a third party
existence of memorandum of association no longer deemed constructive notice
section only applied where contract decided on by directors
didn't prevent shareholders restraining directors from making an ultra vires contract by injunction
didn't remove liability of directors for losses resulting from entering ultra vires contract

s 35 was substituted by s 108 of Companies Act 1989.

This in turn subject to modification by ss 39 and 40 of Companies Act 2006.

Effect on capacity of company

2006 Act s 39(1): "The validity of Act by a company shall not be called into question on the grounds of lack of capacity by reason of anything in the company's constitution."
2006 Act s117: "A director of a company must - (a) act in accordance with the company's constitution, and (b) only exercise powers for the purposes for which they are conferred."

Effect on capacity of directors

2006 Act s 40 (1) and (2): third party's knowledge that directors are acting beyond there powers does not amount to bad faith.
2006 Act s 40 (1) and (2): shareholders still able to restrain directors from acting beyond powers.

Effect on capacity of company and third parties

2006 Act 40 (2)(b)(i): third party no longer bound to "enquire as to any limitation on the power of the directors to bind the company or authorise others to do so".

Note: ss 39 and 40 of 2006 Act do not apply to charities unless third party unaware of charitable status at time.

(The bulk of these notes is drawn from my reading of Chapter 5 of Richards' Law of Contract)

cigarette by combining tutorials

2007-10-16T18:00:00.000+01:00

I'm planning to create a flash animation later in the week that involves cigarettes so I scowered the net for a good tutorial. I found this 'Draw Cigarette' tutorial on AdobeTutorialz.com but following it meant downloading some gradient settings which put me off.

In the image below, I used a 'sketch' > 'notepaper' filter on the white paper and a 'noise' > 'add noise' (gaussian) filter to the holder as suggested in the tutorial.

I then merged the layers (CTRL + E) and applied a gradient effect to the layer following the steps I took to create round pencil erasers earlier today (see post 'a homepage that looks like a desktop').

I followed the AdobeTutorialz.com tutorial again to add the tip, before adding a drop shadow and changing the angle using techniques I'd learned in my previous post.

Here's the result:

Hmm, close but no cigar(ette).

a homepage that looks like a desktop

2007-10-16T16:01:00.000+01:00

Feeling in an artistic mood, I decided to attempt to design a homepage in Photoshop that had more of an organic feel, as opposed to the typical layout with left-hand / top-bar navigation, a central white space for text etc.

I found a suitable tutorial for the graphics on LiveThunder.com: 'Website That looks Like a Desk' and set to work.

This tutorial assumes greater prior knowledge than some of the others I have used in the past and, in fact, it lacks a full explanation in some steps. For example, using the text tool to create the lines on the pages seemed odd so I used the 'line tool' instead.

The lack of in depth instruction also meant I was left to tweak the effects as I saw fit, to produce a more unique result that I'm pretty happy with:

The idea for the 'scratched in' effect on the title is my own idea. First, in a new layer, I wrote the 'placefornotes' in black using the 'line tool'. I then added some 'noise' ('noise' > 'add noise' > 'gaussian' > 'monochromatic') to the layer before adding 'inner bevel' ('blending options' > 'bevel and emboss' > 'inner bevel'> to give it depth.

So, the next step is to turn this flat jpeg into an interactive webpage. To do this I'm not sure if it would be best to use Dreamweaver, Flash, or both. I guess it will depend on the direction I see the pages taking - we shall see...

lexisnexis butterworths - a link soution that really works

2007-10-16T11:11:00.000+01:00

At last, after many unsuccessful attempts to find a total solution to my need to link to cases on LexisNexis Butterworths that don't expire after a certain period, I have found the solution.

Link Direct Plus is housed on the Butterworths website and lets you enter the citation to create a stable link. Hopefully this time it will go without a hitch - all links on this blog will be updated by the end of the day!

Update: All links have been updated. This method of linking is much better as not only are the links stable, they also take you directly to the case, rather than to a list of search results.

motion tweening revisited

2007-10-15T19:49:00.000+01:00

I thought I'd revisit the motion tweening technique to see if I could implement it without following a tutorial. I had also read since that it was possible to copy a motion and paste it onto a new image so I tried to combine the two.

I found 2 free clipart images of dogs on FreeClipArt.com and set up a zigzag motion with Dog 1 on the first layer. I didn't want him to look like he was going backwards when moving lef tto right, so to make him 'turn round' I used 'modify' > 'transform' > 'flip horizontal' in a key frame after each tween. I found it was best not to flip the image in the key frame I was tweening to as the image flipped while tweening which gave the wrong effect - kind of like Superman trapped in the phantom zone.

I then created a second layer, pasted an image of Dog 2 and then copied the motion from layer 1 to layer 2.

Here's the result:

intention to create legal relationship

2007-10-15T16:58:00.000+01:00

In Chapter 4 of Law of Contract, Richards looks at the intention to create a legal relationship. As has been discussed, if contracting parties don't consent to the creation of a legal relationship, the contract is not enforceable

Courts take a practical approach to this rule:

Commercial matters - courts assume parties intend to create a legal relationship
Domestic/social matters - courts assume parties do not intend to create a legal relationship

Either assumption can be overturned by evidence to the contrary.

Cases of Social / Domestic Nature

Family

Leading authority case:

Balfour v Balfour [1919] 2 KB 571

husband brought wife to England from Sri Lanka
husband had to return but wife stayed for medical reasons
he promised to pay her £30/month until his return
when he failed to pay, she sued
wife's action failed because

no consideration moved from her

no intention to create legally binding agreement found

court stated in husband/wife cases, burden of proof is on plaintiff to prove intention to create legally binding agreement

But courts do sometimes find husband/wife agreements binding.

Merrit v Merrit [1970] 1 WLR 1121

husband left home to live with another woman
agreed in writing to pay wife £40/month maintenance
said if she used it to pay mortgage he would sign house over to her when fully paid
when fully paid, he refused to sign over house
Court of Appeal ruled that there was intention to create legally binding agreement
Reasoning = agreement took place in response to marital breakdown

Similar problems in cases of parent/child agreements.

Jones v Padavatton [1969] 2 All ER 616

mother agreed if daughter gave up job in USA and read for bar in England, she would pay her $200/month
1962, daughter began studies in England
1964, mother bought house for £6k
agreement changed so instead of allowance, plaintiff could live in house rent free, plus let out rest and use rent for expenses and maintenance
1967, parties fell out, mother brought action for possession of house alleg no intention to create legal relationship
Court of Appeal agreed
BUT, Lord Salmon upheld on different grounds:

1st agreement binding as daughter couldn't be expected to give up USA job without enforceable promise of support
but offer of support only intended to last reasonable period of time
thus lapsed after 5 years
2nd agreement too ambiguous to form enforceable contract

Other social arrangements

Here idea of 'mutuality' is important.

Simpkins v Pays [1955] 3 All ER 10

defendant, her granddaughter and the plaintiff (paying lodger) regularly took part in newspaper competition
all contributed but entered in defendant's name
no set arrangement re: payment of postage etc.
when entry successful, defendant refused to share with plaintiff
plaintiff sued for his share
court ruled legally binding relationship as sufficient 'mutuality in the arrangements between parties'

Cases of Commercial Nature

Very strong evidence required to rebut assumption that there's intention to create legal relationship.

One method = put an express statement to that effect in writing.

Appleson v H Littlewood Ltd [1939] 1 All ER 464 / Jones v Vernon's Pools Ltd [1938] 2 All ER 626

plaintiffs tried to claim pools winnings
words 'Binding in honour only' were printed on coupon
plaintiffs failed
court held words were sufficient evidence to rebut assumption of intention to create legal relationship

Rose and Frank Co. v J R Crompton and Bros [1925] AC 445

English firm (defendants) agreed to sell materials in USA via NY-based firm
agreement in writing contained 'Honourable Pledge Clause': 'This arrangement is not entered into ... as a formal or legal arrangement and shall not be subject to legal jurisdiction to the law courts'
defendants terminated agreement without notice and refused to fulfill order received before termination notification
Court of Appeal rule clause meant no legally binding consequences existed re: no notice period
BUT defendants were bound to fulfill orders already received as they became binding when accepted

2 anomalies in above case:

how can clause bind if there is no binding contract as stated by the clause itself?
clause should be void as contravenes public policy by ousting jurisdiction of the courts

Another method = cite ambiguous clause (but burden of proof is high).

Edwards v Skyways Ltd [1964] 1 All ER 494

defendants terminated made plaintiff redundant with 3 months' notice
contract gave him two company pension options:

a) take his contributions out of the fund
b) get a paid-up pension at 50

negotiated agreement: if plaintiff took option (a), defendants would make ex gratia payment equal to total contributions
plaintiff did so and defendants then refused to make ex gratia payment
plaintiff sued and won
judge ruled use of term 'ex gratia' didn't produce negative contract, just meant employer didn't admit to preexisting liability

Another exception = 'letters of comfort'.

written to a lender by a holding company in reassurance of a subsidiary company's financial viability, in relation to their attempt for financing
not a guarantee
does not indicate holding company willing to enter legally biding agreement

Kleinwort Benson Ltd v Malaysia Mining Corporation Bhd [1989] 1 All ER 785

plaintiff (bank) agreed loan to MMC Metals, subsidiary of MMC
bank asked MMC to guarantee loan
MMC said not policy to guarantee loans to subsides
offered letter of comfort stating: "It is our policy to ensure that the business of MMC [Metals] is at all times in a position to meet its liabilities under the arrangements.”
bank accepted but charged higher rate of interest
the market collapsed and MMC went into liquidation
plaintiffs tried to claim balance from MMC
1st instance - court found in favour of plaintiff, relying heavily on Skyways (1964) ruling
overturned on appeal - judge said Skyways case not was about promise supported by consideration so not applicable here
ruled no intention to create legally binding agreement
statement was not meant to act as guarantee, stating on current position, not future intention

Note: absence of express promise does not necessarily mean a statement does not amount to a contractual promise.

Exception = adverts.

Adverts:

law assumes there is no intention to create legal relationship
exaggerated claims amount to 'mere puffs'
advertiser may be safer the more exaggerated the claim
if claim has semblance of credibility more chance of being legally binding (see Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 )

considering consideration (part 2)

2007-10-15T16:41:00.000+01:00

In this post, I finish what I started in my post 'considering consideration (part 1)' by looking at the third sub-principle of consideration - consideration must be be sufficient but not necessarily adequate.

Courts will not make comparative evaluation of consideration proffered by each party.

Courts just seek to establish that consideration has a degree of economic value.

Chappell & Co. Ltd v Nestle Co [1960] AC 87

Nestle advertised that they would provide customers with a copy of a record "Rockin Shoes"
Customers had to send 1/6d together with three wrappers from bars of Nestles' chocolate
Plaintiff were owners of the copyright in the record and entitled to 6.25% of the normal selling price
Plaintiffs argued that the value was to be calculated on the 1/6d plus the value of the wrappers
Nestle said the wrappers had no value
House of Lords ruled that wrappers were part of the consideration price and should be taken into account in assessing royalty fee
Lord Somervell: "A peppercorn does not cease to be a good consideration if it is established that the promisee does not like pepper and will throw away the corn. "

Midland Bank Trust Co. Ltd v Green [1981] AC 513

to avoid option granted to son, father sold £40k house to wife for £500
Court of Appeal held that a sale at such an undervalued price couldn't amount to sale
House of Lords reversed decision as only matters that consideration was real - court should no inquire as to what is adequate

Sufficiency
In addition to having economic value, consideration must be of type recognised by law.

