tag:blogger.com,1999:blog-45796540061549011102024-11-01T15:28:26.385+08:00Law Notes for Law StudentsLaw (LLB) Centerhttp://www.blogger.com/profile/04830799637193571269noreply@blogger.comBlogger110125tag:blogger.com,1999:blog-4579654006154901110.post-32798578541585433822012-06-11T05:50:00.000+08:002012-06-11T05:50:06.439+08:00

Boilerplate clauses There are a number of terms that sophisticated commercial people will always try to incorporate in their contracts. This may be done by incorporating them in their standard terms and conditions. Many of these are in a standard form and can be found in precedent books or on electronic databases. In practice, a solicitor will take a precedent and adapt it for each particular

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Terms implied by statute Because of the doctrine of supremacy, Parliament can enact any statute it desires. It can therefore imply terms into any contract. The implied terms you are most likely to encounter are those contained in S12-15 Sale of Goods Act 1979. S 12 implies a term into all sales of goods that the seller is legally entitled to sell the goods. (In other words – that he has

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“The terms of a contract give substance to a parties’ obligation.” (Taylor & Taylor. Contract Law Directions (2007)) Every contract contains terms. The nature and extent of these terms defines each party’s obligations and rights under the contract. It can sometimes be difficult to decipher what are the terms of a contract. This is particularly so with oral contracts. The problem is that

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Internet ‘acceptance’ When making a purchase online, the company will send you a confirmation of order document, detailing the products purchased and the prices. At the very least, you will have opportunity to view your goods in a ‘virtual shopping basket’. At this stage you would be able to withdraw from the agreement. There is no doubt that contracts can be completed by electronic means. In

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Introduction Although it may appear to be somewhat tedious, the exact moment a contract is formed is of utmost importance. Once there is a valid acceptance, the right of the offeror to withdraw the offer ends. It can also be of assistance in deciding which jurisdiction the contract should be within should a dispute arise. Furthermore, a valid acceptance may demonstrate where taxation

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6. Part Payment of a debt In Foakes v Beer ((1883-84) L.R. 9 App. Cas. 605, HL ), the House of Lords upheld the ancient rule in Pinnel’s Case ((1602) rep 117a ) that part payment of a debt was not good consideration for the remainder of the debt. Pinnel’s Case itself contains several exceptions to this rule: “The gift of a horse, hawk, robe, &c. in satisfaction, is good. Payment of part

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3. The consideration must not be past If party “A” voluntarily performs an act, and party “B” makes a promise afterwards, the consideration for the promise is said to be in the past. Re McArdle ([1951] 1 All ER 905). A wife and her three grown-up children lived together in a house. The wife of one of the children did some decorating and later the children promised to pay her £488 and they

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Under classical contract law, even if the contracting parties have come to an agreement, this agreement can only be enforced if it is supported by consideration. The classic definition of consideration was stated by Lush J. in 1875: “a valuable consideration in the sense of the law, may consist of either in some right, interest, profit or benefit accruing to the one party or some forbearance,

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The postal rule The origin of the postal rule is the case of Adams v Lindsell ((1818) 1 B & Ald 681 (KB)). Where acceptance is made by post, it takes effect the moment the letter is put in the post box. This means that the contract will have been formed before the offeror learns of the acceptance. The postal rule can apply even if the letter is lost in the post and the offeror never

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“An acceptance is a final and unqualified expression of assent to the terms of an offer.” - Treitel As with offers it can sometimes be difficult to distinguish an acceptance from other responses to offers. Counter offers If in his reply to an offer, the offeree introduces a new term or varies the terms of the offer, then that reply cannot amount to an acceptance. A counter-offer destroys the

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Displays of Goods in Shop Windows & Supermarket Shelves As a general rule these are both invitations to treat. The two leading cases in this area are Fisher v Bell ([1961] 1 Q.B. 394) and PSGB v Boots Cash Chemists ([1953] 1 Q.B. 401). Fisher v Bell involved the attempted prosecution of a shop keeper. The Restriction of Offensive Weapons Act (1959) made it an offence to offer for sale

