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Chapter

Cover Contract Law

4. Privity  

Can a contract alter the rights and liabilities of a third party who is not privy to the contract? This chapter addresses the following questions: (1) Why is the general rule that only contract parties can sue on a contract? (2) What rights of enforcement does the Contract (Rights of Third Parties) Act 1999 confer on a third party? (3) What is the impact of the 1999 Act on the requirement that a contract claimant must have given consideration? (4) To what extent can a promisee enforce a contract for the benefit of a third party? (5) Aside from the 1999 Act, what legal avenues exist for third parties to enforce promises made for their benefit? (6) When and how does a contract bind third parties?

Chapter

Cover An Introduction to the Law of Trusts

4. Promises to Make Trusts  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. A settlor will generally want the trusts he makes to come into effect immediately. Sometimes, however, a settlor may plan to make a trust, but, despite being able to do so immediately, decide not actually to do so, perhaps because the circumstances are not quite right. Or he may not yet have the property that he plans to put on trust. In such cases, the settlor might want to bind himself to make the trust if and when things improve. This chapter looks at the ways in which settlors might go about making such commitments. One possibility is for the settlor to have a document drawn up containing the terms of his intended trust and saying that the trust is to come into effect on receipt of the property in question, and then to arrange for the property, when it materializes, to be sent directly to the trustee. A would-be settlor may also want positively to commit himself to make a trust of property when he gets it in the future by making a contract to that effect. The enforceability of contracts to make trusts and the unenforceability of covenants to make trusts for volunteers are discussed.

Chapter

Cover Contract Law

3. Enforceability: consideration, promissory estoppel, formalities  

Agreement is necessary but not sufficient to trigger legal recognition and thus enforcement. An informal agreement must comprise an exchange in which each party treats her performance (or promise of performance) as the price of the other’s performance (or promise of performance). Absent consideration, English law permits some enforcement, in qualifying circumstances, of promises that induce the promisee’s reliance via the doctrine of promissory estoppel. It also enforces formal promises or agreements. This chapter discusses: (1) the requirements of consideration, promissory estoppel, and formalities; (2) the justification for each test of enforceability; (3) whether the rules and scope of each doctrine are satisfactory, and, if not, how each should each be developed.

Chapter

Cover Business Law

6. Establishing the Contract: Consideration, Intention to Create Legal Relations, and Certainty Of Terms  

This chapter is a continuation of the previous one, and further discusses the essential features of a legally binding, or valid, contract. It puts particular importance on the meaning of ‘consideration’, which is what makes a promise or agreement a ‘bargain’ and, therefore, enforceable. The courts are not bound to, and will not, consider a ‘bare promise’. Parties to a contract must intend it to be legally binding, and not just be social or domestic agreement, and such contracts must contain certain terms that identify the rights and obligations of both parties. Without an understanding of these crucial elements, agreements may be concluded but they will not create an enforceable contract. Also, although a contract is enforceable by those parties to it, this right can be extended to third parties if the contract has been made for the benefit of these parties.

Book

Cover Complete Contract Law
This book provides choice extracts, supported by clear commentary and useful learning features. The text starts with an introduction to contract law. Part I looks at creating the contract, with coverage of the offer, acceptance, the legal partnership, and consideration and promissory estoppel. Part II is about the content of the contract and performance. It looks at the terms of the contract, exemption clauses, and unfair terms and issues related to breach and termination of the contract. Part III is about enforcement of the contract. It considers compensatory damages following a breach as well as third-party rights and non-compensatory remedies. Part IV explains the facts that end a contract such as misrepresentation, duress, frustration, and mistake.

Book

Cover Contract Law

Mindy Chen-Wishart

Contract Law offers a new approach, utilising diagrams and commentary boxes to complement the text. The book explains the intricacies of contract law by reference to the questions that arise during the life of a contract. Part I of the book introduces contract law. Part II looks at contract formation: the finding of agreement and meeting the criteria of enforceability. Part III focuses on the position of third parties who may benefit or be burdened by the contract. Part IV considers the reasons for allowing a party to escape the contract, namely the vitiating factors of misrepresentation and non-disclosure, mistake, frustration, duress, undue influence, and unconscionability. Part V looks at how to determine the contents of contracts: express, implied, and collateral terms, and examines their interpretation and enforceability. Part VI considers the breach of a contract and the availability of the remedies of termination, damages, and specific and agreed remedies. Part VII examines whether obligations of good faith should be recognised in current contract law and how that might affect the way we understand contract law.

Chapter

Cover Contract Law Concentrate

4. Privity and third party rights  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the doctrine of privity and third party rights. The doctrine of privity of contract provides that a person who is not a party to a contract (called a ‘third party’), cannot acquire rights under or enforce the provisions of that contract or rely on its protections even if the provisions were intended to benefit that third party. At common law there are complex, and sometimes artificial, ways to avoid this conclusion. More significant nowadays is the attempt to reform this principle by legislation in the Contracts (Rights of Third Parties) Act 1999, allowing some third party beneficiaries to enforce the provisions of contracts.

Chapter

Cover Concentrate Questions and Answers Company Law

3. The Corporate Constitution  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, suggested answers with commentary, illustrative diagrams, guidance on how to develop your answer, suggestions for further reading, and advice on exams and coursework. This chapter discusses the company’s constitution, which can be a popular area for examination questions. The chapter focuses on the company’s articles of association, considering in particular alteration of the articles and the legal effect of the articles (the ‘statutory contract’). The chapter also considers shareholder agreements, which are often used as a supplement to the company’s constitution.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

32. Enforcement of Settlements and Awards  

This chapter focuses on the enforcement of settlements and awards. The approach taken to enforcement of compromises in large measure depends on the nature of the process used to resolve the original dispute. In adjudicative procedures, enforcement will often be through registering the award with the courts of the state where enforcement is to take place, and then enforcing the award as a civil judgment. An exception is construction industry adjudications, where the decision is not itself registrable. Instead, it may be enforced through bringing court proceedings and entering judgment. In non-adjudicative procedures, if the parties have resolved their dispute, they will have entered into a contract of compromise. Enforcement is through suing on that contract. Alternatively, in a non-adjudicative procedure, the parties may convert the compromise agreement into a court judgment or order, and then enforce that judgment or order.

Chapter

Cover Contract Law

17. Non-compensatory remedies  

Specific performance, debt, and restitution

This chapter considers a range of non-compensatory remedies that are available at English law in cases of breach. Non-compensatory remedies seek to respond to breach of contract in ways other than compensation. The starting point for non-monetary obligations is that breach is best remedied through the award of damages. Literal enforcement of such an obligation, through an order for specific performance or an injunction, is only awarded in exceptional circumstances. In contrast, obligations involving the payment of a definite sum of money are frequently literally enforced through the remedy of debt. This chapter first examines literal performance as a non-compensatory remedy before discussing debt, gain-based remedies, and restitution interest.