2 main situations where found insufficient:

where there is performance of an existing obligation
where there is promise to pay part of a debt

PERFORMANCE OF EXISTING OBLIGATIONS

Public duty imposed by law:

Carrying out public duty imposed by law can't be used to enforce simple contract

Collins v Godefroy (1831) 1 B & Ad 950

plaintiff gave evidence at trial by subpoena issued by defendant
afterwards defendant promised to pay free of 6 guineas
court held plaintiff couldn't claim as no consideration as already legally obliged to attend

Courts will very often find on a matter of public policy in deciding there is good consideration

Glasbrook Bros v Glamorgan County Council [1925] AC 270

colliery manager applied for police protection for his mine
police thought local patrol adequate but agreed to billet officers for fee of £2,300
manager refused to pay arguing insufficient consideration as police under existing public duty
House of Lords ruled since police felt patrol adequate, any level of security above this amounted to sufficient consideration

Harris v Sheffield United Football Club Ltd [1987] 2 All ER 838

football club required to pay for special police services where provided on request of club
club refused to pay on basis police merely performing public duty
court held provided above public duty thus entitled to charge

Plaintiff bound by contractual obligation already owed to defendant:

Plaintiff performs insufficient obligation if he merely performs contractual obligation already owed to defendant.

Stilk v Myrick (1809) 2 Camp 317

plaintiff entered contract to sail ship
during voyage 2 crew jumped ship
captain promised to divide wages among remaining crew
captain refused to pay and was sued
captain alleged plaintiff had done no more that contractually obliged
court agreed with captai

Note: ruling may have been different if plaintiff could have proved he did something over and above preexisting contractual obligations.

Hartley v Ponsonby (1857) 7 E & B 872

plaintiff entered contract to sail ship
during voyage several crew jumped ship
captain promised to divide wages among remaining crew
captain refused to pay and was sued
court found in favour of plaintiff
ruled that so many crew had jumped ship that voyage changed so dramatically as to discharge plaintiff from original contract making him free to form a new one

Judgements in these cases can have serious ramifications on doctrine of consideration in general.

Williams v Roffey Bros and Nicholls (Contractors) Ltd [1990] 1 All ER 512

defendants (Roffey Bros) were firm of builders contracted to renovate block of 27 flats
subcontracted joinery work to plaintiffs (Williams) for £20k
with 9 flats completed, defendants paid £16k for work completed so far
plaintiffs fell behind schedule - claimed this was because they had not set adequate price for the work
to ensure completion on time, parties negotiated additional £10.3k from defendants based on £575 for each each building completed
plaintiff completed further 8 flats & defendants paid further £1.5k
plaintiff stopped work and brought action for £10,847
defendants claimed new agreement was void, as no sufficient consideration from plaintiff
Court of Appeal ruled there was consideration as new agreement conferred additional 'practical benefit' on defendants:

getting job finished on time
avoiding penalties
not having to find new contractors

Note: in Court of Appeal, Glidewell LJ expressed current state of the law according to six requirements:

“if A has entered into a contract with B to do work for, or to supply goods or service to, B in return for payment by B; and
at some stage before A has completely performed his obligations under the contract B has reason to doubt whether A will, or will be able to, complete his side of the bargain; and
B thereupon promises A an additional payment in return for A’s promise to perform his contractual obligations on time; and
as a result of giving his promise B obtains in practice a benefit, or obviates a disbenefit; and
B’s promise is not given as a result of economic duress or fraud on the part of A; then
the benefit to B is capable of being consideration for B’s promise, so that the promise will be legally binding.”

Problem with ruling - consideration doesn't move from the promissee (Williams)

See judgement in South Caribbean Trading Ltd v Trafigura Beheer [2005] 1 Lloyd's Rep 128 :

Colman J expressed serious doubts about corrected of Roffey judgement
pointed our Glidewell LJ had effectively applied diff rule - 'promisor must by his promise have conferred a benefit on the other party

Existing contractual duties owed to third parties:

Existing contractual duties owed to third parties may amount to sufficient consideration in return for promise

Shadwell v Shadwell (1860) 9 CBNS 159

plaintiff's uncle wrote congratulating him on engagements and promise to pay £150/yr until he was earning £600/yr
plaintiff married
sued uncle's executors on the promise
court held marriage was good consideration, even though already contractually bound

Scotson v Pegg (1861) 6 H & N 295

plaintiffs contracted with third party, 'A', to deliver coal to them
'A' sold coal to defendant and directed plaintiff to deliver it there
plaintiff entered agreement with defendant
plaintiff would deliver coal to defendant on request, who agreed to unload coal for fixed rate per day
defendant failed to keep promised
when sued, pleaded lack of consideration
court held defendant liable as ruled that performance of existing contractual duties to a third party could be consideration for a promise given to a third party
problem - ruling didn't define where consideration lies

Definitive case:

New Zealand Shipping Co. Ltd v A M Satterthwaite & Co Ltd, The Eurymedon [1975] AC 154

plaintiff made offer to defendant
if defendant unloaded plaintiff's goods, plaintiff would not hold defendant liable for any damage to good
defendant already obliged to unload good by 3rd party contract
court ruled could still amount to consideration as 'promisse obtains the benefit of a direct obligation which he can enforce'

PART PAYMENT OF DEBT

Common law rule:

All debts are payable in full.

A creditor is not bound to accept part in satisfaction of whole.

(this is known as 'rule in Pinnel's Case (1602) 5 Co Rep 117a )

So, if X owes sum of money to Y and pays part of amount owed, on condition Y agrees to rest of balance, Y can still claim rest of balance.

Note: part-payment could be sufficient if some new element introduced.

But new element must be introduced at request of creditor.

D & C Builders Ltd v Rees [1966] 2 QB 617

plaintiffs did building work for defendant
thus defendant owed plaintiff £482
defendant's wife knew plaintiff's were in financial difficulty do offered £300 as full settlement
stated if they did not accept, they would get nothing
plaintiff's accepted, then sued for remaining balance when cheque has cleared
court ruled in favour of plaintiff

Note: rule in Pinnel's case designed to protect creditor not debtor so can lead to unfair decisions.

Foakes v Beer (1884) 9 App Cas 605

Mrs Beet obtained judgement against Dr Foakes for £2090
parties made agreements in writing that Foakes that Foakes pay £500 now and then instalments
Mrs Beer agreed she wouldn't 'take any proceedings whatever on judgement'.
5 years later, debt clear Mrs Beer sued for £360 interest
House of Lords ruled Foakes shoudl pay, citing rule in Pinnel's case

Exceptions to the rule in Pinnel's case:

1) Doctrine of promissory estoppel:

In Combr v Combe [1951] 2 KB 215 , Denning described doctrine of promissory estoppel:

"where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration but only by his word."

Central London Property Trust Lts v High Trees House Lts [1947] KB 130

Sept 1939, plaintiffs leased block of flats to defendants for £2.5k/yr
Jan 1940, many flats vacant due to war conditions
plaintiffs reduced rent to £1.25k/yr
no time limit set
1945, flats full again
1946, plaintiffs sought back rent for Q3 and Q4 1945 and for future years
Denning ruled reduced rate only intended to apply to war conditions
flats full by June 1945 so plaintiff could claim full rent from that date

Plaintiffs were planning to sue for back rent for whole period, citing rule in Pinnel's case.

But Denning stated, obiter dicta, that they'd fail to doctrine of promissory estoppel.

Hughes v Metrolpolitan Railway Co. Ltd (1877) 2 App Cas 439

landlord gave tenant 6 months' notice to repair premises let
before notice expired, parties began negotiation for sale of reversion
negotiations broke down
when 6 months' notice expired, landlord brought action to eject
House of Lords ruled opening of negotiations = promise no action would be taken while negotiating
tenant had done nothing on this assumption
thus 6 months' notice ran from date negotiations failed

4 aspects of doctrine that can cause trouble:

nature of promise

must be a clear and unequivocal promise by promisor that he/she won't enforce his/her strict legal rights

shield not sword:

doctrine can only be used as defence not as a course of action
BUT plaintiff can rely of doctrine if it does not form main part of action e.g.

buyer of goods tells seller they won't insist of delivery by date stated in contract
later buyer refuses to accept goods as late
seller could sue for breach of contract and use estoppel to block defence of lateness

may also be used as action sub-ordinate to claimants main action (see Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204 )

are rights suspended or extinguished under doctrine?

Tool Metal Manufacturing Co. Ltd v Tungsten Electric Co. Ltd [1955] 2 All ER 657

appellants were owners of British patent
April 1938, gave respondents licence to manufacture and sell goods under patent
contract stated if respondent sold more that certain quantity, compensation payable to appellant
1939, outbreak of war, appellants suspended compensation rights pending negotiation of new contract
1944, negotiations began but broke down
1945, respondents sued for breach of contract
appellants counter-claimed for compensation payable from 1 June 1945
both claims failed
court ruled agreement in 1939 prevented compensation being paid until reasonable notice given of intention to revert to original contract (appellants hadn’t given notice)
September 1950, appellants brought new action for compensation from 1 January 1947
argued first counter-claim amounted to reasonable notice of their intent to claim
House of Lords eventually upheld appellants' claim

general view is that promissory estoppel is only suspensory (see Emmannual Ayodeji Ajayi v R T Briscoe (Nigeria) Lts [1964] 3 All ER 556 )
Richards (see 'considering consideration (part 1)') suggests view:

'doctrine is suspensory, except where the promissee cannot resume his position or where there is an express or implied intention on the part of promisor that he is giving up his rights forever'

thus in High Trees (see above) right to higher future rent can be revived with notice, but right to claim difference from reduced rent paid prior to notice extinguished; difference irrecoverable

must promisee have been prejudiced by his/her reliance of promise?

In 1972, Denning denied need for promissee to prove detriment suffered (see WJ Alan & Co. Ltd v El Nasr Export and Import Co. [1972] 2 QB 189 )
In 1982, Goff J stated all that is required is to show some inequity created by promissor attempting to resile his promise (see Société Italo-Belge Pour Le. Commerce v. Palm and Vegetable. Oils (The Post Chaser) [1982] 1 All ER 19 )

Note: a bargain must be supported by consideration - promissory estoppel shouldn't be used to enforce gratuitous promises.

2) Cheques

Once cheques were seen as different to cash and thus exception to rule in Pinnel's case.

No distinction is no longer made (see D & C Builders Ltd v Rees [1966] 2 QB 617 ).

3) Compositions with creditors

Debtor who cannot pay two or more creditors in full arranges to pay portion of total order in full settlement of debt.

Payment is divided pro rata among all creditors.

If rule in Pinnel’s case applied, this is not binding.

But such arrangements are upheld. Why?

