Pub Date : 2021-06-03DOI: 10.1093/he/9780198732808.003.0010
J. Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. Equitable remedies that provide for specific relief refer to remedies for breach of contract which compel actual performance rather than simply compensating for loss caused by breach. Compulsion of performance may take the form of claiming an agreed sum, a claim seeking specific performance, or a claim seeking an injunction. The claim or action for an agreed sum gives effect to the claimant’s performance interest by ordering the party in breach to pay the liquidated sum (debt), his agreed performance under the contract. The chapter examines the remedy of specific performance as a court order that compels actual performance of agreed obligations (other than payment of the price). As an equitable remedy it is available at the discretion of the court but only when damages would be an inadequate remedy. This chapter also examines remedies providing for specific relief and restitutionary remedies, the latter of which refer to recovery based on failure of consideration and quantum meruit. Finally, the chapter examines the availability of specific compensatory remedies in instances where there is no financial loss, namely the exceptional remedy of an account of profit or the remedy of ‘negotiating damages’—and their relationship.
{"title":"15. Remedies providing for specific relief and restitutionary remedies","authors":"J. Poole","doi":"10.1093/he/9780198732808.003.0010","DOIUrl":"https://doi.org/10.1093/he/9780198732808.003.0010","url":null,"abstract":"Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. Equitable remedies that provide for specific relief refer to remedies for breach of contract which compel actual performance rather than simply compensating for loss caused by breach. Compulsion of performance may take the form of claiming an agreed sum, a claim seeking specific performance, or a claim seeking an injunction. The claim or action for an agreed sum gives effect to the claimant’s performance interest by ordering the party in breach to pay the liquidated sum (debt), his agreed performance under the contract. The chapter examines the remedy of specific performance as a court order that compels actual performance of agreed obligations (other than payment of the price). As an equitable remedy it is available at the discretion of the court but only when damages would be an inadequate remedy. This chapter also examines remedies providing for specific relief and restitutionary remedies, the latter of which refer to recovery based on failure of consideration and quantum meruit. Finally, the chapter examines the availability of specific compensatory remedies in instances where there is no financial loss, namely the exceptional remedy of an account of profit or the remedy of ‘negotiating damages’—and their relationship.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132907631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-03DOI: 10.1093/he/9780199687220.003.0004
J. Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. Under English law, bargains and not gratuitous promises are enforced, thus a promise will not be enforceable if it is not contained in a deed (implying that any promise is taken seriously) or supported by consideration. Consideration refers to an act or a promise given in exchange for the promise (that is, the price for which the other’s promise was bought). The law does not recognize some acts or promises as good consideration, such as past consideration and performance of an existing legal duty. This chapter examines the general requirement in English law to provide consideration in order to enforce a contractual promise. The consideration requirement is relevant not only to the formation of a contract but also to the enforceability of promises altering the terms of an existing contract (alterations). An alteration promise that is not supported by consideration may still have some binding effect on the basis of the doctrine of promissory estoppel.
{"title":"3. Enforceability of promises: consideration and promissory estoppel","authors":"J. Poole","doi":"10.1093/he/9780199687220.003.0004","DOIUrl":"https://doi.org/10.1093/he/9780199687220.003.0004","url":null,"abstract":"Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. Under English law, bargains and not gratuitous promises are enforced, thus a promise will not be enforceable if it is not contained in a deed (implying that any promise is taken seriously) or supported by consideration. Consideration refers to an act or a promise given in exchange for the promise (that is, the price for which the other’s promise was bought). The law does not recognize some acts or promises as good consideration, such as past consideration and performance of an existing legal duty. This chapter examines the general requirement in English law to provide consideration in order to enforce a contractual promise. The consideration requirement is relevant not only to the formation of a contract but also to the enforceability of promises altering the terms of an existing contract (alterations). An alteration promise that is not supported by consideration may still have some binding effect on the basis of the doctrine of promissory estoppel.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"15 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116785212","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-03DOI: 10.1093/HE/9780198732808.003.0005
J. Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter examines the requirement that there must be an intention to create legal relations and specific requirements of form, such as writing, for an agreement to be enforceable as a legally binding contract. Traditionally, this intention to create legal relations is determined objectively using two presumptions that can be rebutted on the evidence. First, it is presumed that there was no intention to be legally bound in the context of social or domestic agreements. Secondly, it is presumed that the parties to commercial agreements intended to be legally bound unless there are clear words indicating the opposite, such as the existence of an honour clause. In addition, some contracts require particular formalities to be binding. The chapter outlines some examples of these and discusses the consequences of non-compliance with the formality requirements. It also considers the capacity rules in contract (i.e. a party’s ability in law to contract) and the effect of incapacity on a contract, focusing on contracts made by minors (persons below 18 years old). The chapter concludes by discussing electronic signatures and the implications of e-commerce for formality requirements in contracts.
