Land cases

Holland v Hodgson [1872] - Concerned with a spinning loom in a mill that was attached to the stone floor by nails; it was removable by drawing out the nails. As such, it was held that the loom was a fixture. Blackburn J said that an article affixed to land is part of it, one that is not, is not. However, this can be rebuttable by contrary intention which can be found as underlying by degree - how much is the item fixed? - and purpose - why is it so? Therefore, any article not otherwise attached to the land than by their own weight, are not to be considered as part of it, unless circumstances can show that they were intended to be part, the onus of showing this lying on the person who claims that the fixture has ceased to be a chattel. Oppositely, something which is affixed to the land will be seen as part of it unless circumstances show that it was always intended to be a chattel, the onus of proving this lying on those who contend it is so.

Leigh v Taylor [1902]
Re Whaley [1908] - Both concerning tapestries -- were they affixed purely for enjoyment? If so, then they were not fixtures. The latter case concerned a number of tapestries that were hung in order to create the composite effect of an Elizabethan dwelling house, as such it was held that they were integral to the land and therefore classed as fixtures.

Berkley v Poulett [1977]
Hamp v Bygrave [1983] - Concerning garden statues -- as they were merely resting due to their own weight, they were not fixtures. In the latter case however they were held to be so, as they had been described as such in the sale by the vendor.

Chelsea Yacht & Boat Co. v Pope [2000] - Was the tenancy agreement of a houseboat a tenancy of a dwelling house? If a houseboat is moored, does it become such? The 'Dinty Moore' was moored to a pontoon by lines, and provided with water and drainage etc by plug-in or snap-on service connections. The boat could be moved without injury to itself or the land. CoA held that the houseboat was not part of land on which it is moored, as there was no permanence in the attachment and as such, the agreement was not a tenancy of a dwelling house as "a boat, albeit one used as a house, is not the same genus as a real property".

Elitestone v Morris [1997] - In a possession action, T claimed that he had tenancy of a dwelling house and was therefore protected under the Rent Acts. However, the tenancy agreement only extended to land on which T's bungalow stood, not the house itself. T had paid the previous occupant (and not the landlord) £250 for the building, which rested on conrete pillars and was not affixed to the ground. As such, using the degree of annexation, the onus was on T to prove that the house was attached to the land and therefore a dwelling. It was held that the act of bringing individual parts of the house onto the site meant that the fact it was not actually attached to the ground was negated. It was compared to a case of stones in a builders yard (not fixtures) vs. those same stones in a drystone wall (fixtures). As the building could not be moved without demolition, it was held to be 'part and parcel' of the land. HoL held that what isof primary importance is the intention involved. It was indicated that this is an objective test to determine whether the object was intended for the use or enjoyment of the land, or for the more convenient use of the object itself. As it was the former, the landlord failed.

Lord Bernstein of Leigh v Skyviews & General Ltd [1978] - S overflew B's estate and took photos which they then offered to sell to B. B, having told them not to do this before, then sued, claiming airspace trespass. Griffiths J held that that the owner's rights were to be restricted to such heights as was necessary for the ordinary use and enjoyment of his land and the structures upon it.

Kelsen v Imperial Tobacco Co. Ltd [1957] - An advertising sign projected over K's property.

Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] - A crane jib kept swinging over the neighbouring property during the development of the defendant's site.

Walsh v Lonsdale [1882] - L agreed to grant Y a lease of a mill for seven years. The rent (£810 p/a) was to be paid in advance. Although the lease was in writing, there was no deed. T failed to pay the rent as agreed, so L "levied distress" (seized T's property as payment). T contended L's actions as unlawful, seeing as the lack of a deed had rendered the tenancy agreement unenforceable (L actually had no backing for distress as the lease was worthless). CoA said that the rules of equity prevailed:
1. Equity looks on that which ought to have been done, as done
2. Looking at the relationship of the parties, and what if they had done what they ought to - substance over form
3. Equity would therefore give effect to the parties' intention in the written agreement
Whilst this could not be a legal lease between the two parties due to the lack of the deed, in Equity it could become an equitable lease. This was then accepted by the common law courts, even though it was not common law in itself as it was not 'isnged, sealed and delivered'. Here the ruling was in favour of L, as T could not complain of L's exercising his rights as if he would have had, had a lease actually been granted.

Caunce v Caunce [1969] - Wife's occupation was entirely consistent with the husband's ownership, so the bank was not 'put on notice' - i.e. was the bank aware of the wife's equitable interest and what was it reasonable to expect the bank to do? It was not reasonable to expect bank in these circumstances to inspect the land and ask questions of wife - the bank did not have constructive notice, and simply being aware of the wife in the home did not negative the title the husband was offering because there was no immediate link to the wife's equitable interest.

Williams & Glyns Bank Ltd v Boland [1981] - A husband held a property on trust for ihs wife. He mortgaged the property to the bank without asking her permission, and without the bank knowing about her. He then defaulted on the mortgage payments, and the bank tried to claim the property. The wife then said that she had been in occupation, and therefore she had an overriding interest. HoL said that she did have one which could bind the bank's registered charge. Banks should be under a stricter duty to inspect and enquire. "The presence of the vendor, with occupation, does not exclude the possibility of occupation of others". They can also protect themselves by overreaching.
Mortgagee who deals with a single trustee does not overreach the beneficiary's interest. As such, they are bound by virtue of LRA 1925, s.70(1)(g), or now LRA 2002, sch. 3, p.2.

Kingsnorth Finance Ltd v Tizard [1986] - The bank failed to follow up the husband's inconsistent replies (he had told them that he had just separated from his wife, so they had constructive notice) and the inspection they arranged of the property was insufficient. As such, the bank was bound by the wife's interest in the matrimonial home. She would have been regarded as having an equitable interest, and also in actual occupation under sched.3(2). However, how are banks supposed to 'reasonably inspect' a property without being intrusive?

Tulk v Moxhay [1848] - A purchaser of land burdened by a covenant restricting the use to which the land could be put, was bound by that covenant in so far as it touched and concerned the land and the purchaser had notice of it.

ER Ives Investment Ltd v High [1967] - H and X were neighbouring freehold owners of unregistered land. X constructed a block of flats whose foundations marginally encroached upon H's land. H did not sue for trespass because it was granted in writing that he had a right of way for his car over X's land. H had never registered this equitable easement, but subsequently built garage on own land that was accessible only from X's land. X later sold his land to I, who knew everything and therefore was expressly subject to H's right of way. Held that H could enforce this against I as he was estopped because of acquiescing to H's expenditure on the land and not enquiring of either X or H as to the situation.

Ministry of Housing and Local Government v Sharp [1970] - S was the local land registrar with statutory duty to maintain the local registry, issuing certificates in response to search requests. A clerk who had been seconded by another Council to assist him negligently issued an inaccurate certificate to a prospective purchaser of land, omitting any reference to a claim to reimbursement of compensation which the Ministry had against the seller. The result was to extinguish the right which the Ministry would otherwise have had to pursue its claim against the purchaser. It was conceded that, if the clerk was liable in negligence to the Ministry, then the council was vicariously liable for its clerk. Held that the clerk was liable. The Court rejected the argument that a voluntary assumption of responsibility was the sole criterion for imposing a duty of care for the negligent preparation of a search certificate in the local land charges register.

Midland Bank Trust Co Ltd v Green [1980] - Walter married Evelyn and had two songs - Geoffrey and Derek - and two daughters. W owned two farms - one, Thoresway, he sold to D at £75 per acre, and the second, Gravel Hill, he optioned to G for the next 10 years (until 1971). G could at any time call for the land to be conveyed to him, provisional on him providing the money (a registrable estate contract). The option was registrable as a Class C estate contract. However, G forgot to register it against W's name, and in the interrim there was a family feud. In 1967, W conveyed (fee simple absolute in possession) GH to E for £500 total. G then claimed his right to exercise the option and sued W for damages in breach of contract, E as the new owner of GH for specific performance of the option and both W and E for damages in the tort of conspiracy.
However, W is now not worth suing because he has sold his assets; G really wants specific performance to get GH, but E had not actually broken the option. By 1980 (delayed by HoL litigation) GH was worth over 1/2 a million pounds and the price payable by G under the option was only £250,000. The court of first instance found for E, this was then reversed in favour of G by the CoA as E was not a purchaser for money, or money's worth as she had not given an adequate sum. As such, the Land Charges Act, s.4(6) was activated. The fact that E and W had supposedly been fraudulent unravelled everything, and as E had been party with W to the fraud on G, she could not benefit from it.
However, the HoL found for E as she was a purchaser of legal estate in GH, she had given money. LCA s.4(6) was activated and the option was void against E. It was wrong to read 'good faith' into the statutes. G then sued his solicitors as they had been negligent in failing to advise him to enter the option. He received a remedy of damages in the tort of negligence as he had sustained loss as a result.

Loke Yew v Port Swettenham Rubber Co Ltd [1913] - P who induces an interest holder, G, not to register by undertaking that P would respect G's (unregistered) property rights. Held P had more than mere knowledge of G's interest, because it falsely and fraudulently agreed not to disturb G as an inducement for P to sign the transfer. The court was satisfied that there was a deliberate plan by the company to deprive G of his interest. P gave a false inducement to the vendor to sell the land. This amounted to more than merely having notice of G's interest. The court ordered P to transfer the land occupied by G to him.

Jones v Lipman [1962] - V sells land to P in circumstances were P is entirely controlled by V (P is a company owned by V) so it is a separate legal entity. This is not alright if it is run by just one individual. Similar to MIDLAND BANK - was E controlled by W? No, because E was an autonomous individual. performance he transferred his property to a company. Held that the company here was "a mask which (V) holds before his face in an attempt to avoid recognition by the eye of equity" - specific performance was awarded against both P and V.

Webb v Pollmount Ltd [1966] - L granted to Webb a legal lease to last for seven years, the lease was overriding under s. 70(1)(k). The lease also granted to Webb an option to purchasethe fee simple reversion. No notice or caution was entered on the register to protect Webb's option. The fee simple was sold to Pollmount Ltd, who claimed that theoption was not binding on it. It was held that Webb was actually occupying the leased property at the time of the sale. Therefore his option was an overriding interest within s. 70(1)(g).

Ellis v Lambeth Borough Council [1999] - E was squatting in a house in Brixton. Eventually he managed to adversely possess the property which was worth £200,000. The fact that it was an organised squat in which E 'vetted' the other people who wanted to come and live there worked in his favour.

Rosenberg v Cook [1881] - An adverse possessor is awarded a fee simple on the very first day of his possessing.

Amory v Delamirie [1722] - A found a jewel in the chimney of someone's house, and took it to B to have it valued, who then refused to give it back to A as he said it wasn't his. However, once you take property into your possession, it is yours.

Asher v Whitlock [1865] - "Possession is good title against all but the true owner".

Tower Hamlets London Borough Council v Barrett [2006] - X rents a house and notices that next door's garden is not used, so they begin to take care of it. 10-12 years pass, so does X now have the right, or is it the landlord's? The landlord receives the right because X is possessing on their behalf.

Re Atkinson and Horsell's Contract [1912] - "Whenever you find a person in possession of property, that possession is prima facie evidence of ownership in fee, and that prima facie evidence becomes absolute once you have extinguished the right of every other person to challenge it".

Powell v McFarlane [1977] - A boy started grazing his cow in a neighbouring field; he also did some other small repairs, but mainly it was for grazing. CoA said that this was not adverse possession - however, had the boy's intent to possess been stronger, it might've been. "In the absence of evidence to the contrary, owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner, or to persons who can establish a title as claiming through the paper owner (buyers).

Buckinghamshire County Council v Moran [1990] - BCC wanted to use a field to divert a road around a housing estate. X owned land next to this field and began to use BCC's land for planting bulbs and other things. His successor, M, installed a lock and chain which rendered it only accessible from his own land. Both were aware that BCC had plans for future use. M wanted to argue that they had had adverse possession, and ideally for as long as possible. He could do this if he could prove that he had dispossessed BCC - it was held that it wasn't discontinuance, as BCC had had plans to do something with the land.

JA Pye (Oxford) Ltd v Graham [2003] - Claimant property developer bought a piece of land for future development; in the meantime the company gave permission in writing for the defendant to use it in the interrim for grazing and cutting hay. When the period of the permission expired, D sought renewed permission, but these requests were never answered. Eventually C sought possession in a court action. They failed at first instance, but succeeded in in CoA, which held that the D saw themselves as licencees, not adverse possessors. They did not have the requisite animus possidendi, 'intention to possess', to establish adverse possession. The HoL, however, rejected this argument. D had used the land for grazing, put a fence up and put a lock on a gate. A surveyor also claimed that the land could not have been used any other way. 'Intention to possess' meant an intention to enter into, and enjoy the benefits of, the land, not an intention to obtain land by adverse possesion. In this case the defendants clearly intended to work the land to their benefit, and the fact that they would have been willing to pay rent had it been asked was not fatal to their position.

Red House Farms v Catchpole [1977] - The disputed piece of land was next to the owners' own land, and separated from the squatter's by a river. Over time the river separated the land from the owner and attached it to the squatter's. It was a very marshy area, and all the squatter did was shoot over it, but this was deemed enough for adverse possession.

Prudential Assurance Co Ltd v Waterloo Real Estate [1999] - This concerned a length of party (boundary) wall about 22ft long and 15ft high. The CoA found that D had acquired ownership of C's half of this wall because amongst other things they (or their predecessors) had repaired and decorated it, removed graffiti, put up external lighting, cut an opening in it and installed a night safe. The 'real' owners had remained oblivious to this.

Williams v Usherwood [1983] - S claimed AP over O's land as he had crazy paved it and parked his car on it. He did this whilst honestly thinking it was his - here it was ruled to be adverse possession.

Paveledes v Ryesbridge Properties Ltd [1989] - S was a factory on a piece of industrial land which had its own car park. Next to this was other land belonging to O which the workers began to park on. The land was many acres, and as only a small part had been used by the workers, it was ruled as not adverse possession.

Tennant v Adamczyk [2005] - S started turning their cars and lorries around using O's land - ruled not adverse possession. Even though S claimed they had planted a vine on the land, this was still not enough.

Hounslow London Borough Council v Minchinton [1997] - S had extended the end of his own garden into his neighbours by weeding etc. This was ruled as adverse possession as it was sensible use of the land. S had not only cultivated the garden, but also put up a fence to keep his dog in. Millet LJ saw this as having two purposes - for keeping his dog in, and excluding others.

Inglewood v Baker [2002] - Courts have sometimes claimed that fences are to 'keep animals in' and not for 'keeping people out'.

Carroll v Manek and Bank of India [1999] - Concerning a hotel in London whose O had gone to prison; his manager lived in the property and tried to claim adverse possession of the room he stayed in. When this failed, he then tried to claim for other areas, such as the fact that he had charged people a fee to use the car park.

Roberts v Swangrove Estates Ltd and others [2008] - R bought up a number of heraldry titles; the Forestry Commission (under the Crown) could adversely possess in 12 years (it is only when it is against the Crown that it is 30 years).

Fairweather v Marylebone [1963] - Even after a tenant's title has been extinguished by the Limitation Act, he can still go to the landlord and officially hand over the lease, so in that sense the squatter's adverse possession clock is restarted.

Ghaidan v Godin-Mendoza [2004] - A case concerning a private tenancy relationship where the tenant was homosexual and had a partner. The law allows the partner of a tenant in marriage or a heterosexual partner to inherit the license if the tenant dies. When the tenant did die, the partner argued Article 8 and 14 which prohibits discrimination. It was held that when 8 and 14 are combined there was a breach of his property rights. As a remedy, the courts used their powers to read the statute so that it also covered homosexual couples.

Kay v Lambeth [2006] - A legal case involving claims for possession by LLBC against a "group of former short-life occupiers". The ruling, which was in the plaintiff's favour, in effect stated that homeless individuals who have been granted a sub-licence allowing them to occupy accommodation temporarily passed to a housing trust by a local authority, do not, as a result become secured tenants of the local authority. In the House of Lords, it was held by Lord Bingham that the European Court accorded a generous margin of appreciation to the national authorities, attaching much importance to the facts of the case. Thus, it was for the courts to decide how in the first instance the principles expounded in Strasbourg should be applied in the special context of national legislation, practice and social and other considerations. To those decisions the ordinary rules of precedent should apply.
Leeds County Council v Price [2006] - Gypsies had been on council ground for two days; HoL held that it was not their home sa there were no sufficient and continuous links to the area. Article 8 was not engaged.

- The strict immunity approach of HARROW could not apply after CONNORS. However, it would be inconvenient if every case brought by an LA to a county court could plead Article 8. As such, one should consider English law compatible with Article 8, and the latter could be raised only in seriously arguable cases. Nonetheless, there is a disagreement as to what constitutes this. Majority say that a defendant is allowed to argue that Article 8 is incompatible with the legal rules of the eviction, whilst the minority say that the defendant is allowed to point out the hardship to themselves. Still, both are very restrictive in terms of the leeway Article 8 has to interfer with property law.

Holy Monasteries v Greece [1994] - HM had owned a lot of land in G, but G then passed a statute saying that if there was no entitlement to the property, then it would belong to G. As HM had owned it for so long, this was difficult to prove, but the statute was unlawful.

Aston Cantlow v Wallbank [2003] - 'Chancell repair liability': church has property rights over lots of land in the area and as such, when it wants money for repairs it can go to those properties in the land and demand money. C claimed that their property rights had been infringed, however it transpired that they had bought their property knowing of this right, and as such they had to pay as there was an inherent flaw in their right to their property.

Beaulane Properties v Palmer [2006] - Mr Palmer had been grazing horses in a field (green belt land near to Heathrow Airport) for many years, initially under licence. The licence expired in 1986. The Judge held that time started to run against Beaulane Properties Limited in June 1991 and had expired in June 2003, after the commencement of the Human Rights Act 1998 (“HRA”) but before the commencement of the Land Registration Act 2002 (“LRA 2002”). The question of the impact of the HRA on the interpretation and application of the meaning and application of the Limitation Act 1980 (“LA 1980”) was therefore squarely raised. It was held that:
- That Article 1 of the First Protocol was "engaged" because the practical effect of section 75 of the LRA 1925, and section 17 of the LA 1980, was to deprive the owner of his land.
- That a system of law under which the owner could be deprived of his land without compensation as a result of mere inadvertence was disproportionate interference, which could not be justified by reference to any public interest.
- That the loss of Beaulane's land was therefore incompatible with Article 1.
- That the effect of section 3 of the HRA was to require the statutes to be read and given effect to in a way, which was compatible with Article 1.
- That the statutes were to be read as applying only to those cases in which the trespasser established "possession" in accordance with the case law in 1925; but since the use of the land by Mr Palmer had not been inconsistent with the intentions of Beaulane for it, his possession had not been adverse.
- Alternatively, it might be possible to reinterpret the Acts as not precluding the owner from suing in trespass for damages for (a) 12 years' occupation and (b) the loss of his land.

Ofulue v Bossert [2008] - B acquired property belonging to O by virtue of adverse possession as they had been squatters there for 22 years, of which O was aware. B had offered to buy property from O but had been refused. In an appeal referral from the County Court, the CoA held that B had acquired legal title to the property by these means in that O had done little to remove them. B had gained 'factual possession' and showed 'intent to possess'.

Harrow London Borough Council v Qazi [2003] - HLBC wanted to evict a former tenant who had lived there for a long time with his wife. Q and his wife fell out and she quitted the tenancy (only takes one person even though there were two people living there). Q argued Article 8 when HLBC tried to evict him. Bingham and Steyn said that Q's argument had merit, and that it should be sent back to a lower court for a proportionality test. However, Hope, Millett and Scott said that it was a non-starter as when an LA has contractual or proprietary rights, Article 8 cannot defeat this - property law is more important.

Connors v United Kingdom [2005] - Gypsies were living on land with a LA's permission, but as they were acting antisocially, their license was terminated. The rules and conditions of the license stated that this could be done without reason or without giving them a chance to respond. Under domestic law, the LA won. However, the ECtHR said that there had been a violation of the gypsies' Article 8 rights as they were a vulnerable minority - as such, property law was no longer immune from attack by the ECHR/HRA.

McCann v United Kingdom [2008] - A LA used a fast-track procedure to get rid of a tenant. ECtHR held that the tenant must be able to raise Article 8 in repossession proceedings, so this was a criticism of KAY. Also, the Court held that there had been a procedural incompatibility with Article 8 as a violation of the tenant's rights, which attacked Gateway 1.

Doherty v Birmingham County Council [2008] - Another gypsy case very similar to CONNORS. By the time it reached the HoL, the law that had applied in CONNORS had changed, meaning that English law was now compatible, but at the time of the eviction it had not been. As such, even though it was incompatible at the time, it was now alright, so there was no action that could be taken. HoL said that as long as an LA was acting within a statute, then there was nothing the courts could do, aside from issue a declaration of incompatibility.
MCCANN was avoided by the HoL saying that the ECtHR hadn't heard any oral arguments on the case - they were all presented on paper. They also claimed that the ECtHR had ignored the practical difficult they would suffer if Article 8 could be raised in any case. Also, this case had had 5 judges, whereas KAY had had 7, so they were bound by their prior decision. As such, the current authority is DOHERTY, and the best remedy would be a declaration of incompatibility.

Barca v Mears [2004] - A property was owned by a bankrupt man who lived there with his family. The bank and other creditors wanted to sell it, but he said that it was he and his family's home. First instance judge said that there was no breach of Article 8 in the bank and creditors' desires, and ordered the sale of the co-owened property, but in the future we need to keep our minds open to Article 8's impact.

Horsham Properties Group Ltd v Clark [2008] - A bank had a charge over a home. The mortgage payments were not kept up so the bank sought to repossess it and sell, and the owner claimed it was a breach of Article 1. However, this was never even engaged, as the owner had agreed to have his property subject to the bank's interest. As such, the sale by the mortgagee was compatible.

CIN Properties Ltd v Rawlins [1995] - A privately owned shopping mall banned some rowdy youths. In the first instance, the judge held that they had had an equitable property right to be there, but this was overturned in the CoA who said that the private owner was at liberty to keep them away. The counter-argument was whether the private owner of such an area could actually ban people. On claiming in the ECtHR, it was found that their freedom of movement had been impinged upon, but as the UK were not signed up to this, there was no right.

Porter v Commissioner of Police of the Metropolis [1999] - Some obiter about whether the law may have to become more flexible in the future.

