Please enable JavaScript.

Coggle requires JavaScript to display documents.

law paper 2 - Coggle Diagram

- - - - an expression of willingness to contract on certain terms Treitel
      - can be expressed in words or implied through actions
      - invitation to treat not offer
        
        Fisher v Bell flick knives
        
        print ads almost always an invite to treat Partridge v Crittenden
        
        an indication of a willingness to start negotiations
        
        auctions with reserve Payne v Cave
      - pharmaceutical society v Boots offer is made at the cash desk, not when putting items in a basket
      - when does an offer end
        
        lapse of time
        
        if an amount of time is not specified the offer ends after a "reasonable amount of time" Ramsgate Victoria Hotel
        
        offers last for the amount of time specified in the contract but can be revoked before then
        
        revocation
        
        offeror can withdraw at any time before offer is accepted, even if offer period is still open Routledge v Grant
        
        but offeree must receive notification that offer has been revoked
        
        Dickinson v Dodds hearing from reliable source that item is sols is suitable notice
        
        rejection
        
        Stevenson v McClean once rejected an offer ends and cannot be accepted
        
        rejection must be clear, not a request for more info
        
        counter-offer
        
        rejects offer and creates a new one Hyde v Wrench
        
        death
        
        offeree dies - offer ends
        
        offeror dies - acceptance can still take place until offeree knows - except for personal services
      - request for more info is not an offer
      - offers can be made to the general public in the form of adverts Carlill v Carbollic Smoke Ball forming unilateral contracts once accepted
      - only an offer if certain
      - reward posters are an offer Carllil v Carbolic Smoke Ball
      - automated (vending machine, parking meter) is offer Thornton v Shoe Lane Parking
      - Auction without reserve - unilateral offer- bid is acceptance Heathcote Ball v Barry
      - offer must be communicated to be accepted
    - - offers to the public at large are accepted when acted upon by a member of the public
      - an offer can only be accepted while it is open
      - the contract is enforceable by either side once accepted
      - a positive and unconditional agreement to the offer
      - methods of communication
        
        specified: offeror set out specific method of acceptance to be used, if not used there is no valid acceptance Eliason v Henshaw
        
        if unspecified any effective method will do
        
        verbal: contract exists when acceptance is heard
        
        conduct: when you start to implement what is in the offer you have given acceptance - requires positive action, inaction is not conduct felthouse v bindley
        
        by post: postal rules
        
        only apply to acceptance
        
        post must be a normally accepted or specified method of acceptance
        
        acceptance takes place at the point of posting - if properly stamped, addressed, and proof of posting acquired
        
        clarified in Adams v Linsell
        
        Household Fire Insurance v Grant offer is accepted even if letter lost
        
        Entores v Miles Far East Corporation e-communications almost instant, normal rules apply, acceptance occurs when it arrives
        
        Brinkibon v Stahag Stahl e-comm recieved out of work hours, acceptance occurs the next day
        
        Thomas v BPE instant communication such as email does not follow postal rule, emails accepted as soon as received. email is accepted immediately if outside of business hours varies based on the parties intentions
    - - domestic
        
        presume that parties did not want to enter a legally binding contract unless evidence suggests otherwise
        
        Balfour v Balfour did not intend legal relations
        
        Merritt v Merritt did intend legal relations as their separation indicated a lack of family agreement as in balfour
      - commercial
        
        presume parties wanted to enter a binding contract, unless there is evidence otherwise
        