{"title":"4. Intention to be legally bound, formalities, and capacity to contract","authors":"J. Poole","doi":"10.1093/HE/9780198732808.003.0005","DOIUrl":"https://doi.org/10.1093/HE/9780198732808.003.0005","url":null,"abstract":"Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter examines the requirement that there must be an intention to create legal relations and specific requirements of form, such as writing, for an agreement to be enforceable as a legally binding contract. Traditionally, this intention to create legal relations is determined objectively using two presumptions that can be rebutted on the evidence. First, it is presumed that there was no intention to be legally bound in the context of social or domestic agreements. Secondly, it is presumed that the parties to commercial agreements intended to be legally bound unless there are clear words indicating the opposite, such as the existence of an honour clause. In addition, some contracts require particular formalities to be binding. The chapter outlines some examples of these and discusses the consequences of non-compliance with the formality requirements. It also considers the capacity rules in contract (i.e. a party’s ability in law to contract) and the effect of incapacity on a contract, focusing on contracts made by minors (persons below 18 years old). The chapter concludes by discussing electronic signatures and the implications of e-commerce for formality requirements in contracts.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132560783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-03DOI: 10.1093/HE/9780198732808.003.0011
J. Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. According to the doctrine of privity of contract, only the parties to the contract are bound by, or can enforce, the obligations under the contract. A person who is not a party to a contract does not have any rights under that contract and is not subject to any of its obligations (or burdens). This chapter considers the rules of contract law, and related rules, that are applicable to contracts which stipulate third party rights. It considers the relevant provisions of the Contracts (Rights of Third Parties) Act 1999, the scope of the legislative reform, the test for third party enforceability and how the doctrine of privity of contract is related to the consideration requirement. It also looks at means of circumventing the privity doctrine such as assignment, and exceptions to the privity doctrine such as agency principles as employed in The Eurymedon. The chapter then examines remedies available to the promisee which have the effect of enforcing any promise in favour of a third party beneficiary or enabling substantial damages to be recovered to cover the third party’s loss. Finally, the means by which contractual burdens may bind third parties are examined.
{"title":"7. Privity of contract and third party rights","authors":"J. Poole","doi":"10.1093/HE/9780198732808.003.0011","DOIUrl":"https://doi.org/10.1093/HE/9780198732808.003.0011","url":null,"abstract":"Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. According to the doctrine of privity of contract, only the parties to the contract are bound by, or can enforce, the obligations under the contract. A person who is not a party to a contract does not have any rights under that contract and is not subject to any of its obligations (or burdens). This chapter considers the rules of contract law, and related rules, that are applicable to contracts which stipulate third party rights. It considers the relevant provisions of the Contracts (Rights of Third Parties) Act 1999, the scope of the legislative reform, the test for third party enforceability and how the doctrine of privity of contract is related to the consideration requirement. It also looks at means of circumventing the privity doctrine such as assignment, and exceptions to the privity doctrine such as agency principles as employed in The Eurymedon. The chapter then examines remedies available to the promisee which have the effect of enforcing any promise in favour of a third party beneficiary or enabling substantial damages to be recovered to cover the third party’s loss. Finally, the means by which contractual burdens may bind third parties are examined.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130989863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-03DOI: 10.1093/he/9780198732808.003.0006
J. Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter explores how the terms of the parties’ agreement (that is, the contractual promise to be performed) are identified and how the courts interpret the meaning of those terms. It considers the status of statements made prior to the conclusion of the contract (as terms or representations) and why this matters. The parol evidence rule applies where the contract is written and provides that the writing represents the entire contract. This definition is flawed, however, because it allows the rule to be sidestepped by defining the contract as partly written and partly oral. Alternatively, an oral term can take effect as a collateral contract, which is separate to any written contract to which the parol evidence rule applies. The effect of the parol evidence rules can be achieved by incorporating an entire agreement clause. This chapter also considers the effect and impact of a no oral modification clause (or NOM). This chapter examines methods of achieving incorporation of terms such as signature, reasonable notice (or a higher standard of notice if the term is onerous or unusual), consistent course of dealing and common knowledge of the parties. In addition to the express terms, there may be terms implied by custom, by courts or by statute. Finally, the chapter considers the principles on which contracts are interpreted including the relevance, or otherwise, of pre-contractual negotiations.