Appleby v United Kingdom [2003] - Some campaigners wanted to save the local recreation ground, so they set up a stand in a shopping centre, so which the owner objected. They went to the ECtHR concerning their Article 10 and 11 rights. It was held that sometimes a State may be under a positive obligation to stop people's rights of association, especially on private property, but here there was no infringement, as they could have just moved their stand outside.

Paddington Building Society v Mendelsohn [1985] - S purchased registered title in own name, with purchase money provided by mother M and mortgage by PBS. M claimed that her beneficial interest in the implied trust, plus her actual occupation of the property gave her interest which overrode the interests of PBS. CoA held that since M both knew and intended at the date of purchase that PBS would have an interest, M had impliedly conceded priority to PBS and thus was estopped from claiming.

Woolwich Building Society v Dickman [1996] - The Rent Acts protected a tenant who was unable to waive priority. In a protected tenancy, the purchaser wants the interest to be protected at all costs so that rights cannot be waived.

Halifax PLC v Curry Popeck [2008] - A husband and wife acted fraudulently in order to defeat bank charges. They transferred money to each other then fictionalised bank charges. However, if the transfer is fraudulent and consideration is meaningless, s.29 is not triggered.

Lloyds Bank v Rosset [1989] - Husband's mortgage triggered s.29. CoA said that the wife had a beneficial interest under a constructive trust and actual occupation at the relevant time - normally you would have to be living there, but as it was semi-derelict, they said that she was doing enough to have actual occupation (she had been cleaning, painting and helping to renovate it). However, HoL said that she did not have any interest, but they did not challenge her actual occupation. She had no interest because evidence was present to the contrary due to her knowing about the conditions of the money from the Swiss account. None of her contributions were financial.

Kling v Keston [1984] - A owned a garage and X had a right of pre-emption over it (meaning that X had first claim to it if A ever sold it). A then transferred the garage on a 99 year lease to B who registered it. X then sought to exercise his right, but he had not registered it, so he fell back on sched.3(2). He claimed actual occupation because his car had been parked in the garage. The judge said that even if the car had been out at the relevant moment in time (of the registration) actual occupation would still have existed. This case was very much from the third parties' point of view.

Abbey National v Cann [1991] - C was moving out of the country at the relevant time, but her son was moving in her furniture at the critical time. This had been happening for 30 minutes before the disposition. HoL said that this was not enough, as these were merely preparatory actions, not actual occupation. A bank's overreaching capability is not bound where a mortgage has funded the acquisition of the legal title.

Chhokar v Chhokar [1984] - Similar facts to BOLAND. A husband and wife went to India where the wife was abandoned. The husband then returned to England by borrowing money from her family. However, she was eventually able to return; she was also pregnant at the time. When she went to hospital to deliver the baby, without telling her, her husband sold their property and the buyer tried to evict the wife when she returned. The Court held that she had been in actual occupation at the time of the disposition, so a temporary absence does not defeat it.

Strand Securities Ltd v Caswell [1965] - A court held that a daughter living in her father's house was living there for her benefit, not his.

Lloyd v Dugdale [2002] - A manager of a company occupied some land in his capacity as the managing director of the company. X had an interest in the property and the manager needed to show actual occupation to keep it. However, he was only there because of his capacity as director, not for his own personal needs. The Court held that he was there as a company representative, not an individual.

City of London Building Society v Flegg [1988] - Husband and wife X were the legal owners of a house, in which they lived with husband and wife F, X's daughter. X were the joint tenants in law, and this was shared in equity with F as tenants in common. F had paid half of the purchase price and now occupied with them. However, express declaration did not bind them as they were not party to the contract. X mortgaged their property several times and failed to keep up the payments. F's argument was that they were in a trust and had actual occupation, but the bank claimed they were overreached. HoL said that you applied overreaching first, and as such, any interests of trust are compounded in the monetary interests and swept off the land, meaning that the bank won.
Different from BOLAND in that there was only one trustee (the 'crack in the mirror'). In FLEGG, the mirror and curtain principle are maintained when overreaching takes place, as the bank does not have to be concerned with trust interests that they cannot see.
Regarding GOODMAN, FLEGG said that if a person is not a party to the transfer containing declaration (i.e. they may have contributed money, but have not signed the contract), then they are not bound by it, and as such can go behind express words of transfer.

Peffer v Rigg [1977] - This was dealt with under the LRA 1925. P and R shared a mother-in-law and bought a house between them for her to live in. P had an equitable right under a trust as R was the legal owner. R's marriage broke down so he transferred the right to Mrs R for £1. However, now Mrs R had taken free of P's interest as she was a registered disponee with valuable consideration. Nonetheless, the Court said that £1 was not, and that she had not acted in good faith (she knew of P's right), therefore she was still subject to P. The statute said nothing about this, so this was an addition to the law.

Ashburn Anstalt v Arnold [1989] - X had a license (a personal right which therefore did not bind the parties) over A's property, which under the first three stages did not bind B. However, B orally agreed to accept X's rights - was B now under a fresh obligation? The court of first instance said no, but the CoA said that if in addition to making this statement, if B had agreed with A to pay a lower price for the property for abiding by the right, then this would be unconscionable conduct.

Hickman v Peacey [1945] - In a commorientes situation, even if there was no 'uncertainty' over the deaths, you still have to apply s.184, even if you knew that they died simultaneously. There has to be a 'tie-break' measure.

Goodman v Gallant [1986] - There was a joint purchase of a house by C and D, with an express declaration that the property would be held on trust for them as joint tenants. However, litigation commenced concerning their respective shares in the property, and C 'severed' their joint tenancy, turning it into a tenancy in common. She then claimed 3/4 of the value of the house (representing her contribution to its purchase). However, you can't have tenants in common in law, so any sort of severance merely turns a joint tenant into a purely equitable interest. CoA said that the declaration of trust was conclusive to the nature and extent of the parties' beneficial interests, and they were joint tenants in equity as well as law. The inevitable result of severance of the joint tenancy was to render them tenants in common in equal shares. Therefore, C's argument failed as the proceeds of the sale should still be split equally.

Carlton v Goodman [2002] - A and B (a couple) had bought property together (with a conveyancing surveyor assisting) but they had still made no declaration about their beneficial interests. Ward LJ explains the importance of making an express declaration of beneficial entitlement in the conveyance of transfer, as you should always try to agree on and then record how the beneficial interest is to be held.

Stack v Dowden [2007] - In 1975, S and D entered a relationship, and in 1983, D purchased a house by herself. A decade later S and D purchased a house jointly, with S contributing approximately 35% of the monies, and D 65%. There was no express declaration of trust, although there was one saying that the survivor of the legal joint tenants "can give a receipt for capital money arising on a disposition of the land" (This was held to not comprise an express declaration of a beneficial joint tenancy, as it is equivocal. The transferees may hold on trust for a third party, or they may intend that while the survivor can give a good title to a third party without appointing a new trustee, the capital moneys received should be subject to different trusts.)
It was agreed that S would be excluded from the property and D and the children would remain in occupation. There was a consent order executing this and requiring D to pay £900 per month to S. The order expired in January 2004, but D never paid any of these payments. Should S have received an occupation rent from D? HoL said that D was not required to pay this. As S had agreed to go, the home was needed for children and the house was to be sold as soon as possible. However, Neuberger dissented saying that the fact that the house was to be sold was irrelevent. The fact was that S had not been excluded for his behaviour, therefore D needed to pay him for the interrim in which he had nowhere to live. "Reasonably accepting exclusion as the norm would make it more difficult to claim compensation, and put a premium on unreasonableness whilst encouraging litigation".

Mortgage Corporation v Shaire [2001] - S and F were joint legal owners of a property, but S had 75% of it due to her financial contributions. F went behind her back, forged her signature and obtained a mortgage. However, under severance this only bound F. Still, the mortgagor now had an interest in the property, and sought sale. S opposed this under s.14; Neuberger said that the LPA 1925, s.30 had been changed by TLATA. However, the interests of the mortgagor were no less/more important than any other interests, so he said that there was a bit more in favour of families over banks.

Bank of Ireland Home Mortgages Ltd v Bell [2001] - Facts not dissimilar to SHAIRE. However here the wife's beneficial interest was maximum 10%, and the mortgage debt was already worth more than the property so that if the bank was not refunded they would be out of pocket. CoA said that it was a powerful consideration for proper recompense to the creditor, especially if it was overdue.

First National Bank v Achampong [2003] - A delay is not prejudicial if the beneficiary is allowed to remain in the property.

White v White [2003] - Two unmarried parties, the father had two children living with him and opposed the mother's s.14 application for sale of the house. He cross-applied for outright transfer of the property to him. On the intentions point, the CoA said that at the time they had been in shared occupation, they had had no children, so the intention could not have been a family home. However, under s.15(1)(c), the interests of the minors should be considered.

Edwards v Lloyds TSB Bank plc [2004] - Postponement of sale justifiable where the person's security is adequate to cover the increasing amount of debt.

Midland Bank v Cooke - A house was purchased as a family home and conveyed into the husband's name. The wife's parents contributed £1000 towards it and the remainder was provided by the husband, and a mortgage. However, the husband took out a second mortgage, procuring the wife's consent by undue influence. The court of first instance evaluated the beneficial entitlement by financial contributions. As the wife's parents £1000 had been a gift to the couple, the wife was said to have given £500 which amounted to 6.47% of the total amount - hence that was how much she had in equity. However, the CoA said that there was no express evidence of intention, and therefore there should be an undertaking to survey the whole course of dealing relevant to their ownership and occupation. Once they had taken into consideration all conduct which threw light on what shares were intended, they said that the presumed intention was that the beneficial interest would be shared equally.

Fowler v Barron [2008] - Opposite sex cohabitants with two children purchased a house in 1988 and registered it in their joint names. The man made all the financial contributions, whilst the woman looked after the children. The judge held (prior to STACK) that in view of their respective financial contributions, that the man was the sole beneficial owner (resulting trust). However, the CoA followed STACK in that the presumption of joint beneficial ownership was not rebutted by the man's financial contributions, but that the house was held by the both of them on trust for themselves as tenants in common with equal shares. This acknowledged policy in that it is accepting that the unpaid work of women in childcare is important.

Holman v Howes [2007] - A single legal owner held on trust for himself and the claimant (ex-wife) in equal shares where they had made roughly equal financial contributions. The presumption was rebutted, and it was held that the man held the property on trust for himself and the claimant in equal shares as it reflected their financial contribution.

James v Thomas [2007] - The defendent never indicated that the claimant should have a beneficial interest.

Laskar v Laskar [2008] - A mother and daughter purchased a house together under their joint names, but contributing unequal financial amounts. The mother had been a secure tenant who was now exercising the right to buy. They never lived there together, or intended to - it was let out to tenants. The court in the first instance held that pursuant to a resulting trust, the house was held in trust based on their financial shares (the mother had contributed 95%). However, post-STACK, the daughter thought she still had a case. Nonetheless, the CoA said that as the house was purchased as an investment, STACK did not apply and was therefore not relevant. As such, in the lack of any discussions about shares, the reliance is to fall back on financial contributions (resulting trusts). Still, it was found that the first instance judge had failed to take into account liability assumed by the daughter under a mortgage, so her share was increased to 33%.

Kinch v Bullard [1999] - A terminally ill woman sent notice to her husband by first class post to the matrimonial home. As this had not been sent by registered post, this did not fall under s.196(4). However, before it arrived, the husband suffered a heart attack. When it did finally come, the wife destroyed it. As the husband had died before the wife, she stood to get survivorship if she was still in joint tenancy. However, the husband's estate did not want this to happen. Neuberger said that the joint tenancy had been severed by her notice, as it had been effectively served under s.196 by arriving at the husband's last fixed place of abode, no matter in what form or way. It was irrelevent that the husband did not physically receive the notice, or that the wife had changed her mind. He did tentatively suggest that if the wife had informed the husband she intended to revoke the notice, the situation might have been different.

Harris v Goddard [1983] - A wife served a divorce petition on her husband seeking that such an order may be made by way of transfer/settlement of their property. However, the CoA held that this did not sever a joint tenancy, and therefore the wife took survivorship. Lawton LJ said that "a notice in writing which expresses a desire to bring about the wanted result at some time in the future is not a notice in writing under s.36(2)".

Burgess v Rawnsley [1975] - H and R jointly purchased a house for £850. H was to live in the lower flat, and R in the upper. There was an express declaration that they held on trust (for sale) for themselves as joint tenants. R paid over £425 but never moved in. There were discussions about H buying out R's share between H and his solicitors, that eventually seemed to settle on R agreeing to £750, but R refused to sell. H died and R claimed survivorship. However, H's estate resisted as they claimed there had been a severance before his death. Had beneficial joint tenancy been severed in the course of negotiations or not?
The county court said that there had been severance by mutual agreement is one was to believe what H had told his solicitors. The judge favoured this over R's argument. The CoA uphold this decision on the basis that severance by mutual agreement had occurred, and it was immaterial that such an agreement was not specifically enforceable.

Greenfield v Greenfield [1979] - A physical division of property (i.e. into maisonettes) is not enough in itself to comprise a mutual agreement or course of dealing.

Hunter v Babbage [1994]
Edwards v Hastings [1996] - Where divorcing spouses have reached an agreement which involved severance of their interests in the home, it was immaterial (no consent order having been made) that it was unenforceable at the time of the husband's death.

Pudner v Pudner [2006] - Where parties had executed mutual wills, these indicate an agreement and provide evidence of an intention to sever that would not be found in just a single will.

Re Pavlou [1993] - The family home was in the joint names of the husband and wife. The marriage broke down and the husband left the home. The wife met all the mortgage payments thereafter and the husband was subsequently adjudicated bankrupt. The wife sought credit for the mortgage capital and interest repayments. The court held that the wife was entitled to credit for one half of the capital repayments made by her since she became solely responsible for the mortgage payments and not merely from the date of the bankruptcy order.

Chan Pui Chun v Leung Kam Ho [2003] - Was it suitable for half of a divorced couple to remain living in a jointly owned house? One must consider factors such as if a house is unsuitable for someone regarding size and maintainance, even if they have a right to remain there.

Barca v Mears [2004] - In 1995, B was declared bankrupt and M was appointed his trustee in bankruptcy. The trustee in bankruptcy applied to the court for a declaration that he had an absolute beneficial interest in B's property and sought an order for possession and sale.
The main issue that arose in the case concerned whether the court should make an order under section 335A Insolvency Act 1986. B alleged that his son spent over half the week in the property, and if it were sold this would cause the child considerable hardship. It would disrupt the child, particularly as he was a special needs pupil. B said these reasons amounted to exceptional circumstances for the purposes of section 335A. Case law indicates that substantial postponement has been allowed in cases where the bankrupt or the bankrupt's spouse was terminally ill or very seriously ill. Re Citro [1991] Ch 142 seems to indicate that the circumstances must be inherently unusual. The child's problems in this case could not be said to come within this requirement.
B also claimed that the lower court had failed to take into account his or his son's right to family life, home and privacy and that the principles of insolvency law were contrary to the concept of fundamental freedoms and rights. Strauss J said that a shift in the emphasis in the interpretation of section 335A might be necessary for it to be compatible with the European Convention of Human Rights. He avoided reaching a conclusion on the issue however and said that the decision of the lower court was correct. The prejudice to B's creditors would be substantial if the order for sale were postponed and the son's educational problems were not severe.

Donohoe v Ingram [2006] - The appellant and her partner were in a relationship between 1982 and 1999, and they had four young children. In October 1996, they bought a property as joint proprietors, and occupied it as their home. In March 2000, the appellant's partner was declared bankrupt; the couple separated in July 2001; and, in May 2004, the respondent to this appeal was appointed as the trustee in bankruptcy.
In June 2005, the respondent applied for an order for sale of the property under section 335A of the Insolvency Act 1986 (inserted by the Trusts of Land and Appointment of Trustees Act 1996), and the district judge ordered the sale with vacant possession. The appellant applied for the order for sale made by the district judge to be set aside and substituted by an order for sale, not to take place until 2017, when her youngest child would attain the age of 16. The only issue which arose on this appeal was whether the district judge was correct in deciding that the circumstances were not 'exceptional' within the meaning of section 335A(3).
The judge considered the Court of Appeal decision in In Re Citro [1991] Ch 142, the leading authority on the meaning of 'exceptional' in this context, and Nourse LJ's interpretation in that case of In Re Holliday [1981] Ch 405. The appellant contended that the present case was materially indistinguishable from In Re Holliday and the district judge was wrong not to have decided that the fact that the creditors were likely to be paid in full with interest, even if the order for sale was postponed for a number of years to allow the children to remain in the property until they were older, amounted to exceptional circumstances. She further submitted, in reliance on Barca v Mears [2004] EWHC 2170 (Ch), that the 'narrow' construction of section 335A was not consonant with the right to respect for family and private life recognised in Article 8 of the European Convention on Human Rights, which required that section 335A should be interpreted in a manner which afforded greater weight to the needs of the bankrupt's partner and children.
Held, dismissing the appeal, that the district judge had been correct in deciding that the circumstances in this case were not exceptional. The judge expressed sympathy for the position in which the appellant and her family found themselves, through no fault of their own, and varied the district judge's order to the extent that the sale of the property should not take place for a further three months from the date of the hearing, to allow her time to arrange her affairs and make provision for her children. He also expressed the view that the authority of In Re Holliday needed to be approached with a degree of caution, as the decision had been described in a 1986 case as being 'very much against the run of recent authorities'.
As regards the human rights point under Article 8, the judge concluded that it was unnecessary for him to determine the point because, even if a wider interpretation of 'exceptional circumstances' were required, the district judge's conclusion that there were no exceptional circumstances was correct.

State Bank of India v Sood [1997] - Overreaching is still effective even if no capital monies arise on disposition of the legal estate (an overdraft mortgage, charging existing and future liabilities of the debtor).

Birmingham Midshires Mortgage Services Ltd v Sabherwal [2000] - TLATA does not affect FLEGG's logic.

National Westminster Bank plc v Malhan [2004] - Overreaching is ECHR compatible.

Paddington Building Society v Mendelssohn [1985] - A mortgagee's capacity of overreaching being bound by the LRA 2002, sch. 3, p.2 does not apply where there is a waiver by the beneficiary (failing to assert interest on becoming aware of the disposition).

Kinane v Mackie-Conteh [2005] - K loaned A £50,000. The loan was to be repaid with a return of 100%. M was the director of A. K required security for his advance and was offered a second charge on a house in Kent owned by M and his wife. M and his wife attached their signatures to a letter called 'the security agreement'. The loan was not repaid and K commenced proceedings for repayment of the loan and specific performance of the agreement.
M argued there was no enforceable agreement since it did not comply with section 2 LP(MP)A 1989. K said that the agreement fell within one of the exceptions provided by section 2(5), namely that a constructive trust arose. K said this was so since it was the common intention of himself and M that he should be granted a charge, and that, in any event, the security agreement complied with section 53(1)(c) LPA 1925.
It was found that (i) section 53(1)(c) does not apply on the facts of the case since there was no disposition of an equitable interest. The legal and equitable estates had not been divided prior to the making of the security agreement, and (ii) that a constructive trust does not fall outside the ambit of section 2 and on the facts of the case there was an estoppel overlapping with a constructive trust.

First National Securities Ltd v Hegerty [1985] - Husband and wife owned property in law and equity as joint tenants. A year after buying, the husband took out a mortgage without telling his wife, as well as forging her signature. The bank thought it was getting a legal charge over the house, but fraud made the document useless. When the husband defaulted on the payments, the bank wanted to claim. The court said that in doing this, the husband had severed the joint tenancy and become a tenant in common, and he had made an equitable charge over his share.

Street v Mountford [1985] - Found in favour of Mrs Mountford’s appeal as she was a tenant (exclusive possession for a fixed term at a stated rent) and the presumption of a tenancy was not negated. It was found that she was a tenant over being a licensee as she had exclusive possession of the room and a legal right to occupy it, and was not just under license to use it (permission to occupy only – i.e. someone who uses a plot of land as opposed to someone who lives there/owns it). Under these circumstances, Mrs Mountford was within her rights to apply for fair rent registration.

Manchester Airport v Dutton [1999] - Dutton’s response to the plaintiff’s actions for trespass was that the plaintiff did not have sufficient interest in wood to seek this, due to the limited powers (i.e. no exclusive possession) of the license which had been granted to them. When this was dismissed, Dutton’s appeal was held in that the plaintiff could issue an action for trespass as they were in possession of rights to enter that land for a particular purpose, whilst Dutton et al were not. Even though the plaintiff did not hold exclusive possession, Dutton et al were in breach of this right.

Ofulue v Bossert [2008] - The Bosserts acquired the property belonging to the appellants by virtue of adverse possession (failure to bring court action against B enterering A’s land without permission, and remaining there for a period which rendered court action null and A’s rights void) as they had been squatters there for 22 years, of which the appellants had been aware. B had offered to buy the property from A, but been refused. In an appeal referral from the CC, the CoA held that the B’s had acquired legal title to the property by these means in that the appellants had done little to remove them, and the B’s had gained ‘factual possession’ (a sufficient degree of exclusive physical control over the property) and showed ‘intention to possess’ (excluding the world at large, including the registered owner, from the property, but not intending to own or acquire ownership).

Bristol and West Building Society v Henning [1985] - A husband and wife bought a home in the husband's name only. They took out a mortgage which she knew about, and therefore she was deemed to have implicitly waived her right.

Boscawen v Bajwa [1996] - The owner had a property subject to a bank charge. They wanted to sell this, and the purchaser took out a loan in oder to afford it. However, although the second bank advanced the money, the property never changed hands - instead as the money was used to pay off the first bank's charge, the second bank never received a charge over the property. Subrogation is an equitable remedy as it allows a party that is expecting a security interest to trace their money, and if this has reached the hands of someone who had an interest which has been paid off, you may step into their shoes. As such, the second bank took the first bank's place. In this way, the second bank gets priority over the beneficiary as the first bank would've.

CIBC Mortgages plc v Pitt [1994] - The Pitts owned a house; the husband wanted to borrow some money in order to invest in some shares to speculate but the wife was very unhappy about this. However, she was too frightened to speak out. This was definitely undue influence, but it can be very hard to get evidence of what goes on in a home, and normally actual undue influence can be difficult to prove. The same is true for misrepresentation. Also, the money that the husband had taken out had been for shares, which had substantially dropped in value, leading to him defaulting on the repayments. Although there was undue influence present, the bank had had no more notice of the situation then believing the money was for a holiday home (benefiting them both) and so they could repossess, having had no constructive notice.

