This introductory chapter provides a brief overview of the fundamental elements of what constitutes a contract. It discusses undertakings or promises, deeds, written and oral promises, bargains, and bilateral and unilateral contracts. It concludes by examining some general themes in contract law to which reference will be made throughout the present title. These include freedom of contract, will theory, economic efficiency, objectivity in contract law, common law and equity, contract law within private law, and international influences on contract law. The outline provided in this chapter is necessarily brief; although some of the themes may seem a little difficult in the abstract, students approaching this subject for the first time should not be troubled. The concepts will become familiar and more easily understood through concrete examples provided in later chapters.
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This chapter analyses the formation of unilateral contracts. A unilateral contract arises where O promises A something if A does a particular act which is not the making of a promise to O. A unilateral contract only imposes obligations on O. A is not obliged to do anything. A unilateral offer can be accepted by A regardless of A’s motive for doing the required act. However, A must know of the offer in order for a contract to be formed. O may not be able to revoke the offer if A has embarked upon performance. This will depend upon whether or not O has made an implied promise not to revoke the offer.
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This chapter analyses the issue of consideration in contract law. Contracts are generally binding only if supported by consideration. Consideration can be viewed as ‘the price tag on the promise’: a party must provide something in exchange for the promise in order to be able to enforce that promise. That ‘something’ is called ‘consideration’, and might itself be a promise. The requirement of consideration is demanded by the common law. But, in some situations, equity will allow a promisee to enforce a promise, despite a lack of consideration, through the doctrine of promissory estoppel. Where the promisor makes a clear promise, intended to be binding, intended to be acted upon, and in fact acted upon, the courts will not allow the promisor to act inconsistently with that promise if to do so would be unconscionable.
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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter is concerned with instances where Equity allows one party to escape the rigours of an apparently binding promise. The justification for contradicting apparently binding contractual agreements and perfectly properly intended gifts is simply the perception that it is sometimes unfair or unconscionable for the defendant to insist on his strict legal rights. The offending deals are then unwound; the defendant is forced to give up any enrichments that he should not have obtained. The different forms of intervention can be categorized under three heads. The first category is confined to written contracts, where the writing does not embody the real agreement between the parties. The writing may either misrepresent or omit certain critical features of the deal. Equity may then intervene to ensure that injustice does not ensue. The second category is devoted to procedural unfairness, and focuses on flaws in the claimant's consent to the underlying deal. The third category is concerned with substantive unfairness. Here Equity's intervention is far more paternalistic. It will sometimes intervene if the terms of the deal are unfair. This is a most aggressive form of intervention. It means interfering with a bargain even though there is no suggestion that the parties did not truly consent to the arrangement.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter is concerned with proprietary estoppel. Proprietary estoppel is a means by which a party (B) can gain some protection against an owner of land (A), even if B has no contract with A and even if A has not formally given B a property right in relation to A’s land. Proprietary estoppel is therefore a means by which B can obtain an equitable interest in A’s land. It is noted that proprietary estoppel is very different from other forms of estoppel; so different that the term ‘estoppel’ is positively misleading. The chapter considers the requirements of a proprietary estoppel claim, including the role of unconscionability, how the courts determine the extent of any right arising through proprietary estoppel, and the impact of such rights on third parties.
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Jack Beatson, Andrew Burrows, and John Cartwright
A contract consists of an actionable promise or promises. Every such promise involves at least two parties, a promisor and a promisee, and an outward expression of common intention and of expectation as to the declaration or assurance contained in the promise. This outward expression of a common intention and of expectation normally takes the form of an agreement. This chapter discusses the establishment of an agreement by offer and acceptance; uncertain and incomplete agreements; and the intention to create legal relations.
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Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Stilk v Myrick [1809] EWHC KB J58; (1809) 2 Camp 317. The document also includes supporting commentary from author Nicola Jackson.
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This chapter identifies the essential features necessary in the establishment of a legally binding contract. Most contracts need not be given in writing, and a contract could be regarding as something as simple as buying a newspaper or a cup of coffee. In fact, many contracts that are established are not done so in writing, even if a receipt is received. However, each of the essential features noted in this chapter is present in forming those contracts. Before the essential features are considered, it is important to note that contracts can be established by the parties exchanging promises, or by one party promising to perform an act in return for some action by the other. In the latter scenario, the second party has no obligation to take any action unless it wishes to enter into a contract.
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Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Stilk v Myrick [1809] EWHC KB J58; (1809) 2 Camp 317. The document also includes supporting commentary from author Nicola Jackson.
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Robert Merkin, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. Under English law, bargains and not gratuitous promises are enforced, thus a promise will not be enforceable if it is not contained in a deed (implying that any promise is taken seriously) or supported by consideration. Consideration refers to an act or a promise given in exchange for the promise (that is, the price for which the other’s promise was bought). The law does not recognize some acts or promises as good consideration, such as past consideration and performance of an existing legal duty. This chapter examines the general requirement in English law to provide consideration in order to enforce a contractual promise. The consideration requirement is relevant not only to the formation of a contract but also to the enforceability of promises altering the terms of an existing contract (alterations). An alteration promise that is not supported by consideration may still have some binding effect on the basis of the doctrine of promissory estoppel.
