The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans, suggested answers, and author commentary. This book offers advice on what to expect in exams and how best to prepare. This chapter covers questions on the three certainties and formalities.
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This chapter examines the legal requirements relating to the formation of a contract. It discusses the five essential elements of a contract, namely offer, acceptance (offer and acceptance are collectively referred to as ‘agreement’), certainty, consideration, and the intention to create legal relations. It analyses these individual requirements in detail and considers the courts’ approach in determining whether an enforceable contract is present or not. This chapter also explains the principles of different types of contracts, namely the distinction between bilateral and unilateral contracts, and how the normal rules of contractual formation are modified in the cases involving unilateral contracts.
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This chapter looks at the need for certainty and formalities in contracting. It explores case law which illustrates, on the one hand, that a willingness of the parties to make a contract does not necessarily amount to a legally binding agreement, whilst on the other hand, there is potential for the court to fill in any gaps to give effect to agreements. The issues surrounding an agreement which is expressed to be ‘subject to contract’ are explored in light of the recent Supreme Court case of RTS Flexible Systems Ltd. The reasons for when contract formalities may be required are also noted. There is also discussion of electronic contracting, in relation to the introduction of the Electronic Identification and Trust Services for Electronic Transactions Regulations (2016/696).
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How does contract law determine whether the parties have committed to the contract and what each has committed to? This chapter discusses: the primacy of the objective test of intentions; the offer and acceptance test of agreement and what happens when one party appears to be mistaken about what is in the contract; when an offer is terminated so that any purported acceptance is ineffectual; assessment of the mirror image approach; the requirement of certainty; the nature of the requirement of intention to create legal relations; and the law’s approach to the benefits conferred in anticipation of contracts that do not materialise.
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How does contract law determine whether the parties have committed to the contract and what each has committed to? This chapter discusses the following: the objective test of intentions; offer and acceptance; termination of the offer; assessment of the mirror image approach; certainty; intention to create legal relations; and restitution for benefits conferred in anticipation of contracts that do not materialise.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary for the Home Department, ex parte Pierson [1998] AC 539, House of Lords. This case explored whether a decision-maker acting in a quasi-judicial capacity was bound by the same decision-making standards as the courts including, for example, whether retrospective decision-making was permitted. As well as these rule of law considerations, it also raises questions as regards the division or separation of functions within the constitution. The document also includes supporting commentary and questions from author Thomas Webb.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary for the Home Department, ex parte Pierson [1998] AC 539, House of Lords. This case explored whether a decision-maker acting in a quasi-judicial capacity was bound by the same decision-making standards as the courts including, for example, whether retrospective decision-making was permitted. As well as these rule of law considerations, it also raises questions as regards the division or separation of functions within the constitution. The document also includes supporting commentary from author Thomas Webb.
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This chapter looks at the need for certainty and formalities in contracting. It explores case law which illustrates, on the one hand, that a willingness of the parties to make a contract does not necessarily amount to a legally binding agreement, whilst on the other hand, there is potential for the court to fill in any gaps to give effect to agreements. The issues surrounding an agreement which is expressed to be ‘subject to contract’ are explored, as too are the reasons for when contract formalities may be required. There is discussion of electronic signatures in light of the Law Commission Report on Electronic Execution of Documents and the case of Neocleous v Rees.
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Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 7, which prohibits the retrospective application of criminal laws. This means that a person should not be convicted for an offence that did not exist at the time he or she committed the acts in question, nor should any punishment they receive be one that was not available to the courts at that time. Article 7 also embodies the principle of legal certainty in the context of criminal law. In order for people to adjust their conduct accordingly, they must be able to know the laws that apply to them and be able to foresee the circumstances in which laws will be applied. As an aspect of the ‘rule of law’, Article 7 embodies the idea that the law should not be used arbitrarily.
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This chapter examines the development of the general principles by the Court of Justice (CJ) to support the protection of human rights in the European Union (EU) law within the scope of EU law. It analyses the relationship of the general principles derived from the CJ’s jurisprudence to the European Convention on Human Rights (ECHR) and the European Union Charter of Fundamental Rights (EUCFR), which includes substantive rights and procedural rights, as well as the principles of proportionality and legal certainty. It discusses the possible accession of the EU to the ECHR and the implications of Opinion 2/13. It suggests that although the protection of human rights has been more visible since the Lisbon Treaty and there are now more avenues to such protection, it is debatable whether the scope and level of protection has increased.
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This chapter investigates the basic law on the certainty and intention requirements in the creation of an agreement. To be legally enforceable as a contract, the agreement must be sufficiently certain and show an intention to enter a legal relationship. Agreements can be uncertain because they are vague, or because they are incomplete. This can indicate there was no intention to enter a legal relationship. The courts must not rewrite the agreement; they must simply interpret it. If an agreement is incomplete, the courts may decide that the missing terms are implied, and this is more likely if there has been performance. A gap in an incomplete agreement can be filled if the parties have provided a mechanism for doing so, or if the terms can be construed so as to do so. The chapter then differentiates between an agreement to negotiate (a lock-in agreement) and agreements not to negotiate with other parties (lock-out agreements). Agreements between businesses are presumed to be made with the intention to be legally binding, but the facts, the interpretation of the terms, or the surrounding circumstances could mean there was no such intention.
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The concept of legitimate expectation, which is the subject of this chapter, is closely related to the common law principles of fairness. As an important ground of judicial review it has evolved from the mere expectation of procedural safeguards to include, in certain circumstances, a substantive dimension, as illustrated in the famous case of R v North and East Devon Heath Authority, ex p Coughlan. This pivotal decision is analysed at some length. From a wider European perspective the concept of legitimate expectation is founded on the doctrine of legal certainty and, in essence, it means that decision-makers in the public domain must operate according to established procedures, and may be bound by promises or policies, for instance, if resiling from such a promise or policy would constitute an abuse of power. The chapter goes on to discuss the development of the most important case law in the field.