        McGowan v Radio Buxton
        
        Edwards v Skyways
      - courts will not enforce a promise. a contract requires the parties to have intended to be legally bound. objective what could one reasonably conclude from the others' behaviour?
    - - past consideration is not valid consideration (already done when agreement is made) Re McArdle Lampleigh v Braithwaite
      - performing a pre-existing duty is not consideration for a new contract Collins v Godefroy Ward v Bytham
      - promise must be given for something of value
      - an act or forebearance of one party, or the promise thereof Dunlop v Selfridge
      - executed = party has performed its part in the agreement
      - executory = promise to do something in the future
      - consideration must have some value, not necessarily equal value Chappell v Nestle wrappers
      - intangible matters are not consideration White v Bluett* promise not to complain was intangible
      - nor are promises for things required anyway Ward v Bytham promise to keep child alive not consideration, promise to keep child happy was
      - consideration must come from the parties involved unless named in contract Contracts (Rights of 3rd Parties) Act 1999
      - consideration can exist where contractual duties are owed to a third party
      - promise to accept a part debt instead of full is not consideration Pinnel unless something other than money can be consideration if agreed as payment of debt
    - - the rights of third parties under the Contract (Rights of Third Parties) Act 1999
      - exceptions
      - Dunlop Tyres v Selfridge
      - Beswick v Beswick
      - 3rd party can enforce if, identified by name, contract expressly says, or contract is an attempt to benefit 3rd party
      - agency acts for principle and is treated as same person
      - collateral contracts Shanklin Pier order to contractor to buy paint from them was consideration
      - Restrictive Covenants: promises in deeds run on to subsequent owners Tulk v Moxhay
  - - - offer
        
        despite creating a legal loophole, the distinction between offer and invite to treat is necessary to allow freedom to contract
        
        also useful for age restricted goods or those that require a pharmacist present. If the offer was the goods on the shelf then the acceptance would be when put i basket, making it impractical to have these products available. would also be theft if buyer changed their mind and put it back
        
        counter offers and requests for info are not easily distinguishable
        
        offers are open for a reasonable amount of time if unspecified this depends on circumstances - uncertainty. makes it difficult to know whether to pursue a case and there is inconsistency in decision making
      - acceptance
        
        no acceptance by silence rule is important to ensure contracts not entered into unknowingly
        
        acceptance must normally be effectively communicated, but this is waived for unilateral offers
        
        the postal rule is unfair on the person who does not receive the acceptance. they are legally bound unknowingly and will be in breach if they contract with another.
        
        modern methods do not follow the postal rule, perhaps because the courts believe that, with instant communications, the offeree has the ability to take reasonable steps to ensure the acceptance was received
        
        Thomas v BPE has left uncertainty around the point of acceptance with modern methods - depends on business practice, and where risk should lie
        
        electronic commerce regulations 2002 confirmed that clicking to buy online is the offer and a receipt of order is not acceptance, allowing businesses to check stock etc. he problem is that bank details are already exchanged and it is unclear if money should be taken before the acceptance email is sent
      - intent to create legal relations
        
        some commentators consider this unnecessary if all other elements are present and no statement to the contrary
        
        alternatively, the objective test alone of whether it seems parties wanted to be bound would suffice, without the need for the presumptions
        
        decision about whether agreement is commercial or social is not always easy Sadler v Reynodls
        
        Appleson shows how lack of understanding can be exploited with a rebuttal of the presumption written into a contract that may not be noticed or someone may not have the bargaining power to argue
        
        presumptions help to asses whether here is intent to create legal relations, but sometimes courts divided about whether there is enough evidence to rebut the presumption. This results in inconsistency in decision making
      - consideration
        
        eliminating the requirement for consideration has been suggested as a reform, by some, including Lord Goff who described it as unneccessary, but this would make gifts enforceable which seems morally wrong
        
        sufficiency: the idea that wrappers have value is strange - the court has stretched the rule to get the outcome they believe is just. peppercorn leases and similar are used to get around the requirement, making it actually just an extension of intent to create legal relations.
        
        intangible matters are not consideration, but there has been inconsistent decision making, demonstrated by White v Bluett and Ward v Bytham both bout whether happiness is consideration with different outcomes
        
        past consideration is generally not consideration but can be interpreted differently as an implied promise to pay suggests that courts will read the facts in a way that creates the outcome they want
        
        In Williams v Roffey the benefit of not having to pay a forfeit was consideration because it confers a benefit, but part payment is not seen as consideration despite the fact that it does surely confer a benefit to get part payment rather than none
        
        the existence of promissory estoppel limits freedom of contract but ensures law is moral in ensuring promises are not broken if relied upon
      - privity
        
        could be seen positively as it stops 3rd parties being bound by contracts they were not a part of
        
        rule operates harshly but exceptions developed in common law and Contracts (Rights of 3rd Parties) Act 1999 provide solutions to situations such as Beswick v Beswick where person who had suffered could not sue but person who could sue had suffered no loss
        
        this act has cleared up a lot of common law confusion. some remains though e.g. collateral contracts - to what extent must contract depend on another?
        