{"title":"5. Content of the contract and principles of interpretation","authors":"J. Poole","doi":"10.1093/he/9780198732808.003.0006","DOIUrl":"https://doi.org/10.1093/he/9780198732808.003.0006","url":null,"abstract":"Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter explores how the terms of the parties’ agreement (that is, the contractual promise to be performed) are identified and how the courts interpret the meaning of those terms. It considers the status of statements made prior to the conclusion of the contract (as terms or representations) and why this matters. The parol evidence rule applies where the contract is written and provides that the writing represents the entire contract. This definition is flawed, however, because it allows the rule to be sidestepped by defining the contract as partly written and partly oral. Alternatively, an oral term can take effect as a collateral contract, which is separate to any written contract to which the parol evidence rule applies. The effect of the parol evidence rules can be achieved by incorporating an entire agreement clause. This chapter also considers the effect and impact of a no oral modification clause (or NOM). This chapter examines methods of achieving incorporation of terms such as signature, reasonable notice (or a higher standard of notice if the term is onerous or unusual), consistent course of dealing and common knowledge of the parties. In addition to the express terms, there may be terms implied by custom, by courts or by statute. Finally, the chapter considers the principles on which contracts are interpreted including the relevance, or otherwise, of pre-contractual negotiations.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"123 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121710379","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-03DOI: 10.1093/he/9780199687220.003.0012
J. Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. In general terms non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.
{"title":"12. Discharge by frustration: subsequent impossibility","authors":"J. Poole","doi":"10.1093/he/9780199687220.003.0012","DOIUrl":"https://doi.org/10.1093/he/9780199687220.003.0012","url":null,"abstract":"Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. In general terms non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132826949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-08-08DOI: 10.1093/he/9780198729723.003.0006
J. Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. A clause which seeks either to exclude a party’s liability for breach or to limit that liability to a specified amount is known as an exemption clause. It is also possible for exemption clauses to seek to exclude or limit the remedies which would otherwise be available for breach or seek to deny that any breach of contract or breach of a duty of care has occurred. Although such clauses can allocate risks between the parties and prevent duplicate insurance cover, both the courts and the Parliament in the UK have sought to control their use. An exemption clause is enforceable if the clause in question is incorporated as a term, covers the loss that has occurred in the circumstances in which it arose, and is not rendered unenforceable by either the Unfair Contract Terms Act 1977 (B2B contracts) or Part 2 of the Consumer Rights Act 2015 (B2C contracts). This chapter examines the construction of exemption clauses as well as the legislative regulation of exemption clauses and, in the consumer context, unfair terms.
{"title":"6. Exemption clauses and unfair contract terms","authors":"J. Poole","doi":"10.1093/he/9780198729723.003.0006","DOIUrl":"https://doi.org/10.1093/he/9780198729723.003.0006","url":null,"abstract":"Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. A clause which seeks either to exclude a party’s liability for breach or to limit that liability to a specified amount is known as an exemption clause. It is also possible for exemption clauses to seek to exclude or limit the remedies which would otherwise be available for breach or seek to deny that any breach of contract or breach of a duty of care has occurred. Although such clauses can allocate risks between the parties and prevent duplicate insurance cover, both the courts and the Parliament in the UK have sought to control their use. An exemption clause is enforceable if the clause in question is incorporated as a term, covers the loss that has occurred in the circumstances in which it arose, and is not rendered unenforceable by either the Unfair Contract Terms Act 1977 (B2B contracts) or Part 2 of the Consumer Rights Act 2015 (B2C contracts). This chapter examines the construction of exemption clauses as well as the legislative regulation of exemption clauses and, in the consumer context, unfair terms.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115719092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-18DOI: 10.1093/HE/9780198816980.003.0001
R. Merkin, Séverine Saintier
Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Contracts are legally enforceable agreements intended for planned exchanges that are regulated by the principles of contract law. This chapter looks at some of the main theories underpinning the development of English contract law and examines the nature of contractual liability. Contractual obligations arise largely from party agreement and this distinguishes contractual liability from liability in tort. Given the continued relevance of English law in a globalized world (and the fact that as of this date, the UK is still part of the European Union), this chapter also briefly introduces the various attempts to produce a set of harmonized principles such as the Common European Sales Law, along with the impact of other international developments including the growth in e-commerce and electronic communications. Moreover, the chapter analyses the most significant European directives and their effect on the development of English contract law, especially in the context of consumer contracts. The implementation of these European directives has resulted in the introduction of the concept of ‘good faith’ into English contract law. Given the increasing importance of good faith as a concept, the chapter gives detailed discussion on the scope of ‘good faith’, and whether there is an implied duty of good faith in performance. Finally, the chapter considers the implementation of the Consumer Rights Directive in a number of statutory instruments and the Consumer Rights Act 2015.