One theory:

agreement between all creditors to forego their part of the debt
flaw = debtor would not be part of this contract since no consideration for creditors’ promises

Second theory:

creditors can’t then try to claim full balance as would amount to fraud on all parties
i.e. creditor is inducing a payment from the third part on the basis that they agree to discharge the debtor from the whole amount

Effect on Williams v Roffey Bros ruling on Pinnel's case:

As described above, in Williams v Roffey, the defendants did admit to factual benefit e.g. not having to pay late penalty.

The Court of Appeal ruled that, in absence of economic duress, that benefit could amount to consideration for their own promise to pay the extra money.

Economic duress here means:

one party threatens to breach an existing contract between the two parties unless the other party agrees to enter into another contract
thus contract is voidable if the innocent party can prove that it had no other practical choice but to agree

Richards (Chapter 3, Law of Contract), from which these notes are drawn (see 'considering consideration (part 1)') suggests that this application of concept of economic duress means rule in Pinnel's case no longer serves a useful purpose.

So, can Williams v Roffey decision be applied to cases of part-payment of debt?

in absence of economic duress, creditor receives part-payment/payment by instalments
receive benefit of avoiding need for legal action

This application has been attempted:

Re Selectmove Ltd [1995] 2 All ER 531

company entered negotiations with Inland Revenue re: payment of taxes owed
company offered to pay in instalments
Collector of Taxes stated he would come back to them if this was unsatisfactory
company started paying by instalments
then Inland Revenue contacted them demanding full settlement of arrears
company cited Williams and Roffey ruling, arguing that, by accepting payment by instalments, the Inland Revenue had avoided cost of recovering debt by legal action
thus argued benefit was analogous to Roffey's
House of Lords ruled agreement to accept payment in instalments not binding
reasoning = Roffey case was concerned with contract for goods and services
this case concerned with obligation to pay debt, thus followed decision in Foakes v Beer

Note, unless rule in Foakes v Beer overturned, inconsistency will remain.

If it was overturned:

agreements about part-payment of debt would only be enforceable in absence of economic duress/fraud (as in Williams v Roffey)
doctrine of promissory estoppel would be much less important

considering consideration (part 1)

2007-10-11T18:08:00.000+01:00

According to Richards, (Chapter 3, Law of Contract), the doctrine of consideration is not a single concept, but rather a body of rules. In fact, I think it's the most complex 'doctrine' I've come across so far.

Definition of consideration

Consideration means 'quid pro quo' - 'something for something'.A basic promise (nudum pactum) is unenforceable as a simple contract.

Note:

validity of consideration assessed for each party's promise
an agreement lacking consideration is not necessarily unenforceable (see notes on promissory estoppel below)
only certain types of consideration are recognised by law

Pollock (1950) defines consideration as:

An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.

3 main sub-principles - consideration must:

be executory or executed but not past
move from promissee but not necessarily to promisor
be sufficient but not necessarily adequate

Executed, executory but not past

Executory consideration:

promise by defendant in return for promise by plaintiff
whole agreement takes place in future

Executed consideration:

one party has done all that's required of them under the contract
other party's consideration remains executory

Past consideration:

past consideration is no consideration
if party makes a promise subsequent to some action being carried out by other party, promise is only regarded as expression of gratitude, nothing more

Roscorla v Thomas (1842) 3 QB 23

plaintiff negotiated purchase of horse from defendant
after agreement, defendant promised 'said horse was sound and free from vice'
horse proved vicious
plaintiffs action failed as court held consideration was past so warranty just gratuitous

Re McArdle [1951] Ch 669

children to be left house on death of mother (father's will)
while mother alive, one child lived there with wife
wife made considerable alterations to property
children later signed document saying she would get £488 in settlement of amount spent on improvements
executors refused to pay
court ruled wife couldn't sue document signed after consideration

Can be exceptions to the past consideration rule:

if it implicit that act must have been performed at defendants request
AND act must have been performed at defendant's request

Lampleigh v Braithwait (1615) Hob 105

Braithwait killed another man
asked Lampleigh to held secure a pardon
Lampleigh did so at personal effort and expense
Braithwait subsequently promised to pay £100 but didn't
court ruled original request had implied promise that he would reward and reimburse him
thus subsequent promise part of transaction and enforceable

Also note statutory exceptions to past consideration rule:

Limitation Act 1980, s 27 (5)
Bill of exchange Act 1882, s27

Consideration must move from promissee but not necessarily to promisor

Consideration must move from promisee but need not move to promisor e.g.:

if A makes promise to B
B promises to give car to C
A can enforce contract

BUT in order to be a party to to contract one must be party to the bargain and therefore also provide consideration.

So in above example, C couldn't enforce contract.

Tweddle v Atkinson (1861) 1 B & S 393, [1861-73] All ER Rep 369

plaintiff's father and prospective father-in-law agreed with each other that they would pay plaintiff £100 & £200 respectively in consideration of the plaintiff's intended marriage
agreement confirmed in writing
father-in-law died before paying £200
plaintiff sued executors but failed as he was not party to contract
only plaintiff's father could enforce contract

Note: Law Commission 1196 report No 242 recommended abolition of rule that consideration must move from promissee insofar as it would allow third parties to enforce a contract made in their favour (rule would still prevail in contract between original parties).

In 'considering consideration (part 2)' I will look at the last sub-principle 'consideration must be sufficient but not necessarily adequate'.

sketchpad with changable wallpaper

2007-10-11T15:52:00.000+01:00

Earlier today, I posted a sketchpad that I had created by following a tutorial on Lukamaras.com. Afterwards, I decided try to add a function that would allow the background wallpaper to be changed at the click of a button.

I found a suitable tutorial on Toxiclab.org, helpfully named 'Change the background color' and set up the function inside my sketchpad file. The only problem I hit was that the background images were appearing on top of the sketch, so that it could only be viewed when the wallpaper was white.

Choosing 'Arrange' > 'Send to back' to try to get the wallpaper to appear behind the other layers was not working. Eventually, I found that changing the blend effect of the movie clip itself to 'Darken' does the job to a certain extent, but because it's a blend effect rather than an ordering of layers, the colors get altered when they appear against certain backgrounds.

Here's the result:

Expect an update if/when I figure out a better solution...

improving skin quality with guassian blur

2007-10-11T13:27:00.000+01:00

All the tabloids in the UK were busying themselves with reporting hard news today. Yes, the big story today is that Victoria Beckham sometimes looks a bit rough or makes bad fashion decisions (I hope you're picking up on the sarcasm here).

Anyway, it reminded me that we are often are tricked into perceiving a star's appearance as 'rough' simply because we are so used to seeing edited photos of them.

One of the pictures published in The Sun today is of Mrs Beckham's foot looking a bit dry-skinned:

I saw this as a good opportunity to try out the 'Smooth Skins' tutorial on TutorialWiz.com, which uses the 'Edit in Quick Mask Mode' tool followed by 'Guassian Blur' to improve skin appearance.

Here is the result:

Pretty convincing I reckon.

interactive sketchpad

2007-10-11T11:56:00.000+01:00

A design post at last! It's been a while since I opened anything in the CS3 suite, so I thought I'd find something fun to do. Sifting through the tutorial sites I've already bookmarked, I found an 'Interactive Sketchpad' tutorial on LukaMaras.com.

The result is pretty cool:

Since you can download either the the completed SWF file, or indeed the zipped source FLA file for this tutorial, you may wonder what the point of following the tutorial from scratch is.

The main benefit for me is that I not only learn how to create this particular effect, I also learn how to do little things that can be applied elsewhere. For example, before following this tutorial, I didn't know how to 'swap' buttons - this will prove really useful.

In addition, all LukaMaras.com tutorials explain exactly what each line of ActionScript does, and reading through these explanations is really the best method I can think of of getting to a stage where I can write my own ActionScript from scratch.

role of government in shaping the legal system

2007-10-09T13:53:00.000+01:00

Chapter 4 of Partington’s Introduction to the English Legal System begins by describing the Department for Constitutional Affairs (DCA) as one of the principal government bodies involved in shaping the English legal system.

Unfortunately, Partington’s 3^rd edition was published in 2006, and according to an article appearing in Lawyers Weekly on September 21^st 2007:

“On 29 March of this year the then prime minister, Tony Blair, announced that responsibility for the prisons and offender management would be moved from the Home Office to the Department for Constitutional Affairs, headed by the Lord Chancellor, turning that Department into the Ministry of Justice. These dramatic changes have had important implications for the independence of the judiciary, and have been the subject of comment in reports of parliamentary committees both the Commons and in the Lords.”

Partington describes the DCA as follows:

Main categories of responsibility:

Justice – inc. running the courts, and improving the justice system

Rights - inc. human rights and information rights law

Democracy - inc. law and policy on running elections and modernising the constitution

Main areas of policy development:

procedures in the courts

work and development of tribunals and the administrative justices system

appointment and training of the judiciary

legal aid and delivery of legal services

So it appears the new MoJ is responsible for all of the above, plus certain prisons and offender management as previously handled by the Home Office. The core components of the Ministry of Justice can be viewed on their website.

What follows is a summary of the main points made in Chapter 4, entitled ‘Shaping the Institutional Framework: The Role of Government’, supplemented with additional research where necessary to ensure it's up-to-date (hopefully).

Her Majesty's Courts Service (HMCS):

Specialist agency
Started operation in April 2005 - took over work of Court Service and Magistrates Court Service
Listed in the MoJ's 'Organisations we sponsor' section as an 'Executive agency'
Committed to the delivery of defined standards of services to anyone coming through doors of courts:

administrative efficiency
dealing with people courteously
dealing with issues expeditiously but effectively
handling matters economically

Computerisation and new information technologies:

implications for more efficient running e.g. listing of cases for hearings
routine proceedings can take place without need for personal attendance by lawyers if purely procedural
more evidence presented through video links
electronic data collection reducing amount of paper going through courts

Legal Service Commission (LSC):

Responsible for actual delivery of legal services
Listed in the MoJ's 'Organisations we sponsor' section as an 'Executive non departmental public body (NDPB)'
Controversial area = keeping lid on public expenditure while ensuring access to justice is not being denied
Stresses in system:

fewer young practitioners will to take up legal aid practice
areas of law where there is little legal aid funding
criminal aid lawyers threatened to stop taking cases unless pay improved
some geographical areas where almost impossible to get legal advice

Future likely development:

greater emphasis on advice and prevention rather than funding lawyers to litigate
e.g. now possible for qualified 'lay advice and assistance agencies' to receive public funding for certain types of legal advice

Judiciary of England and Wales (JOEW):

The Lord Chief Justice is the Head of the judiciary in England and Wales
Listed in the MoJ's 'Organisations we sponsor' section as part of The Directorate of Judicial Offices for England and Wales (Independent directorate comprising: the Judicial Office; Judicial Studies Board; and Judicial Communications Office)
Key responsibilities include:

representing the views of the judiciary of England and Wales to Parliament and Government
welfare, training and guidance of the judiciary in England and Wales within resources made available by the Lord Chancellor. The Lord Chief Justice discusses with Government the provision of resources for the judiciary.
deployment of judges and allocation of work in courts in England and Wales
(see more info here)

Judicial Studies Board (JSB):