        uncertainty exists in deciding whether a contract gives rights to a 3rd party
        
        exclusion clauses can be written in to stop 3rd parties obtaining rights to the contract. Many commercial contracts have these clauses as standard practice - questionable whether these are unfair terms?
    - - eliminating the requirement for consideration
  - - - Consumer Rights Act 2015
        
        Goods / Remedies
        
        s.9 satisfactory quality
        
        s.10 fit for purpose
        
        s.11 match description
        
        s.20 initial right to reject
        
        s.23 right to repair
        
        s.24 right to price reduction or final right to reject
        
        Services
        
        s.49 service to be performed with reasonable care and skill
        
        s.52 service to be performed within a reasonable time
        
        s.56 right to price reduction
      - Unfair Contract Terms Act 1977
- - - - stare decisis: to stand by the decision, once a court makes a decision they and lower courts are bound by it
      - ratio decidendi: reason a decision is made
      - obiter dicta: other things said by the judge irrelevant to the decision made
    - - supreme court
        
        court of appeal
        
        civil division
        
        high court
        
        county court
        
        high court
        
        upper tribunal
        
        first tier tribunal
        
        criminal division
        
        high court
        
        crown court
        
        magistrates court
        
        1 more item...
    - - binding: precedent set by the ratio of a previous case in a court of the same or higher level, must be followed
      - persuasive: precedent from an inferior court, another country, or from the obiter of another case; doesn't have to be followed, followed by judge's choice
      - original: precedent set that has never existed before
    - - distinguishing: finding sufficient differences between the previous case and the current one, so that precedent need not be followed
      - overruling: all courts are bound by their own decisions except for the supreme court; or the civil court of appeal if:
        
        The court is entitled and bound to decide which of two conflicting decisions of its own it will follow
        
        The court is bound to refuse to follow a decision on its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords (now the UK Supreme Court)
        
        The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam
        
        as in young v bristol aeroplane
      - reversing:
    - - certainty
      - flexibility
    - - rigidity
      - undemocratic
      - unpredictable
  - - - Private Members' Bills
        
        MPs can respond to their constituents' concerns by introducing a Private Members' Bill
        
        the concept is that the MP will win a ballot which gives them 20 minutes to pitch their proposal to the commons
        
        very unlikely to be successful
        
        Dangerous Dogs Act
        
        upskirting offence
      - e-petitions
        
        Anyone can start a petition on the UK Parliament website
        
        10,000 signatures = response from the House of Commons
        
        100,000 signatures = debated in the House of Commons
        
        March 2019 295 = received a response; 53= = debated in Commons
        
        reform to sentencing for knife crime
        
        lower age smear tests from 25 to 18
      - media
        
        issues of public concern can be highlighted in the media
        
        campaigns can be run through the tabloids to put pressure
        
        Sarah's Law disclosure of convicted sex offenders
        
        Clare's law disclosure of partners' violent history
      - pressure groups
        
        interest groups: represent interests of members, membership is limited to the people they represent
        
        cause groups: represent a common cause based on the shared interests of its members
        
        Law Society, BMA, Techers Union
        
        Greenpeace, Fathers 4 Justice, Age UK
        
        influence Parliament by writing letters, lobbying MPs, organising petitions, and gaining publicity
        
        can act as a consultative body - being consulted as part of the Green and White Paper process
        
        Effective
        
        facilitate public discussion and educate people
        
        specialist knowledge can inform governments
        
        enhance democracy and encourage people to engage in politics
        
        ineffective
        
        only provide a one-sided view of an issue
        
        undemocratic in the sense that they are unelected
        
        can use illegal tactics to attract attention
      - advantages of influences on law making
      - disadvantages of influences on law making
    - - set up under s3 Law Commission Act 1965 to "keep under review all the law"
      - process: research - consultation - report - draft bill - parliament
      - Repeal: to delete old, obsolete and out of date laws Statute Law Act 2013
      - Create: to create new laws in response to public demand or because of pressure from other groups Criminal Justice and Courts Act 2015
      - Consolidate: to bring together all the rules including case law into one statute Legislation Bill 2020 failed Law Commission Act 2009