{"title":"1. Introduction to the law of contract","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/HE/9780198816980.003.0001","DOIUrl":"https://doi.org/10.1093/HE/9780198816980.003.0001","url":null,"abstract":"Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Contracts are legally enforceable agreements intended for planned exchanges that are regulated by the principles of contract law. This chapter looks at some of the main theories underpinning the development of English contract law and examines the nature of contractual liability. Contractual obligations arise largely from party agreement and this distinguishes contractual liability from liability in tort. Given the continued relevance of English law in a globalized world (and the fact that as of this date, the UK is still part of the European Union), this chapter also briefly introduces the various attempts to produce a set of harmonized principles such as the Common European Sales Law, along with the impact of other international developments including the growth in e-commerce and electronic communications. Moreover, the chapter analyses the most significant European directives and their effect on the development of English contract law, especially in the context of consumer contracts. The implementation of these European directives has resulted in the introduction of the concept of ‘good faith’ into English contract law. Given the increasing importance of good faith as a concept, the chapter gives detailed discussion on the scope of ‘good faith’, and whether there is an implied duty of good faith in performance. Finally, the chapter considers the implementation of the Consumer Rights Directive in a number of statutory instruments and the Consumer Rights Act 2015.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128377461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-18DOI: 10.1093/HE/9780198816980.003.0005
R. Merkin, Séverine Saintier
Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines the requirement that there must be an intention to create legal relations and specific requirements of form, such as writing, for an agreement to be enforceable as a legally binding contract. Traditionally, this intention to create legal relations is determined objectively using two presumptions that can be rebutted on the evidence. First, it is presumed that there was no intention to be legally bound in the context of social or domestic agreements. Second, it is presumed that the parties to commercial agreements intended to be legally bound unless there are clear words indicating the opposite, such as the existence of an honour clause. In addition, some contracts require particular formalities to be binding. The chapter outlines some examples of these and discusses the consequences of non-compliance with the formality requirements. It also considers the capacity rules in contract (that is, a party’s ability in law to contract) and the effect of incapacity on a contract, focusing on contracts made by minors (persons below eighteen years old). The chapter concludes by discussing electronic signatures and the implications of e-commerce for formality requirements in contracts.
{"title":"5. Intention to be legally bound, formalities, and capacity to contract","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/HE/9780198816980.003.0005","DOIUrl":"https://doi.org/10.1093/HE/9780198816980.003.0005","url":null,"abstract":"Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines the requirement that there must be an intention to create legal relations and specific requirements of form, such as writing, for an agreement to be enforceable as a legally binding contract. Traditionally, this intention to create legal relations is determined objectively using two presumptions that can be rebutted on the evidence. First, it is presumed that there was no intention to be legally bound in the context of social or domestic agreements. Second, it is presumed that the parties to commercial agreements intended to be legally bound unless there are clear words indicating the opposite, such as the existence of an honour clause. In addition, some contracts require particular formalities to be binding. The chapter outlines some examples of these and discusses the consequences of non-compliance with the formality requirements. It also considers the capacity rules in contract (that is, a party’s ability in law to contract) and the effect of incapacity on a contract, focusing on contracts made by minors (persons below eighteen years old). The chapter concludes by discussing electronic signatures and the implications of e-commerce for formality requirements in contracts.","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132283823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-09DOI: 10.1093/HE/9780198816980.003.0003
R. Merkin, Séverine Saintier
Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines principles that determine when an agreement can be enforced with sufficient certainty and whether liability will arise in the absence of agreement. An apparent contract will be void if the terms are considered too uncertain or where there is no context for gap filling. But this must be balanced with the need to prevent the parties from using allegations of uncertainty to escape from bad bargains. This chapter therefore considers how the courts deal with the difficult question over agreements to agree. This chapter also considers mistakes that prevent agreement (mutual or cross-purposes mistakes and unilateral mistake as to terms, particularly identity mistakes). It also examines the availability of the remedy of rectification when the contract that does not accurately reflect what the parties agreed. The chapter also considers the defence of non est factum (this is not my deed).
{"title":"3. Agreement problems","authors":"R. Merkin, Séverine Saintier","doi":"10.1093/HE/9780198816980.003.0003","DOIUrl":"https://doi.org/10.1093/HE/9780198816980.003.0003","url":null,"abstract":"Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines principles that determine when an agreement can be enforced with sufficient certainty and whether liability will arise in the absence of agreement. An apparent contract will be void if the terms are considered too uncertain or where there is no context for gap filling. But this must be balanced with the need to prevent the parties from using allegations of uncertainty to escape from bad bargains. This chapter therefore considers how the courts deal with the difficult question over agreements to agree. This chapter also considers mistakes that prevent agreement (mutual or cross-purposes mistakes and unilateral mistake as to terms, particularly identity mistakes). It also examines the availability of the remedy of rectification when the contract that does not accurately reflect what the parties agreed. The chapter also considers the defence of non est factum (this is not my deed).","PeriodicalId":179935,"journal":{"name":"Poole's Textbook on Contract Law","volume":"143 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121636056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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