Part of the The Directorate of Judicial Offices for England and Wales (see above)
Responsible for training full and part-time judges in England and Wales, and for overseeing the training of Lay magistrates and chairmen and members of Tribunals
Provisions include:

regular programmes:

induction courses - must be taken before a judge begins to sit

continuation course - offered on three-year cycle

specialist programmes:

e.g. to introduce judiciary to Human Rights Act 1998

to provide ethnic awareness training (1996-6)

written guidance on running of trials via Bench Books

advice and training to ensure parties feel they are treated equally and not subject to discrimination

guidelines to ensure greater consistency in personal injury cases

The Law Commission

Established by Act of Parliament in 1965 to keep law of England and Wales under review
Listed in the MoJ's 'Organisations we sponsor' section as 'an advisory non departmental public body (NDPB)'
The team:

chaired by High Court judge
supported by 4 other commissioners
assisted by team of lawyers

According to the Law Commission website, the Law Commission's key aims are:

to ensure that the law is as fair, modern, simple and as cost-effective as possible
to conduct research and consultations in order to make systematic recommendations for consideration by Parliament
to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes

Ministry of Justice Research Unit

Formerly DCA Research Unit - see old web page here and new one here
Research unit created approximately 7 years ago to conduct specially commissioned policy-related research
Supports 'evidence-based' policy development
Work of research unit complemented by work of the Legal Services Research Centre within the LSC

Finally, here is a summary of a few more developments, taken from Partington's Student Resources site with minimal edits:

Tribunals Service
In addition to Her Majesty’s Court Service, a new Tribunals Service has been created which becomes operational in April 2008
Department for Children Schools and Families
Part of the restructuring of Government that occurred when Gordon Brown became Prime Minister was the creation of the Department for Children Schools and Families, replacing the Department for Education and Skills
The new department will have much input into questions relating to family policy, some of which will impact on the family justice system
Department for Business, Enterprise and Regulatory Reform
This Department for Business, Enterprise and Regulatory Reform replaces the former Department of Trade and Industry
Its responsibilities now include the work of the Better Regulation Executive

links to lexisnexis - a partial solution

2007-10-07T12:12:00.000+01:00

The best solution I can find to the problem of LexisNexis unstable URL links is to create stable search URL's using LexisNexis's own 'LINK Builder'. See this example: Pickfords Ltd v Celestica Ltd [2003] EWCA Civ 1741.

It isn't ideal as some links will bring up more than one result and worse still, some cases that are locatable on LexisNexis Butterworths don't seem to show up using this method. Where I can't produce a link, you'll see there is no red button to click on.

This isn't the best solution, but it's better than nothing and means I can go ahead and fix the broken links in the posts from last week.

terminating an offer

2007-10-07T09:11:00.000+01:00

According to Richards, (Chapter 2, Law of Contract) an offer can be terminated in the following ways: revocation, rejection, lapse of time, failure of a condition precedent, and death.

Revocation

Basic rules of revocation:

can revoke can offer any time before acceptance
revocation after acceptance = breach of contract
no obligation to keep offer open, even if deadline stated.
revocation must be communicated to offeree
postal rule had no application in context of acceptance

Byrne v Van Tienhoven (1880) 5 CPD 344, [1874-80] All ER Rep Ext 1432

defendant in UK posted offer on Oct 1st
offer received by plaintiffs Oct 11th
plaintiffs accepted immediately by telegram and posted acceptance on Oct 15th
defendants posted revocation on Oct 8th
revocation received by plaintiffs on Oct 20th
court held revocation too late as received after contract formed on Oct 11th

Note: rule may seem odd but otherwise no one could rely on an offer as it could have been revoked.

2 principal exceptions to above rule:

if revocation would have been received by offeree but for their negligence
offer made to general public and reasonable steps taken to post notice of revocation

Does sending 2nd offer prior to offeree accepting 1st offer always terminate the first?

Pickfords Ltd v Celestica Ltd [2003] All ER (D) 265 (Nov)

defendants approached Pickfords and asked for removal quote
Pickfords sent 1st offer on Sept 13th stating: 'we have an estimated budget figure to include all of the above at £100,000' (inc. VAT)
Pickfords then conducted survey and sent 2nd more detailed quote on Sept 27th stating they would do the work for £98,760 (excl. VAT)
defendants sent fax on Oct 15th stating invoice raised 'not to exceed £100k'
in Court of Appeal, Dyson LJ stated 2nd offer does not always cancel first e.g.

offeror quotes £200 per day

offeree asks for fixed price

offeror quotes £1,500

offeree can accept either offer

BUT in this case court held 2nd offer did revoke 1st
held that as fax of Oct 15th used words 'not to exceed £100k', it must refer to 1st offer
so as 1st offer revoked, fax acted as counter-offer
thus Pickfords accepted counter-offer when work was carried out
note: fax would have acted as counter-offer even if first offer not revoked as it introduced a new term ('not to exceed £100k')

Revocation need not be communicated by offeror - can be done by independent 3rd party.

Rumour/supposition not effective

Dickinson v Dodds (1876) 2 Ch D 463

on June 10th, defendant offered to sell house to plaintiff for £800, stating offer open until June 12th, 9am
On June 11th, defendant sold property to someone else
plaintiff informed that evening
same evening plaintiff sent letter of acceptance and followed it up with duplicate letter delivered at 7am June 12th (before deadline)
court said acceptance invalid as plaintiff knew offeror no longer intended to sell to him

Unilateral contracts open to abuse as offeror can revoke any time up to acceptance e.g.:

A advertises to pay £10k to anyone who hops from Lands End to John o'Groats by June 6th
just as B is about to arrive in John o'Groats, A revokes offer
see Daulia Ltd v Four Millbank Nominees Ltd [1978] 2 All ER 557

Such an approach is essentially unjust - compare these two cases:

Luxor (Eastbourne) Ltd v Cooper [1941] AC 108

owner of land promised agent £10k commission if he introduced him to willing purchased
agent did so and sale agreed subject to contract
owner decided not to proceed
agent tried to claim fee but owner refused
agent sued for breach of contract alleging implied undertaking that owner wouldn't do anything to prevent sale
court held owner could revoke any time up to exchange of contract
NOTE: if agent's task has been more substantial compared to fee, court may have been prepared to find implied undertaking

Courts tend to treat an offer in a unilateral contract as irrevocable once performance commences.

Errington v Errington and Woods [1952] 1 KB 290

father purchased house and allowed son and daughter-in-law to live in it provided they paid mortgage instalments
told them house theirs when mortgage paid off
father died and widow claimed possession
court held agreement amounted to contract and could not be revoked, provided they continued to pay the instalments

Rejection

(see counter-offer notes in post dated October 4th)

Trietel suggests offeree could post rejection, then accept before rejection letter arrives.

Postal rule can't apply as otherwise offeror could receive rejection, sell to third party and unwittingly be in breach of contract.

Lapse of time

Offer can't last indefinitely, either:

deadline may be expressed, or
will lapse after reasonable period of time

What constitutes reasonable time depends on subject matter e.g. perishable goods or volatile market will have shorter time until lapse.

Ramsgate Victoria Hotel Co. Ltd v Montefiore (1866) LR 1 Ex 109, [1861-73] All ER Rep Ext 2232

defendant ordered shares on June 8th
shares allotted on Nov 23rd
court held refusal to pay not breach of contract as shares highly volatile commodity and too long had lapsed

Failure of a condition precedent

Offer may only be effective while certain conditions (specified or implied) exist.

Financings Ltd v Stimson [1962] 3 All ER 286

defendant signed a form provided by dealer by which he offered to take a car on HP terms from the plaintiffs
defendant paid a deposit and took the car away on March 18th
on March 20th defendant was dissatisfied with care and returned it to the dealer, saying he no longer wished to purchase it
night of March 24/25th, car was stolen from the dealer's premises and damaged
on 25th March, HP company (the plaintiffs), not having been informed that the defendant had returned the car, signed the agreement
HP company subsequently sold damaged car, and tried to claim damages from defendant for breach of contract
defendant counter-claimed for £70 instalment
defendant succeeded since return of car was revocation of offer so no concluded contract between parties
court also held there was an implied condition that car would remain in substantially same condition and since damage occurred before acceptance, offer had lapsed

Death

Where contract requires personal services of offeror, death terminates offer.

If not, personal representative must carry out services.

BUT offeree can't accept offer if death of offeror brought to their attention before acceptance (see Bradbury v Morgan (1862) 1 H & C 249).

all about acceptance

2007-10-04T12:56:00.000+01:00

After looking at offers, Richards (Chapter 2, Law of Contract) looks at acceptance, considering what constitutes acceptance, the effect of counter-offers, and the various modes and actions that can lead to difficulties.

Acceptance may be communicated:

orally
in writing
inferred from conduct

Inferring acceptance causes difficulties.

Weatherby v Banham (1832) 5 C & P 228

Offeror offered to supply goods by sending them
Acceptance arose when offeree began using goods

BUT note Unsolicited Goods Act 1971:

In certain circumstances, if offeror sends unsolicited goods, receiver can treat them as gift and use them without incurring contractual liability

Acceptance can only be inferred from conducts if act was with intention of acceptance (see Taylor v Allon [1966] 1 QB 304 ).

Main difficulty = where there are protracted negotiations.

Brogden v Metropolitan Railway Co. (1877) 2 App.Cas. 636

Brogden supplied coal for years
then suggested introduce formal contract
Metro sent draft contract to Brogden
Brogden signed, added term and returned
no further action from Metro
dispute arose, Brogden denied binding contract saying counter-offer hadn’t been accepted
court decided that contract came into existence when Metro made first order on new terms, or at least when Brogden then supplied goods

Acceptance by conduct most commonly found in unilateral contracts (see Carlill v Carbolic Smoke Ball Co. in previous post of October 4th).

Act of acceptance must be completely formed for it to be valid (see also Daulia Ltd v Four Millbank Nominees Ltd [1978] 2 All ER 557 ).

Note: offer may prescribe particular mode of acceptance, then conduct alone not enough.

Counter-offers

The law makes distinction between qualified acceptance and conditional acceptance.

Conditional acceptance:

neither full acceptance not a counter-offer
common when buying a house
acceptance often said to be ‘subject to contract’ – renders the entering of a formal condition precedent to a legally binding agreement

Sometimes other words are used to indicate an agreement is tentative and not final.

Branca v Cobarro [1947] KB 854

vendor agreed to sell mushroom farm
parties signed doc stating ‘This is a provisional agreement until a fully legalised agreement drawn up by a solicitor and embodying all the conditions herewith stated is signed’
purchaser sued for return of deposit
vendor argued agreement was binding
court held that there was a binding contract until replaced by a more precise one

NOTE: Judge in Branca case stated that if doc had said ‘tentative’ instead of ‘provisional’, ruling may have been different.

Chillingworth v Esche [1924] 1 Ch 97

plaintiff agreed to purchase nursery ‘subject to a proper contract to be prepared by vendor’s solicitor’
plaintiff refused to sign and failed to complete
court held that offer was conditional so deposit should be returned

However, sometimes judges infer contract despite conditional offer.

Hillas & Co. Ltd v Arcos (1932) 38 Com Cas 23, [1932] All ER Rep 494

agreement in writing to supply wood
agreement contained option clause to buy more following year
option clause did not specify size of timber, shipment method etc.
suppliers argued option clause not binding and cited absence of specified factors as evidence
court held that as previous agreement was similarly expressed and complied with, showed sufficient intention to create binding obligation

Clarifying the terms of the offer

Where negotiations are complex, may be requests for info that do not constitute counter-offers and thus do not destroy the original one.