National Westminster Bank v Morgan [1985] - A husband and wife owned a home jointly. The husband was unable to meet his mortgage commitments and the building society threatened to seek possession for unpaid debts. The husband made refinancing arrangements with the bank secured by a mortgage in favour of the bank over the matrimonial home. The bank manager called at the home to get the wife to execute the charge. She did not wish the charge to cover her husband's business liabilities. The bank manager assured her, in good faith but incorrectly, that it did not. It was, in fact, unlimited in extent and could, therefore, extend to all the husband's liabilities to the bank, though it was the bank's intention to confine it to the amount needed to refinance the mortgage.
The wife had not received independent legal advice before executing the mortgage. The husband and wife fell into arrears with their payments, and the bank obtained an order for possession of the home. Shortly afterwards, the husband died without owing the bank any business debts. The wife argued that the bank manager exercised undue influence over her and that a special relationship existed between her and the bank which required it to ensure that she received independent legal advice before entering into a further mortgage. She also sought to rely upon BUNDY.

Lord Scarman came to the following conclusions:
1. A transaction would not be set aside on the grounds of undue influence unless it could be shown that it was manifestly disadvantageous to the party alleged to be influenced.
2. The basic principle was not a vague public policy (as formulated in ALLCARD), but the prevention of victimisation of one party by another.
3. The transaction in the instant case was not unfair to the wife.
4. Although the doctrine of undue influence could extend to commercial transactions, including those between banker and customer, it could not be maintained on the present facts that the relationship was one in which the banker had a dominating influence.
5. The bank, therefore, was not under a duty to ensure that the wife had independent advice.

Chater v Mortgage Agency [2004] - A mother and son bought a house together and mortgaged it. The mortgage was very large and would last 25 years, by which time the mother would be 86. When the bank sought to enforce it, the mother claimed undue influence. The CoA held that there was presumed undue influence on the facts as they could not understand why someone of her age would enter into such an agreement. Still, this is merely a presumption as if the bank can prove that the person truly did agree, then it might be rebutted.

Barclays Bank v O'Brien [1994] - A couple owned and jointly executed a mortgage in return for the bank providing overdraft facilities for the husband's business. However, the business failed, so the wife claimed there had been misrepresentation and undue influence (accepted) and it was also found that the bank had been aware of this and was therefore on notice.

TSB v Camfield [1995] - Mr Camfield was a partner in a motor business. The partners requested the bank to provide the business with an overdraft facility of £30,000. The bank agreed, provided the partners executed a charge over their houses. Mrs Camfield duly executed the charge but did so under the impression, as the result of an innocent misrepresentation by the husband, that the maximum liability under the charge would be £15,000. That misapprehension was not corrected by the person advising her, even though the effect of the legal charge was to charge her beneficial interest in the house with an unlimited liability to meet the debts of the partnership, in which she had no financial interest. The business failed and the bank commenced proceedings against the Camfields.
The CoA held that where a wife was induced to execute a charge over the matrimonial home to meet the husband's debts by his innocent misrepresentation that the liability under the charge would not exceed a specified amount, whereas the charge in fact provided security for an unlimited liability, and the creditor was fixed with constructive notice of the husband's misrepresentation because it had failed to take reasonable steps to ensure that the wife understood the charge, the charge would be set aside in its entirety and could not be partially set aside or set aside on terms that it was a valid security for the specified amount for which the wife thought she was at risk. Since, on the evidence, the wife would not have entered into the charge if she had known its true nature and since her ignorance of the true nature of the charge resulted from the bank's failure to take reasonable steps to see that she was properly advised, it followed that the charge would be set aside in its entirety.

Cityland & Property (Holdings) Ltd v Dabrah [1968] - A company leased a house to X. At the end of this they sold it to him for £3500, but he only had £600. They agreed to loan him the rest, secured by a mortgage on the property. It was agreed that no interest was repayable, but the amount loaned was £4500. There was a discount available within the 6 years that X had to repay, but if he defaulted then the full amount would be payable at once. Unfortunately, X slightly defaulted on one of the repayments and the company demanded this. X appealed, saying it was unconscionable and the court agreed.

Multiservice Bookbinding v Marden [1979] - A company charged a bookbinding business for a loan of £36k. The loan was provided by a private individual who was looking for something to invest his money in, and so there was a strange term which meant that the interest rate on the repayments would fluctuate depending on the strength of the British Pound to the Swedish Franc. As such, over the 10 year repayment scheme, the company found themselves paying £14k extra due to the rate often being in favour of the lender. On the facts, the two parties had relatively equal bargaining power, so even if the term might have been unreasonable, it was certainly not unconscionable.

Paragon Finance v Nash [2001] - The lender had set a variable rate and had raised the figures against the borrower. The borrower then sought to argue that this was unreasonable. The court wondered whether they should imply a term that a lender could not raise a rate dishonestly (i.e. to get of borrower), capriciously (for an inexplicable/irrelevant reason), arbitrarily or in a way which no other lender would have done.

White v City of London Brewery Company [1889] - There was a pub in the Isle of Dogs that took out a loan from LBC. However, they couldn't repay it so the company repossessed. They then let it as a 'tithe' pub, which meant that the owner could only sell the brewery company's beers. The court said that if they had allowed all beers to have been sold, they would've made money therefore they were liable for willful default.

Ropaigealach v Barclays Bank [2000] - House was mortgaged to BB, the R's then moved out for renovation purposes. During this period, they fell behind on their repayments, so the bank posted a letter that they didn't get. BB then repossessed the house and sold it! The R's tried to argue that:
1) the bank must go through court and,
2) s.36 should have given them relief against possession
The court said:
1) there was no such restriction and,
2) s.36 had not been triggered.
As such, there is a huge hole in the Administation of Justice Act which has not been closed, but peaceful repossessions are still very rare in any case.

Meretz Investments AV v ACP Ltd [2006] - The bank was trying to sell a property for a variety of reasons: some were to fulfil the debt, but others were for extraneous purposes. It was held that the bank does not need to have 'purity of purpose' so long as one reason is for the 'correct' motive, then it may have others.

Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] - A developer purchased a developing site with a mortgage. However, after a while he ran into difficulties with the repayments and the mortgagor wanted to sell it. It advertised the site in several newspapers, but neglected to say that alongside already having obtained planning permission for houses, it had it for flats as well. As such, when it was sold, the price was not as high as it should have been, neither was it enough to cover the developer's debt. The mortgagor sued the developer, who in turn counter-claimed for not getting the best price. The court said that the property could have been sold for more, and so the market value was not realised. The mortgagor is under a duty to make the most of a property's assets.

Farrar v Farrars Ltd [1888] - A quarryman took out a mortgage over a stone quarry. However, he became unable to meet the repayments so the mortgagor wanted to sell. No-one wanted to buy it, so the mortgagor set up a company with some other lenders, purchased the property and transferred it to this. This was not a sale to him as a company is seen as a separate legal entity in law. It was a sale to an associated party, but as the sale was conducted fairly, and the property sold for a good price, it was upheld.

Tse Kwong Lam v Wong Chit Sen [1983] - There was a 15 storey building that the owner required a loan to develop. However, he soon realised he would not be able to pay it back on time so the mortgagor (who was a private individual) wanted to repossess and sell it. He advertised a private auction for the property in three newspapers. However, the mortgagor also owned a company with his wife, which was staffed by family members and was interested in purchasing the building under this. When the auction day arrived, the mortgagor set the reserve price at $1.5 million, and had his wife as one of the bidders; she managed to win the auction with a bid of $1.2 million. This was still not enough to cover the debt, so the mortgagor sued the owner, who counter-claimed in that $1.2 was an undervaluation of the building, and it had been a sale to an associated party.
It was found that the mortgagor had not satisfactorily discharged the burden of proof as he had set the reserve price himself without seeking any expert advice (the building was in fact worth much more), his advert was not informative or 'enticing' enough and he had not even tried to find a private buyer for it. As such, the sale was improperly exercised. However, although the sale could be set aside, as this was an equitable remedy, the courts did not deign to exercise it here as the mortgagee had taken too long to seek recompense.

Medforth v Blake [2000] - The receiver of the business of a pig farmer was held liable for failure to negotiate a bulk discount for the pig feed which he purchased. The equitable duty [the mortgagee or the mortgagees receiver (and they are to be treated largely the same as regards their duties) owes a duty to the borrower (and by extension to the guarantor) to act in good faith with the object of preserving and realising assets for the benefit of the lender; it must take reasonable care to sell the property for a proper price] included a duty of due diligence as well as good faith. As such, it was held that the duties which a receiver owed to the borrower included, but were not necessarily confined to, a duty of good faith. Subject to the receiver’s primary duty to try to bringabout a situation in which the debt and interest could be paid to the secured lender, the receiver also owed a duty to the borrower to manage the business and the property with due diligence.

International cases

Lockerbie Case - Libya applied to the ICJ for interim measures of protection. During the hearing, the SC adopted enforcement measures and the Court took the view that it was bound to dismiss Libya's claim because the Council resolution decisively characterized Libya's conduct as a threat to international peace, even though this was clearly a legal dispute and within ICJ's jurisdiction. (ICJ accepted Security Council's supremacy).

Trend away from Lockerbie: ICJ now does not bow unconditionally, and only where they need to
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory - ICJ held that the mere presence of an item on the Council's agenda did not prevent the General Assembly (who was requesting the Advisory Opinion) from dealing with an issue that was otherwise within its responsibility.
Bosnia Herzegovina v Yugoslavia - Judge Lauterpacht said that Court will not renounce jurisdiction if the Council is only considering a dispute. Will only do this when the Council has actually made a concrete determination of the very question before the Court.

Law of the Sea Convention - In 1982, it crystallised the concept of the Exclusive Economic Zone, so that EEZ exists both in treaty and customary law.

North Sea Continental Shelf - Realising there was oil in the Gulf of Mexico, the USA issued a proclamation claiming a 20 mile continental shelf that was the natural promulgation of their coast underwater within its jurisdction. This did not affect any rights to the waters above it (High Seas regime). However, at that time countries could only extend their rights up to three miles out to sea (Three Mile Territorial rule) - therefore was this ruling accompanied by opinio juris?
The US could not have thought this was in line with international law at the time. As such, opinio juris distinguishes between State practice that can give rise to custom, and those that can't - more powerful or wealthy States find it easier to generate/enfoce practice to create a norm (i.e. the US had plenty of oil drillers etc ready to step in to mine their deposit).
International law accepts power and internalises it - in this case, the norm was accepted by other States, therefore once a norm or obligation is established, it exercises influence not only over the creator State, but all others. In this way (continuing the line of thought that more powerful States will have more chances to produce custom) not all States are equal in creating customary international law. However, its creation is a process or dialogue not only within the creator State itself, but between others.
Here the treaty provision must be capable of general application and must be intended to be the basis of future state practice, as well as being supported by the necessary opinio juris and by acts of practice by non-parties to the treaty.

Gulf of Maine - Custom is ideally suited to the development of general principles and is always available to fill the void should the detailed legal regime of a treaty fail to gain universal acceptance.

The Lotus case - French merchant ship sank a Turkish ship, then put into a Turkish port where the French captain was put on trial for manslaughter. Only France had jurisdiction over the ship, but Turkey won. Now, under Article 11(1) of the High Seas Convention, only the flag state, or the state of which the alleged offender was a national of has jurisdiction over sailors regarding incidents occuring on the High Seas.

Anglo-Norwegian Fisheries case - Defining internal/external waters: Norway won this as there was no binding international customary law to counter their suggestion of what waters were theirs.

Nicaragua v United States - The US was supplying funds to arm the militia in Nicaragua; the case was brought by Nicaragua in hoping to turn the Democrats' votes the other way, and thus stop them supplying money. ICJ ruled in Nicaragua's favour, the Democrats' did change their votes and the money was stopped. However, the US never complied with the judgement.

Applicability of the Obligation to Arbitrate - "The fundamental principle of international law is that international law prevails over domestic law".

Greco-Bulgarian Communities - "It is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty".

Polish Nationals in Danzig - "A State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force". Even if it is against the Constitution, you still cannot rely.

Exchange of Greek and Turkish Populations - Arising from the nature of treaty obligations and from customary law, there is a general duty to bring internal law into conformity with obligations under international law. But a failure to bring about such conformity is not in itself a direct breach of international
law; a breach only arises when the state concerned fails to observe its obligations on a specific occasion -- Fitzmaurice. However, in certain circumstances legislation could of itself constitute a breach of a treaty provision.

Certain German Interests in Polish Upper Silesia - "Municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures" They are 'merely facts'.

Serbian Loads - 1929, where crucial issues turned upon the interpretation of internal law, a study of relevant pieces of municipal legislation had to be done.

Buvot v Barbuit - "The law of nations in its full extent was part of the law of England".

Sandline v Papua New Guinea - "It is part of the public policy of England that its courts should give effect to clearly established rules of international law".

R v Keyn - The Franconia, a German ship, collided with a British ship due to the latter captain's negligence, leading to a British death. The captain was held for manslaughter. However, the sea was not within British territory under statute, but it was under the Three Mile Terrotorial Seas rule in international law. Held that not British waters (as there was no legislation) and the Captain was let go. This was for two factors:
1. The need for evidence of assent by the British Government.
2. The constitutional consideration that the courts could not apply what would practically amount to a new law without usurping the province of the legislature.
It was thought by many to be marking a change to the transformation approach but judges did not seem to be considering the issue between incorporation and transformation. Cockburn CJ's elements of 'transformation' are compatible with incorporation if looked at in that he was concerned with the proof of the rules of international law:- if the evidence is inconclusive and the issue affects the liberty of persons, then assent by the legislature of the forum is needed to
supplement the evidence. He does not apply it generally.

West Rand Central Gold Mining Co. v R - Obiter by Lord Alverstone in that the doctrine of incorporation still applies. But he requires 'assent' in relation to rules based on the 'opinions of text-writers', as opposed to a subject matter on which there is a 'particular and recognized rule of international law'. This is therefore similar to KEYN as to the necessity for conclusive evidence regarding the existence and scope of any particular rule of customary law.

Mortensen v Peters - A Danish captain was convicted by a Scottish court for contravening a fishing by-law in Moray Firth (covered by by-law but out of the Three Mile Terrotorial Seas limit recognised by international law). High Court of Scotland interpreted the Fishery Act in a way contrary to international law, when in fact the enforcement agencies have not applied the Act in this way. Therefore, in the realm of international relations, the English courts seek the guidance of the appropriate department of government on the determination of a variety of issues. This is formally a matter of evidence, but the certificate of the Secretary of State is conclusive of the matter, unless the certificate deliberately leaves the court free to construe (something called an executive certificate). Held that statutes had predominance over customary law, and a British court would have to heed the terms of an Act of Parliament even if it involved the breach of a rule of international law.

Commercial and Estates Co. of Egypt v Board of Trade - Per Atkin LJ, "international law as such can confer no rights cognizable in the municipal courts. It is only in so far as the rules of International Law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations".

Chung Chi Cheung v The King - Per Lord Atkin, "international law has no validity except in so far as its principles are accepted and adopted by our own domestic law. The Courts acknowledge the existence of a body of rules which nations accept among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals." But this can be compatible with Incorporation also as it links back to the problem of evidence in KEYN and WEST RAND.

Trendtex Trading Corporation v Central Bank of Nigeria - All 3 judges of the CoA accepted the Incorporation doctrine as the correct one.

Sidhu v British Airways - Per Lord Hope that it was "well established that a purposive approach should be taken to the interpretation of international conventions which have the force of law in this country".

Ellerman Lines v Murray - If the relevant section of the Act had a 'natural meaning' it was improper to resort to the text of the Convention as an aid to interpretation.

Saloman - 2 conditions for resort to the convention:
1. That the terms of the legislation are not clear but are reasonably capable of more than one meaning.
2. That there be cogent extrinsic evidence to the effect that the enactment was intended to fulfill obligations under a particular convention.

Kuwait Airways v Iraqi Airways - In August 1990, Iraqi forces invaded and occupied Kuwait. Among the objects seized were ten commercial aircraft belonging to Kuwait Airways Corporation ("KAC") which were removed to Iraq immediately. In September 1990, the Revolutionary Command Council of Iraq adopted a resolution, RCC Resolution 369 ("the RCC resolution"), which dissolved KAC and transferred all its assets worldwide to Iraqi Airways Company ("IAC"). The UN Security Council condemned Iraq's invasion of Kuwait and passed various resolutions, including resolution 678 which authorised military action against Iraq. The ten aircraft were incorporated by IAC into its fleet. Four of the aircraft that had been moved to Mosul for safety purposes were destroyed during the allied bombing and the other six aircraft were evacuated to Iran. In March 1991, Iraq accepted the UN Security Council's conditions for a ceasefire which included accepting liability under international law for loss and damage caused to Kuwait and its nationals and corporations as well as returning all Kuwaiti property immediately. Iraq also repealed the RCC resolution. KAC later negotiated with the government of Iran and the six aircraft were returned to Kuwait for US$20million.
KAC commenced an action against both IAC and the Republic of Iraq in 1991, claiming damages for over US$800million. In 1995, the House of Lords held in relation to challenges to the jurisdiction of English courts that Iraq had not submitted to the jurisdiction and could no longer be impleaded. As for IAC, it could not claim state immunity after the RCC resolution came into force. KAC then continued proceedings against IAC alone. Mance J tried the issues relating to liability. He found that IAC had wrongfully interfered with KAC's aircraft. With regard to the RCC resolution, he held that English courts could refuse to recognise it as a matter of public policy as it violated international law. The issues concerning damages were tried by Aikens J. He found that KAC had not established that it had suffered any recoverable losses in relation to the aircraft. Both parties appealed. The Court of Appeal upheld Mance J's findings on liability. Regarding damages, the court allowed KAC's claims in respect of the six aircraft in Iran. Both sides then appealed to the House of Lords.
The House of Lords upheld the Court of Appeal's decision both in dismissing IAC's appeal against the decision of Mance J on liability. This is the first case in which English courts have refused to recognise a foreign law which is in breach of international law. As such, the decision goes beyond Oppenheimer v Cattermole [1976] AC 249, which was limited to human rights.
In appropriate circumstances it was legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law and it did not flow inevitably from the non-justiciability principle that the judiciary must ignore a breach of international law committed by one state against another 'where the breach is plain and, indeed, acknowledged' (to be judged by contemporary standards). "Very narrow limits must be placed on any exception to the act of state rule", but there was no need for restraint on grounds of public policy 'where it is plain beyond dispute that a clearly established norm of international law has been violated'.

Eritrea/Yemen - There is a 'strong presumption that islands within the 12 mile coastal belt will belong to the coastal state', that can be rebutted only by evidence of superior title.

El Salvador v Honduras - Effective display of state functions, or economic
inequality generated by old boundaries was not sufficient to displace uti possidetis principle.

Clipperton Island Arbitration - Dispute was over small uninhabited coral reef. French title was held to be established, though the 'acts' allowed were limited to minimal acts of the French Navy and subsequent proclamations of sovereignty in various public journals. These acts, when coupled with an intention to exercise sovereignty, sufficed.

Chamizal Arbitration - US possession of disputed territory had been 'constantly challenged and question by the Republic of Mexico through its accredited diplomatic agents', therefore US cannot have the title.

Tinoco - On the recognition of the government of Costa Rica, it was said that without recognition, (but recognition only of governments) it would be very hard to say that the government exists, because it is the evidence - although formally, this criterion is not necessary. Non-recognition is strong evidence that the entity had not yet attained the alleged status in international law, but the ultimate test is a factual one based on internationally accepted criteria.

Texaco v Libya - If a concession agreement for the extraction of oil might be an internationalized contract subject to rules of international law.

Adams v Adams - UK court refused to recognise divorce granted in Southern Rhodesia because UK did not recognise that country as a sovereign state.

Hesperides Hotels v Aegean Turkish Holidays - Denning said that the court can take note of certain acts of a foreign sovereign, if it was effective within a territory, even though the sovereign was not formally recognised by UK. Acts that the court can take into account are mostly those relating to private individuals.

Gur Corporation v Trust Bank of Africa - Can the Government of Ciskei sue as a
claimant in its own name in an English court? By first instance it was refused as government was not a sovereign authority. However, CoA found that the government was acting under the delegated authority of a sovereign legislature, the recognised government of South Africa (legal fiction).

Al Jeddah [2008] - A, a dual British/Iraqi, was held in custody by British troops at detention facilities in Iraq; he appealed against this decision on the grounds that his detention infringed his rights under the ECHR. He had been detained on the grounds that he was suspected of being a terrorist. The relevant issues were:
- was his detention, by reason of the relevant UN Security Council resolutions, attributable to the UN and therefore outside of the scope of the convention
- whether the UK had become subject to an ‘obligation’ within the meaning of the UN Charter, and if so, whether and to what extent such obligation displaced or qualified A’s rights
- whether English common law or Iraqi law applied to A

Appeal dismissed:
- A’s detention was not attributable to the UN; the multinational force in Iraq had not been established at the UN’s behest and was not a subsidiary organ of the UN. Furthermore, it could be not be said that the US and UK forces were under the effective command/control of the UN, or that the UK forces were under such when they detained A (Rodger dissented)
- A had asserted that Art. 103 of the UN Charter was not engaged, as the relevant UN Security Council resolutions, read in the light of it, at most authorised the UK to take action to detain him, but did not ‘oblige’ it to do so.
i. UK as an occupying power = necessary to take steps to protect its own, and the public’s safety. If it was therefore judged necessary to detain a person in nature that they could be a threat, then there was an obligation to do so.
ii. Academic opinion = Art. 103 was applicable where conduct was authorised by the Security Council as where it was required.
iii. ‘Obligations’ in Art. 103 should not be given a narrow meaning = the importance of maintaining peace and security in the world is of extreme importance. Whilst the UK was not specifically bound to detain A in particular, it was bound to exercise its power of detention where that was necessary for imperative reasons of security. There was a clash between a power/duty to detain which was exercisable on the express authority of the SC, and on the other hand, a fundamental human right which the UK had undertaken to secure to those within its jurisdiction. Where it was necessary for security, this power could be exercised, but there had to be an insurance that the detainee’s rights (Art. 5) were not infringed to any greater extent than was inherent
- Iraqi law was the applicable law; there were insufficient grounds for displacing it.

