Manual Contract and Consent: Representation and the Jury in Anglo-American Legal History

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Contents:
  1. English contract law
  2. German Law and the German Legal System
  3. Contract And Consent - Representation And The Jury In Anglo-american Legal History Hardcover
  4. Biblioteca Madre María Teresa Guevara
  5. Contract & consent : representation and the jury in Anglo-American legal history.

The Works of John Adams, ed. Charles Francis Adams, 10 vols.

English contract law

Boston, —56 , — Samuel Eliot Morison, ed. Oxford: Oxford University Press, , Pole, ed. Winton U. Solberg, ed. In arguing this thesis I am in agreement with Adam Tomkins, whose recently published, persuasive book on the republican element of the British constitution came to hand too late for adequate engagement in this chapter.

There may seem to be some inconsistency between Tomkins and myself in our approach to the common law as a sustaining element in the constitution. Tomkins argues that the English constitution has not been historically upheld by the common law and that it cannot be called a common law constitution, whereas much of my emphasis is placed on the operation of the common law. The difference can be reconciled, I think, by observing that we both regard representation and its sustaining institutions as essential to republican government , no less in the American Constitution than in the British, a position which loses none of its force from my central argument about contract.

German Law and the German Legal System

Where the Law Comes From 1. London: Butterworths , , When a contract is formed, good consideration is needed, and so a gratuitous promise is not binding. That said, while consideration must be of sufficient value in the law's eyes, it need not reflect an adequate price. Proverbially, one may sell a house for as little as a peppercorn, even if the seller "does not like pepper and will throw away the corn.

The old rule, predating the development of the protections in the law of economic duress , was that if one side merely promises to perform a duty which she had already undertaken in return for a higher price, there is no contract. Speaking of consideration, Russell LJ stated that, "courts nowadays should be more ready to find its existence However, in one situation the "practical benefit" analysis cannot be invoked, namely where the agreed variation is to reduce debt repayments.

Despite Lord Blackburn registering a note of dissent in that case and other doubts, [] the Court of Appeal held in Re Selectmove Ltd , [] that it was bound by the precedent of the Lords and could not deploy the "practical benefit" reasoning of Williams for any debt repayment cases. However, consideration is a doctrine deriving from the common law, and can be suspended under the principles of equity.

Historically, England had two separate court systems, and the Courts of Chancery which derived their ultimate authority from the King via the Lord Chancellor , took precedence over the common law courts. So does its body of equitable principles since the systems were merged in So in Hughes v Metropolitan Railway Co [] the House of Lords held that a tenant could not be ejected by the landlord for failing to keep up with his contractual repair duties because starting negotiations to sell the property gave the tacit assurance that the repair duties were suspended.


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And in Central London Properties Ltd v High Trees House Ltd [] Denning J held that a landlord would be estopped from claiming normal rent during the years of World War II because he had given an assurance that half rent could be paid till the war was done. Hence, promissory estoppel could circumvent the common law rule of Foakes. Promissory estoppel, however, has been thought to be incapable of raising an independent cause of action , so that one may only plead another party is estopped from enforcing their strict legal rights as a "shield", but cannot bring a cause of action out of estoppel as a "sword".

Mr Maher got generous damages covering his loss i. So in Crabb v Arun District Council , Mr Crabbe was assured he would have the right to an access point to his land by Arun District Council, and relying on that he sold off half the property where the only existing access point was. The council was estopped from not doing what they said they would. Such a move would also dispense with the need for the common law doctrine of privity. The common law of privity of contract is a sub-rule of consideration because it restricts who can enforce an agreement to those who have brought consideration to the bargain.

Under section 1, a third party may enforce an agreement if it purports to confer a benefit on the third party, either individually or a member as a class, and there is no expressed stipulation that the person was not intended to be able to enforce it.