Stevenson, Jaques & Co. v McLean (1880) 5 QBD 346

defendant offered to sell iron to plaintiffs at 40s per ton
plaintiff sent telegram: ‘Please wire whether you would accept forty for delivery over two months, or if not, longest limit you could give.’
later that day sent second telegram accepting original offer
defendant argued first telegram was counter-offer, thus destroyed original offer
court held first telegram was just request for information as no attempt to introduce new terms

Making reference to another term in the acceptance would not amount to a counter-offer if term would be implied in contract anyway.

Treitel also states that acceptance should still be valid if new term introduces is by way of benefit or concession to the offeror.

The ‘battle of the forms’

Conflicts likely to arise when companies attempt to impose their standard conditions on contract.

‘Last shot principle’ = As counter-offer kills original offer, winner in ‘battle of forms’ is the person who submits last counter-offer which is accepted by other party.

Butler Machine Tool Co. Ltd v Ex-Cell-O Corporation (England) Ltd [1979] 1 All ER 965

seller made offer with price quotation + T&Cs containing price variation clause
offer stated T&Cs 'shall prevail over any terms and conditions in the Buyer's order'.
buyers replied by placing order but with own materially different T&Cs (no price variation)
buyers included acknowledgement slip which stated 'We accept your order on the Terms and Conditions stated thereon'
seller completed acknowledgement slip & returned along with letter stating buyers' order was being entered in accordance with the sellers' quotation of 23 May
on delivery, seller tried to charge higher price
court held buyer’s T&Cs prevailed as they had ‘last shot’
was ruled that although final letter from seller did mention original offer, purpose was not to reiterate T&Cs so not ‘last shot’

Lord Denning proposes more subjective approach – attempts to find consensus between parties.

Law still generally prefers classical objective approach.

Parties can attempt to avoid ‘battle of forms’ scenario by sticking steadfastly to their proposals throughout.

Scenario can be dangerous for commercially unwary.

Some parties try to introduce ‘prevail clause’:

e.g. ‘These Conditions will apply to the exclusion of all other terms, conditions and statements the buyer purports to apply’.
Clauses invariably have no effect as purchaser would have to agree to clause and could just as easily add their own

Communication of acceptance

The general rule

Some objective or external manifestation of acceptance must be communicated to offeror

Powell v Lee (1908) 99 LT 284

defendant appointed plaintiff as headmaster
terms of appointment never communicated to plaintiff
court held no contract as defendant’s acceptance of plaintiff’s offer of service not communicated

Why do we need the ‘general rule’ of acceptance?

substantial hardship on offeror if bound by terms without knowing offer accepted
practical – some outward sign of acceptance needed if courts are to decide if contract exists

Note: acceptance has to be communicated AND received (see Entores v Miles Far East Corporation described below).

Lord Denning:

A shouts offer over river to B
A does not hear B’s reply as plane goes overhead
No contract formed

BUT offeror can’t deny receipt of acceptance if own fault it wasn’t received:

e.g. if listener on phone does not catch words of acceptance, but doesn’t ask for them to be repeated.

Exceptions to the general rule

EFFECT OF SILENCE

It is not possible to impose contractual liability by stating in offer that offeree not required to communicate acceptance.

Felthouse v Bindley (1862) 11 CBNS 869

parties negotiating sale of horse
misunderstanding if price was £30 or 30 guineas
plaintiff wrote offer to split difference stating: ‘if I hear no more […] I consider the horse mine at £30 15s’
defendant did not reply
court held plaintiff had no property in horse since silence could not amount to acceptance.

Note: in unilateral contracts no communication of acceptance is required (see Carbolic Smoke Ball case in previous post on October 4th).

THE POSTAL RULE

Acceptance takes place as soon as letter is validly posted.

Adams v Lindsell (1818) 1 B & Ald 681

defendants offered to sell wool to plaintiff
requested reply by post
offer letter was wrongly addressed so acceptance of offer arrived two days later
on day it should have arrived, defendants sold wool to a third person
court held there was binding contract as offer accepted when letter posted
thus plaintiff entitled to recover against defendant for breach of contract

Acceptance is deemed effective when put in hands of Post Office.

Postmen not authorised to accept post so must go in post box.

‘Postal rule’ also applies to telegrams i.e. valid as soon as wording communicated to a person authorised to transmit it to offeror.

Why does ‘postal rule’ exist?

stops offeree accepting by post and then using faster method (e.g. telex) to reject offer
without it offeree wouldn’t be sure if they’d entered into a contract
law just providing certainty
if offeror, expressly or impliedly, indicates postal acceptance sufficient, they should bear consequences

‘Postal rule’ can be circumvented if:

offeror states ‘your answer by post is only to bind if it reaches me’ (see Household Fire and Carriage Accident Insurance Co Ltd v Grant (1879) 4 Ex D 216, [1874-80] All ER Rep 919 ).
faster mode of acceptance inferred from mode of offer (see Quenerduaine v Cole (1883) 32 WR 185).
offeror expressly prescribes particular mode of communication and stipulates only this mode sufficient (see Manchester Diocesan Council For Education v Commercial and General Investments Ltd [1969] 2 All ER 159 ).

INSTANTANEOUS FORMS OF COMMUNICATION

Reasoning with instantaneous communication is that it is as if the parties are in each other’s presence.

Entores v Miles Far East Corporation [1995] 2 QB 327

defendants in London
plaintiffs in USA with agents in Amsterdam
both parties had telex
plaintiffs placed order by telex
agent accepted by telex
dispute arose and plaintiffs sued for breach of contract
court held same as if in each other’s presence
thus contract formed when acceptance received in London

Complications can arise with regard to whether offer/acceptance sent during office hours.

The Brimnes [1975] QB 929

notice of withdrawal sent during office hours
but not seen by staff until Monday
court held effective when received
possible factor was staff’s negligence

Conversely if sent outside office hours, effective from first new day (see Schelde Mondial Shipping and Chartering BV v Astarte Shipping Ltd [1995] CLC 1011).

BUT NOTE still an area of uncertainty.

Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1982] 1 All ER 293

Lord Wilberforce stated: “many other variations may occur. No universal rule can cover all such cases; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment where the risks should lie.”

Email communications have same problems of Brinkibon and Entores as described above.

E-COMMERCE

Contracts made via internet not plagued by same imprecision (see notes on Argos in post on invitation to treat dated October 1st).

However, 2 issues arise at confirmation of order stage:

automatic electronic confirmation could acceptance thus binding, even if mistake made
time acceptance received e.g. can purchaser revoke offer before confirmation arrives or if confirmation screen isn’t seen?

bilateral and unilateral offers

2007-10-04T08:40:00.000+01:00

Chapter 2 of Richards’ Law of Contract also addresses the distinction between unilateral and bilateral offers. Most offers are bilateral, 'made to a specific individual or group', and these require acceptance as described in my post of 1st October.

However, some offers can be unilateral, 'capable of being made to the world as a whole'. Unilateral offers are unusual in that the offeror makes a conditional promise to pay for the act of another, and the acceptance takes place when the offeree performs that act, thus forming a binding contract.

Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256

defendant advertised that they would pay £100 to any person who contracted influenza after using the smoke ball in the prescribed manner
plaintiff bought smoke ball, used as directed and caught influenza
plaintiff sued for £100
defendant argued no contract as not possible to make contract with whole world
court held not contract with world, offer to whole world and those who perform the condition make contract
defendant also argued plaintiff had no accepted offer so no consensus idem
court held offer was unilateral, and so contact was binding

Note: for a unilateral offer to be binding:

terms of offer must be clear
offer must be made with intention of being binding

There have been cases where ads have found to be 'mere puff' rather than unilateral offers.

Carbolic Smoke Company couldn't use this defense as they had stated in ad that they had deposited £1000 in a bank to 'show their sincerity'.

linking to law reports on lexisnexis

2007-10-03T17:16:00.000+01:00

Quite often when about a case in a text book, it pays to find and read the full law report. Why? Because a) the details of cases aren't always clear, and b) the majority represent landmark cases and so are worth knowing well.

I have decided to link all case note references to the relevant law report on LexisNexis Butterworths, an online service which describes itself as 'THE most comprehensive and authoritative online legal information'. I have created a small icon which you just need to click on to view the report in a new window.

Adding links in this way will be a useful exercise for me as it will ensure I look up the full report for every case I refer to. It will also make any revision I might do easier. Unfortunately, you need a subscription to access the database, so this new addition will probably prove most useful to law students.

As I only started writing up case notes in my last legal post on October 1st, I'm going to go back and add all the relevant case links there too.

offer or invitation to treat?

2007-10-01T14:14:00.000+01:00

Chapter 2 of Richards’ Law of Contract looks at ‘The Fact of Agreement’. One of the early sections within this chapter is concerned with what constitutes an 'offer' and what is merely an 'invitation to treat'.

According to Richards, ‘An offer is an expression of a willingness to contract on certain terms made with the intention that a binding agreement will exist once the offer is accepted'.

Thus plaintiff seeking to enforce contract must prove existence of offer:

oral,
written, or
implied by conduct

It is stated that if an individual is not willing to implement terms, but merely seeking to initiate negotiations, this is not an offer but an ‘invitation to treat’.

Richards looks at some stereotypical examples of transactions and how the law deals with them.

Adverts and other notices

Most adverts are invitations to treat.

Harris v Nickerson (1873) LR 8 QB 286

auctioneer advertised that particular goods would be auctioned at particular location, date and time
plaintiff went but goods described weren't there
plaintiff sued for loss of time
failed as ad deemed invitation to treat thus no contract

Display of goods for sale

Items displayed in shops = the most common example of invitation to treat.

Fisher v Bell [1961] QB 394

price-marked flick-knife displayed in shop window
seller prosecuted under Offensive weapons Act 1961
Acquitted as 'display of article with a price on it in a shop window is merely an invitation to treat'

Complications arose with the advent of 'self-service' shopping':

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] 2 All ER 456, [1953] 1 All ER 482

shop prosecuted for selling poison out of supervision of registered pharmacist
plaintiff argued:

offer = making product available on shelf
acceptance = putting product in basket
thus sale takes place at that point

complaint rejected:

goods on shelf = invitation to treat
offer = presentation of product at cash desk by customer
thus sale takes place at supervised desk

Auction sales

There are different rules depending on whether there is a reserve or not.

If there is a reserve, no contract results if the auctioneer purports to accept a bid below the reserve price (see McManus v Fortescue [1907] 2 KB 1 ).

However, if the auction takes place without a reserve price and auctioneer doesn't accept highest bidder:

no contract arises between owner and highest bidder
but collateral contract does arise between highest bidder and auctioneer

Barry v Heathcote Ball & Co. (Commercial Auctions) Ltd [2001] 1 All ER 944

defendant (auctioneer) auctioned
2 tractors without reserve
claimant bid £200 each (highest bid)
auctioneer withdrew items from auction and sold privately later
court confirmed no contract between owner and claimant
but collateral contract between claimant and auctioneer
claimant awarded damages to value of tractors minus bid = £27.6k

Tenders

A statement that goods are to be sold by tender is not normally an offer (see Spencer v Harding (1870) LR 5 CP 561 ).