As such, HRA and Art. 5 of ECHR convention may be trumped by SC resolutions.

Cutting case - An American citizen published in a Texan newspaper a defamatory statement of a Mexican. He was arrested whilst in Mexico, and convicted of the offence using the passive personality principle.

US v Yunis - Court accepted that though the passive personality principle is one of the most controversial, it is legitimately recognised by the international community.

Joyce v DPP - J was born in America, but fraudulently obtained a British passport by declaring he was born in Ireland. He left Britain and started working for the German radio broadcasting pro-Nazi propagandist. He then claimed to have acquired German nationality. Did the British court have jurisdiction to try him after the war for treason? It was held that he could, as J had held himself to be a British subject, and had therefore availed himself of the protection (albeit fraudulently) of a British passport. Therefore, he can be deemed to owe allegiance to the Crown, and was therefore in breach of that duty.

Eichmann case - E was prosecuted and convicted under Israeli court for war crimes, crimes against Jewish people and crimes against humanity. Israel abducted him from another state.

US v Toscanino - The rule that jurisdiction was unaffected by an illegal apprehension should not be applied where the presence of the defendant has been secured by force or fraud (this approach is not followed).

US ex rel. Lujan v Gengler - Rule in TOSCANINO is limited to cases of 'torture, brutality and similar outrageous conduct'.

US v Alvarez-Machain - Where the terms of an extradition treaty in force between the states concerned prohibited abduction, then jurisdiction cannot be exercised. Otherwise it is permissible.

R v Horseferry Road Magistrates Court ex p. Bennett - Where an extradition treaty existed with the relevant country under which the accused could have been returned, 'our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our police, prosecuting or other executive authorities have been a knowing party'.

Contract cases

British Steel v Cleveland Bridge and Engineering Company [1984] - BS was supplying steel notes for construction company, but no-one had agreed on price, or what was to happen if the goods were supplied too slowly or in the wrong order. CB did not pay, and the latter happened - BS claimed for £230,000 and CB counter-claimed for £870,000. Judge ruled that no contract had been made due to lack of provision for the above conditions and that the plaintiff be refunded the market value of the steel. The defendant would be unjustly enriched if some payment was not enforced.

Cable & Wireless PLC V IBM UK [2002] - When two large companies come together to form a contract, a multi-level dispute clause is required. CW brought an action in the commercial high court, but IMB claimed that they had skipped section 3. As there had been a breach of the mediation agreement, and as such, premature litigation, the parties were issued with a 'stay' (case not dismissed, but suspending in case of reactivation being needed) to return to mediation. As such, a resolution clause has to be specific enough that it can be upheld in court. Civil Procedure Rules 1998 emphasize the civil courts' responsibility, when appropriate, to encourage 'alternative dispute resolution'.

Watford v Miles [1992] - M agreed to negotiate with W for the sale of a business. They also agreed to terminate negotiations for the sale of a business to any other purchaser (which they did) provided W confirmed they were financially able to proceed with a purchase (which they did). However, M eventually sold to a third party. W sued for breach of contract and succeeded at trial, but M won in an appeal. An agreement to negotiate reasonably in order to reach the main contract is invalid under English law as it is regarded as uncertain. Any undertaking to bargain 'reasonably' has no objective criteria with which to establish when it has been breached.

Associated Provincial Picture Houses v Wednesbury Corporation [1948] - APPH were granted a licence by the defendant local authority to operate a cinema on condition that no children under 15 were admitted to the cinema on Sundays. The claimants sought a declaration that such a condition was unacceptable, and outside the power of the Wednesbury Corporation to impose.
The court held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that:
- the corporation, in making that decision, took into account factors that ought not to have been taken into account, or
- the corporation failed to take account factors that ought to have been taken into account, or
- the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld.

London Regional Investment Ltd v TBI [2002] - Held that an obligation to "use reasonable endeavours to agree the terms of a joint venture regarding Cardiff and Belfast Airports" was no more than an agreement to agree. It was therefore unenforceable.

Little v Courage [1994] - LJ Millett, in the CoA emphasised that adding the phrase "best endeavours" to the obligation to agree made no difference, it was still unenforceable. An undertaking to use best endeavours to obtain planning permission or an export licence was sufficiently certain and was capable of being enforced. An undertaking to use one's best endeavours to agree, however, was no different from an undertaking to agree, to try to agree, or to negotiate with a view to reaching agreement. All were equally uncertain and incapable of giving rise to an enforceable legal obligation.

Pitt v PHH Asset Management [1994] - If period is specified, then there is a lock-out agreement that exists. A 'reasonable' fixed period (how is this established in terms of length?) means that if negotiations break down, one party can claim that it was not long enough, therefore this is not valid.

Rhodia International Holdings v Huntsman International [2007] - R agreed to sell a business to H, or to H's designated purchaser, a special purpose company set up by it. This included transferring all the third party contracts to H, one of which was an energy supply contract. The sale contract required R and H to use reasonable endeavours to obtain the necessary consents for the transfer of all the third party contracts. H was also obliged to provide financial information and also, if reasonably required by the third party, to provide a parent company guarantee (or some equivalent measure). H declined to provide this, and the financial figures for the special purpose company were unsatisfactory, leading the energy supplier to decline its consent to an assignment. The judge found that H was positively required by the contract to provide some sort of guarantee and so there was no need to find that it had failed to use reasonable endeavours.

Berkeley Community Villages Ltd v Pullen [2007] - P owned land and wished to develop it. The consultancy was given to BCV to get planning permission (a difficult and drawn out process). If they were successful, they would receive a commission. Before BCV had obtained permission, but after they had incurred considerable sums in the process, P agreed to sell part of the land to a third party. BCV obtained an injunction from the Chancery division to prevent P from the sale, and so that they could get their commission. It was held that 'good faith' was an obligation, and so BCV won. As such 'good faith' is linked to a performance obligation, not just a negotionary one. Individuals can be ordered to desist from behaviour which is against this, and also to perform in a way which fulfils it.

Spencer v Harding [1870] - Defendants sent out a circular offering to sell the stock to the highest bidder for cash. The claimants sent a tender to the defendants which, following the submission of all tenders, was the highest tender. D refused to sell the stock to C. D said that the circular was not intended to be a binding offer capable of acceptance. Rather, it was merely a circular inviting others to make offers. C said that the circular did constitute a valid offer and that the C had, by submitting the highest tender and attending all the necessary meetings, accepted that offer. Court held that the circular was not an offer, but merely an invitation to gather tenders, upon which D was entitled to act. Willes, J. held that the absence of any specific wording such as "and we undertake to sell to the highest bidder" rebutted any presumption that D had intended to be bound by a contract and distinguished the present circumstances from instances of reward contract offers or an offer to the world. As such, there is no duty on an invitor to accept the best tender; they have commercial discretion to reject all if they so choose.

William Lacey (Hounslow) v Davis [1957] - A submitted a tender for the re-building of war damaged properties. The tender was not accepted, but under the belief that it would be, A subsequently prepared further estimates, ordered materials etc, which B, the offeror, made use of. However, B did not place a contract with him, and ultimately sold the property to someone else. Although there was no contract in place, A was entitled to a reasonable sum for the work carried out on a quantum meruit ('as much as he deserves' - unjust enrichment) basis -the measure of damages where an express contract is mutually modified by the implied agreement of the parties, or not completed.

Blackpool and Fylde Aero Club v Blackpool Borough Council [1990] - Requests to tender are invitations to treat, not offers, but may imply a contract to consider the tender. CoA awarded in favour of plaintif, as there was an implied collateral contract (a contract where the consideration is the entry into another contract, and exists side by side with the main one) regulating management of the tendering process. Ruled that BBC had not considered all valid tenders (including BFAC's).

Harvela v Royal Trust Co. of Canada [1986] - RTC owned shares in a company, and invited bids for them. H bid $2,175,000 and X bid "$2,100,000 or $101,000 in excess of any other offer… expressed as a fixed monetary amount, whichever is higher". RTC accepted Sir Leonard's bid as being $2,276,000. H sued for breach of contract, saying a referential bid was invalid. CoA held in favour of RTC, in that expressing a fixed amount made the referential bid good, but HoL reversed this in favour of H. Templeman said that making a referential bid was unfair, as the other party was not aware. If both had made referential bides, there would've been an impasse, unless a maximum sum was imposed. Diplock said that the successful party is the one in a bilateral contract. However, to get here you must first pass through a unilateral one.

Gibson v Manchester County Council [1979] - G wished to purchase his council property. MCC provided a price of sale. The plaintiff made a counter-offer. At the time of the counter-offer, a change in political control of the council (from the Conservative Party to the Labour Party) resulted in the council's decision to take the council property off the market. G sued, arguing that he had accepted the offer of sale and that the council had breached the contract by withdrawing the property from the market. HoL unanimously upheld the Council's appeal, so G did not get his house. The court held that G's initial response was not a clear and unconditional acceptance of the defendant's offer. No contract had been formed and by extension the council had not been in breach.

New Zealand Shipping v Satterthwaite [1975] - A drilling machine was to be shipped from Liverpool to Wellington; the bill of lading stipulated the limited liability of the carrier, further stating the clause would extend to servants, agents and any independant contractors. The carrier company was a subsidiary of the company that owned the unloading company who handled the drill. Due to negligence, they damaged the drill whilst unloading it, and claimed protection of the immunity clause. Privy Council said that the services provided by the shipper in unloading the drill was consieration for an unilateral contract agreing to protect those who are doing the unloading. A contract between two parties cannot be sued on by a third party, even if the contract is for that person's benefit.

PG v United Kingdom [2001] - Reliance upon evidence in court that had been obtained by means which infringed upon private life, and the right to a fair trial. It is trite law that specific statutory or other express legal authority is required for more invasive measures (Costa).

Gibson v Proctor [1891] - On May 29, D instructed his printers to print handbills, offering a reward of £25 to the person who should give information to a superintendent of police, named P, leading to the conviction of a criminal. The plaintiff, a police officer, on the same morning, before the instructions to print the handbills had been given by D, had communicated the desired information to a fellow police officer named C, with instructions to forward it to P, and C had communicated this (following the rules of the force) to his own superior officer, Inspector L, who sent it on the same evening to P, whom it reached the following morning, May 30, after the time when the handbills had been delivered to neighbouring police stations. It was held that the plaintiff was entitled to the reward; the messengers C and L, through whom the information was conveyed, being the plaintiff's agents to convey, and not P's agent to receive said message.

R v Clarke [1927] - An offer of a reward for £1000 and a pardon was made to anyone who gave information leading to the arrest and conviction of some murderers. One of the murderers gave information to clear his name, and then later tried to claim the reward. The court held that he was not entitled to this, as at the time he gave the information he did not think of the reward (must be aware of an offer to accept it).

Williams v Cawardine [1833] - A by public advertisement stated that whosoever should give information which would lead to the discovery of the murderer of B should, on conviction, receive a reward of £20. It was held that C, who had given such information, was entitled to receive the £20, even though she was led to inform not be the reward, but for other motives.

Tinn v Hoffman & Co [1873] - Two persons, each in ignorance at the time of what the other had done, wrote a letter to each other on the same day; one offering to buy a certain article at a certain price, and the other offering to sell the same article at the same price. The letters crossed each other in the post. It was held that such cross offers would not make a binding contract, and the offer in one of such letters could not amount to an acceptance of the offer contained in the other. As such, there were 'too many' offers, and therefore none were accepted.

Entores v Miles Far East Corporation [1955] - The contract is made at the place where the offer is received, and when it is received by the offeror (when concerning 'instantaneous' communication).

Brinkibon v Stahag Stahl [1983] - Acceptance is effective when placed in control of the post-office, but not the postal carrier (i.e. postman). 'Instantaneous' communication must be received to be effective; courts cannot make general rules about the effect of technology on communications.

Dickinson v Dodds [1876] - D gave P a written offer to sell a house for £800, 'to be left over until 12 June, 9am'. On 11 June, D sold the house for £800 to A, and P was informed of this by B. Before 9am on the 12, P gave D a formal letter of acceptance. CoA held that P knew clearly that in attempting to accept, D was no longer minded to sell the property to him - D had validly withdrawn his offer and the purported acceptance was too late.

Hyde v Wrench [1840] - D offered to sell an estate to P for £1000. P made an offer of £950 which was refused; finally P wrote to say he would pay £1000. It was held that no contract existed, as P had rejected the original offer, and in offering £950, this was seen as a counter-offer. Therefore this was not an 'acceptance' (with new terms).

Livingstone v Evans [1925] - The offeror replied to the counter-offer with the response "cannot reduce price", which was enough to keep the original offer alive.

Re Cowan v Boyd [1921] - The offeror said "I will call on you to discuss the matter further".

Henthorn v Fraser [1892] - Offer was handed in writing to the offeree as the parties were face to face at the time. The subsequent acceptance was posted; this was deemed reasonable because the parties were situated at a distance from each other. As such, acceptance does not have to mirror the original delivery of the offer.

Holwell Securities v Hughes [1974] - D granted P an option to purchase some premises. The agreement, dated 19 Oct 1971, said that this could be exercised by notice in writing addressed to D at any time within six months from that date. P posted a letter on the 14 April 1972, but it was not received. P sought specific performance in that the option had not been validly exercised. Action was dismissed in that there was no room for application of the postal rule, since the agreement expressly stipulated what had to be done to exercise the option.

Henthorn v Fraser [1892] - If acceptance is by post, it may be deemed not to occur on posting if postal acceptance was not contemplated by the offeror.

Household Fire Insurance Co v Grant [1879] - G applied for shares in HFI, which he was allotted by the company and posted a letter containing a notice asking him to pay money for their value. However, the letter never arrived. HFI went bust, and liquidators called on G to pay for the shares. Was an effective acceptance established, and hence was there a binding contract? CoA said that the acceptance of the contract was effective when posting, even if G did not know it. Bramwell points out that binding someone by something which never reaches him would not be possible if done by hand, therefore the 'postal rule' is simply arbitrary.

Byrne v Van Tienhoven [1880] - An offer can be revoked, but revocation must be received by the offeree to be effective.

The Brimnes [1975] - D hired a ship from P, who were shipowners. P then compained of a breach of contract and sent a message by Telex between 1700 and 1800h withdrawing the ship from service. However, it was not until the following day that D saw the message on their machine. It was ruled that the withdrawal was sent during ordinary business hours and that if staff had not seen it, they had either not been there, or had neglected to check. It was concluded that Telex messages sent to the business within office hours were actually communicated when received by the machine; they did not have to be read.

Grainger & Sons v Gough [1896] -
Partridge v Crittenden [1968] - Advertisements are generally not offers for the purpose of the offer-and-acceptance formula.

Fisher v Bell [1961] - Exposure of goods is not an offer.

Pharmaceutical Society of GB v Boots [1953] - B adapted one of their shops to a 'self-service' system in that customers could select items from the shelves that they required and take them to the desk. Near the desk there was a registered pharmacist who was authorised, if necessary, to stop a customer from removing any drug from the store. The issue was whether B had broken the provisions of s.18 of the Pharmacy and Poisons Act 1933 which made it unlawful to sell poison 'unless the sale is effected under the supervision of a registered pharmacist'. Both the QBD and CoA held that the display of goods was not an offer; in placing the goods into the basket, it was the customer who did this, which could then be accepted or rejected by the pharmacist at the desk.

The Santa Clara [1996] - "An act of acceptance of a repudiation requires no particular form: a communication does not have to be couched in the language of acceptance. It is sufficient that the communication or conduct clearly and unequivocally conveys to the repudiating party that the aggrieved party is treating the contract as at an end...the aggrieved party need not personally notify...it is sufficient that the fact of the election comes to the repudiating party's notice."

Felthouse v Bindley [1862] - P wrote to A offering to buy his horse, adding "if I hear no more...I consider the horse mine". A made no reply to this letter but intimated to D, an auctioneer who was to sell his stock, that the horse should be kept out of the sale. D inadvertantly sold the horse at auction, and P sued him. The court dismissed the action as there had been no acceptance of P's offer before, and P had no title upon which to maintain conversion (impose a right of sale upon the person). Silence is usually equivocal as to consent, and P's letter did not render A's failure to respond unequivocal.

Nissan UK Ltd v Nissan Motor Manufacturing UK Ltd [1994] - NUK had suggested a fairly solid pattern of delivery dates after an exchange of emails. NMUK then began to deliver in a way which matched this pattern, even though they had not properly agreed to it. It was held that NMUK's conduct was a natural inference of acceptance of NUK's offer.

Butler Machine Tool v Ex-Cell-O Corporation [1979] - B offered to sell a machine tool to EC, in which as part of the written offer, the offeror was given precedence over any terms in the buyer's order. In reply to this, EC made an offer for the machine on a different set of terms, writing that they accepted the order 'on the Terms and Conditions stated' which denied the price variation clause inserted by B. B replied, writing that the order was to be delivered 'in accordance with our revised quotation'. EC experienced some delay and could not accept the machine on time, as to which B invoked the price increase clause. EC refused to pay and B sued for breach of contract. EC argued that the price clause was not part of the contract and the CoA found in their favour.
However, if A signs on B's terms, why should we try and help A? Denning advocates the 'picking and choosing' approach, because it always results in a bargain, and courts should be striving to produce a compromise. However, this steamrollers offer and acceptance, and introduces unpredictability.

Carlill v Carbolic Smoke Ball Co [1893] - CSB, who manufactured the smoke ball, issued an advert in which they offered to pay £100 to any person who caught influenza after having used one of their balls in the specified manner, and they deposited £1000 in the bank to show their good faith. C sued for the £100 after using the ball correctly, and contracting influenza. It was held that the advertisement was not an invitation to treat, but a general offer, and a contract was made with those persons who performed the condition 'on the faith of the advertisement'. C was therefore entitled to recover £100.

Errington v Errington & Woods [1952] - A father bought a house for his son and daughter-in-law. He paid 1/3 of the purchase price in cash and borrowed the balance on a building society mortgage. He told the son and daughter-in-law that if they paid the weekly installments on the mortgage, he would convey the house to them when they were completed. They duly did this, although they were never contracted to do so. The father died, and the couple separated, but the daughter-in-law continued to live in the house. The wife of the deceased then sued for the return of the house. CoA ruled that the father had issued a unilateral offer, and the couple had accepted by beginning payments. The consideration of the agreement remained executory until the mortgage was repaid; therefore the offer could not be revoked as long as it remained outstanding. For as long as the daughter-in-law was performing, the wife could not evict.

Soulsbury v Soulsbury [2007] - An ex-husband promised to leave his ex-wife £1000 in his will if she agreed to waive maintenance payments in his lifetime. She agree, and did so, but before he died, he remarried, which rendered his first will null. Ward LJ concluded that the matter could be decided on the narrow basis that, as the wife had not attempted to pursue any ancillary relief through the courts, there was no possibility that the jurisdiction of the court was being usurped. The respondent was therefore entitled to her damages as the estate was subject to a binding agreement.

McCutcheon v David MacBrayne Ltd [1964] - Exclusion clause incorporated by course of dealing requires a measure of consistency.

Moran v University College Salford [1993] - Through a clerical error, M thought he had been offered a place on the course that he applied to, which in response to he left his job and sold his flat. However, by the time the mistake was discovered, Clearing had already closed which effectively forced him to take a gap year. The university had breached the contract which had been set up (even in error by telling him not to come, as he had no reason to expect that he should not have.

Centrovincial Estates plc v Merchant Investers Assurance Co [1983] - Was B aware of A's error concerning the amount of rent in a new lease? Parties' intentions must be assessed objectively.

Hartog v Colin & Shields [1939] - A offered his goods to B at a mistakenly much lower price. It was clear in the trade that goods were offered by process Y, and not process Z which A had done. B cannot 'snap up' A's offer if he knows that A is manifestly mistaken as to price. A party cannot enforce a contract if he knew that the other party was under a misapprehension as to its terms.

OT Africa Lines v Vickers plc [1996] - Suggestion that B should have realised A was 'obviously mistaken'.

Scriven Bros v Hindley [1913] - Objective principle displaced where B (via auctioneer, B's agent) has misrepresented (even innocently, and perhaps by 'conduct' rather than oral/written statement) the nature of subject matter which causes A to bid too much for 'tow' (an inferior commodity) thinking that it is 'hemp'. However, these were distinct commercial commodities, and it was not a mere mistake as to quality. Although the tow was knocked down to A at auction, he was not obliged to pay because he had been misled, albeit innocently, into buying the wrong subject-matter. To enforce specific performance here is at the discretion of the court.

Daulia v Four Millbank Nominees [1978] - P were told that if they could produce a bank draft for a certain amount of money by 10am the next day, that they could buy a property. When they tried to hand the draft over before the deadline, D changed their minds and refused to accept it or complete the deal. It was held that there is an implied obligation for the offeror not to prevent the condition from being satisfied. This arises as soon as the offeree begins to perform; until then, the offeror can revoke, but once this has started, they cannot.

Smith v Hughes [1871] - H was a racehorse trainer. S brought him a sample of oats, and H ordered forty to fifty quarters of oats at 34 shillings a quarter. Sixteen quarters were sent to start with. But when they arrived, H said they were not the oats they thought they were. He had apparently wanted old oats (which are the only ones racehorses can eat), and he was getting new, green oats. In fact, S's sample was of green oats. H refused to pay and S sued for breach of contract, for the amount delivered and for damages for the amount for oats that were still to be delivered. Ruled that S had no responsibility for another person's misconception, unless there is a warranty supporting in terms of quality. There is no duty to disabuse 'opponent' of economic misconception, as contracting parties should look after themselves.

Thake v Maurice [1986] - X tried to sue a surgeon for an unsuccessful vasectomy on the grounds that the surgeon had predicted irreversible 'success'. Held that this was not contractually binding, as even though the surgeon had made a promise, only a fool would have believed it. Reasonbleness trumps literalism.

May and Butcher v R [1929] - HoL decision in the sale of a large quality of remnant WWII tents. Held there was no contract as they had reserved to themselves the discussion for price, this meant that the court could not impose a reasonable price. It was a wholly executory arrangement; neither party had done anything, no goods were supplied - they had just exchanged promises. An arbitration clause was present, but as there was no contract, this was irrelevant.