Chapter
Robert Merkin KC, Séverine Saintier, and Jill Poole
Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. In order to be enforceable, a promise must either be supported by consideration or be expressed in the form of a deed. This stems from the assumption in English contract law that only bargains should be enforced. This chapter examines the enforceability of promises, focusing on consideration and promissory estoppel. The case law has addressed what can constitute consideration and whether a promise can be enforced in the absence of consideration. The chapter focuses particularly on the enforceability of alteration promises, discusses part-payment of a debt, when and how the doctrine of promissory estoppel will operate, and how far the doctrine can be extended.
Chapter
Robert Merkin KC, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. Under English law, bargains and not gratuitous promises are enforced, thus a promise will not be enforceable if it is not contained in a deed (implying that any promise is taken seriously) or supported by consideration. Consideration refers to an act or a promise given in exchange for the promise (that is, the price for which the other’s promise was bought). The law does not recognize some acts or promises as good consideration, such as past consideration and performance of an existing legal duty. This chapter examines the general requirement in English law to provide consideration in order to enforce a contractual promise. The consideration requirement is relevant not only to the formation of a contract but also to the enforceability of promises altering the terms of an existing contract (alterations). An alteration promise that is not supported by consideration may still have some binding effect on the basis of the doctrine of promissory estoppel.
Chapter
Robert Merkin and Séverine Saintier
Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. In order to be enforceable, a promise must either be supported by consideration or be expressed in the form of a deed. This stems from the assumption in English contract law that only bargains should be enforced. This chapter examines the enforceability of promises, focusing on consideration and promissory estoppel. The case law has addressed what can constitute consideration and whether a promise can be enforced in the absence of consideration. The chapter focuses particularly on the enforceability of alteration promises, discusses part-payment of a debt, when and how the doctrine of promissory estoppel will operate, and how far the doctrine can be extended.
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5. Non-contractual promises
Promissory and proprietary estoppel
This chapter considers how promissory and proprietary estoppel intersect with the law of contract. Where an agreement is unenforceable at contract law because some legal prerequisite or formality has not been met, that role is played by the law of estoppel. The law of estoppel works by deeming a party to be legally prevented (‘estopped’) from going back on something she has in the past asserted, promised, or accepted. The effect of estoppel is to hold the person to that past assertion or promise, by preventing her from resiling from it. This chapter first examines the context of promissory estoppel before discussing its requirements and its effect, such as suspending rights and extinguishing debts. It then explains the requirements of proprietary estoppel; namely, there must be a promise or encouragement, the promise or encouragement must induce reasonable reliance, reliance must be detrimental, and unconscionability.
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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. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter explains the nature of consideration with the aid of examples and discusses two basic definitions of consideration (consideration as a legal benefit or burden and as the price of a promise) as well as the past consideration rule. It addresses whether performance of an existing duty can count as a legal benefit or burden to form consideration for a promise. It considers existing public duties, existing duties owed to a third party and existing duties owed to the promisor. The chapter examines the related rules concerning part payment of a debt and the extent to which promises not supported by consideration can be enforced using promissory estoppel.
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Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. The document also includes supporting commentary from author Nicola Jackson.
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Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter explores and defends the consideration requirement in the enforceability of contractual obligations, both when the contract is formed and if it is varied, refuting some of the criticisms calling for the requirement of consideration to be reformed or abolished in English law. It defines consideration as the ‘price of the promise’ and clarifies that an act or promise must have been requested by the promisor to count as consideration. It explores issues such as past consideration, performance of an existing contractual duty, and part payment of a debt, for which latter issue the common law rule is ameliorated by the equitable doctrine of promissory estoppel.
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5. Non-contractual promises
Promissory and proprietary estoppel
This chapter considers how promissory and proprietary estoppel intersects with the law of contract. Where an agreement is unenforceable at contract law because some legal prerequisite or formality has not been met, that role is played by the law of estoppel. The law of estoppel works by deeming a party to be legally prevented (‘estopped’) from going back on something she has in the past asserted, promised, or accepted. The effect of estoppel is to hold the person to that past assertion or promise, by preventing her from resiling from it. This chapter first examines the context of promissory estoppel before discussing its requirements and its effect, such as suspending rights and extinguishing debts. It then explains the requirements of proprietary estoppel, namely: there must be a promise or encouragement; the promise or encouragement must induce reasonable reliance; reliance must be detrimental; and unconscionability.
Chapter
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter explores and defends the consideration requirement in the enforceability of contractual obligations, both when the contract is formed and if it is varied, refuting some of the criticisms calling for the requirement of consideration to be reformed or abolished in English law. It defines consideration as the ‘price of the promise’ and clarifies that an act or promise must have been requested by the promisor to count as consideration. It explores issues such as past consideration, performance of an existing contractual duty, part payment of a debt, for which latter issue the common law rule is ameliorated by the equitable doctrine of promissory estoppel.
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3. Enforceability issues
Intention to be bound, consideration, and promissory estoppel
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 examines the question of whether the promises contained in the agreement are enforceable so that there is a legally binding contract in place (formation). It considers the parties’ intention to be legally bound and the need to establish that the promises are part of a bargain. The same bargain requirement applies to alteration promises, although the treatment of alteration promises is not as strict. It is possible for freely made alteration promises to be enforceable when not ‘paid for’ with another promise or action, e.g. by means of the doctrine of promissory estoppel.
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