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What is an Offer? “An offer is an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed.” - Treitel Generally speaking, an offer must be definite (Loftus v Roberts, Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256). It can be made to a particular person, to a group of people or

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The objective approach Throughout legal studies, it is often to see reference to the “objective” or the “subjective” approach. These terms are often confusing and can be rather misleading. Unfortunately their use is so widespread that every lawyer must be aware of them. The general rule in the law of contract is that the courts will use the objective approach to decide whether a contract has

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Competing IdeologiesIt should be clear that there are competing ideologies within contract law. Adams and Brownsword explored this aspect of contract law in a 1987 article. Adams and Brownsword identified two basic philosophies, Market-individualism and Consumer-welfarism. Market-individualism This theory recognises the function of the market place as a venue for “competitive exchange.” The

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Contract is arguably the most pervasive and important subject that a lawyer will study. An understanding of contract law is essential before areas such as commercial law, company law or international trade law can be studied properly. The law of contract underpins all our everyday commercial transactions. Although the substantive law may vary from one jurisdiction to another, it is difficult to

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Potential to circumvent class protectionAgain, it may be possible to utilise these provisions to circumvent the protection provided to class right-holders.The court has held that a reduction which removes a class is not a ‘variation’ or ‘abrogation’ of those class rights, and so does not need the specific consent of that class – Re Saltdean [1968] 1 WLR 1844. Therefore, it is possible to treat

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Potential to circumvent class protectionUnder the topic of "Share capital and issuing shares", class right-holders are given additional protection to prevent the overall majority of shareholders removing class rights (s.125/s.127 Companies Act 1985 and s.630/s.633 Companies Act 2006). However, it may be possible to circumvent this protection by creating extra shares with the same class rights

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Introduction – the alteration of share capital Even once a company is up and running, it may desire to alter its share capital. There are two primary ways in which this can take place: an increase of share capital, or a reduction of share capital Increase of share capital The company may wish to increase its share capital in order to attract further investment and expand. Although this is a

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Types of class right Essentially, a class right is any right enjoyed by some members but not others. The case of Cumbrian Newspapers v Cumberland ([1986] 2 All ER 816) has identified three different types of class right, but only two of these are enforceable: 1) rights or benefits which are annexed to particular shares. For example: - The right to a preferential dividend (aka ‘

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Introduction One of the ways that a company raises finance is by issuing shares. When a person purchases shares he or she becomes a shareholder or member of that company. What is a share? Farwell J, Borland’s Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279 “A share is the interest of a shareholder in the company measured by a sum of money, for the purposes of liability in the first place

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The Companies Act 2006 reforms to directors’ duties Sections 170-177 Companies Act 2006 have to a large extent codified the case law set out above. s.170(3): “The general duties are based on certain common law rules and equitable principles as they apply in relation to directors and have effect in place of those rules and principles as regards the duties owed to a company by a director”

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Introduction – fiduciary duties In addition to the common law duty of care and skill set out in Session 6, directors are in a position of trust and confidence, and as a result owe fiduciary duties to the company (as oppose to individual shareholders or creditors – Percival v Wright, although this has often been said to equate to the “interests of the general body of shareholders”. Duty to act

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Statutory power of removal – s.303 Companies Act 1985 s.168 Companies Act 2006 s.168: “A company may by ordinary resolution at a meeting remove a director before the expiration of his period of office, notwithstanding anything in any agreement between it and him.” The procedure is that any member who wishes to propose a resolution to remove a director must give the company “special notice” by

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The operation of the board of directors On many issues, this is the final decision-making body which exercises the company’s powers and which enters into transactions on the company’s behalf. However, as mentioned above more important decisions will be decided at a shareholders’ meeting. Procedure The procedure is set out in the articles, particularly arts. 88 – 98, Table A. Resolutions proposed

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The role of the director Although the company is a separate legal personality, it still requires agents to act on its behalf. As was mentioned in Session 4, members of a company often do not wish to be involved in the day-to-day management. Therefore, this power is delegated to the board of directors. Directors are in a position of trust and confidence, and wield considerable power. It is

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