Foley v Classique Coaches [1934] - Concerning an agreement for a supply of petrol from F "at a price to be agreed by the parties in writing from time to time". This arrangement worked successfully for three years, but then CC suggested that the contract was void because of incompleteness (wanted to escape contract for a better deal elsewhere). It was held that a reasonable price could be imposed as goods had already been delivered and accepted by CC. As such, part performance is sufficient to generate a contractual claim for the goods supplied.

Scammell v Ouston [1941] - The parties entered into an agreement to buy goods on 'hire-purchase'. It was ruled too vague as there were too many different types of hire-purchase agreements to use, and it was not clear which type was envisaged.

Raffles v Wichelhaus [1864] - The parties had a contract to bring cotton from Bombay to Liverpool on 'The Peerless'. However, both didn't know that at the time, there were 2 ships in the same port called this, but that each was leaving at a greatly different time. The buyer refused to accept the cotton that came on the later ship, arguing that he had meant the first 'Peerless' to leave port. It was held that there was no objective means to sort ambiguity out, and therefore no contract.

Nicolene v Simmons [1953] - Demonstrates how a court may choose to allow a contract to stand, even if parts of it are meaningless, if the alternative would be to set a precedent that is contrary to public policy. Here a contract contained the words "subject to the usual conditions of acceptance", but the parties had not done business before, so it was impossible to tell what the "usual conditions" were. However, the court ruled that this phrase should simply be ignored, and the rest of the contract left to stand. Otherwise, it was argued, anyone who wanted to renege on a contract could have it voided on a technicality.

Hillas v Arcos [1932] - Demonstrates that a court has the option to infer terms in a contract from the parties' previous dealings, rather than allow a contract to be voided. Courts do not usually like to do this if the wording or intention is vague, but it may be better than to allow a party to renege on a contract on a technicality. The contract was to buy "22,000 standards of softwood of fair specification". The court ruled that "fair specification" was not sufficiently vague to void the contract, as the companies had done business before and each would have known the others' intentions.

Co-Op Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] - 35 year lease for a supermarket site in a Sheffield shopping mall was granted in 1979 and included a clause that the tenant would continue trading for the same period, whilst another clause required the tenant to offer a 'full range of grocery provisions'. There was a breach of the lease and the tenant supermarket company returned the keys prematurely. A higher degree of precision is required for specific performance or an injunction, compared with a claim for damages or debt. In this case, it was unclear when it came to this remedy as to how you could compel someone to run a business, so the landlord had to claim damages.

Courtney & Fairbairn Ltd v Tolaini Bros (Hotels) Ltd [1975] - TB was a landowner, and found C&F to develop a site for them. It was agreed that if C&F found a financier then they would get a building contract. C&F found one, but then negotiations between them and TB broke down, and TB found a third party instead. C&F sued for an alleged contract and loss of profit; however, they lost because they had explicitly negotiated freedom of contract in finding a price this was fatal to the courts' intervention.

Dunlop v Selfridge [1915] - D sold types to Dew Co., with a term in the agreement that Dew would not sell more cheaply to anyone else, and that Dew would not enter into a contract with anyone else except on the same terms. Dew sold tyres to S at the stipulated terms, but S sold them more cheaply. D brought an action against S, which failed on the basis that D had no contract with Selfridge, and was not a party to the contract which had allegedly been breached. Presumably D could have taken an action against Dew, who could certainly have taken action against S.

Combe v Combe [1951] - D, who was the husband of P, promised to pay her an annual amount for maintenance. However, after they divorced he declined to do so. P sued D for an order to enfroce the promise. However, as there was no consideration that would support it as a contract, P's defence was on the basis of estoppel. Her argument was that she had acted on his promise by not seeking the maintenance payments, and that had been to her detrment. CoA said that this could not work as P was using estoppel as a sword, not a shield.

Pitts v Jones [2007] - C and D had shared in a company. D had found a prospective buyer for all of these shares and wanted to persuade C to sell their shares too. It was going well until D felt that C was having second thoughts; to induce C into selling, D gave an oral assurance that if C agreed to do so, but the third party became insolvene,t D would indemnify them. The third party did become insolvent, and C sued D on the basis of the guarantee. However in retrospect, C had not been having second thoughts and therefore there was no need for the guarantee. D's defence was that there had been no consideration. This was dismissed as the guarantee was viewe as an overally part of the transaction. However, for C, this was just a bonus; nothing was given in return and so it was gratuitous. C won on consideration, but lost on formality. Guarantees have to be in writing and as it was not, the assurance was unenforceable under s.4 of the SFA 1677.

Callisher v Bischoffsheim [1870] - P threatened to sue the Govt. of Honduras for an alleged debt. D promised to provide bonds to the value of £600 if P promised not to sue for an agreed time. When the bonds were not delivered, P claimed damages for breach of that agreement. D claimed that as no money had been due in the first place there was no consideration for the promise to give the bonds. If D's claim were accepted, no agreement to compromise a doubtful claim could be enforced. If a party to an action believes bona fide that there is a 1)chance of success, then there is 2)reasonable ground for suing and 3)the forbearance will constitute good consideration. The other party obtains an advantage - being free from the necessity to defend the action. On the other hand if a party made a claim which they knew to be unfounded - then an attempt to derive an advantage by compromise would be fraudulent.

Eastwood v Kenyon [1840] - E was the executor of the will of L's father, and L's guardian; in his capacity as the latter, E spent money educating and 'advertising' L in a search for a husband. L then married H who promised to reimburse E for his pains. However, he never did. It was held that E could not have expected to be reimbursed, and there was no consideration on these facts.

Pao On v Lau Yiu Long [1980] - P owned shares in a private company which had one principle asset, this being a building under construction, which D wished to acquire. The proposed method of thus was that a public company in which D were the majority shareholders should buy from P their shares in the aforementioned company, the price to be paid by the issue of shares from P to D. In order not to depress the market for the shares, P agreed at D's request to retain 60% of the shares until 1974. A subsidiary agreement was made between P and D whereby P was protected against a fall in the value of shares pending the handover date, but this also had the effect of denying P any advantage should share value rise. As a result P refused to complete the main agreement, unless D agreed to cancel the subsidiary clause and replace it with a guarantee by way of indemnity should the value of shares fall. D, fearing the delays of litigation and the possible adverse effects on the company, did, but only after taking legal advice. The value of shares did fall, and P sought to enforce the guarantee. The Privy Council held that although D had been subject to commercial pressure, they had not been coerced into giving the guarantee, which meant that the contract could not be found void on the grounds of duress.

Glasbrook Bros Ltd v Glamorgan [1925] - A mineowner promised to pay the police if they would protect his colliery from trade union pickets. The police formed a garrison and became stationed at the colliery. As they were acting above their duties, they were therefore entitled to payment as these 'special services' had been requested.

Harris v Sheffield United FC Ltd [1988] - s.25(1) of the Police Act 1996 allowed the police (pursuant to an agreement) to charge for policing inside a football ground.

Reading Festival [2006] - Police services that were rendered offsite had been neither explicitly or impliedly requested, therefore no payment was due. If there is no agreement, then there is no obligation for the promoter to pay them.

Ward v Byham [1956] - The sole burden of maintaining legitimate children statutorily is on the mother. However, Child Support legislation from 1991 and 1995 also requires financially solvent fathers to contribute. Here, the father had agreed to pay £1 a week to ensure that the child was "happy and looked after". The request to make the child 'happy' (which was judged an extra duty), was judged to be consideration.

Williams v Roffey & Nicholls (Contractors) [1991] - W hired R&N to refurbish a block of flats. R&N subcontracted the carpentry work for £20,000 to X. X was very slow in delivering and R&N became nervous as in his contract with W there was a penalty clause for late completion. R&N asked X what could be done to help speed them up, and they agreed on the payment of an extra £575 per completed flat. X was not guilty of coercion. X completed eight flats then discovered there were better wages somewhere else, and so left. This was a breach of contract and so R&N refused to pay the bonus on the flats. It was held that the bonus should be enforced even though the carpenters had incurred no detriment as they were still doing the same job. However, benefit was given to R&N from X at R&N's request, therefore this was enough basis to uphold the incentive. It is important to remember that consideration has two faces, either of which will do to establish it.
It was said that R&N incurred practical benefits such as 1)not having to find new sub-contractors, 2)R&N were reassured by not having the penalty clause invoked, 3)the parties evolved a new system of regular payments and 4)the carpenters agreed to focus on one flat at a time - this was rational as then other workers (electricians, plumbers etc) could work on the other flats.

Stilk v Myrick [1809] - Some seamen agreed for £5 a month to work on a sailing ship. However, the wages were only payable on return to London. Halfway through the voyage, two of them absconded. In order to keep up spirits, the captain agreed that those two sailors' wages would be split between the remainder of the crew, but on return to London, he went back on this. ESPINASSE said that the ratio was all to do with public policy - there was a need to protect ships' masters from coercion to pay more during the perilous stages of a voyage. CAMPBELL said that the reason the sailors lost was because they had not done anything extra. The rate of pay initially included all maritime hazards such as death or injury mid-voyage. CAMPBELL's report won.

Hartley v Ponsonby [1857] - Distinguished STILK as a large proportion of men had deserted or perished, and as such the remaining crew's task had become radically different.

Hanson v Royden [1867] - A sailor was promoted mid-voyage, and so was entitled to a bonus in recognition of the move to a higher rank.

Pinnel's case [1602] - C sued D for £8. The defence was based on the fact that D had, at C's request, tendered £5 before the debt was due, which D had accepted in full satisfaction for the debt. The judgement was ruled in favour of C as the payment of a lesser sum on the day in satisfaction of a greater one cannot be any satisfaction for the whole. A promise to accept part payment of a debt in discharge of the entire debt is not supported by consideration. The debtor is already contractually obliged to repay the entire debt, and so provides no consideration for the creditor's promise to accept part payment.

Foakes v Beer [1884] - D owed C £3000; C agreed that she would not take any action against D if he would sign an agreement promising to pay an initial sum of £500 and pay £150 twice yearly until the whole amount was paid back. D was in financial difficulty, so C waived any interest on the money owed. D made the payments as agreed, then C sued him for the interest. CoA and HoL ruled in C's favour as the agreement did not contemplate the interest owed, but it could still be implied as enforceable. However, the promise to pay a debt was deemed not to be sufficient consideration as there was no additional benefit moving from D to C that was not already owed to her. The rule here is when a party accepts part payment of a debt in satisfaction of the whole, they will not be barred from suing for the remainder.

D&C Builders v Rees [1966] - D&C were a small firm that did some work for R at the cost of £482. For months they pressed for payment, and at last, R's wife, acting for her husband and knowing he was in financial difficulties, offered them £300 in settlement. If they refused this offer, she said they would get nothing. D&C reluctantly agreed, and were given a cheque for this amount, but they then sued for the remainder. CoA found for D&C as a creditor is not bound by a settlement to forego suing for remainder of amount.

Re Selectmove [1995] - D was a company that owed C, the Inland Revenue, substantial amounts of tax. A representative of D met with a representative of C and suggested that D should pay the tax and national insurance contributions as they fell due, and would repay the arrears at a rate of £1000 per month. D claimed that C said he would have to seek the advice of his supervisors, and he would contact the company in due course. D heard nothing from C until the IR demanded payment of the arrears in full. CoA ruled in favour of C, as no agreement had been reached seeing as there was no consideration. Even if there had been, D had not kept their side of it as they failed to keep up the payments.

Hirachand Punamchand v Temple [1911] - A father made a part payment to alleviate a son's debt. The creditor accepted this as the full payment, then attempted to go after the son for the balance. This cannot happen.

Collier v P & MJ Wright [2007] - Where a debtor offered to pay part only of the amount he owed and the evidence showed the creditor voluntarily accepted that offer, and relying on that acceptance the debtor paid that part of the amount he owed in full, the creditor would be bound to accept that sum in full and final satisfaction of the whole debt by virtue of the doctrine of promissory estoppel.

Alan v El Nasr [1972] - A contract was set up for 3 shipments of coffee, to be paid for in Kenyan shillings. However, for the first 2 payments, the seller accepted payment in Sterling. By the 3rd shipment, Sterling was significantly devalued, and so the seller wanted to enforce the original currency. CoA said that waiver had occurred, and therefore the creditor was no longer entitled to this claim.

Hughes v Metropolitan Railway [1877] - A landlord was entitled, under the terms of a lease, to compel a leaseholder to carry out repairs to the property, given an adequate period of notice. The landlord gave a six month notice period but, during this time the landlord and leaseholder entered into negotiations over the sale of the land. The leaseholder was given to understand that the repairs need not be carried out if he was going to purchase the land. When the negotiations broke down, the landlord attempted to enforce the original six-month period and evict the tenant. The court ruled that the negotions over the sale constituted a promise not to enforce the repair order, and that the tenant had acted on that promise to his detriment. The principle of promissory estoppel could therefore be used to estop the landlord enforcing his strict rights. In this case the suspension of the landlords' strict rights were merely suspended, and a new notice period introduced.

Central London Property Trust Ltd v High Trees House Ltd [1947] - In 1937, HTH leased a block of flats from CLPT; due to the war, the number of people occupying them was drastically lower than usual. In Jan 1940, the parties made an agreement in writing to reduce the rent by half. However, neither stipulated the period for which this reduced amount was to apply. For the next five years, HTH paid the reduced rate, and by 1945, the flats were back to full occupancy. CLPT then sued for payment of the full rental costs from June 1945, as per the original agreement, claiming that there was no consideration from HTH to support the reduced rate agreement. Although there was an absence of consideration, Denning ruled that the agreement to reduced rate was a promise which HTH had acted on. If CLPT was allowed to enforce their rights, then the fact that HTH had acted on the promise would have been to its detriment (becaues they would have to pay full price when most of the flats were unlet), and CLPT could be subject to promissory estoppel.

Cobbe v Yeoman's Row Management [2008] - A (YRML) owned flats, and R (C) was a property developer. In 2002, an oral agreement that was 'binding in honour' was made that R (at his own expense) would apply for planning permission, and if this was granted then A would sell to R for £12m, and R would then develop the property and pay A 50% of the amount when the proceeds had exceeded £24m. R succeeded in gaining planning permission after having spent time and money on doing so, when A then sought to renegotiate, in particular by increasing the value of the sale to £20m. R succeeded at first instance on proprietary estoppel, and A's appeal was dismissed in the CoA.

Baird Textile Holdings v Marks & Spencer plc [2002] - BTH had been a principal supplier of garments to M&S for 30 odd years. Large orders were placed, predominantly twice a year - these obviously gave rise to contracts, but nothing had ever been written down about the long term position. In 1999, with no prior notice, M&S told BTH that the relationship was ending at the finish of the current production season. BTH claimed that they were entitled to this notice due to their being an implied contract. M&S cross-appealed on the issue of whether they should be estopped. Cross-appeal was allowed, and BTH's appeal was dismissed due to that the alleged obligation of M&S to acquire clothing from BTH was insufficiently certain to find either a contractual obligation or one based on estoppel.

Shah v Shah [2002] - D gave a deed to pay £1.5 million to C; C was initially happy to receive this, but it then turned out that it was defective as it had not been properly witnessed. It was held that the deed was actually valid, as the act of handing over gives an implication by the covenantor that it was good, and the covenantee believed this. Promissory estoppel therefore 'cures' imperfect deeds, as it is used by, and works in favour of the claimant.

Balfour v Balfour [1919] - Wife sought to enforce promise by husband to pay £30 per month while he worked abroad. Action failed because firstly she provided no consideration and secondly, held that the parties did not intend their agreement to 'be attended by legal consequences'. In domestic cases, there has to be more than mere mutual promises to establish a legal relationship.

Jones v Padavatton [1969] - C was the mother of D, and promised to maintain her if she gave up her US job to study law in the UK. The promise was first in the form of a monthly allowance, but then a house was bought for D on the understanding that she could live there rent free, rent rooms to lodgers etc. D began her studies in 1962, but by 1968 she had still not completed them. In 1967, C claimed possession of the house, but D resisted this attempt on the grounds that she had a contractual entitlement to reside there. CoA ruled that again there had been no intent to enter into a contract but rather it had been a familial arrangement, as well as the fact that the terms specified were vague.

Parker v Clark [1960] - Couple C had agreed with Couple D that they would sell their house and come to share with D. D promised to accommodate them and leave them 1/3 of their estate when they died, even though they were not related. After a happy period, D eventually evicted C, who then sued them for damages (loss of baragain) and won damages for loss of rent-free accomodation, and other things. This was valued at £300 for 4 years, and they also got money for the 1/3 share of the estate. This only happened because it was removed from BALFOUR.

Kleinwort Benson v Malaysian Mining [1989] - C agreed to make available to a subsidiary company of D's a £10 million credit facility. D refused to act as guarantors, but provided a 'letter of comfort' which stated that "it is our policy to ensure that the business of [subsidiary company] is at all times in a position to meet its liabilities to you under the above arrangements". However, the company failed when D was indebted to the amount of £10 million. CoA held that this letter was not a contractual promise; it was simply a representation of fact as to D's policy at the time of its production.

Tweddle v Atkinson [1861] - Father and father-in-law made separate promises of money to C. When the father-in-law did not pay, C tried to sue him; however, he failed because he had provided no consideration for this promise.

Re Schebsman [1944] - JS (debtor) worked for a Swiss company and its subsidiary, an English one, until his contract was terminated in 1940. In Sep of that year, he entered into an agreement with the two companies under which, in consideration of the termination of his employment, they agreed to pay him £5,500 in six installments. The agreement provided that, in the event that he died before they had all been made, that the money would be paid to his wife, and if she died, his daughter. JS was declared bankrupt in March 1942, and died in May. His trustee in bankruptcy sought a declaration that the sums payable to his widow formed part of JS's estate with the result that they should be gathered by the trustee, and distributed amongst JS's creditors. The basis on which this was sought was the submission that JS had a right to intercept the money payable to his widow, and that this right now resided in the trustee. The CoA said that JS had no such right of interception, and the trustee was not entitled to it either.

Walford's case [1919] - A owned a ship which was hired by B, a charterer. B was introduced to A by a broker, C. According to mercantile custom, B holds a rpomise by A to pay permission to C on trust, and C can hold B accountable if he fails to sue A on his behalf. HoL held that without finding an explicit trust of a promise, that one can be found in these circumstances which is pre RE SCHEBSMAN.

Beswick v Beswick [1968] - B owned a coal business and transferred it to A, his nephew. A promised B to pay £5 a week to C, B's wife. B died, and A paid one £5 to C before he said he would not pay anymore. As C was the widow, and B died in testate (without a will) C becomes the administratix (owner of his estate) and has power over A. HoL doesn't recognise rights of third parties, but as she is suing on behalf of B she can. However, C could not sue for the £5 weekly payments as that was for her as a third party. She could not because the estate has lost nothing and so common law rememdies do not work; specific performance was needed to force A to pay the sum for the rest of C's lifetime. However, this only came out because C was the administratrix; after the 1999 Act, C could also obtain performance under her own name, not that of B's.

Woodar v Wimpey [1980] - Purchasers of land agreed to pay £850,000 to the vendors, and £150,000 to a third party on completion of the contract. One question which arose as whether, if the purchasers were in breach of contract, the vendors could recover damages in respect of the £150,000 payable to the third party. HoL did not stop this recovery - it was justified on the grounds that the damages awared did represent the claimant's loss, but they established that English law does not allow a claimant to recover damages on behalf of a third party. There was a slight exception made in that a contracting party could recover damages on behalf of a group (i.e. contracting for family holidays, meals in restaurants) but this 'special treatment' has never been used.

Panatown case [2001] - A agreed with B to build an office block for £10 million. The site was always owned by C (reason was VAT avoidanec) and B was a subsidiary. B supplied the money, and C gave it. In contract there was a liquidated damages clause and there was also a collateral deed between A and C (as far as this was concerned, A and C were in privity). It required A to exercise reasonable care to try and build well. This deed was inserted in the occurrence that C might want to sell to a 4th party; it lasted 12 years and could be assigned to any potential purchasers down the line. However, the building work was so bad that B brought a breach of contract against A for cost of cure (to get new builders) and loss of profit as the building could not be let to tenants.
HoL said that B could not recover damages from A due to the A-C deed. C had a direct right of action against A, which means that B should not be able to obtain damages on behalf of C (authority for this was ALBAZERO). The A-C deed precluded B's action on behalf of C.

The Albazero [1977] - HoL held that the DUNLOP rule allows B to obtain damages on X's behalf only if X has no direct claim against A.

Avraamides v Colwill [2006] - Courts are not prepared to engage in a process of construction or implication - identification of third parties must be explicit.

Nisshin Shipping Co v Cleaves & Co [2004] - Held that the effect of s.1(2) was to put the onus on the party seeking to allege that s.1(b) has been disapplied. Therefore, if the contract is neutral (i.e. silent on this issue), s.1(b) won't be disapplied and the third party would get the right. Parties also argued that the claimants can't claim under the Act because they already had a claim under a common law exception to Privity. Held that it cannot be inferred from the existence of an alternative cause of action that the parties intended to exclude the application of the 1999 Act.

Laemthong International Lines Co Ltd v Abdullah Mohammed Fahem & Co [2007] - Owners of a vessel chartered it to charterers. Cargo was loaded onboard and consigned to the receivers. The vessel arrived at its destination before the bill of lading, and so an arrangement was made to deliver the cargo to the receivers in return for letters of indemnity. The charterers issued a letter of indemnity in favour of the owners and the receivers in turn issued one which was addressed to the charterers. The central issue between the parties was whether the owners were entitled to enforce the letter of indemnity against the receivers. The receivers sought to prove that the contracting parties did not intend the terms of the receivers' letter of indemnity to be enforceable by the owners in relying upon the 'chain' of indemnities which the parties had created. They were claiming that the owners could not jump the chain of contracts and enforce the letter of indemnity given by the receivers.
The CoA rejected this and held that there was no established practice of the type found by the Law Commission to exist in the construction industry which negated the existence of a third party right of action. Where contracts are linked sequentially, but there is no proven understanding that the sequence of contracts prevents recourse to a third party rights of actions, the linked nature of the contracts will not itself preclude the existence of a third party right of action.

White v Jones [1995] - Contract between a solicitor and a client for the amendment of client's will. The solicitor went on holiday and by the time he had come back the client was dead, so the solicitor could not create provision for the inheritors. 1999 Act would not confer upon the inheritors a direct right of action because the inheritors are not direct beneficiaries of the contract, but indirect ones.