Similarly, an invitation for tenders for supply of goods is not usually an offer.

But an invitation to tender can be considered an offer in some cases.

Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25

council invited tenders for pleasure ride providers
terms stated bids to be submitted by 12 noon on 17/03/1983
plaintiff put bid in Town Hall letter box at 11am on 17/03/1983 but box not cleared
plaintiff's tender not considered thus sued for breach of contract
successful as court ruled they had acted in breach of warranty by not considering the bid

Note: there are 2 forms of tender:

specific tenders

a person invites tenders for a definite quantity of goods to be delivered/sold at a specific time
call for tenders is invitation to treat
person wishing to deliver makes offer
becomes contract when offer is accepted

standing offer tenders

a person invites tenders which may be required within a specified time in the future
acceptance of tender (offer) does not create a binding contract
offer is accepted every time an order is placed

Great Northern Railway Co. v Witham (1873) LR 9 CP 16

plaintiffs invited tenders for supply or good for period of 12 months
defendant submitted tender to supply goods at fixed price as ordered
tender accepted
before 12 months expired, defendant refused to supply any more goods
plaintiff sued for breach of contract
court ruled defendant only bound to supply good actually ordered
standing order could be revoked at any time
defendant only obliged to fulfil orders placed before revocation of offer

If a party attempts to win an order by reference to a bid submitted by another, this is known as a referential bid.

Harvela Investments Ltd v Royal Trust Co. of Canada (CI) Ltd [1986] AC 207

defendant 1 invited 2 people to tender bids
plaintiff offered £2.175m
defendant 2 offer £2.1m or £10k higher than any other bid
House of Lords ruled defendant 1 should have accepted plaintiffs bid
ruled bids are supposed to be confidential - referential bids defeat notion of competitiveness

Ticket cases

Is a ticket a contractual document meaning that the terms and conditions on it have to be adhered to?

Depends on:

whether it was intended to be a contractual document
mode and timing of its issue

Chapelton v Barry UDC [1940] 1 KB 532

council provided deck chairs on beach
beside stacked chairs, notice read: “Barry Urban District Council. Cold Knap. Hire of chairs. 2d. per session of 3 hours.”
appellant received two chairs from the attendant and, upon payment of the fee, two tickets
On the back of tickets: “… The Council will not be liable for any accident or damage arising from hire of chair.”
chair gave way and appellant was injured
court ruled ticket issued too late
appellant entitled to assume all conditions of hire were on notice near the stack of chairs
thus was not bound by the condition printed on the back of the ticket and was entitled to recover damages in respect of his injuries.

In the case above, the ticket was merely a receipt given for the purpose of being shown at a later time to prove payment. Thus distinguishable from a railway ticket which contains upon it the terms upon which the railway company agreed to carry the passenger.

Timing issue is clear in cases of tickets issue automatically by machine:

Thornton v Shoe Lane Parking Ltd [1971] 1 All ER 686

plaintiff went to defendant car park
sign at entrance set out charges and said 'all cars parked at customer's risk'
as plaintiff drove in, ticket ejected
court ruled terms of offer were on board at entrance
offer = machine ready to take money
acceptance = putting money in machine
thus terms on ticket not binding as issued after contract formed

E-commerce

Most websites are like virtual shops thus products are presented as invitations to treat, not offers (as in Fisher v Bell above).

In 1999, this came close to being tested:

Argos website accidentally advertised a Sony television for £3 instead of £300
Argos argued invitation to treat
Some customers had received confirmation emails
one buyer was Taylor Joynson Garrett employee
but they abandoned proceedings due to costs

If this had gone to court, according to Richards, it is unlikely it would have been enforceable as in Hartog v Colin and Shields (1939) 3 All ER 566 it was held that no contract arises when one party makes an offer knowing the other party is acting under a fundamental mistake as to the terms of the offer.

Request for information

Chapter 2 of Richards’ Law of Contract also looks at how offers can be distinguished from 'requests for information' and is worth including here.

Harvey v Facey [1893] AC 552

appellants telegrammed 'will you sell us Bumper Hall Pen? Telegraph lowest cash price
respondent: 'lowest cash price for Bumper Hall Pen, £900'
appellants brought action when respondent wouldn't sell
not held as mere response to request for information

However, distinction is always quite so straightforward:

Bigg v Boyd Gibbins Ltd [1971] 2 All ER 183

plaintiff wrote: 'As you are aware that I paid £25,000 for this property, your offer of £20,000 would appear at least a little optimistic. For a quick sale I would accept £26,000
defendants replied: 'I accept your offer'.
plaintiffs argued this was acceptance of offer
Court of Appeal ruled agreement on price not always agreement of sale, and word 'offer' did not always mean offer in law
BUT ruled that first letter = offer
reply = acceptance
thus binding contract formed

making case notes stand out

2007-10-01T13:18:00.001+01:00

Now that I'm reading about Law of Contract, I am coming across a lot of specific case citations - illustrative examples that also set precedent. As such, I want a practical way of highlighting these within my legal posts.

I decided the easiest solution was to use a table with a bgcolor. I also wanted to create different cells to ensure consistent formatting for the title and so on:

This is the code (as an image so that Blogger doesn't get confused):

And here's the result:

Title here - Lorem ipsum dolor sit amet

Content here. Vestibulum eget ipsum in ipsum mollis eleifend. Duis nunc dui, pharetra eu, blandit et, consequat sed, neque. Donec elit. Cras libero. Sed quis diam. Donec vitae erat. Donec sollicitudin ullamcorper nisi. Vestibulum eget ipsum in ipsum mollis eleifend.

Success! So that's how I'll be presenting case notes within posts from now on.

success with flash menus

2007-09-30T12:50:00.000+01:00

Last time I posted about design I was having trouble creating a row of drop down menus in Flash. This weekend I came across an extremely detailed tutorial on LukaMaras.com ('the most detailed flash tutorials on the web')

The best thing about the Drop Down Menu Tutorial on LukaMaras.com is that all the ActionScript is explained in great detail, making it eaier to understand what's going on and tailor the end product to suit your requirements.

I used the tutorial to create this dummy excercise and supplement site:

You can view a larger version by clicking here.

contract law - evolution and definition

2007-09-28T20:03:00.000+01:00

I decided that alongside reading about the structure of the legal system, now would be a good time to get into the nitty gritty of law so I looked into the common place to start and it seems to be Law of Contract and Law of Tort.

With this in mind, I went out and bought Law of Contract by Paul Richards.

Chapter 1 concerns ‘The Evolution and Definition of the Modern Contract’. Here’s a quick summary:

Evolution

Early development:

13^th and 14^th century – early forms of action
Action based on ‘covenant’ (equivalent to ‘contract under seal’) and debt (equivalent to modern ‘simple contracts’)
Notion of ‘assumpsit’ defined on Wikipedia as:

Assumpsit = ("he has undertaken," from Latin, assumere) is an action for the recovery of damages by reason of the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing.

Doctrine of consideration evolved from 16^th/17^th century, defined by Wikipedia as:

Consideration = anything of value (an item or service), which each party to a legally-binding contract must agree to exchange if the contract is to be valid.

Nineteenth century:

‘golden age of contract’
Idea of ‘freedom of contract’:

Individuals inalienable right to own and deal with property
Law should interfere as little as possible
Sanctity of contract – law should intervene only when things go wrong

Problems with notion of freedom of contract:

Contract materialises when there is agreement between parties

Law imposes objective tests
Courts have to find for the existence of contract based on intentions of parties

Inequality – assumes parties have equal bargaining power – often not the case,

Modern era:

19^th century saw great economic and political change
Individuals faced with standardised contracts beyond their knowledge
Thus modern era of protection evolved in 3 ways:

Social protectionism:

Industrial revolution
Workers treated as commodities
Poor treatment and conditions
Thus parliament called in
Throughout 20^th century network of institutions to protect individuals e.g. NI, NHS

Consumer protection:

Industrial revolution brought mass production
Britain = consumer society
Parliament imposed basic standards
Protect consumer against commercial enterprise
(private contracts still caveat emptor – ‘let buyer beware’)
Legislation imposed civil and criminal liability e.g. Trade Description Act 1968

Contracts of adhesion:

Contracts of adhesion = standard form contracts
Derive from introduction of passenger trains (too many per days to make them tailored)
Standard contracts illegitimate if seek to impose harsh/onerous terms that other partner has to accept
Thus courts attempted to curtail such contracts throughout 20^th century
Led to Unfair Contracts Act 1977

Present day:

Notion of ‘freedom of contract’ given new lease of life in 1980s with Thatcherism
Government argued it dulled competitiveness
Also argued individuals now more sophisticated so able to look after themselves
Result = reduced protection and gave more freedom of choice to individual
Privatisation increased competition because e.g. individuals now free to choose pension
Note: not complete return to freedom of contract
Still some protections and debate continues

Definitions of contract

Trietel:

‘agreement giving rise to obligations which are enforced or recognised by law’
‘distinguishes […] from other legal obligations […] based on the agreement of the contracting parties’

Beatson:

‘legally binding agreement’
‘rights are acquired by one or more to acts or forbearances on the part of the other or others’

Objectivity

Subjective statement of individual not enough
Needs to be objective evidence of agreement
Note: in most cases there is consensus ad idem (subjective and objective agreement)

Bargain and legal relations

Must also be evidence of a bargain
Bare promise (nulum pactum) not enough e.g. ‘I promise to give you X’
Parties each required to ‘buy’ the promise of the other e.g. ‘I’ll promise to give you X if you promise to give me Y’
Also needs to be intention to create a legal relationship
Thus agreement of a domestic or social nature not legal contract e.g. ‘I’ll mow your lawn if you drive me to work’

creating drop down menu in flash

2007-09-27T15:30:00.000+01:00

Today I decided to learn how to create a Flash dropdown menu interface. This isn't as easy as it might sound as you need at least a basic understanding of ActionScript and I had never even created a Flash document before yesterday.

Much Googling led me to KnowFlash.com where I found a nice simple tutorial to work from and created this:

What I need to do next is create a row of top buttons, each of which produces its own drop down when clicked on. Also, ideally, any open menu will close if you click on a different one.

I can't find any instructions on how to do this though, and duplicating the design on a new layer causes all the menus to open regardless of which top button is clicked.

More when I've figured out a solution...

first time with flash - motion tweening

2007-09-26T17:52:00.000+01:00

When I set out on the design part of this project, I wasn't planning to look at Flash, but when I came across the range of video tutorials on Adobe's Design Centre 'Video Workshop', it was impossible to resist.

The first tutorial I tried was on 'Motion Tweening' (you can view the tutorial as a video or as html).

As you can see below, I just created a very simple bouncing ball effect which uses motion tween with some colour 'tint' and 'ease in' and 'ease out' to make it speed up and slow down as it moves away and back.