Contract And Consent - Representation And The Jury In Anglo-american Legal History Hardcover

The Act's reforms mean a number of old cases would be decided differently today. In Scruttons Ltd v Midland Silicones Ltd [] it would have been possible for a stevedore firm to claim the benefit of a limitation clause in a contract between a carrier and the owner of a damaged drum of chemicals. Lord Denning dissented, arguing for abolition of the rule, and Lord Reid gave an opinion that if a bill of lading expressly conferred the benefit of a limitation on the stevedores, the stevedores give authority to the carrier to do that, and "difficulties about consideration moving from the stevedore were overcome" then the stevedores could benefit.

In The Eurymedon , [] Lord Reid's inventive solution was applied where some stevedores similarly wanted the benefit of an exclusion clause after dropping a drilling machine, the consideration being found as the stevedores performing their pre-existing contractual duty for the benefit of the third party the drilling machine owner. Now none of this considerably technical analysis is required, [] given that any contract purporting to confer a benefit on a third party may in principle be enforced by the third party. Given that the Act preserves the promisee's right to enforce the contract as it stood at common law, [] an outstanding issue is to what extent a promisee can claim damages for a benefit on behalf of a third party, if he has suffered no personal loss.

In Jackson v Horizon Holidays Ltd , [] Lord Denning MR held that a father could claim damages for disappointment beyond the financial cost of a terrible holiday experience on behalf of his family. However, a majority of the House of Lords in Woodar Investment Development Ltd v Wimpey Construction UK Ltd [] disapproved any broad ability of a party to a contract to claim damages on behalf of a third party, except perhaps in a limited set of consumer contracts. There is disagreement about whether this will remain the case. It appears that neither the initial buyer can claim on behalf of the third party, and nor will the third party be able to claim under the Act, as they will typically not be identified by the original contract or known in advance.

If an enforceable agreement — a contract — exists, the details of the contract's terms matter if one party has allegedly broken the agreement. A contract's terms are what was promised. Yet it is up to the courts to construe evidence of what the parties said before a contract's conclusion, and construe the terms agreed. Construction of the contract starts with the express promises people make to one another, but also with terms found in other documents or notices that were intended to be incorporated. The general rule is that reasonable notice of the term is needed, and more notice is needed for an onerous term.

The meaning of those terms must then be interpreted, and the modern approach is to construe the meaning of an agreement from the perspective of a reasonable person with knowledge of the whole context. The courts, as well as legislation, may also imply terms into contracts generally to 'fill gaps' as necessary to fulfil the reasonable expectations of the parties, or as necessary incidents to specific contracts.

English law had, particularly in the late 19th century, adhered to the laissez faire principle of " freedom of contract " so that, in the general law of contract, people can agree to whatever terms or conditions they choose. By contrast, specific contracts, particularly for consumers, employees or tenants were built to carry a minimum core of rights, mostly deriving from statute, that aim to secure the fairness of contractual terms.

The evolution of case law in the 20th century generally shows an ever-clearer distinction between general contracts among commercial parties and those between parties of unequal bargaining power , [] since in these groups of transaction true choice is thought to be hampered by lack of real competition in the market. Hence, some terms can be found to be unfair under statutes such as the Unfair Contract Terms Act or the Unfair Terms in Consumer Contract Regulations and can be removed by the courts, with the administrative assistance of the Competition and Markets Authority.

The promises offered by one person to another are the terms of a contract, but not every representation before an acceptance will always count as a term. The basic rule of construction is that a representation is a term if it looked like it was "intended" to be from the viewpoint of a reasonable person. In Oscar Chess Ltd v Williams [] Mr Williams sold a Morris car to a second hand dealer and wrongly but in good faith , relying on a forged log-book said it was a model when it was really from The Court of Appeal held that the car dealer could not later claim breach of contract because they were in a better position to know the model.

By contrast, in Dick Bentley Productions Ltd v Harold Smith Motors Ltd [] the Court of Appeal held that when a car dealer sold a Bentley to a customer, mistakenly stating it had done 20, miles when the true figure was , miles, this was intended to become a term because the car dealer was in a better position to know. A misrepresentation may also generate the right to cancel or "rescind" the contract and claim damages for "reliance" losses as if the statement had not been made, and so to get one's money back.