Scruttons v Midland Silicones [1962] - C, who were owners of a drum of chemicals, entered into a contract with a firm of carriers for transportation of the drum. Under the contract the carriers limited their liability to C for $500. X, who was employed by the carriers to discharge the drum, negligently dropped it, and C brought an action in tort against them. X sought to rely on the limitation clause contained in the contract between C and the carriers, and in the contract between themselves and the carriers, but it was held that they could not do so as they were not privy to the same contract. HoL said they knew of no doctrine of vicarious immunity (which would have enabled X, as agents, to claim the benefit of immunity which had been negotiated by the carriers), and as such, the limitation clause only applied to the carriers, and could not protect X. This makes it extremely difficult for an employer to give his employees and agents the benefit of an exclusion clause negotiated by the employer, even when it is a legitimate method of allocating the risks under the contract between the employee and C.
The effect of this case means the insurance risk is transferred by A's insurer to X's - A, the cargo-owner would be aware of his goods' value and have taken out insurance to cover them; X is then exposed to any claims by A in negligence, with no shelter.

The Mahkutai [1996] - Indonesian shipowners had chartered their vessel to an Indonesia corporation (X, the carriers) who in turn sub-chartered it to an Indonesia timber merchants (Y, the shippers) for the carriage of a cargo of plywood. The master of the vessel authorised the carrier's agents to sign a bill of lading which provided that every servant, agent or subcontractor of the carrier was to have the benefit of all things that were linked to the carrier, as if they had been expressly made for their benefit. The contract or any dispute over it would be governed by Indonesian law. When the vessel arrived, it was discovered that the plywood had been damaged by sea water. The vessel then proceeded to Hong Kong for the process of discharging other cargo. On the arrival of the vessel here, the cargo owners issued a writ against the shipowners claiming damages in breach of contract, and breach of duty/negligence. The shipowners sought to stay the proceedings on the ground of the jurisdictional clause.
It was held that they were entitled to invoke this, and the proceedings were stayed. The cargo owners appealed to the CoA who allowed the appeal, and the shipowners then appealed to the PC. PC held that the shipowners were not entitled to invoke this clause, that the cargoowners were entitled to bring the action in Hong Kong, and that the stay had been properly set aside.

Oscar Chess Ltd v Williams [1957] - D sold a car to C for £290. D had sold it in good faith as a 1948 model, having taken the date from the logbook. However, the logbook was found to be a forgery, and the car worth significantly less. It was held that D's statement as to the age of the car was not a term of the contract but a mere representation. C, who were car dealers, were in at lesat a good a position as D to know the true age of the car.

Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] - C asked D who were car dealers to find him a 'well vetted' Bentley car. D found a car which they sold to C, which they stated had only done 20,000 miles since a replacement engine had been fitted. It had infact done 100,000. It was held that D's statement as to the car mileage was a term of the contract; D, being car dealers, were in a better position than C to know whether their statement was true.

Bannerman v White [1861] - C was buying hops and wanted to know whether sulphur had been used, and if he said, he did not want to buy them. D lied and said that it hadn't. C subsequently brought an action for breach of contract; it was held that even though the undertaking was pre-contractual, he could sue as he had specified he didn't want sulpherised hops, therefore it was a term of the contract.

Routledge v McKay - A fraudster changed log of motorbike to newer model and sold it to someone who discovered this. Was the mention of the year of the bike a contractual term of not? The fact that a week had elapsed between when that was claimed and when the contract was signed, it was ruled that they had intended to agree on the terms in the written contract - whether it omitted that statement or not.

Ecay v Godfrey [1947] - The seller of a boat stated that it was sound but advised the buyer to have it surveyed. His statement was held to be a mere representation. The stronger you assert things, the more ilkely it is to be a term of the contract.

Dawson v Yeoward - Vendor told X that it wasn't worth checking the hull of a yacht that turned out to be actually damaged. Should the statement made by V prior to the sale be held to be promises integral to the contract or just misrepresentations? CoA said that it was merely a representation, and V had no contractual liability.

De Lasalle v Guildford [1901] - X and Y negotiate a tease. Terms are settled but then X, the prospective tenant, said he wouldn't exchange contracts unless the drains were in good order. Y said they were and obviously they weren't. As such this had nothing to do with the main contract, but court held that this was collateral to the main one, and such Y was liable contractually.

Barry v Davies (Trading as Heathcote Ball & Co) [2000] - Had the auctioneer breached a promise to the bidder? The contract when you bid is an offer, but is A bound by it? If it is with no reserve, then yes. A must knock it down as there is a collateral promise. There is consideration because there is both detriment and benefit. B's bid can be accepted until it is withdrawn; A's benefit is that the bidding is driven up as when there is no reserve, attendance of the auction is likely to be higher.

Shanklin Pier Ltd v Detel Products Ltd [1951] - Owner of a pier wanted to get it painted. DP was asked if their product was suitable for piers and said yes. The paint proved to be unsuitable, and X, whose pier had been damaged sued under a collateral contract. There was a contract which was parasitic upon the main one to paint the pier. Getting a third party to paint with the manufacturer's paint was consideration for the manufacturer's promise.

Turner v Green [1895] - The parties were seeking to arrange a compromise of an action. One party received a telegram saying that the action had been resolved in their favour. They did not tell this to the other party - was there an obligation to? No, as there is a distinction between supression or concealment, and silence.

Spice Girls Ltd v Aprilia World Service [2001] - The conduct of SG in approving and using promotional materials depicting all five of them for use until March 1999, and participating in a commercial shoot in May 1998 was found by the CoA to be a series of misrepresentations by conduct to AWS in saying that SG had no idea or any reasonable grounds to believe that any of the group wanted to leave before March 1999. As such, AWS won - each episode of misrepresentation gave added force to the earlier ones.

With v O'Flanagan [1936] - Negotiations of sale of medical practice began at time when it was worth £2000. But by time sale concluded, because ill-health of vendor in the intervening period, it had become worthless. Held that there was an obligation of the vendor to disclose the change of circumstances to the buyer.

Schneider v Heath [1813] - Concealing the state of a ship's hull as it was hard hard to inspect where it was moored was classed as a mispresentation.

Notts Patent Brick and Tile Co. v Butler [1866] - There was a contract for the sale of land, and the purchaser inquired as to whether there were any restrictive covenants. The solicitor said there were none 'as far as he was aware', but he had not bothered to read the papers. Although this was usage of ambiguous language, the court still ruled that it was misleading.

Carter v Boehm [1766] - Must disclose anything to an insurer that would affect the risk that the insurer is taking.

Woolcutt v Sun Alliance & London [1978] - Did the failure to disclose criminal record to the insurer render the insurance void? Yes - he should have disclosed this freely. It was a 'moral hazard' and as such this could void the policy. To disclose does not mean you have to be asked the question.

Smith v Land & House Property Corporation [1884] - "Desirable tenant" was treated as a statement of existing fact. However, when the landlord said this, he knew that X was in arrears, and therefore there was an implication of fact in this opinion.

Dimmock v Hallett [1866] - A number of statements were made during a no reserve auction - were these facts or opinions? 1)Land was described as 'fertile and improveable' - court said that this was a mere puff to encourage people to take interest. 2)That it had been improved by a new draining syste, at moderate cost - again this was a puff. 3)The land was rented for £290 p/a - although one tenant was paying this, the rest were paying much less. This was therefore a misrepresentation. To deduce fact from opinion one must look below the surface.

Fordy v Harwood [1999] - Classic car enthusiast who built a replica kit car and wanted to sell it. He succeeded in this, but when the buyer took it for MOT, he found there were problems. Seller refused to take it back; had there been a misrepresentation with what the seller said? CoA said that saying the car was 'in mint condition' was fact. As such, each separate statement must be interpreted carefully.

Bissett v Wilkinson [1927] - D sought rescission on grounds of misrepresentation. The person selling the land knew nothing about sheep, but the buyers wanted to purchase the land to do so. The seller was asked whether it would take 2000 sheep; the seller said it would, but when it was purchased, it was clear it wouldn't. Was the question about how many sheep the land would take support an inducement in itself? The PC said that the seller's comment was not a misrepresentation, as all the expertise was on the side of the buyers.

Edgington v Fitzmaurice [1885] - Directors of a company issued a brochure to potential investors saying what the money was going to be used for. However, this was not the reason that this money was needed. This brochure was held to be a fradulent misrepresentation.

New Brunswick v Muggeridge [1860] - Similar to EDGINGTON, except in this case, the brochure was not inaccurate, just obscure. Because the language was merely obscure, and therefore misrepresentational, the company could not enforce the contract.

JEB Fasteners Ltd v Marks, Bloom & Co [1983] - Before C took over a company, the company was asked to prepare some accounts for him - these were prepared negligently. However, C had not wanted the company, he had wanted the management team, so the wrongly prepared accounts had not induced him into the contract.

Attwood v Small [1838] - D was trying to sell a mine to C, and in doing so, exaggerated its productivity. C employed a specialist to verify this, who agreed with what D had said. As such, if you rely on your own informants, you will be unable to show reliance.

Redgrave v Hurd [1881] - C acquired a solicitors' practice on the word of D that it was worth a considerable amount, and to prove this that C could look through his accounts. C did not, but then realised it was worth much less. C was not deprived of remedy based upon reliance here merely because he had failed to take an opportunity to verify correctness of information.

Dart v Ely and Addishire Ltd [2000] - There was the acquisition of a property to erect a leisure development. D negligently failed to tell C of a dispute concerning a right of way before C bought the property. D's defence was that C would've bought it anyway. It goes without saying that one should not naturally equate the misrepresentee's enthusiasm to enter into the deal with an absence of reliance.

Peekay Intermark Ltd v ANZ Banking Corporation [2006] - An investor cannot argue that he has been induced to enter into a contract to make an investment by a misrepresentation as to the nature of that investment when the true nature of the transaction had been communicated to him in the final terms and conditions of the contract, which he had signed without actually reading.

LPMG Ltd v Stapleford Commercials Ltd [2006] - Where a serious allegation of dishonesty has been made, a court will start from the basis that it is inherently improabable that such an act occured, and cogent evidence will be required to persuade the court fraud took place. LPMG brought proceedings against S alleging that it had been cheated out of the true profit made under a joint venture agreement. Court held that the factors militating against the notion S had cheated LPMG was made more improbable by the fact that their relationship was based on years of friendship and trust, the nature of the deal was based on equality, the purchase and resale price was beneficial to both parties, and had been achieved. The evidence provided by LPMG was also unreliable.

Royscot Trust Ltd v Rogerson [1991] - X wanted to buy 28 million shares in a company, Ferranti, as D had created the idea that there were other people wishing to acquire them. Where is the clock stopped? It is the difference between the amount paid and the value of the shares. Y within Ferranti had acquired a worthless company in order to say that they had a massive acquisition; when this was found out, the share value dropped massively. The court ruled that D was liable for all these losses, as X would not have been embroiled in this if it wasn't for D. However, treating it as fraud distorts it in other ways - why should someone who was only lightly at fault be grouped with fraudsters?

Car & Universal Finance Co. Ltd v Caldwell [1961] - X was induced to sell a car what turned out to be a bad cheque; although X could not notify the fraudulent purchaser as to the rescission, he could notify the police, which was doing everything reasonable to give the intention of rescission.

Erlanger v New Sombrero Phosphate Co [1878] - A mine which was sold was used for a while before misrepresentation as to its quality was discovered. Part of the requirement is that there cannot be rescission unless it is in the whole but you may have partial rescission when it is not opssible to return the goods in perfect condition.

Whittington v Seale-Hayne [1900] - A bred prize chickens and rented ground from B who ensured him that the ground was good. Under the lease A covenanted to do anything the LA said. However, the first thing that happened was that the water supply was contaminated, meaning the family became sick and the chickens died. The LA ordered that they see to the drains and make the house habitable. Held that they were entitled to indemnity for the drains because this was expenditure on their part which actually benefited the defendant(which, if not claimed, would be unjust enrichment). But death of chickens and loss of profit not claimable because they did not result in a benefit to the defendant.

Clarke v Dickinson [1858] - There was the purchase of a share in a partnership. However, by the time rescission was considered, the partnership had changed to something else. It could not be rescinded, as the condition of the object had changed.

William Sindall plc v Cambs County Council [1994] - X wanted to purchase land for building, but the purchase took a long time. In this interrim there was a collapse in the property market and X ended up paying two times the building's value. It was then discovered that there was a drain on the land which had not been disclosed in the contract. If there is a contract where there is a breach of warranty (a term of the contract not kept up), however much you award in lieu of rescission must not go beyond what you would have awared in damages.

Government of Zanzibar v British Aerospace (Lancaster House) Ltd [2000] - GZ contracted with BA to buy a plane. They then pervated the contract so as to allow the Bank of Zanzibar to buy the plane, and for GZ to lease it from them. However, the plane developed faults and GZ stopped paying, so BZ resold the plane. GZ could not sue BZ as there had been no warranties or guarantees between them. They then sued BA udner s.2(1) MRA (negligent misstatement) and there was also an argument under s.2(2). This was held to be contentious due to delay and the impossibility of restitution. GZ had not been hard done by. s.2(2) was to give the court an alternative to rescission where a right to rescission had been established, but the court considered damages a more equitable solution.


Peyman v Langani [1985] - Suspicion is not enough to rescind a contract - you must give notice with full knowledge of the facts; as such, 'lapse of time' only begins to run when all this has been discovered and the 'right to rescind' ripens.

Long v Lloyd [1958] - D advertised a lorry for sale which was in exceptional conditon and did 40mph. X took out the lorry for a test drive and discovered that the speedometer was broken and the spring missing from the accelerator pedal. D assured X that he had told him everything that was wrong. X paid 1/2 the amount due to these problems. However, whilst driving the lorry he discovered more faults. He telephoned D and D suggested that he would pay for the repair of one fault, but as he didn't know about the others he wouldn't. X agreed to this, but eventually the lorry broke down completely. It was held that there could be no rescission as X had continued to drive it and accepted D's offers. Rescission had become barred by his own hand.

Leaf v International Galleries [1950] - L bought a picture from IG for £85. At the time, the gallery said that the picture was by Constable. Five years later L discovered that it was not. He returned to the gallery because he wanted his money back. CoA said that he could not have rescission as the action had become time-barred. If it were to be allowed, there would be no finality at all, so it is the injured party's responsibility to take action earlier. It also made no sense why L had not sued for breach of contract instead, as there was another remedy available outside of misrepresentation.

Lewis v Averay [1972] - A sold a car to B who was pretending to be a film actor. The agreement was paid for by a cheque which A wanted to wait for to clear before he handed the keys over. However B produced documentation which supposedly proved he was the actor. A then let B take the car, but the cheque bounced. B then sold the car to C, from whom A sought recovery of his mistake. However, in the case of rescission, as B had already sold the car to C, it was impossible.

Smith New Court Securities v Scrimgeour Vickers [1996] - Where misrepresentation is fraudulent, damages may be recovered in the tort of deceit. The aim of an award of damages under this measure is to award the claimant his reliance interest. The defendant is also liable for all damage directly flowing from the fraudulent inducement which is not rendered too remote by the claimant's own conduct, whether or not the defendant could have foreseen such consequential loss.

Clef Acquitaine SARL v Laporte Materials (Barrow) Ltd [2000] - There is no absolute rule that a transaction into which C was induced to enter into by fradulent misrepresentation has to have turned out loss-making.

Avon Insurance plc v Swire Fraser Ltd [2000] - When looking at the measure of damages for negligent misrepresentation, a court may hesitate to find the existence of misrepresentation under s2(1) because of the draconian consequences flowing from the finding of liability.

Couchman v Hill [1947] - A scenario where statements by a vendor and auctioneer at a cattle auction that a heifer was 'unserved' were held to override the written conditions of sale apparently excluding liability for such statements. The parol evidence rule was punctured somewhat.

Cremdean Properties v Nash [1977] - Exclusion clauses that deny the very existence of a representation do not escape MRA s.3.

Watford Electronics Ltd v Sanderson CFL Ltd [2001] - Where a contract has been negotiated between experienced business-people representing interests of equal bargaining power, the inclusion of an entire agreement term, even if it excludes liability for pre-contractual representations may be fair and reasonable.

Shark meat case [1920] - X and Y wanted a contract over whale-meat, but instead of the German term they wanted to use Swedish. However, they accidentally used the word for shark-meat, which the seller then tried to insist upon. The court had no problem applying subjectivity and ruling as to the parties' initial intentions.

Caraman May v Aperghis [1923] - X and Y exchanged bought/sold notes for sultanas, but there was no force majeure clause. In the trade it was very unusual for this not to be included. The fact that it was proved that this was usual practice allowed the court to rectify the contract and insert the term.

Joscelyne v Nissen [1970] - Father agreed to transfer business to his daughter in agreement for her paying towards general maintenance on his house. The solicitor pointed out to the daughter that she did not actually have to make these payments based on the contract. However, this was not accepted in court, as they had meant to put this into the contract and they were in agreement up until the execution of the formal instrument. As such, this was no obstacle to rectification. Where a contract is NOT void for mistake the court may exercise its equitable jurisdiction and rectify the written contract because it does not give effect to an antecedent agreement.

Thomas Bates v Wyndham's [1981] - Where a contract is not void for unilateral mistake, the court may exercise its equitable jurisdiction and rectify the written agreement.

Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd [1982] - If you have agreed something, then it is wrong to go back on it - even if the written contract is wrong - if it would be unfair or unjust to do so.

Rose v Pim [1953] - R received order for 'moroccan horsebeans described here
as feveroles'. R didn't know what feveroles were and asked P who said that they were just horsebeans so R orally contracted to buy from P feveroles, and the subsequent written agreement also said feveroles. But feveroles turned out to be a different bean and R wanted to rectify the written agreement. Held that R could not because the oral and written contracts were for horsebeans, and there was no literal
disparity; the only mistake was in the minds of the party.

Oceanic Village Ltd v Shirayama Shokusan Co Ltd [1999] - You cannot get rectification purely for being 'hard done by'. A lot of cases have this lurking at the back of their reasoning for coming to court. Normally contracts are treated as sacrosanct, therefore it is very difficult to persuade the court to issue rectification.

Robinson Fisher v Behar [1927] - A similar auction scenario to SCRIVEN. D accidentally bid for the wrong lot, and C sought to enforce the contract. In this case C was successful as he was not at fault.

Centrovincial Estates v Merchant Investors [1983] - C set price at £65k, asked
D to agree. D accepted but upon receiving the acceptance, C said it was a mistake and
they had meant £126k instead. CoA said that the agreement of £65k was valid. 'Merely because he has made a mistake which the offeree neither knew nor could reasonably have known when he accepted it' cannot possibly vitiate the
unambiguous offer.

Webster v Cecil [1861] - If one of the parties contracting under a mistake which would render it inequitable for the other to enforce the contract, this would be a good defence to an action for specific performance. C cannot try to take advantage of D's mistake.

Roberts v Leicestershire County Council [1961] - A sold the goods at the wrong price to B; however, when he pointed this out B had already signed the contract. Even if B had no idea of the real price, he had made an earlier offer which was higher than the contractual (incorrect) price which had been rejected. As such earlier negotiations can create objective knowledge which meant that B should have known the offer was probably wrong.

Statoil A.S.A. v Louis Dreyfus Energy Services L.P [2008] - Although parties may appear objectively to have agreed terms, if it is clear that they are not in agreement, then there can be no contract, because the parties have not truly agreed on the terms. As such, the contract is not void, but there was never a conttract at all.

Sherrington v Berwin Leighton Paisner [2008] - BL negotiated an agreement on legal fees for work done for S. BL offered to settle for £45,000 which S rejected. BL wrote to S again saying "I should perhaps add that our offer to accept the sum of £35,000 remains open". S accepted this, but then BL denied having agreed to the £35,000 settlement. There is no need for mistake here; the question is simply one of construction. The letters cannot be read properly together, and as such there is no contract. Self-contradictory offers will not make a contract.

Carlisle & Cumberland Bank v Bragg [1911] - A was tricked into signing a paper that they thought was one thing but turned out to be another. However, if the nature of the transaction is the same, although the form may differ, non est factum does not apply.

Gallie v Lee [1971] - G signed a deed but instead of signing it over to A, she signed it over to B. On the strength of the document the bank had given £x. In the CoA, they reluctantly said non est factum could not apply as it was not a document of a different character. She had intended to divest herself of her interest in the property, and she had done so, regardless of if the process she had planned for A was not what happened with B.

Burbank Securities Ltd v Wong et al [1971] - A was a cerebral palsy sufferer who had never worked or received much of an education. Her boyfriend, B, instigated her to use her property to make a number of payments. She became deeply in debt and was about to los her home. Pleaded the defence of non est factum in that she had not understood the transactions she was undertaking. This failed, although she did not understand the agreements beyond the fact that this would "get money out of her house". Had she been negligent in signing these documents knowing that she did not understand? However, there was a case of undue influence here as she had put her trust completely in B who had exploted her; similarly, solicitors who had advised her and helped her carry out the transactions were also in breach.

Credit Lyonnais v Barnard [1976] - X signed something which was in French which he thought meant one thing, but actually turned out to be another. If you are judged to have been negligent in signing a document (even if it is radically different from what you thought) there is no remedy.

Lloyd's Bank v Waterhouse [1991] - D's son was purchasing a farm and D got a large loan from the bank on the farms' security. When the son defaulted, D refused to pay in that the guarantee was much wider than he had first though. Was D liable? It was held to be the same kind of transaction, and therefore there was no non est factum. Was there fault on the part of D, and did this fall within GALLIE? D was illiterate.

Bell v Lever Bros Ltd [1932] - Pactum sus servanda (entering into a contract means you must abide by it) -- if there is a written contract, it is very hard to persuade court you want to change it. Two directors employed to run LB in Africa contracted not to run business on their own behalf whilst they were with the company. Eventually they were going to be made redundant with very good packages. However, LB did not know the directors had acted on their own behalf whilst employed - if this was known, LB could sack them without paying them anything. Was the redundancy contract now in mistake? At common law, both parties must be mistaken. The jury found the directors were not fraudulent as in signing their new redundancy contract they had honestly believed themselves to not be in breach. The HoL said that the new contract should be upheld. Establishing mistake at common law requires something very serious. Common mistake does not lead to a void contract unless the mistake is fundamental to the legitimacy of the contract. Here the parties got exactly what they bargained for.