I also squashed the image in the last few frames to test how 'motion tween' is able to cope with shape changes.

rollover within an image map

2007-09-20T17:28:00.000+01:00

After my last post, I was pleased with the result, but wondered how hard it would be to make the tile I was hovering over change colour. First, I created a series of images in Photoshop, based on the orginal one, each time with a different tile highlighted:

Created a new layer on top of the base image
Used the 'Polygonal Lasso' tool to select a tile
Filled the area red
Changed the layer setting to 'Darken'

Then I did a search and found a bit of javascript on Evolt.org that appeared to offer the solution I needed. It was then as simple as:

Altering the details within the script tags to refer to my new images
Adding 'onMouseover' and 'onMouseout' instructions to each of my 'area shape' tags
Adding a 'Name=' instruction inside the main image tag

And then I went to paste the result in a post...and was stopped short as Blogger doesn't allow complex javascript within posts.

It took me a minute to figure out a solution, but then I remembered you can add javascript elements to the blog template (using 'Customise' on the top right when logged into Blogger) so I put the Javascript element in an unmarked box, et voila:

free texture photos and the art of html image mapping

2007-09-20T15:31:00.000+01:00

While looking for a tutorial on how to create textures to use as background images, I came across three great sites, all of which offer texture photos that are free to use non-commercially, provided a credit is given.

They are:

Urban Dirty - 'Regularly updated online photo library featuring 218 gritty, grimy and sometimes slimy images for use in design and artwork creation'
Grunge Textures - 'Free Stock Photos, Images, Backgrounds and Digital Art'.
Texture Warehouse - 'Free, High Resolution Textures to Designers and 3D Artist.'

Since some of the images contain quite interesting shapes and patterns, I took the opportunity to learn a new Dreamweaver skill: HTML image mapping.

I followed this tutorial on CBT Cafe and it turns out that image mapping is really easy with Dreamweaver. I used the polygon tool to map some points onto the image below (from Texture Warehouse) so that 5 of the tiles take you to different search engines:

Note: To access the mapping options in Dreamweaver, you need to first insert the image onto the page, then right click it and select 'Properties'. The image map options will then appear at the bottom of the screen.

This mapping skill should prove very useful when I come to create menu bars for websites as it means I can create all the buttons in one image and then just map it to make each one point to the relevant page.

comic book effect for photos

2007-09-17T18:12:00.001+01:00

I've been playing with the comic book effect described on The Photoshop Road Map. I found it quite hard to get the colour levels right but see my first attempt at a strip below.

Click on the images to view larger versions of each.

how english courts develop english law

2007-09-17T11:26:00.000+01:00

According to Partington (Chapter 3, Introduction to the English Legal System), the English courts contribute to the development of English law in three main ways.

1) The development of common law

The power of the judiciary here is based on the doctrine of 'separation of powers' which is the idea that power should not be concentrated into the hands of one person or one body.

This concept is recognised in the Constitutional Reform Act 2005 which states that: "The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary".

There is also the doctrine of precedent, which is the idea that once the principle of a law has been established in one case, it must be applied in the same way in later cases.

Not all court decisions establish precedent, though. The courts are arranged hierarchically. Decisions below the level of High Court are not regarded as precedent.

Click the thumbnail to the left to view a diagram on the website of Her Majesty's Courts Service (HMCS).

With regard to precedent, there are two important terms to note:

Ratio decidendi - the principle of law which forms the precedent.
Obiter ditum - any part of the judgement which does not form part of the ratio and so is not precedent (although it can be considered 'persuasive').

Some complications to the principle of precedent:

facts of a case will never replicate in another case exactly
so many decisions are reported, one decision may be reached in ignorance of another (then it can be argued that the precedent in question was made incorrectly or per incuriam)
two separate decisions may be inconsistent with each other so straightforward application can't be made
House of Lords has power to alter a precedent if they deem is to a case to have been decided wrongly and the law needs to be changed.

2) Statutory interpretation

Courts have the power to interpret statutes which can lead to the clarification of wording.

Human Rights Act 1998 also gives courts the power to test legislation against the Act and declare it to be incompatible.

Courts need this power because:

statute rules must have a level of generality so can't be precise - the facts and application therefore need to be determined by the courts
wording can be ambiguous and thus require interpretation

3) Procedural law

Partington gives several examples of how new procedures are developed e.g.:

day-to-day practice of litigation is regulated by rules drafted by the judiciary (Rules Committees)
rules of (admissible) evidence are developed by the judiciary
power of judiciary to hold government departments legally accountable for their actions

futuristic UI features

2007-09-14T22:41:00.000+01:00

I just discovered Absolute Cross which has a great Photoshop tutorial section. I'm particularly keen to try out all the layout tutorials as they offer good detail on how to create shiny, futuristic style panels and buttons.

This evening, I tried out the 'Smooth Metal' tutorial, which worked really well:

I really recommend trying this because once you've been through the steps, you can then save the effects settings and create this effect for any shape at the click of a button.

passing of secondary legislation

2007-09-14T20:36:00.001+01:00

In this post I continue looking at The British Parliament and central government's role in law making, this time considering the process of the passing of secondary legislation.

According to Partington (Chapter 3, Introduction to the English Legal System), Acts of Parliament only contain the 'essential principles of legislation' - secondary legislation fills in the details.

The process required to introduce secondary legislation is quite different from that of Primary legislation:

The negative resolution procedure (the more common) means the new regulation takes effect on date stated, unless Parliament annul it.

Conversely, under the positive resolution procedure, regulation cannot become effective unless positively approved by Parliament

toxic flames

2007-09-14T18:56:00.000+01:00

I found really short tutorial on PS-Tutor.com that showed how to create 'toxic' green lettering. However, as is so often the case with Photoshop tutorials that specify exact settings, it didn't really come out like the illustration suggested.

Not to be defeated, I used less ripple than recommended and altered the 'Hue/Saturation' settings to give it a flame-like appearance.

primary legislation - from bill to act

2007-09-14T16:36:00.000+01:00

Chapter 3 of Partington's Introduction to the English Legal System looks at 'Law Making Authority and Process'. Within the chapter, Partington discusses the following law-making institutions that exist in the UK:

The British Parliament and central government
European institutions
The courts

I consider the first of these below.

The British Parliament and central government

This is the 'principal law making body in the UK'.

There are 4 classifications of statute law:

primary legislation

Acts of Parliament;
take up large proportion of parliamentary time

secondary legislation

regulations and orders made under the authority of an act of parliament;
known as 'statutory instruments';
not subject to detailed parliamentary scrutiny

tertiary legislation

legislative instruments not made under authority of an Act of Parliament
no parliamentary scrutiny

'quasi-legislation' or 'soft-law'

statements of good practice or guidance
may be made under authority of Act of Parliament
no parliamentary scrutiny

Primary Legislation

The flow chart below shows the typical progress of a piece of primary legislation goes from bill to Act to commencement.

Some key things to note about each stage:

Preparatory Stages

Green Paper

sets out proposals and asks for comment

White Paper

response to consultation;
firmer statement of policy objectives

Queen's Speech

written by cabinet committee;
sets out legislative priorities for coming parliamentary session

Parliamentary Stages

First reading

policy objectives written to legislative form by Parliamentary Counsel;
House orders bill to be printed

Second reading

minister sets out objectives;
objections and comments from opposition & MPs;
government sum up debate

Committee Stage

detailed scrutiny by Standing Committee;
government party has majority;
In emergencies, may take place in whole house

Report Stage

result of committee stage reported to house;
government can undo and amend things

Third Reading

amended bill brought together and passes to House of Lords;
no amendments made at this stage

House of Lords

Stages as above accept:

Committee Stage

no special committee, taken on floor of house

Third Reading

amendments can be made at this stage

Royal Assent and Commencement

Royal Assent

Has not been withheld since 1707

Commencement

legislation becomes effective with a Commencement Order (not before)

I'll be looking at the passage of Secondary legislation by comparison in my next post.

shiny buttons

2007-09-12T16:57:00.000+01:00

To build a website from scratch, I'm going to need to the Photoshop skills to design an attractive, functional UI. Today I've been working with navigation buttons. I followed this tutorial on tutorialwiz.com to try to create a shiny button.

This was the result of my first try:

I wasn't very happy with it so I asked a friend for feedback and he suggested that the there was too much drop shadow for the button size. The drop shadow is the only part in the tutorial where the exact parameters aren't specified so that explained that one. He also pointed out that bevelling on the text made it slightly hard to read.

Finally, he suggested that I work at a larger overall size and then reduce the image size at the end, so I could see what I was doing more easily. I had actually been working on it at 400% zoom and this definitely meant that I didn't really get a sense of what the image would look like in actual size until I was finished.

So, I tried it again, this time starting with a shape some 4 times the size of the above and as a result had to set my own parameters (e.g. how much to feather the inner selection by) and make more judgements rather then just following the instructions.

I also wanted to make the text more readable, so I went for a Arial Black instead of Arial and a larger font.

First I tried all CAPS and a slight drop shadow:

I thought it came out a bit harsh so I also tried lower case and a softer bevel effect:

I think I prefer the last one - it's not perfect but hey, I'm learning.

legal 'micro functions' and controversy

2007-09-12T12:50:00.000+01:00

To round off Chapter 2 of Introduction to the English Legal System, Partington provides an illustrative rather than exhaustive list of the ‘micro functions’ of the English legal system.

Picking 3 from his list, I set myself a challenge of finding a reference to each in a major British news source, published in the last 2 weeks. It wasn't much of a challenge, illustrating just how controversial every aspect of the legal system can be:

Defining the consequences of certain forms of behaviour

In criminal law, this might be the sentences attached to a finding of guilt. In civil law, an example would be the remedy that a person affected by breach of contract is entitled to.

A big story in the news this week was the release of a YouGov poll which revealed that 88% of adults in Britain want an increase in the five-year minimum sentence for possessing an illegal firearm.

Unfortunately the poll didn't go so far as to have respondents explain their reasoning for this, e.g. do they feel this would be a better deterrant, or simply serve to keep more criminals off the street?

According to Reuters:

The nationwide survey of 2,100 people was carried out for think-tank Policy Exchange.

It also found that 12 percent of adults know how to acquire an illegal firearm and that 12 percent of respondents said they know someone who has, or has had, an illegal firearm.

Nearly half of those adults questioned, 45 percent, said they feel their area is less safe than it was five years ago because of gun and knife crime, while 29 percent, said they, or their family, feel personally threatened.

[....]

More than 80 percent of respondents said they believed the government has not done enough to make Britain's streets safe, despite steps to curb crime, the report said.

The call for police to be armed and the reference to the unsatifactory level of action taken by government relates this issue to another microfunction decribed by Partington: 'Giving authority to agents of the state to take actions against citizens'.

Defining processes for the transaction of businesses and other activities

The procedures that must be followed when carrying out a transaction such as, for example buying and selling houses.

HIPs (Home Information Packs) have been appearing in the news sporadically in the past few months, mainly because there have been some teething problems with their introduction, and many are not convinced they are a good idea. But the root of the controversy seems to be to what extent the government should be trying to regulate this element of the house buying/selling process.

As reported in The Times last week:

When the home information pack (Hip) was first proposed by the incoming Labour government a decade ago, we were promised that it would transform the way we buy and sell houses for the better. For its opponents - and there were many, including the Conservative party, industry bodies and homeowners - it was a bureaucratic irritant that would contribute red tape and hundreds of pounds to the cost of selling a home, and might dissuade some people from even putting it on the market at all.

