↑ See G Treitel, The Law of Contract (2003) 1, ‘A contract is an agreement giving rise to obligations which are enforced or recognised by law.’ J Beatson, Anson’s Law of Contract (OUP 2002) 73, ‘English law does not regard a bare promise or agreement as legally enforceable but recognises only two kinds of contract, the contract made by deed, and the simple contract. A contract made by deed derives its validity neither from the fact of the agreement nor because it is an exchange but solely from the form in which it is expressed. A simple contract as a general rule need not be made in any special form, but requires the presence of consideration which… broadly means that something must be given in exchange for a promise.’ American Law Institute, Restatement (2d) of Contracts, ‘A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognises as a duty.’
↑ See Fisher v Bell [1961] 1 QB 394 and Pharmaceutical Society v Boots Cash Chemists [1953] EWCA Civ 6, both of which appeared to turn more on whether a criminal statute should create liability for a shopkeeper, at a time when a literal approach to interpretation of legislation was followed.
↑ See Adams v Lindsell [1818] EWHC KB J59 and S Gardner, "Trashing with Trollope: A Deconstruction of the Postal Rules in Contract" (1992) 12 Oxford Journal of Legal Studies 170. Historically a post officer was the agent of the recipient of letter, who would often pay for receiving it. Giving a letter to the postman or putting it in the postbox was construed as communicating acceptance at the time of posting.
↑ See Williams v Carwardine [1833] EWHC KB J44 and Gibbons v Proctor (1891) 64 LT 594. The Australia case, R v Clarke (1927) 40 CLR 227 opined that reliance on the offer is also necessary, however this appears to go further than what English law requires. See P Mitchell and J Phillips, 'The Contractual Nexus: Is Reliance Essential?' (2002) 22(1) Oxford Journal of Legal Studies 115
↑ e.g. Lord Wilberforce in The Eurymedon [1975] AC 154, "English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts to fit uneasily into the market slots of offer, acceptance and consideration."
↑ cf Smith v Hughes (1871) LR 6 QB 597, where it was held that even though an oats dealer knew that a racehorse trainer was making a mistake about the kind of oats he was buying, the dealer had no obligation to inform him otherwise and the trainer was bound to his agreement.
↑ See Thomas v Thomas (1842) 2 QB 851, 859, and Currie v Misa [1875] LR 10 Ex 153, Lush LJ, "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."
↑ [1884] UKHL 1. This followed Pinnel’s case (1602) 5 Co Rep 117a, from an age where, without any modern bankruptcy law, there was great concern that crafty debtors might hold their creditors to ransom.
↑ (1996) Report No 242, 5.10. See A Burrows, 'The Contracts (Rights of Third Parties) Act 1999 and its implications for commercial contracts' [2000] LMCLQ 540, but also, heaping criticism on the reforms, R Stevens, ‘The Contracts (Rights of Third Parties) Act 1999’ (2004) 120 LQR 292
↑ CRTPA 1999 ss 1(1)(a), 1(1)(b) and 1(2) respectively.
↑ See The Mahkutai [1996] AC 650, 664-5, where Lord Goff opined that it was "perhaps inevitable" that there should develop "a fully-fledged exception to the doctrine of privity of contract, thus escaping from all the technicalities with which courts are now faced in English law."
↑ Heilbut, Symons & Co v Buckleton [1913] AC 30, 50-1, Lord Moulton, ‘The intention of the parties can only be deduced from the totality of the evidence.’
↑ L'Estrange v F Graucob Ltd [1934] 2 KB 394, the purchaser of a faulty cigarette machine could not get a refund, because she had signed a document exempting the seller for any liability if it did not work.
↑ [1956] EWCA Civ 3, [1956] 1 WLR 461. See also Olley v Marlborough Court [1949] 1 KB 532, where Denning LJ held a notice behind a door to a washbasin in a hotel guest's room was not prominent enough to exclude the hotel's liability for failing to prevent a thief stealing Mrs Olley's fur coat.
↑ e.g., Lovell & Christmas Ltd v Wall (1911) 104 LT 85, Lord Cozens-Hardy MR stated, "it is the duty of the court… to construe the document according to the ordinary grammatical meaning of the words used therein."
↑ See also Hollier v Rambler Motors Ltd [1972] 2 QB 71, where Salmon LJ held that even if the clause excluding liability for fire had been incorporated through a course of dealings, because a reasonable person would not believe it referred to the business' negligence, it would be construed to not cover that.
↑ Lord Wilberforce in Rearden Smith Lines Ltd v Hansen Tangan [1976] 1 WLR 989 was taken as inspiration by Lord Hoffmann, a judgment passed as it was clear unfair terms legislation was to be enacted.
↑ See HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6. This position reflects most civil law countries since the 19th century, e.g. in Germany BGB §133 where "the actual will of the contracting party, not the literal sense of words, is to be determined"
↑ However where contracts are avoidable for lack of good faith, misrepresentation, duress or undue influence, or lack of capacity, and an order to reverse unjust enrichment is imposed, the same functional result may be reached.
↑ [1977] AC 329. The judgment of Lord Denning MR in the Court of Appeal, [1976] QB 319, is notable for asserting that the judiciary should be able to imply terms whenever it is reasonable.
↑ Law Commission, Unfair Terms in Contracts (2005) Law Com 292
↑ UCTA 1977 s 11(4)(b), Sch 2(a) and 2(c). Although Sch 2 stipulates that its criteria are only for ss 6(3), 7(3)-(4) and 20-21, the courts say these criteria are relevant for the rest of the Act, per Clarke J in Woodman v Photo Trade Processing Ltd (7 May 1981) Unreported, Exeter County Court, and R Lawson (1981) 131 NLJ 933.
↑ [1982] EWCA Civ 5, [1983] QB 284 and [1983] 2 AC 803
↑ e.g. in Timeload Ltd v BT plc [1995] EMLR 459 Sir Thomas Bingham MR held it was arguable that BT's standard term that it could terminate a business customer's phone connection "at any time" on one month's notice was unreasonable because it did not require that BT gave any kind of good reason.
↑ The Unfair Contract Terms Bill (2005) Law Com 292, in clause 4(5) says price "does not include any amount, payment of which would be incidental or ancillary to the main purpose of the contract".
↑ Anomalously, given that employment contracts are to be intellectually segregated from the law on general contracts, Gisda Cyf v Barratt [2010] UKSC 41, [39], the doctrine against payment for insubstantial performance was deployed in the 1980s against trade union members who through industrial action worked 3 hours less than their 37 hour week, or refused to answer telephone enquiries from their employers but were otherwise at work.Miles v Wakefield Borough Council [1987] AC 539 and Wilusynski v London Borough of Tower Hamlets [1989] ICR 493. This is reminiscent of Cutter v Powell [1795] EWHC KB J 13, where a widow could recover no wages on behalf of her husband who died aboard a ship bound back from Jamaica but who had given service for most of the voyage.
↑ See Krell v Henry [1903] 2 KB 740, but contrast Herne Bay Steam Boat Co v Hutton [1903] 2 KB 683, which is typically said to be distinct on the basis that the claimant could still substantially enjoy the boat trip anyway.
↑ LRFCA 1943 s 1(2) refers to money, and s 1(3) refers to non-monetary benefits.
↑ See BP Exploration Co (Libya) v Hunt (No 2) [1979] 1 WLR 783; [1982] 1 All ER 925, per Lawton LJ. Goff J in the High Court would have held that an objective assessment of unjust enrichment should guide the court, with less discretion. See also Gamerco SA v ICM Fair Warning Ltd [1995] EWHC QB 1.