Associated Japanese Bank (International) Ltd v Credit du Nord [1989] - B made a number of representations that he owned four large machines. AJB then entered into an agreement to purchase them from B and lease them back. AJB agreed with CDN a guarantee to protect themselves if B defaulted. However, it turned out there was no machines, and B never made a single payment. Here the existence of the machines was fundamental to the contract as they formed the prime security for the guarantee, as such because both parties were mistaken, the contract could be void.

Graves v Graves [2007] - Following divorce, A was granted a tenancy agreement over a property owned by her ex-husband, B. Agreement had initially been entered into because it was believed that 90% of the rest would be funded through housing benefit. However, this proved false. At first instance, the agreement was declared vitiated by mistake, but on appeal it was held that an implied term should be read into the agreement to the effect if the housing benefit was not payable, the tenancy terminated.

Kyle Bay Ltd (t/a Astons Nightclub) v Underwriters [2007] - The parties were mistaken about the basis for calculating an insurance claim (they assumed it was on a gross profits basis rather than on the declaration-linked basis) resulting in a settlement which was £100,000 (33%) less than the insured was entitled to. CoA held that the mistake had neither rendered the agreement impossible of performance, nor made the subject-matter of the contract 'essentially and radically different' from what the parties believed it to be, although the reduction in its entitlement was 'significant' and even 'substantial'.

Galloway v Galloway [1914] - Parties agreed to enter into a separation deed, believing themselves to be married. However, they were in fact not, and so the contract was void.

Couturier v Hastie [1856] - A sought to recover the price of some corn sold to B, but before the contract had been signed, the corn had perished. Under the Sale of Goods Act 1979 s.6, the situation is void. Does this have any impact on the doctrine of mistake?


McRae v Commonwealth Disposals Commission [1951] - CDC could invite tenders to the rights to salvage an oil tanker which had hit a reef. M tendered for this and won. A contract was made which established there was no warranty for quality of goods. However, when M looked on maps for this reef, it did not exist, as neither did the tanker. High Court said this was a failure of consideration. In situations like this, you must look at the contract (a specified item at a specified place, sold with all faults). The court asked whether the contract relied upon the fact that this item existed; they felt the contract had excluded this and the buyer had relied upon the seller. If you could show that both parties agreed the tanker had to exist, there would've been a case, but here the only promise by the Commission was that there was a tanker there.
Was there an implied condition precedent that the tanker was in existence? One can only conclude that CDC promised that the tanker was in the position specified. In situations where both parties were able to check the situation out, courts are less reluctant to find that matter warranted. As such, the terms of the contract establish what the parties actually contracted for.
A) Promise there was a tanker.
B) Breach of contract if wrong (although exclusion clauses)
C) Therefore suitable remedy might be misrepresentation

Sheikh Brothers Ltd v Oschner [1957] - The common assumption upon which the contract had been entered into was void (the land was physically incapable of growing the amount of crop envisaged by the contract) and therefore the contract was avoidable.

Cooper v Phibbs [1867] - An uncle told his nephew, not intending to misrepresent anything, but being in fact in error, that he (the uncle) was entitled to a fishery. The nephew, after the uncle's death, acting in the belief of the truth of what the uncle had told him, entered into an agreement to rent the fishery from the uncle's daughters. However, the fishery actually belonged to the nephew himself. HoL held that the mistake was only such as to make the contract voidable. Lord Westbury said "If parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that that agreement is liable to be set aside as having proceeded upon a common mistake" on such terms as the court thought fit to impose; and it was so set aside. It was a legal impossibility for an owner to take lease of his own property.

Griffith v Brymer [1903] - A Coronation case where the commercial object of the contract could not possibly be attained by the time the contract was concluded. As in COOPER, the fundamental assumption underlying their contract is wrong, and therefore it is avoidable.

Harrison & James Ltd v Bunten & Lancaster Ltd [1953] - The two parties were buying and selling kapok. They believed they were dealing in pure kapok, so could the contract be avoided when they realised they were not? Ruled that contract could not be avoided as it was only regarding the quality of the product which was not something the whole contract hinged on.

King's Norton Metal Co Ltd v Edridge, Merrett & Co Ltd [1897] - W ordered some goods, on notepaper headed "Hallam & Co", from KN. The goods were paid for by a cheque drawn by "Hallam & Co". KN received another letter purporting to come from Hallam & Co, containing a request for a quotation of prices for goods. In reply KN quoted prices, and Hallam then by letter ordered some goods, which were sent off to them. These goods were never paid for. W had fraudulently obtained these goods and sold them to EM, who bought them bona fide. KN brought an action to recover damages for the conversion of the goods. CoA held that if a person, induced by false pretences, contracted with a rogue to sell goods to him and the goods were delivered the rogue could until the contract was disaffirmed give a good title to a bona fide purchaser for value. The plaintiffs intended to contract with the writer of the letters. If it could have been shown that there was a separate entity called Hallam & Co and another entity called W then the case might have come within the decision in CUNDY.

Phillips v Brooks Ltd [1919] - N visited the plaintiff jeweller, and chose some pearls and a ring. While writing a cheque in payment, he represented to the plaintiff that he was Sir George Bullough, with an address in St James Sq, London. The plaintiff had heard of Sir George as a man of means, and on referring to the directory found that he lived at the address given by N. He therefore allowed N to take away the ring. In fact, the cheque was worthless and N was convicted of obtaining the ring from the plaintiff by false pretences. N had pawned the ring with the defendant pawnbrokers, who took it bona fide and without notice in the course of business, giving value for it. The plaintiff brought an action for the return of the ring. It was held that the plaintiff intended to contract with N although he would not have made the contract , but for the defendant's fraudulent misrepresentation, and therefore, the property in the ring passed to North who could give a good title to any third party acquiring it bona fide, without notice and for value, and the action failed.

Cundy v Lindsay [1878] - X, pretending to be Y, wrote to Z offering to buy goods. X signed the contract with a forged signature that appeared to be Y's. However, Y did actually exist and Z had a reason to contract with who he thought was him. Z sent the goods to X, who then sold them onto a third party. It was held that as Z knew nothing of X and intended to deal only with Y, a fact which was known to X, there was no common intention which could lead to any contract between the parties, and therefore, the property in the goods remained in Z and X had no title to them.

Ingram v Little [1961] - The joint owners of a car, two sisters and a third person, advertised it for sale. A swindler called on them and agreed to buy the car. When they refused to accept a cheque, he tried to convince them that he was a reputable person and said that he was a Mr Hutchinson of Stanstead House, Caterham. One sister went to the local post office and returned to say that she had checked the name and address in the telephone directory. They decided to accept the cheque. The cheque was dishonoured and the man, who was not Mr Hutchinson, disappeared having sold the car to L, who had bought it in good faith. The owners brought an action to recover the car or its value from L. CoA held that the offer to sell on payment by cheque was made only to the person whom the swindler had represented himself to be, and as the swindler knew this, the offer was not one which was capable of being accepted by him. Therefore, there had been no contract for the sale of the car by the plaintiffs and they were entitled to recover the car or damages from the defendant.

Lewis v Averay [1972] - L advertised his car for sale. A man, who turned out to be a rogue, called on L, tested the car and said that he liked it. He called himself "Richard Green" and made L believe that he was a well-known film actor of that name. They agreed a price and the rogue wrote out a cheque. He said he wanted to take the car at once. L asked for proof of identity and he was shown a studio pass which bore the name "Richard Green" and a photograph of the rogue. On seeing this L was satisfied and let the rogue have the car and log book. The cheque was dishonoured. Meanwhile the rogue had sold the car to A, who bought in good faith and without knowledge of the fraud. L brought an action for the conversion of the car. CoA, distinguishing and doubting INGRAM, that:
(1) the fraud perpetrated by the rogue rendered the contract between L and the rogue voidable and not void because-
(2) where a transaction had taken place between a seller and a person physically present before him there was a presumption that the seller was dealing with that person even though, because of the latter's fraud, the seller thought that he was dealing with another individual whom he believed to be the person physically present. In the present case there was nothing to rebut the presumption that L was dealing with the person present before him, ie. the rogue; and
(3) L failed to show that, at the time of offering to sell his car to the rogue, he regarded his identity as a matter of vital importance. It was merely a mistake as to the attributes of the rogue, ie his creditworthiness.
Accordingly, since L had failed to avoid the contract before the rogue parted with the property in the car to A, the latter, having bought the car bona fide and without notice of the fraud, had acquired a good title thereto and the action failed.

Citibank NA v Brown Shipley & Co [1991] - X pretended to be a signatory on a company account held with CB. X telephoned BS and asked to purchase some foreign currency which he would pay for by a banker's draft drawn on CB's account. X then telephoned CB requesting the banker's draft, which it handed to a 'messenger' whom CB thought was from BS. In exchange for the draft, a forged letter of authority was given. The draft was then paid to BS, who after confirming that the draft had in fact been issued by CB in the ordinary course of business, paid the money to X. When the fraud was discovered, CB brought an action to recover the draft from BS. The action was based on the allegation that title had never passed to BS as it could not derive a good title from X and there was no contract between the two banks. The Court held that the fact that CB had mistakenly dealt with X instead of BS did not prevent the formation of a contract between the two banks. They agreed that X had no title because of mistaken identity, but they found that he was a 'mere conduit'. Title did not pass from X to BS. The important factor was the identity of BS, the paying bank, and that there was no mistake here.

Shogun Finance v Hudson [2003] - Finance company agreed to sell car on hire purchase terms to fraudster who sold it to defendant. As proof of identity, fraudster produced genuine but not his, driving license of Mr Patel. Company checked Mr Patel's credit rating and sold car to fraudster who sold it to H. The effect of s.27 of the Hire Purchase Act 1964, as repeated in p.22 of Schedule 4 to the Consumer Credit Act 1974 was that a person, who in good faith bought a car from someone who turned out to have it on hire purchase, obtained a good title. H relied on this law to claim that he had good title to the vehicle. SF maintained that they were misled into believing that there was a contract between Patel and themselves. In fact he was not a party to the contract, therefore there was no contract. HoL supported the finance company, and stated that H could not win, because the debtor (supposedly Patel) had not disposed of the vehicle to him (as required by the 1964 Act). Held that hire purchase agreement was made between company and Mr Patel if anything, therefore fraudster did not obtain title to car. The innocent purchaser of a motor vehicle from a rogue, who had obtained it fraudulently by signing a hire-purchase agreement with a forged signature, did not obtain good title to it.

Solle v Butcher [1950] - In 1931 a dwelling house had been converted into five flats. In 1938 Flat No. 1 was let for three years at an annual rent of £140. In 1947 the defendant took a long lease of the building, intending to repair bomb damage and do substantial alterations. The plaintiff and defendant discussed the rents to be charged after the work had been completed. P told D that he could charge £250 for Flat 1. P paid rent at £250 per year for some time and then took proceedings for a declaration that the standard rent was £140. D contended that the flat had become a new and separate dwelling by reason of change of identity, and therefore not subject to the Rent Restriction Acts.
CoA held that: (i) the structural alterations and improvements were not such as to destroy the identity of the flat as let in 1939, and (ii) on the evidence, the parties had addressed their minds to the material issue of identity of the new flat, and their mistake or common misapprehension as to whether the flat had been so altered as to destroy its identity was a mistake of fact, and the landlord was entitled to have the lease set aside in equity on such terms as the court thought fit.

Grist v Bailey [1967] - D agreed to sell a house, subject to an existing tenant for £850, but then she refused to perform and alleged that the agreement had been entered into by her under mistake of fact. D believed that the property was occupied by a statutory tenant who had actually died. Its value when vacant would have been £2,250. The tenant's son occupied the flat, paying the rent at the office of solicitors, but left without having claimed to have a statutory tenancy under the Increase of Rent Act 1920. The plaintiff buyer brought an action for specific performance of the agreement. D counterclaimed for rescission of the sale agreement.
It was held that there was equitable jurisdiction to set aside the sale agreement for common mistake of fact and the sale agreement would be set aside because the mistake was fundamental, even on the footing that it had been open to the son to maintain a claim to protection as a statutory tenant, and any fault of the defendant vendor in not knowing who her tenant was not sufficient to disentitle her to relief, the defendant offering to submit to a condition that she would enter into a fresh contract to sell the property to the plaintiff at a proper vacant possession price.

Magee v Pennine Insurance [1967] - P signed a proposal form, filled in by his son, for the insurance of a motor car. There were a number of mis-statements in the proposal, in particular it was mis-stated that P held a driving licence. The proposal was accepted by the defendant insurance company. The car was accidentally damaged and P made a claim in respect of it. The insurance company offered £385 in settlement of the claim which P accepted. The insurance company then discovered the mis-statements in the proposal form and refused to pay. CoA held that on its true construction, the insurance company's letter was an offer of compromise and not merely an offer to quantify the claim, but judgment would be given for the defendant insurance company on the following grounds:
(a) (per Lord Denning MR) although the acceptance by P of the insurance company's offer constituted a contract of compromise binding at law, the parties were acting under a common and fundamental mistake in that they thought that the original policy was good and binding. The contract was therefore voidable in equity, and it would be set aside because in the circumstances it was not equitable to hold the insurance company to it;
(b) (per Fenton Atkinson LJ) the agreement to compromise was made on the basis of an essential contractual assumption, namely, that there was in existence a valid and enforceable policy of insurance. Since that assumption was false the insurance company was entitled to avoid the agreement on the ground of mutual mistake in a fundamental and vital matter.

Great Peace Shipping Limited v Tsavliris Salvage (International) Ltd [2002] - A ship which got into trouble made a contract with another one nearby to escort it into port. However when the contract was concluded it was found that the second ship was much further away than had been thought. This was not something which was void at common law, or avoidable at equity as the mistake was not fundamental enough. It has to be something radically and substantially different from what the parties thought.

Barton v Armstrong [1976] - A entered into a contract with B to him £x and buy his shares in the company - B was the chaiman. A and other wanted to get rid of him as their chair, but A had also put pressure on B to buy him out, as well as issuing threats. As such, should the contract be set aside for duress? No, as the proof was on B to prove that the threats were the thing that led him to signing the contract. However, threats need not be the sole reason for entering the contract, as long as one of the influencing factors. What does the law treat as legitimate pressure?

Maskell v Horner [1915] - The owner of a market demanded a toll from someone who used the market to sell. The person refused to pay but the owner seized his goods so he eventually did. Every time it was time to pay the person would protest, but always end up paying. During this case, another one came to light to show that this sort of behaviour was not acceptable. However, payment under duress is not duress, but if it is shown that the person pays only to resist his goods being stolen, then that may be sufficient. There may be circumstances into which we enter where we protest, but still pay that are not duress.

North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd ('The Atlantic Baron') [1979] - A said that they would pay B, shipbuilders, more due to conversion rate fluctuations; they requested higher value reversion letters (guarantees) to cover this. However, after A received the ship they claimed for duress in that B would not have given them the ship if they had not paid - they literally had no option, as if they did not pay then they would not have got the ship.

Atlas Express Ltd v Kafko Ltd [1989] - A, a small company dealing in basketware, secured a contract with Woolworths. A needed to arrange transport of their baskets and agreed a contract with B on the basis of how many baskets the lorries could take. However, B grossly overestimated how much they could carry, and so they made a new contract, saying to A that if they didn't sign it they would not be able to use the lorries. A did sign, but later took this to court. This was economic duress, as A really had no option but to sign, seeing as there was not enough time to try and find alternative transport. Also, if they had refused to sign, Woolworths would probably have sued A.

Universe Tankships case - A had to pay B in order to let their ships out from the harbour. It was ruled that this payment was gained under economic duress a there was pressure amounting to compulsion on the victim. A had to intentially submit in a scenario where there was no other option.

R v H.M. Attorney-General for England and Wales [2003] - In the wake of 'Bravo Two Zero' and other books by ex-SAS members, the Ministry of Defence polled members of the regiment and introduced a policy that members had to sign a confidentiality contract. R, a member of the SAS, signed this, then repented his decision 2 weeks later. The PC held that there was no duress as the threat to return those who did not sign to their previous regiment, although a serious penalty in soldiers' eyes, was not unlawful, and the demand was not unreasonable. Although the choice may have been made under "overwhelming pressure" it was not an exercise of the MOD's legal powers over him.

CTN Cash & Carry Ltd v Gallagher Ltd [1994] - CTN bought cigarettes from G - even though there was no continuing contractual relationship, CTN used to buy in large quantities regularly, so G offered CTN credit on them, but with the freedom to withdraw this credit facility at any time. CTN placed an order with G, but G delivered it to the wrong warehouse; however, before this could be rectified, the cigarettes were stolen. G then wanted CTN to pay, but they refused. G said they would withdraw the credit facility, so CTN then paid. It was held that G was within their rights to withdraw this, although it was not exactly moral.
1)Was there an inequality of bargaining power here? One argument is that if there is then CTN should have been released from the contract. CoA rejected this.
2)Under the agreement, G were at liberty not to contract with CTN in the future. CoA said this was fair.
3)However, the idea that the risk (of the cigarettes being stolen) passed to CTN was not in the contract, but CTN's counsel conceded this to G's.

Halpern v Halpern [2006] - A party could not avoid a contract procured by duress in circumstances where he could not offer the other party restitutio in intergrum or counter restitution.

Smith v Kay [1859] - A young man fell under the thrall of an older man and was introduced to a life of vice. He ran up large debts and was advised by the gentleman to take out loans in order to cover them. The will of the younger man had been overthrown, therefore these transactions could be set aside.

C.I.B.C. Mortgages Ltd v Pitt [1994] - Husband put pressure on wife to get mortgages.

Morley v Loughnan [1893] - Someone who became a member of a cult handed over £140k to them. He died, but his inheritors wished to prove that the gifts were made under influence.

Macklin v Dowsett [2004] - D obtained planning permission for a bungalow which he had to build and complete in three years. He sold his land to planners and was granted a life tenancy. However, he then agreed to surrender this for £5000provided he did not complete his bungalow. As such, he lost the right to live on what was his own land.

Tate v Williamson [1866] - X sold land to Y who knew it was worth more than it was being sold for. However, Y was taking advantage of X.

Re Craig [1971] - X gave his housekeeper gifts and pauperised himself. The judge felt that she had exercised influence over him and thus there was enough proof for undue influence, so that victimisation (not folly or lack of foresight) was prevented. It was her burden to prove that there was not undue influence.

O'Sullivan v Management Agency & Music Ltd [1985- X produced proof of undue influence over him by his manager, even though the transaction had been profitable for him.

Tufton v Sperni [1952] - "Extravagant liberality and immoderate folly do not of themselves provide a passport to equitable relief".

Markham v Karsten [2007] - A former couple began acting as solicitor and client to each other. However, after they broke up, one of them tried to claim that payments he had made to her (as his client) were merely loans. It was held that there wass a presumption of influence, due to the solicitor/client nature, even though the transactions were domestic in nature.

Allcard v Skinner [1887] - Claimant was a novice nun that gave away all her
property upon entering religious order. However, the Mother Superior did not ensure that she had access to independent advice before doing this. The ground was therefore on the excessive reliance on the Head nun, rather than any wrongdoing on her part.

Turkey v Awadh [2005] - A couple granted a tenancy to the wife's father. Later they said he could have the house if he paid off the mortgage and paid £93k up front. However, you also need to show manifest disadvantage as well, if there is no proof for suspicion.

Royal Bank of Scotland v Etridge [2001] - In 1998 Mr and Mrs Etridge decided to buy The Old Rectory in Laverstoke, Hampshire. They intended that the house be bought in Mrs Etridge’s name. The financing came from various sources including their former home. Mr Etridge was responsible for arranging this. Mrs Etridge took no part in the negotiations. The finance was secured by two mortgages, one to the Royal Bank of Scotland and the other to trustees. The Royal Bank of Scotland had its own solicitor. Mr and Mrs Etridge saw the banks’ solicitors together and Mrs Etridge signed all the papers without reading them or seeking any explanation of them. She did so, trusting her husband.
In due course the bank sought repayment of its loan and took proceedings for possession of The Old Rectory. Mrs Etridge relied on “undue influence by her husband”. The case went to court, but her appeal failed. The judges in the House of Lords ruled that there was no undue influence and she should have read the papers and taken separate legal advice.

Credit Lyonnais v Burch [1997] - B was working for a travel company and developed a relationship with its owner. The company needed an overdraft and the owner asked B whether she would mortgage her flat for this. The question here was whether it was possible to rebut undue influence - was it enough that he had recommended legal advice to her? It is only by showing that the plaintiff was free from influence and had been brought to the same decision by independant advice that it can be so. It is not just a question that legal advice was given, or even sought, but it must be proved that the person completely understood and then entered into the decision of their own free will.

Barclays Bank v O'Brien [1993] - The husband was a shareholder in a company and arranged an overdraft facility of £135,000 for the company. The husband's liability to the bank was to be secured by a second charge over the matrimonial home, jointly owned by the husband and his wife. The husband persuaded the wife to sign the security documents by misrepresenting the situation, saying the facility was short-term and the charge was limited to £60,000. When the company's debts increased, the bank brought proceedings against the O'Briens to enforce the guarantee.
The judge gave judgment for the bank, finding that (1) the husband had not unduly influenced the wife and (2) that the husband had misrepresented the effect of the charge but that the bank was not responsible for that misrepresentation. The Court of Appeal held that the bank was under a duty, which it had not satisfied, to take reasonable steps to ensure that the wife had an adequate understanding of the transaction so that it was not enforceable against her except to the extent of £60,000. The bank's appeal to the House of Lords was dismissed, and they set aside the charge.
The House of Lords held that a wife who stood surety for her husband's debt and who had been induced by undue influence, misrepresentation or similar wrong had a right to have the transaction set aside if the third party (in this case the bank) had actual or constructive knowledge. Unless reasonable steps were taken to ascertain a) whether the transaction was of financial advantage to the wife, and b) if there were reasons to suspect that the debtor had committed a legal or equitable wrong which had induced the wife into the transaction, then there would be, at least, constructive knowledge. The bank, having failed to take any such steps to verify the situation, had constructive knowledge of the husband's wrongful misrepresentation. The wife was entitled to have the charge set aside.
The House also extended the principles applicable to husband and wife to (1) all cases where there is an emotional relationship between the cohabitees (whether homosexual or heterosexual), provided that the creditor is aware that the surety is cohabiting with the principal debtor; and (2) to other relationships (for example, parent and child) in which the creditor is aware that the surety reposes trust and confidence in relation to his financial affairs.