Creating regulatory frameworks

Particularly for those who provide services to the public e.g. solicitors, doctors, providers of financial services etc.

Calls for regulation and indeed de-regulation of various areas of financial services have become increasingly common in Britain. This is no doubt in part due to reports of growing levels of personal debt, coupled with 5 Bank of England base interest rate rises since August last year.

How pensions are sold used to get a lot of flack, now we see a panic surrounding the haves and the have nots. There are calls for tighter regulation of lending by creditors, as reported on the BBC News website:

Banks and other financial providers needed to act more responsibly, Mr Harker [of the CAB] stressed, by not offering new sources of finance to people who were already struggling.

"Lenders need to do much more to check that borrowers are really in a position to keep up repayments when they take out credit," he said.

"We also want to see creditors being more willing to negotiate with people in debt."

Similarly there have also been numerous calls for better regulation of debt solutions companies.

flagging categories and the 'layer style' function in Photoshop

2007-09-11T12:44:00.000+01:00

This blog is unusual in combining two unrelated subjects: law and design.

While I'm happy with this little oddity, as it reflects my two current interests, I thought it might be wise to flag my posts according to the category they fit in to, to make it easier for the reader to focus on the subject they are most interested in.

So I found some basic images which I felt symbolised the main topics, turned them into black silhouettes, and played around with the 'Layer Style' function in Photoshop, and used 'Drop Shadow', 'Inner Glow' and 'Bevel and Emboss' to create these basic icons:

Posts relating to law.

Posts relating to design.

Thoughts from me or about me that don't fit into the other categories.

law and order(s) - part 2

2007-09-11T11:18:00.000+01:00

Here I continue looking at the 'macro functions' of the English legal system, as defined by Partington in Chapter 2 of Introduction to the English Legal System, and attempt to identify recent events to provide a basic illustrative example for each.

Law and Social Order

A particularly tricky one. According to Partington, the 'present social order and the law that supports that social order have the effect of protecting the rights of those with property and the economic power to enter and enforce contractual arrangements'.

Clearly then, this is at odds with the concept of equal opportunity. As Partington points out, there are laws to protect against discrimination and promote equality, yet if law is to maintain social order then it could be said to be helping to maintain the political status quo where certain groups of individuals are discriminated against on the grounds of gender, race, wealth etc.

And we seem to be going backwards. There is a good practical reason, for example, for protecting against discrimination against women - they make up 50% of the available workforce. Yet last week, the Chartered Management Institute (CMI) showed that the pay gap between women and men had widened for the first time in 11 years.

It’s worth pulling a chunk from this weekend's Sunday Times here:

The CMI surveyed 42,205 managers and senior executives in every sector and found that the women’s wages averaged £43,571 last year while the men’s averaged £49,647. That’s a gap of 12.2%, up on the previous year’s 11.8%. “It is clear that the pull of promotion is not being matched by parity in pay,” says Jo Causon of the CMI. “Despite the weight of legislation and the reality that reward should match responsibility, gender bias seems to be getting worse, not better.”

It’s hard not to be really disconcerted by this piece of information: what is going on and why is nobody doing anything about a situation that is, apart from anything else, surely incredibly embarrassing for a Labour government?

A spokeswoman for the Government Equalities Office said last week: “The minister for women Harriet Harman acknowledged when she set out her priorities in the Commons in July that much more needs to be done to tackle unequal pay. Her priorities will include pressing forward with the government’s commitment to reduce the pay gap between men and women.”

Well, that’s nice - but how? The antiquated Equal Pay Act makes individual women responsible for tackling their employers where there is obvious disparity in male/female salaries. There has been a 155% rise in equal pay cases coming to tribunal over the past year alone, but it’s a painfully slow and drawn-out process. Besides, who has the time and energy to sue their employer for something that should be a given? It’s like suing a company because it denies you access to a glass of water when you’re thirsty: really quite out there on the bonkerness front.

On the same weekend, The Guardian reported that ‘Every year 30,000 women in Britain are sacked, made redundant or leave their jobs because of pregnancy discrimination’.

Law and Economic Order

So the economic order in Britain is capitalism. According to Partington this model is supported in areas of law such as rights in private property / ownership rights and in the laws of contract. However, to protect against the collapse of this model, there also has to be regulation. So we see, for example, laws against monopolies to protect the overall functioning of the marketing, and consumers laws designed to protect those with less power e.g. the 'cooling off' period associated with financial products.

An obvious current example of the threat of monopoly is the incredible growth of supermarkets; in particular the 'Big Four': Tesco, Asda, Sainsbury's and Morrisons. They are offering an increasing range of products, and winning an increasing share of the market, effectively pushing out small business. Put very simply the problem is that if you take the competition element out of a market, this will lead ultimately to less choice and a powerful group who can effectively set their own prices and standards free of the the threat of compeition.

See: http://news.bbc.co.uk/1/hi/business/6963375.stm

Law and International Order

There may not be an official 'International Law' but there are a number of legal authorities governing international order, such as:

Charter of the United Nations
War Crimes Tribunal
Regulation of World Trade
Geneva Convention
Protection of those seeking asylum

I'm not going to give specific examples here.

Law and Moral Order

Another problem area. Much law is shaped by a concept of common morality such as the way in which regulate relationships (marriage, incest etc.). However, 'morality' here is often Christian morality, in essence, and so soemtimes jar with the multicultural nature of modern British society. Yet the European Convention on Human Rights has been influential in the way the law in England is shaped to protect an individuals right to hold different religious beliefs. This can create quite a conflict.

In May 2007, a poll conducted by the Policy Exchange among 1,000 Muslims living in Britain revealed that 17% of over-55s and 37% of 16 to 24-year-olds would prefer living under Sharia law than British law. Leader of the Opposition, David Cameron told BBC News: "It shows the extent to which multiculturalism has failed, because what the poll showed is that these young people feel more separated from Britain than their parents did". According to the BBC, 'he said big changes were needed to break down barriers of extremism, uncontrolled migration, poverty and poor education'. The line between moral order and law is evidently not a clear one.

See: http://news.bbc.co.uk/1/hi/uk/6308683.stm

Also worth mentioning...

Partington also details the role of law in:

resoltuion of social problems
regulation of huiman relationships
educative or ideological function

I'll be coming back to the last on that list at a later date when I feel more equipped to do so.

light burst text

2007-09-11T09:33:00.001+01:00

One of the skills I really lack with Photoshop is how to edit text, so I followed this tutorial on tutorialwiz.com to create a 'light burst text' effect on the word 'NOTES'.

Here is the result:

law and order(s) - part 1

2007-09-10T18:42:00.000+01:00

In Chapter 2 of Introduction to the English Legal System, Partington uses the concept of 'law and order' to examine some of the 'macro functions of law, which he summarises as:

public order,
political order,
social order,
economic order,
international order, and
moral order

Rather than simply paraphrase these issues as presented by Partington, I have tried to look at current events to find an illustrative example for each of these 'macro functions'.

Here goes with the first two:

Public Order

The main complications of the law's function to 'preserve public order' is how it links to the protection of civil liberties and human rights

the preservation of order can restrict civil liberties
can the protection of civil liberties can restrict how far authorities can maintain public order

An example of this conflict is the problems surrounding the Human Rights Act 1994 (which came into effect in October 2000). A piece of umbrella legislation designed to protect fundamental human rights, it has come under fire recently in the case of Learco Chindamo.

When Chindamo, a foreign national, was jailed 11 years ago for the murder of headteacher Philip Lawrence , it was understood that he would be deported upon his release. However, on 20th August 2007, a Asylum and Immigration Tribunal decided that Chindamo cannot be deported to Italy if he is released, by reason of the Human Rights Act.

See http://news.independent.co.uk/uk/legal/article2886354.ece

Political Order

Britain does not have a written constitution yet there are myriad laws in place which effectively regulate our political system. According to Partington, 'we are currently witnessing the birth of a legally based constitutional settlement'. One example given is how The Freedom of Information Act governs how far governments can act in secret.

These made me think of the decisions made surrounding the beginning of the Iraq war and its subsequent handling. There have been numerous revelations in this regard and many of these have come to light as a result of The Freedom of Information Act which came into effect in 2005. For example, in July 2007, it was revealed that then Prime Minister, Tony Blair spoke three times with Rupert Murdoch in the 10 days before the outbreak of the Iraq war - the significance of this being whether he was able to exert influence on political decision making.

See: http://www.guardian.co.uk/Iraq/Story/0,,2129433,00.html

Since there are a growing number of stories hitting the headlines which begin 'According to information obtained under the Freedom of Information Act...' and then go on to report statistics and actions pertaining to various bodies within the legal system (including judges, police forces and politicians), the Freedom of Information Act is likely to have a considerable impact that we haven't even yet seen the full extent of.

the english legal system - preconceptions

2007-09-10T17:13:00.000+01:00

Chapter 1 of Partington's Introduction to the English Legal System looks at preconceptions regarding English law.

They are summarised as:

Scope - that many view law as what happens in criminal courts and forget about not only non-criminal law, but all the other parts of the legal system e.g. police station, parliament etc.
Providers - that some see lawyers as the sole providers of legal services which is too narrow. Also that lawyers are often perceived negatively, and that certain stereotypes (e.g. class and gender) are in play.
Resistance to Change - that the English legal system is conservative and unwilling to change. Doesn't allow for dynamic nature of system - practice and procedure change all the time.
Inefficiency - that legal proceeding are too long, drawn out and expensive. How far is this true and are we willing to trade speed for risk of injustice?
Miscarriages of Justice - that there are serious flaws in the legal system that allow mistakes to occur. Conversely, it can be said that we have a robust enough to allow miscarriages to be effectively flagged, challenged and corrected.

To consider how preconceptions and snap judgements about the efficiency of a legal system can be formed, it is interesting to consider the media reaction to the investigation into Madeleine McCann's disappearance by the Portuguese legal system.

There have been numerous suggestions in the British media in recent months that the investigation has been somehow 'bungled' by the Portuguese police, and that the Portuguese legal system is inferior to our own. What I find interesting is that while the journalists making these claims may have some foundation for their arguments, the majority of those criticising the handling of the case have nothing to compare it with, possessing little or no knowledge of the British legal system.

So for me one of the main reasons for studying law at this introductory level is to gain an understanding that allows me to make informed judgements, rather than being led by the media or my own preconceptions.

what I'm reading and why

2007-09-09T23:59:00.000+01:00

I am currently reading Introduction to the English Legal System, The Law Student's Handbook , Dreamweaver CS Bible and Photoshop CS3 Bible.

Why? Because I am currently not able to work and so I have set myself two challenges:

To gain a reasonable understanding of the English legal system, to at least 1st Year undergraduate level and perhaps beyond, depending on how much I like it, and how useful I find the knowledge I acquire.
To continue to develop my basic understanding of Photoshop and Dreamweaver, to the extent that I can build sites and blogs that perform the functions I need them to, and look the way I want them to.

placefornotes begins

2007-09-09T23:23:00.001+01:00

Studying and learning is something I will always do. Studying and learning without a purpose is something I find hard to commit to, so I have set up this blog as a personal motivator - just my notes on what I'm learning, as I learn it. An exercise in productivity.