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LW315 AUT: Introduction to Obligations (2018/2019) (Seminars (Week 6…

- - - - Questions
        
        Consideration is said to be necessary in order for a contract or promise to be binding. Are ‘contract’ and ‘promise’ synonymous? What does it mean to say that a contract (or promise) is legally binding? What are the rules on consideration?
        
        Are ‘contract’ and ‘promise’ synonymous?
        
        Promises and commitments forming consideration for the parties to the same consent is known as an agreement. The agreement, which is legally enforceable is known as a contract.
        
        Every agreement is not a contract, but every contract is an agreement.
        
        The agreement does not legally bound any party for the performance. In the Contract, the people are legally bound to perform their part.
        
        What does it mean to say that a contract (or promise) is legally binding?
        
        The underlying principle is that the promise is being enforced because the promisee paid a consideration or price for that promise.
        
        Consideration is the word used to describe the requirement that both parties must agree to give up something of value in order to form a contract; you have to give to get.
        
        What are the rules on consideration?
        
        In order for a contract to be binding it must be reinforced by valuable consideration. That means one party promises to do something in return for a promise from the other party to provide a benefit of value (the consideration). The consideration is basically a trust agreement between the parties as the agreed price for the other’s promises. This is usually accepted in monetary values, but isn’t always; it can be anything of value including the promise not to do something, or to refrain from exercising some right.
        
        What is an offer? What distinguishes an offer from an invitation to treat?
        
        An offer is made when a person shows a willingness to enter into a legally binding contract. An invitation to treat (I.T.T) is merely a supply of information to tempt a person into making an offer.
  - - - Questions:
      - Economic Duress
        
        Definition:
        
        Economic duress in contracts occurs where a party to a contract threatens to cancel a contract unless the other party agrees to their demands. The economic duress occurs when the other party is stuck, as there are no other practical options but to agree to the new terms of the contract.
        In other words, you are under economic duress when you have no choice and your back is against the wall, forcing you to agree to another party's terms. Fortunately, if you can prove you entered into a contract under economic duress, you can take the other party to court.
        
        Elements of Economic Duress:
        
        In order for you to claim you entered a contract under economic duress, you must prove several elements. All of the following elements must be demonstrated:
        
        An ongoing contract must exist between you and the party
        
        The other party has threatened to cancel this contract
        
        You accepted the new terms to the contract because you were under duress and there were no other alternatives available to you
      - Cases:
        
        Central London Property Trust v High Trees House Ltd [1947] KB 130.
        
        Facts:
        
        The defendants, High Trees, leased a block of flat from the plaintiffs, Central London Property Trust. The property suffered from falling occupancy rates due to the outbreak of World War II in 1940, so the parties agreed to reduce the rent by half. However, it was not expressly agreed how long this would last for. The defendants continued to pay the rent at this new rate. By 1945 the war had ended and the flats were at full occupancy. The plaintiffs sued High Trees for the full rent from 1945 onwards.
        
        Issues:
        
        The defendants argued that the agreement to pay the rent at a reduced rate applied to the whole term of the lease. They argued that the plaintiffs were estopped from claiming that the rent should be higher.
        
        Held:
        
        The court reviewed the past case law, especially Hughes v Metropolitan Railway Co (1877) 2 App Cas 439, where the House of Lords had held that parties should be prevented from going back on a promise to waive certain rights. Denning J stated that the cases showed that a promise which the promisor knew was going to be acted on by the person to whom it was made was enforceable despite a lack of consideration. The time had come for this to be recognized as giving rise to an estoppel. Here, the plaintiffs had made a binding promise. However, the evidence showed this only applied during the war. Therefore, after the war the defendants were liable for the full rent.
        
        Stilk v Myrick and Williams v Roffey.
      - The equitable principle of promissory estoppel
- - - - ‘A law report is a record of a judicial decision on a point of law which sets precedent’- The ICLR
      - ‘A decision is only reportable if it lays down a new principle of law, or changes or clarifies existing law’- The ICLR
      - Transcripts of a judgment are distinct from law reports and do not carry the same weight!
    - - Case Citations
        
        Case Citations
        
        Court Abbreviation
        
        Supreme Court/ UKSC
        
        House of Lords/ UKHL
        
        Privy Council/ UKPC
        
        Court of Appeal (criminal)/ EWCA Crim
        
        Court of Appeal (civil)/ EWCA Civ
        
        High Court (chancery)/ EWHC (Ch)
        
        Round brackets
        
        refer to the date of the decision.
        
        The Earl of Oxford’s Case (1615) 1 Rep Ch 1
        
        Square brackets
        
        = used when you need to know the year to locate the case.
        
        McLoughlin v O’Brien [1983] 1 AC 410
    - - Ratio decidendi
        
        The binding part of the judgment that explains the principles on which a decision has been made.
      - Obiter dicta
        
        This part of the judgment is not binding, but it can be influential (especially when judges are attempting to break away from past approaches).
      - A previous decision is treated as authority if…
        
        It is analogous to the present dispute before the court.
        