Shaun Ryder v Nicholl [2000] - N wanted to represent SR (lead singer of The Happy Mondays) so they sent him some paperwork detailing a proposed contract. As SR was illiterate, he gave this to his solicitor to read. The solicitor sent it back to N as unacceptable and expected to hear nothing more. However, N knew where SR was recording so they decided to visit him. They also knew that he continually smoked marijuana whilst in the studio and were hoping he would be more open to their renewed offer. It turned out that SR was, and he ended up signing the contract. He then gave the signed contract to his solicitor again, and although it was not the best terms, the solicitor decided that it wasn't so bad as to take any action. However, it soon transpired that the contract was worse than it first appeared.
As SR could not read, was this not undue influence, as they had taken advantage of him in a vulnerable state? The court said that yes it was, but as he had sought legal advice, this meant that he had inadvertantly affirmed his acquiescing to the contract, even if the advice had been bad.

Fry v Lane [1888] - Two brothers in menial jobs sold their reversionary interest in a property they stood to inherit for substantial undervalue. Even though they had sought legal advice, the solicitor was inexperienced, as well as being employed by the buyer in the transaction! This was an obvious case of undue influence.

Blomley v Ryan [1954] - Is taking advantage of a madman during a transaction unconscionable? Yes.
Hart v O'Connor [1985] - In this case the seller was not aware of the fact that the person was mad.

Creswell v Potter [1968] - How do we decide what constitutes 'poor and ignorant'? A wife had left her husband, but she had a joint property with him. She decided she wanted to sever this and asked husband to release her from the mortgage in return for her half of the house. However, the house was worth much more than the mortgage, and the husband eventually sold the property for a large sum. It was determined that the claimant could ask for undue influence.

Portman Building Society v Dusangh [2000] - PBS granted D a 25y mortgage, but D was already 72, retired and illiterate in English. He was guaranteed in this by his son, who he had taken the mortgage out for so that he could be set up in business. However his son failed and PBS decided to foreclose. D then tried to claim that the scenario was an unconscionable bargain. Although the victim was in the category of this (poor and ignorant), the contract had not manifestly disadvantaged him. Even though the same solicitor had acted for both PBS and D, it was not something a solicitor would have hugely advised away from. The court said this wasn't an unconscionable bargain, as it made perfect sense for D to take out a mortgage. Although it was commercially unwise for PBS to accept him, it was not morally reprehensible. The transaction was improvident, but not immoral. Just because a bargain is strange does not make it unconscionable.

Lloyds Bank v Bundy [1975] - In this British case, an old farmer mortgaged his farm to the hilt to help out his son and soon enough, the bank moved in to foreclose. The court acknowledged that "in the vast majority of cases a customer who signs a bank guarantee or a charge cannot get out of it. There are many hard cases which are caught by this rule... Yet there are exceptions...where the parties have not met on equal terms". The court went on to mention that cases of duress of goods are voidable; when a party is taken advantage of because of a desperate need of the goods. And then there was the "unconscionable transaction... when a man comes into property - and then being in urgent need - another gives him ready cash for it, greatly below its true value... Even though there is no evidence of fraud or misrepresentation, nevertheless the transaction will be set aside". The third category is undue influence where a relationship gives some advantage. Then there are the cases of undue pressure and the salvage agreements (the latter when a vessel is in danger of sinking .. and the rescuer takes advantage of his position). The court suggested that all these instances "run on a single thread: inequality of bargaining power" and that "undue" does not mean wrongdoing nor "that every transaction will be saved by independent advice but the absence of it may be fatal". The court then concluded that the bank had a relationship of confidence with the farmer, a conflict of interest and by failing to suggest that he seek independent advice, the court disallowed the foreclosure action.

National Westminster Bank v Morgan [1985] - A husband and wife owned a home jointly. The husband was unable to meet his mortgage commitments and the building society threatened to seek possession for unpaid debts. The husband made refinancing arrangements with the bank secured by a mortgage in favour of the bank over the matrimonial home. The bank manager called at the home to get the wife to execute the charge. She did not wish the charge to cover her husband's business liabilities. The bank manager assured her, in good faith but incorrectly, that it did not. It was, in fact, unlimited in extent and could, therefore, extend to all the husband's liabilities to the bank, though it was the bank's intention to confine it to the amount needed to refinance the mortgage. The wife had not received independent legal advice before executing the mortgage.
The husband and wife fell into arrears with their payments, and the bank obtained an order for possession of the home. Shortly afterwards, the husband died without owing the bank any business debts. The wife argued that the bank manager exercised undue influence over her and that a special relationship existed between her and the bank which required it to ensure that she received independent legal advice before entering into a further mortgage. She also sought to rely upon BUNDY.

Lord Scarman came to the following conclusions:
1. A transaction would not be set aside on the grounds of undue influence unless it could be shown that it was manifestly disadvantageous to the party alleged to be influenced.
2. The basic principle was not a vague public policy (as formulated in ALLCARD), but the prevention of victimisation of one party by another.
3. The transaction in the instant case was not unfair to the wife.
4. Although the doctrine of undue influence could extend to commercial transactions, including those between banker and customer, it could not be maintained on the present facts that the relationship was one in which the banker had a dominating influence.
5. The bank, therefore, was not under a duty to ensure that the wife had independent advice.

Hong Kong Fir Shipping Ltd v Kisen Kaisha Ltd [1962] - The defendants had hired a ship for 24 months. There was a term in the charter whereby the owners promised that it was seaworthy. However, at the beginning of the contract it was found that the boat needed extreme repairs, and was therefore inoperational for 4 months, leaving only 20 months on the contract. During this period, the defendants grew tired of waiting and walked on the agreement - they claimed that the term of seaworthiness was a condition. However, the CoA did not agree as a breach of seaworthiness term encompasses a vast range of problems which vary hugely in seriousness. Therefore, it is not enough to only have a choice between condition and warranty. As such, Diplock revived the innominate term with this case.
However, although seaworthiness was innominate, as the ship had only been out of action for 4 months (which the charterers not having to pay for these repairs) they had not been deprived of their full expectations, and so the termination was deemed incorrect.

Arcos Ltd v A. Ronaasen & Son [1933] - The buyers made a contract to purchase timber staves from the sellers in order to make barrels for cement. Goods were sold by reference to description, and described as 1/2 an inch thick. However, when they arrived they were noticeably thinner (although the actual difference in the measurements was negligible) then they should've been, and the buyers rejected them. The sellers were upset because the staves were still perfectly good for making barrels, and because the market for them had fallen between the time of the contract and now, so they didn't want them back. However, the HoL the fact that they were fit for purpose didn't matter as any breach was enough to terminate the contract on the basis of the descriptions being a condition. Here, even a trivial breach was enough, although of course this would not have stood under an innominate term.

Reardon Smith Line Ltd v Hansen-Tangen [1976] - A ship was chartered before it had finished being built (common practice). However, it was so far off from being finished that it had no name but a serial number. Unfortunately, by the time the ship was completed, its number had been changed. There then was an oil crisis, and the the market for chartering slumped, so the charterers no longer wanted it. They tried to claim that as the serial numbers had changed it this was a breach. However, the HoL said that this did not work as it was a different type of description - the boat's attributes had remained the same (if this had changed, it would've been a breach) whilst only an identifying characteristic had been affected. This is a case that Chitty points to as excessively technical.

The Mihalis Angelos [1971] - Another case of chartering that contained a very common clause, an 'expected readiness to leave' time - this was where the shipowner promised the date that the ship would be ready for the charterer to load up. However, in this case the ship was late so the charterer cancelled. Was this term a condition or an innominate term? The court held it as a condition because of the commercial certainty that is needed and prized in these sorts of transactions (an innominate term would've forced the charterer to analyse how late was too late and to reassess) and also that it was influenced by earlier precedent in that it was regarded as a condition by that and the relevant practioners' textbooks.

Bunge Corporation v Tradex Export SA Panama [1981] - Concerning the international sale of goods by sea. The court was happy to apply what had been established in MIHALIS, but they pointed out that the difference between a timing stipulation (breach is due to lateness) vs. 'seaworthiness' (very unclear) was large.

Schuler AG v Wickman Machine Tool Sales Ltd [1973] - A German manufacturing company, S, agreed with a UK company W that they would be the sole seller of S's goods for a fixed period of 4 years. However, there were two clauses in their contract that were unusual - 7b: that it was a condition that W's representative would visit 6 motor manufacturers to attempt to sell S's goods once a week, and 11: that either party had a right to terminate the contract if the other committed a material breach with no attempt to remedy it. W did not manage to fulfil 7b so S sought to terminate, but W pointed to 11. The HoL decided that when this was drafted, they weren't using 'condition' as it is meant in terms of breach, but rather just as 'terms and conditions'. As such, S was not allowed to terminate on a breach of 7b.

The Seaflower [2001] - A charter of an oil tanker in which the parties had drafted a document as if a particular term wasn't a condition. However, because the term was so crucial the CoA ruled that it was, even if the drafting suggested otherwise.

The Hansa Nord [1976] - There was an international sales contract for citrous pulp pellets to be used for animal food. The contract containe an express (not the one implied via the SGA, as this would not have worked here) that the pellets would be in good condition. However, when they arrived, some were slightly damaged but still fit for their purpose as feed. Still, the buyers sought to reject as the market had fallen and it would be cheaper to purchase them elsewhere. Was this term a condition or an innominate one? 'Good condition' is a very broad spectrum, so it was decided that it was an innominate term as the damage had not caused the buyer to lose all of their expectations, and the goods could still fulfil their purpose. As such, flexibility won.

Aerial Advertising Co v Batchelors Peas Ltd (Manchester) [1938] - BP created a contract with AA to advertise their product via plane banner. There was a term in the contract that AA promised to agree with BP the route that the plane would take each given day so that it would not fly over the same area. In most cases, breach of this term would not have particularly mattered, but as the route hadn't been agreed the plane flew over a poppy day silence in a certain town. This caused many people to boycott BP, and BP immediately cancelled the contract with AA. AA actually tried to sue, but failed as the judge found it an innominate term.

Holding and Management (Solitaire) Ltd v Ideal Homes North West Ltd [2004] - Builders had no obligation as to quality of work or repairs. A lessee tried to imply this term, but court refused as they could not go against the express terms.

Hutton v Warren [1836] - Farmer was a tenant of a farm. The landlord gave him notice to quit (terminated his lease) but there was nothing in it to compensate the farmer for seeds he had planted. Nonetheless getting an allowance for this was custom.

The Moorcock [1889] - Claimant's steamship was in the defendant's wharf and was damaged when the tide went out as it scraped on something sharf in the riverbed. There was nothing in the contract which said anything about this, but the claimant argued that the defendant should have taken reasonable care to avoid this. The court agree that this would be an implied term.

Shirlaw v Southern Foundries Ltd [1939] - If something is so obvious that it goes without saying, then it will be an implied term.

Easton v Hitchcock [1912] - Mrs H thought her husband was having an affiar so she hired a female detective, E, to spy on him. E in turn hired men to observe Mr H's activities. However, one of these men stopped working for E, and after a period of time disclosed to one of his friends his surveillances on Mr H. In turn, this friend then informed Mr H of what was going on. As such, all investigatory services on him after this point were useless as he knew what was going on. When E sent Mrs H the bill she refused to pay and tried to argue that there was an implied term that E's servants should have kept their activities confidential both during and after their employment. The court disagreed and said that this was too broad of a term to imply. However, this would probably be decided differently today. As such, the narrower a term that a claimant seeks to imply, the more likely a court is to agree to it, and vice-versa.

Silverman v Imperial London Hotels Ltd [1927] - Mr S visited the Imperial's turkish baths and spent the night in something called a 'relaxation cubicle'. However, when he awoke the next morning he was covered in insect bites and had to take two weeks off work. He then wanted to claim damages and arged that there was an implied term in the contract about cleanliness. The court applied the MOORCOCK principle and agreed that the company would have intended the place to be insect-free. The judge even went further than saying they should have exercised reasonable care, and said that there was a strict warranty on them doing so.

Spring v National Amalgamated Stevedores and Dockers Soc [1956] - Complicated negotiations between trade unions finally resulted in an agreement about certain things. S was expelled from his union under this as he was 'supposed' to belong to another one dependant on geography and other factors. He sued, and the unions tried to claim that there should be an implied term saying that the unions could do anything to adhere to this agreement. The judge disagreed as at the time that S joined this agreement had not existed, so 'the officious bystander' test couldn't work.

Gardner v Coutts & Co [1968] - X owned two pieces of land, and sold one piece to Mrs G as well as granting her the right of pre-emption (she had the right of first refusal if the land was ever sold) over the other. However, then X tried to defeat this by gifting the land to his sister. Mrs G then sued saying that there was an implied term which included it being 'given away'. The judge agreed with her under 'the officious bystander' test, and it also set a standard for land law (cannot defeat a right of pre-emption by giving the property away).

R Griggs Group Ltd v Evans [2005] - There was a contract between Dr Martens shoes and a freelance logo designer to create a new logo for DM. However, nothing was said about who the IP rights of the design would belong to in the contract. The designer then tried to claim that he had copyright over it and began to distribute it and sell it to others. The court said that it was obvious that this clause had meant to be implied.

Collidge v Freeport plc [2008] - Mr C was the person who founded Freeport outlet villages, but he came under suspicion for financial irregularities. As he was still the head of the company, F agreed to pay him off, but continued to investigate him. They found out that he had been doing illegal things, and so therefore refused to pay him. C then tried to claim that even though he had been found in the wrong, he should still get his money. He lost, as this would have been a highly unlikely implied term.

Liverpool City Council v Irwin [1977] - A tower block suffered with vandalism to the common lifts, stairwells and rubbish chutes. The tenants had leases of their individual flats, but these common areas were the responsibility of the landlord council. However the contract mentioned no such obligation for keeping these areas clean and repaired. As they degenerated more, the tenants stopped paying their rent in protest. The landlord then sought to repossess, and they counter-claimed saying that the landlord had covenanted to these responsibilities. In the CoA, Denning agreed, saying that he was implying the term due to reasonability (wrong!), however although the HoL agreed with his result, they disagreed with the reasoning.
As neither of the parties had actually negotiated the contract, there was no officious bystander, but in terms of fairness, it made more sense for the landlord to take care of these issues. However, the tenants still lost as the court said that the council had not breached this term (they had already been trying to deal with the problem and the situation had just gotten too bad).

Scally v Southern Health and Social Services Board [1992] - Concerning doctors' contracts of employment, the latter part being the main focus of implied terms at law - as such, it doesn't matter if work contracts are threadbare as much is implied already. Northern Irish doctors' pension rights were positively affected by an amendment to a statutory instrument which allowed the right to purchase extra pension rights if they had only just joined the health authority (i.e. moved from HA A to B). However, this had to be exercised within 12 months, and the claimant's authority neglected to make their employees aware of this before it was too late. S then sued saying there was an implied term that they should have brought this to his attention. HoL agreed that it was not 'in fact', but rather 'in law'. The health authority should have publicised the deal as they were the ones who had negotiated for it. It was eventually agreed on the basis of fairness and policy decisions that the term should be implied.

Crossley v Faithful & Gould Ltd [2004] - Tried to suggest a more general proposition based on SCALLY that all employers should take reasonable care for their employee's financial welfare. Court rejected this as it would be an unfair and unreasonable burden on employees.

L'Estrange v Graucob Ltd [1934] - Claimant ran a cafe in Wales and wanted to purchase a cigarette vending machine. She duly purchased one from the defendant, and when it was delivered she signed a complex document which involved her paying in installments without reading it. The document contained a number of exemption terms - one which said that the defendant was not liable if the machine was faulty or broke. This was all in very small print which the defendant had not read. The machine then developed a fault; C said that D had not explained the contract to her and D said that they had. D refused to help with fixing the machine. The CoA said that C was bound by the contract she'd signed. Lord Scrutton took a very commercial approach by saying that if a sane adult signed a non-misrepresentational document then regardless of if it has been read or not, they are bound by it. Commercial certainty is more important than fairness. However, Lord Denning (who was at the time the D's barrister) later regretted the court's decision and felt it was unfair.

Grogan v Robin Meredith Plant Hire [1966] - D owned a construction machine and hired this out to a civil engineering company. The agreement was made orally. At the end of the first week of hire, D gave C a time sheet to record how many hours the machine was in use for. However, at the bottom of this there was a reference to some standard industry terms and conditions - one which said that C promised to indemnify D if anyone was injured whilst using the machine. The court had to see whether this term had been incorporated into the contract or not, as it was not mentioned at the beginning. CoA thought it was not as you must ask whether the document is of a type that a person would expect, or should reasonably have known that it would contain those terms. A time sheet is not one of those.

McCutcheon v David MacBrayne Ltd [1964] - Shipping arrangements where sometimes the conditions were explicit and other times they weren't. This wasn't consistent enough to enforce past dealings.

Hollier v Rambler Motors (AMC) Ltd [1972] - Mr H took his car to RM's garage to repaired and made an oral contract with him. A fire broke out due to RM's negligence and H's car was damaged by fire. RM then tried to say that as H had had his car serviced her a couple of times in the past couple of years, and he had signed invoices before excluding liability for fire that this should also stand this time. The court disagreed as 'a couple of times in the past couple of years' was not a regular occurrence, and it was unlikely that Mr H had known about the terms objectively.

Scheps v Fine Art Logistic Ltd [2007] - Mr S had purchased a piece of modern art; he paid $35k for it, and then made an agreement with FA to store and take care of it before he could ship it to where he lived. However, somebody accidentally mistook it for rubbish and thew it out. By the time the case came to court the artist had won the Turner prize, so the piece was worth $600k. FA then tried to argue that there was a term whereby they would only pay compensation based on the weight of the piece, which would only amount to $500. However, they had not shown him these terms, or even provided him with a copy of them. As S was a well-known art dealer, FA then tried to argue that he was in the same trade as them and therefore should have known of this term. The court disagreed entirely, as they had not been reasonable in alerting S to these terms and conditions.

Thompson v London Midland & Southern Railway Co [1930] - An elderly lady couldn't read and was buying a ticket for a train. On the front of the ticket it said to refer to the back for terms and conditions, and on the back it said to refer to the train company's timetable to see them. However, she was injured by the negligence of the train company when she tried to alight the train and the driver moved off too quickly. The company then sought to rely on an exclusion clause in their terms (would fail today under UCTA), but there was no reasonable way that she could have read it. However, the court said that as the company had taken reasonable steps to alert her to its presence there, they were not liable. There was no slyness in their phrasing and it was up to the passenger if they wanted to read the clause or not.

Olley v Marlborough Court [1949] - Mr and Mrs O were booking into a hotel after having paid in advance. When they got to their room they found a notice exempting the hotel from liability of loss, damage or theft to customers' items. Later some jewellery, furs and a hatbox were stolen from the O's room - was the hotel liable? The court held that the notice was not incorporated as the contract had been made on booking in, whilst the first mention of these exemption terms had been in the room.

Jayaar Impex Ltd v Toaken Group Ltd [1996] - There was a contract made over the phone for the sale of some Nigerian arabic gum. Later the sellers sent some terms and conditions referring to standard industry ones on a form which was marked 'Important' and requested the buyers to sign and date it. However, the buyers did not. It was then found that there was something wrong with the goods so they sued. The sellers then tried to rely on two clauses in this document: i) an exclusion clause (substantive protection) and ii) a clause that required disputes go to arbitration before court (procedural protection). The court held that the terms were irrelevant and had not been incorporated as they had not been mentioned over the telephone, and the argument of them being an 'offer to vary' also failed as the buyers had never agreed to them by signing, precisely because they did not represent their agreement. As such, a variation of this kind will not be lightly enforced, particularly if it is worsening the buyers' position.

Chapelton v Barry UDC [1940] - C hired two deckchairs on a beach. There was a notice nearby the pile of chairs that said he should pay an attendant for them, but there was no mention of any terms and conditions. C paid and received two tickets that were very small and had printed on them an exclusion clause relieving the council of any tortious liability. However, when C sat on the chair the canvas broke and he injured himself; he then sued the council. They then tried to rely on the ticket, but the CoA rejected this, L.J. McKinnon drawing a clear distinction by saying that the ticket was not a contractual document but a mere receipt for monies paid. Any terms should have been mentioned in the notice before C paid -- there were also issues of timing here.

Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] - S enquired of I over the phone about some prints; I sent them 47 transparencies which arrived with a delivery note containing the terms and conditions. There was no contract made over the phone. The offer was made when I sent them, and accepted by S when they began to use them. One condition was that a daily fee of £5 per photo would be payable after S had kept the photos for more than 2 weeks. However, S didn't notice this term and they forgot about the transparencies. When they finally remembered to send them back they were 16 days late, which meant they had incurred a fine of £3700. Was S bound by this? The CoA did not take an overly commercial approach even though they were both businesses; instead, they said that although English law does not have a general doctrine of good faith, it has several piecemeal ones which protect corporate fairness and ultimately add up to something similar.
Bingham said that as the term was onerous they had not drawn enough attention to it (agreed with Denning's 'red hand' postulate) and therefore I was only due a 'quantum meruit' payment, which was much less than the full fine. Was this actually fair for the court to set the amount, as surely I would have known how much money they would have lost by not having the photos? In any case, this was a different sort of clause that was not covered by UCTA.

Photolibrary Group Ltd v Burda Senator Verlag GmbH [2008] - A magazine ordered some photos from a library that they had used many times before, but the photos were lost, and there was a term saying that they should pay for this. BSV tried to use INTERFOTO in their defence, but failed as this term was an obvious and simple expectation of what would happen.

O'Brien v MGN Ltd [2002] - O bought a copy of the Daily Mirror and received one of their scratchcards, which when he had completed it, told him he had won £50,000. However, there had been a mistake at the printers which meant that a large number of people had received these winning cards. To rectify this, the DM invoked their rules for the event of there being more than one winner, which involved drawing lots. O did not win, so he sued; he claimed that these rules were not incorporated as they had not been printed in full in the newspaper on the day that he received his scratchcard (even though they had been on the first day the competition opened), instead they were merely referred to. O argued that the 'lots' term was onerous, and more should have been done to bring it to his attention.
The CoA rejected this and said that the DM had done enough (although they seemed reluctant to allow either party to win). There had been a clear set of rules mentioned, drawing lots was a standard industry procedure in these circumstances and the clause had not imposed either any extra burden on the claimant or attempted to exonerate the defendant from liability.