But if the representation is also a contract term a claimant may also get damages reflecting "expected" profits as if the contract were performed as promised , though often the two measures coincide. When a contract is written down, there is a basic presumption that the written document will contain terms of an agreement, [] and when commercial parties sign documents every term referred to in the document binds them, [] unless the term is found to be unfair, the signed document is merely an administrative paper, or under the very limited defence of non est factum.

If a statement is a term, and the contracting party has not signed a document, then terms may be incorporated by reference to other sources, or through a course of dealing. The basic rule, set out in Parker v South Eastern Railway Company , [] is that reasonable notice of a term is required to bind someone. The Court of Appeal sent this back to trial for a jury as existed at the time to determine. The modern approach is to add that if a term is particularly onerous, greater notice with greater clarity ought to be given. Denning LJ in J Spurling Ltd v Bradshaw [] famously remarked that "Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.

It can also be that a regular and consistent course of dealings between two parties lead the terms from previous dealings to be incorporated into future ones.

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Biblioteca Madre María Teresa Guevara

In Hollier v Rambler Motors Ltd [] the Court of Appeal held that Mr Hollier, whose car was burnt in a fire caused by a careless employee at Rambler Motors' garage, was not bound by a clause excluding liability for "damage caused by fire" on the back of an invoice which he had seen three or four times in visits over the last five years. This was not regular or consistent enough. But in British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd [] Lord Denning MR held that a company hiring a crane was bound by a term making them pay for expenses of recovering the crane when it sunk into marshland, after only one prior dealing.


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Of particular importance was the equal bargaining power of the parties. Once it is established which terms are incorporated into an agreement, their meaning must be determined. Since the introduction of legislation regulating unfair terms, English courts have become firmer in their general guiding principle that agreements are construed to give effect to the intentions of the parties from the standpoint of a reasonable person.

This changed significantly from the early 20th century, when English courts had become enamoured with a literalist theory of interpretation, championed in part by Lord Halsbury. Ambiguities in clauses excluding or limiting one party's liability would be construed against the person relying on it.

Contract & consent : representation and the jury in Anglo-American legal history.

Lord Morton held that a clause in the contract limiting the Crown's excluding liability for "damage It would exclude that instead. Some judges, and in particular Lord Denning wished to go further by introducing a rule of " fundamental breach of contract" whereby no liability for very serious breaches of contract could be excluded at all. Reflecting the modern position since unfair terms legislation was enacted, [] the most quoted passage in English courts on the canons of interpretation is found in Lord Hoffmann 's judgment in ICS Ltd v West Bromwich BS.

The objective is always to give effect to the intentions of the parties. Part of the process of construction includes the courts and statute implying terms into agreements.

Trial by Jury: What's the Big Deal?

Given their basic attachment to contractual freedom , the courts are reluctant to override express terms for contracting parties. Legislation can also be a source of implied terms, and may be overridden by agreement of the parties, or have a compulsory character. Lord Steyn said that a term should be implied in the policy contract that the directors' discretion was limited, as this term was "strictly necessary In specific contracts, such as those for sales of goods, between a landlord and tenant , or in employment , the courts imply standardised contractual terms or terms "implied in law".

Such terms set out a menu of "default rules" that generally apply in absence of true agreement to the contrary. In one instance of partial codification, the Sale of Goods Act summed up all the standard contractual provisions in typical commercial sales agreements developed by the common law. This is now updated in the Sale of Goods Act , and in default of people agreeing something different in general its terms will apply.

For instance, under section , any contract for sale of goods carries the implied terms that the seller has legal title, that it will match prior descriptions and that it is of satisfactory quality and fit for purpose. Similarly the Supply of Goods and Services Act section 13 says services must be performed with reasonable care and skill.

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As a matter of common law the test is what terms are a "necessary incident" to the specific type of contract in question.