The Doctrine Of Privity : Few Friends By The End Of The 1900 ' S

Proprietary estoppel, on the other hand, is a “legal bar preventing a (first) party from denying another (second) party's right in first party's property where the second party has incurred costs in that property to its detriment”. Proprietary estoppel, like other types of estoppel, is not a remedy in itself but a tool to raise “estoppel equity”, on the basis of which the court is able to decide on the type of remedy that this equity will satisfy. Similarly to the need for the element of common intention for the purpose of establishing a constructive trust, there is a need for the establishment of an active or passive assurance on the part of the defendant that leads to some form of consequential detriment on the part of the claimant when acting in reliance on that assurance. Thus, there must be a causal connection between the actions undertaken by the claimant and the initial assurance on the part of the defendant. The extent and the nature of the detriment suffered by the claimant, however, appears to be substantially more flexible than that necessary to find the existence of a constructive trust. For example, in Inwards v Baker [1965], such detriment amounted to the improvement of the defendant’s land, while in Gillett v Holt [2001] it was manifested in both financial and personal detriment. Yet unlike in most cases involving common intention constructive trusts, in neither of

Case Comment: John Michael Malins v Solicitors Regulation Authority [2017] EWHC 835 (Admin) 2017 WL 01339062

In this essay, the focus is on whether it is morally objectionable for a person to recover damages from another’s breach of contract that results in a better financial position than they would have been if the breach had not occurred. This is because in deciding whether to preserve the principle in Clark, law-makers would place high regard on the analysis of Clark’s normative outcome. The following points are the key arguments against awarding a sum to a higher pecuniary advantage??? Such as Clark, which can be subsequently rebutted in this analysis with “normative” research.

As a starting note, any mention of concurrent liability should be assumed to mean concurrently liability in tort and contract. Traditionally the distinction between contract and tort was that contract concerns the improvement of the claimant 's position, whereas tort is concerned with dealing with their position worsening. There has been dispute around concurrent liability and its ambiguity has led to varying decision in cases and statute making as Taylor puts it “the basis of concurrent liability uncertain”. This essay will argue Tort has and is extending itself beyond its traditional role due to judges presumption of morality leading to the unclear concurrent liability we see today. Whilst this concurrent liability shows some

In this article, Justine Kirby (2000) analyzes the basic law, section 11 of the Contractual Remedies Act 1979, and acknowledged routines for "exchanging" commitments, and after

Mutual assent and consideration go together so this paper will argue against them together. Mutual assent is the idea that all the parties in a contract know what they are contracting to and agree to it. As defined in Charles S. Knapp, Nathan M. Crystal, and Harry G. Prince’s Problems in

The question then, is whether TV Treats can escape liability arising from the fact that the Seven Network should have known Philippa did not have authority to sign as company secretary. Considering again the relevance of Turquand’s case[10] to the doctrine of

This essay will discuss the Supreme Court decision in FHR European Ventures LLP and others v Cedar Capital Partners LLC (Cedar) . The issue in this case was whether a bribe or secret commission accepted by an agent is held on constructive trust for his principal. This topic is a “relentless and seemingly endless debate” , as Sir Terence Etherton described, and that the “remedy awarded has vacillated for the last 200-odd years” . The major reason for the debate is because the principal will have propriety claim as opposed to a mere equitable compensation, if the bribe or commission is held on a constructive trust . The principal will be in a much more advantageous position if he was held to have propriety

Equity has been described as a ‘mysterious creature’ that lies distinctly alongside the common law. In considering the statement, there is an almost linear reversal in which the remedies in equity procure a type of right not necessarily available in the common law. This peculiar jurisdiction has created consistent controversy especially in regards to the fusion of the common law and equity. To understand further, this essay will consider the relationship between equity and the common law. The development of equity alongside the common law through its history and intention, and application in case law will be imperative in the discussion of the statement. In conjunction with an analysis of fusion, it will become apparent that equitable damages were enlivened, separate to, in unfair circumstances where no rights/damages existed within the common law. In trying to tread the murky waters of the distinction yet the procedural fusion of equity and common law, the contention of this essay becomes apparent. Effectively, this essay aims to highlight that the history, intention, application and fusion fallacies regarding equity, all which point to an assertion that rights in equity are indeed the product of its remedies. Whether they are merely ‘two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters’, is yet to be seen.

The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.

The impact of Williams v Roffey Bros & Nicholls (Contractors) Ltd [1989] EWCA Civ 5 on the doctrine of consideration.

It was this mergence that saw Lord Mansfield becoming known as ‘the founder of commercial law within this country [United Kingdom]’, due to his ability to harmonise ‘commercial custom and the common law ...with an almost complete understanding of the commercial community, and the fundamental principles of the old law and that that marriage of idea proved acceptable to both merchants and lawyers.’ At this stage, the principle of caveat emptor was utilised as a guiding principle for the courts, devised namely in response to the manner in which business at this time was undertaken. This was in response to the manner in which business was conducted, namely in small fairs with small quantities of goods being bought and sold, buyers were afforded the opportunity to inspect the goods and use their own knowledge and skill to determine whether or not to purchase them. As such, it was the buyer’s responsibility to ensure that due diligence was observed at the time of purchase. Failing to inspect the goods resulted in the cost would be lost if the goods purchased were not what was wanted. In this context protection for buyers was to a certain extent non-existent. The only way in which a seller could be held liable was in circumstances where a written warranty was issued or if the case was considered to be one of false affirmation.

The case of Donoghue v Stevenson created a definition of a ‘neighbour’ towards a duty of care in negligence within the bounds of an indirect causal link without the added implication of a willful act or inherently dangerous goods. This provided a mechanism for a third party to go beyond the doctrine of privity and sue even if not a direct party to a contract.

Whilst the Court advocates for high level of transparency as well as substantive fairness test, it sets unrealistic threshold for the consumer who is to be protected. The apparently high level of protection is severely circumscribed by the exaggerated expectations of consumer’s behaviour. The “average” consumer who the Court intends to protect is “reasonably well informed and reasonably observant and circumspect” . It is this consumer who needs to understand the contract terms and foresee

Conceptually, reasonable expectations of honest men and sanctity of contract are not in conflict. Indeed, they often point to the same direction – it is the reasonable expectation of an honest man that an agreement should be executed. Although it is observed that the two themes usually work side by side, this essay argues that in regards to the rules of acceptance of unilateral contracts, the English courts place more emphasis on reasonable expectations when making decisions.