        It has been decided by a court which according to rules of precedent has the status to make decisions which will be deemed to be authoritative.
        
        And that decision has not been abolished by a statute or court which has the power to do so.
        
        Pros/Cons
        
        Advantages
        
        Predictability
        
        Stability and consistency
        
        Efficiency
        
        Disadvantages
        
        Rigidity (''Hard Cases''
        
        Slow to respond to change
    - - I
        
        Noting the (legal) issues…
        
        What are the parties disagreeing about?
        
        What sort of arguments are the parties advancing?
        
        There are likely to be several issues in a case, try to think about their broader implications.
      - J
        
        Dissecting the judgment…
        
        What was the outcome?
        
        How was the outcome justified?
        
        Did all of the judges agree with each other?
      - I
        
        Interpreting each judgment…
        
        Precedent?
        
        Court hierarchy?
        
        Contextual considerations?
      - F
        
        What is the issue that the case is meant to resolve?
        What uncertainty is the case trying to clarify?
  - - - What is a contract?
        
        In law, an agreement which is enforceable..but depends on private legal action (or threat..)
        
        Instances of contracts ... (nearly) all those that are labelled “contract”
        
        Plus all virtually all other market exchanges
        
        Plus some other informal agreements
      - Elements of Contract Formation
        
        Agreement – offer and acceptance
        
        Consideration
        
        Intention to Create Legal Relations
        
        Formalities ....but only in certain categories of contract (eg land)
    - - Distinguished from invitations to treat
        
        Advertisement of goods for sale will rarely be regarded as an offer
        
        Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd (1953)
        
        Acceptance
        
        General rule: takes effect on communication
        
        Postal rule exception: takes effect on posting
    - - Writing a casenote
        
        Reading cases – casenotes involve an in-depth look at a case
        
        A case note critically analyses a specific, single case. The FIJI System: (Facts, Issues, Judgment(s), Impact/Critique
        
        Case commentary critically assesses the impact of a case.
        
        Casenotes are ‘noteworthy’ to a certain degree. Noteworthy aspects may include
        
        An area of significant legal concern
        
        The possibility of the decision having an impact on later cases
        
        The judge has erred in law
        
        The court ignores logical reasoning or common sense
        
        The first case in a newly legislated area of law
        
        A powerful dissenting judgment
  - - - Case Reading/Doctrine of Precedent/Legal Reasoning
        
        Doctrine of Precedent (in brief!)
        
        The rules of the common law are found in past cases and these rules are called legal precedents.
        
        A precedent is the reasoning behind a courts decision that establishes a principle or rule that must be followed by lower courts within the same court hierarchy when dealing with future cases that are similar.
        
        Creates consistency, predictability and fairness (allegedly!)
        
        Two types of written contract
        
        A negotiated contract - document recording the product of negotiations between parties
        
        Standard form contract – drafted by one party and used for all their contracts.
        
        The problem of ‘standard form’ contracts:
        
        Rarely read by the recipient
        
        Potentially complex eventualities mean the contract needs some individual content
        
        Being drafted by one side provides the opportunity for one-sided terms
        
        Should signing or receiving notice of the terms be treated as sufficient consent to make them part of the contract?
  - - - A fundamental principle of English contract law is that promises and agreements are only legally enforceable if consideration is present
        
        (the legal significance
      - The consideration doctrine
        
        The legal meaning is not the same as these uses of the word: :
        
        Definition in Currie v Misa
        
        “A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other...”
        (1875) LR 10 Ex 153
        
        This rule means that the consideration requirement is satisfied if something of value is given;
        
        Consideration is not therefore concerned with the fairness of the price (or other performance)
- - - - AAA (BY HER LITIGATION FRIEND BBB)
        V ASSOCIATED NEWSPAPERS LIMITED
        
        outlining the facts of the case [F]
        
        Facts
        The Claimant is the young daughter of an unmarried professional art consultant. Her paternity was the subject of speculation in an article published in the Daily Mail, which also published a photograph of the Claimant being pushed in a buggy by her mother. Nicola Davies J awarded £15,000 in damages in respect of the photograph. However, she found that the Claimant had a reduced expectation of privacy in respect of the information about her father because of (1) her mother’s allusions to her daughter’s paternity at a party and during a magazine interview; and (2) the public interest in publishing the information. She therefore found that the publication was justified and did not breach the Claimant’s rights under Article 8 ECHR. As a result, neither damages nor an injunction preventing further publication of the information was awarded.
        
        250 words (max) on the legal issue(s) being argued in the case [I].
        
        ISSUES
        
        (1) Did the J fail to make any or any proper assessment of C’s best interests as regards media attention and media publication of the private information?
        
        (2) Was the J wrong to hold that two particular factors weakened C’s expectation of privacy in this case?
        
        (3) Was the J wrong to hold that the reasonable expectation of privacy was outweighed by the public interest?
        
        (4) Was the J wrong to hold that an injunction restraining publication of the private information would serve no useful purpose?
        
        250 - 300 words (max) on the case’s impact on the law and its significance [I].
        
        The upholding of the J’s findings about C’s reduced expectation of privacy in light of her mother’s behaviour, and how this was ultimately outweighed by the public interest in exposing the father’s behaviour, is of particular interest. In previous privacy and other Article 8 claims the court has focused on the paramount importance of the best interests of claimants’ children, weighing these in the balance in the context of parents’ rights. Here, by contrast, the rights of the infant C were affected by the behaviour of her parents notwithstanding the force of such interests. The fact that children’s privacy rights may be diminished in this way seems surprising, although the position might be different where a claimant was a child old enough to understand and be affected by media interest.
        
        250 words (max) on the judgment/decision and reasoning [J].
        
        Held
        
        (1) The Judge was mindful of the need to pay particular regard to the best interests of C. She referred to the PCC Editors’ Code, relevant authorities, and to international instruments relating to children and the jurisprudence of the ECHR. She attached considerable weight to them, but held that her expectation of privacy was nevertheless reduced.
        
        (2) The J was entitled to take into account any relevant conduct of the mother in evaluating the strength of C’s reasonable expectation of privacy. She was right to regard the mother’s behaviour in discussing C’s paternity with the President of a major magazine group who she had not met before as indicative of an ambivalent approach to its confidentiality. She was also right to regard the mother’s cooperation with the publication of an article in the T magazine, containing references to C’s paternity, for which she was interviewed, as being inconsistent with the aim of protecting C’s privacy.
        
        (3) In her assessment of the public interest in publication, the J was entitled to hold that the father’s behaviour, which had resulted in the conception of children on two previous occasions, was reckless. The issue of recklessness was put clearly in correspondence by D’s solicitors, where they said it was relevant to an assessment of [his] character. The balancing of C’s Article 8 rights with D’s Article 10 rights was an exercise which was conducted correctly by the J.
        
        (4) Once the story was out, there could be no question of it returning to obscurity. The J was entitled to hold that the fact that the information was in the public domain was sufficient reason to refuse to grant an injunction.
        
        Grounds of Appeal
        
        The Claimant appealed against the dismissal of her claim for damages and the refusal to grant an injunction. She did so on the following grounds:
        
        The judge failed to make any or proper assessment of the claimant’s best interests in relation to media attention and media publication of information or speculation concerning her paternity and related private information;
        
        The judge was wrong to hold that the mother’s conversations at the party and during the magazine interview reduced the Claimant’s expectation of privacy;
        
        The judge wrongly held that the claimant’s (weakened) expectation of privacy was outweighed by the public interest in the recklessness of her father; and
        
        The judge was wrong to hold that there was a public domain defence for publication of the defendant’s subsequent articles and that an injunction to prevent any further publication of information about the claimant’s paternity would serve no real purpose.
        
        This case cites:
        
        Cited – ZH (Tanzania) v Secretary of State for The Home Department SC ([2011] 1 FCR 221, [2011] 2 WLR 148, Bailii, [2011] UKSC 4, Bailii Summ, UKSC 2010/0002, SC, SC Summary, [2011] Fam Law 468, [2011] 2 AC 166)
        
        The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
        
        Cited – JIH v News Group Newspapers Ltd CA (Bailii, [2011] EWCA Civ 42, [2011] 2 All ER 324, (2011) 108(7) LSG 18, (2011) 161 NLJ 211, [2011] EMLR 15)
        
        The defendant appealed against an order granting the anonymisation of the proceeedings.
        
        Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
        
        Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA (Bailii, [2007] EWCA Civ 295, [2008] QB 103, [2007] EMLR 538, [2007] 3 WLR 289)
        
        The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
        
        Cited – ETK v News Group Newspapers Ltd CA (Bailii, [2011] EWCA Civ 439, [2011] EMLR 22, [2011] 1 WLR 1827)
        
        The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
        
        Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA (Bailii, [2008] EWCA Civ 446, [2008] 3 WLR 1360, [2008] HRLR 33, [2008] UKHRR 736, [2008] 2 FLR 599, [2008] 3 FCR 661, [2008] ECDR 12, [2008] EMLR 1, [2008] Fam Law 732, [2009] Ch 481)
        
        The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
        
        Appeal from – AAA v Associated Newspapers Ltd QBD (Bailii, [2012] EWHC 2103 (QB), [2013] EMLR 2)
        
        The claimant child sought damages and an injunction from and against the defendant newspapers, alleging harassment and breach of her privacy. At times there had been as many as ten reporters encamped outside her house. . .
        
        First Instance Costs – AAA v Associated Newspapers Ltd QBD (Bailii, [2012] EWHC 2224 (QB))
        
        TESTS USED: test of balancing the rights of article 8 and 10 of the ECHR