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Chapter

Cover Contract Law Concentrate

10. Duress and undue influence  

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. The doctrines of duress and undue influence may result in a contract being set aside (the remedy of rescission) where illegitimate pressure has been used in the contracting process. This chapter focuses on instances where the agreement cannot stand in light of duress or undue influence, including instances where the duress or undue influence was exercised by a third party and the contracting party had notice of that duress or undue influence.

Chapter

Cover Anson's Law of Contract

13. Discharge by Agreement  

Jack Beatson, Andrew Burrows, and John Cartwright

Contract rests on the agreement of the parties: as it is their agreement that binds them, so by their agreement they may be discharged. This chapter begins by identifying two sources of difficulty, which render the topic of discharge by agreement one of considerable artificiality and refinement, and then discusses the forms of discharge by agreement, covering release, accord and satisfaction, rescission, variation, waiver, and discharge provisions contained in the contract itself.

Chapter

Cover JC Smith's The Law of Contract

16. Misrepresentation  

This chapter discusses misrepresentation in contract law. Misrepresentation is a statement of fact or law which is false, that induces a party to enter into the contract. A misrepresentation may be made by words or by conduct. All misrepresentations entitle the misrepresentee to rescind the contract. However, rescission will be barred where it is impossible to put the parties back into their original position; or where the misrepresentee has affirmed the contract; or where a long period of time has elapsed; or where a third party who has acquired rights for value in good faith would be disadvantaged by rescission. Damages are available at common law for the tort of deceit or for negligent misrepresentation. Most claims for damages are now made under section 2(1) of the Misrepresentation Act 1967.

Chapter

Cover Equity and Trusts Concentrate

13. Equitable remedies  

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. The common law provides the remedy of damages as of right for any breach. However, damages may not always provide a suitable or adequate remedy. One of the key equitable maxims states that ‘equity will not suffer a wrong without a remedy’. Therefore, over the years the courts have developed a number of equitable remedies to address the limitations of the common law response. This chapter considers the range of equitable remedies which have been developed by the courts: specific performance; injunctions; rescission; rectification; and account.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

13. Misrepresentation  

This chapter looks at misrepresentation. It first identifies the requirements for a misrepresentation, and highlights the situations in which the courts are willing to find misrepresentations although prima facie there are only statements of opinion which are stated not to suffice in themselves. It considers the remedy of rescission, and when it will be barred. It looks at the different ways in which damages may be provided for misrepresentation: for fraudulent misrepresentation under the tort of deceit; for negligent misrepresentation under the tort of negligent misrepresentation; and for negligent misrepresentation under s2(1) of the Misrepresentation Act 1967. It looks at the different requirements for each type, which it will be advisable to use, and what will be covered by a damages remedy for misrepresentation. Consideration is also given to remedies for aggressive and misleading trade practices under the amended Consumer Protection from Unfair Trading Regulations.

Chapter

Cover Poole's Textbook on Contract Law

9. Misrepresentation  

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. False statements of fact that induce a contract are known as actionable misrepresentations. In case of a misrepresentation, there are different legal remedies for breaches of contract. A misrepresentation renders the contract voidable (liable to be set aside using the remedy of rescission) so that the contract will be treated as if it had never been made, whereas a breach of contract will have no effect on the existence of the contract (in the absence of a repudiatory breach that will terminate the contract when future contractual obligations will be discharged). The chapter identifies actionable misrepresentations and, in particular, loss in instances where there is a duty of disclosure in English law. There are three types of actionable misrepresentations, dependent upon the state of mind of the one who makes the false statement: fraudulent, negligent, and innocent. This chapter looks at the legal remedies for actionable misrepresentations such as rescission, the availability of damages for different types of misrepresentations, and the provisions of the Misrepresentation Act 1967. It also examines the effect of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) as amended on this area of law, the criminal offences and civil remedies for consumers, as well as the relationship of misrepresentation to other areas of law. Finally, it looks at clauses that seek to exclude or limit liability for misrepresentation or to deny any actionable misrepresentation, e.g. ‘non-reliance clauses’.

Chapter

Cover Mayson, French & Ryan on Company Law

6. Shares  

This chapter considers one way of becoming a shareholder of a company with a share capital: by taking shares from the company in exchange for a contribution of capital. The number and class of shares of the company that the member holds determines the extent of the member’s undertaking to contribute capital, and of entitlement to share in distributions and vote at meetings. Share allotment in exchange for a capital contribution is explained, and the need for public companies to have a minimum contributed capital is emphasised. The chapter also looks at possible remedies available to a person who has been induced to take an allotment of shares by a misrepresentation, including rescission of contract. Finally, it examines ways of altering a company’s share capital.

Chapter

Cover Equity & Trusts

20. Equitable Orders  

Paul S Davies and Graham Virgo

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 focuses on the commercially significant remedies of injunctions, specific performance, rectification, and rescission — paying particular attention to injunctions. Although it is true that damages for the breach of Common Law obligations are available ‘as of right’, and that equitable remedies are inevitably discretionary, it is important to recognize that such discretion is informed by a number of key principles. Importantly, equitable remedies are only available where Common Law remedies are inadequate: Equity can only intervene where the Common Law fails to do justice. However, equitable orders can be made in support of both legal and equitable rights. Failure to comply with an equitable order constitutes the crime of contempt, the punishment for which may be imprisonment, sequestration of the defendant’s assets, a fine, or a combination of these sentences.

Chapter

Cover Contract Law

17. Misrepresentation  

A misrepresentation induces a party to enter into a contract but typically is not part of the contract itself. The chapter examines the different types of misrepresentation (fraudulent, negligent, or innocent) and the remedies that the law provides in respect of a misrepresentation. The chapter focuses on the liability for misrepresentation. It begins by examining the definition of a misrepresentation. The chapter considers the extent to which English law recognizes the existence of a duty of disclosure and goes on to discuss the concept of rescission. It then explores how misrepresentation gives rise to a claim for damages, with a particular focus on section 2 of the Misrepresentation Act 1967. The final section examines the possibility of excluding liability for misrepresentation.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

4. Equitable remedies in modern English law  

This chapter discusses equitable remedies. Equitable remedies apply in all fields of law, from disputes over property or entitlement in contract and intellectual property, to preventing harm, or to the proceeds of wrongdoing being dissipated before a claim can be made against them. Equity evolved these remedies in the Court of Chancery to ameliorate the common law. Sometimes the remedies (like rescission) modified the harshness of the common law rules. Sometimes the remedies (like specific performance and injunction) provide alternative relief to the common law remedy of damages. Key elements of all three actions of recission, specific performance, and injunctions are covered.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

14. Duress and undue influence  

This chapter looks at the effect of duress or undue influence on the making of a contract. The difficulty is identified of distinguishing hard bargaining from economic duress, when the ‘threat’ is to the economic interest of the party ‘threatened’. This raises the question of what amounts to an illegitimate threat; whether a threat which is not otherwise legally labelled as wrongful will suffice (lawful act economic duress), and whether all threatened breaches of contract do so. The question also arises as to a test of a ‘reasonable’, or ‘practical’, alternative to agreeing. Undue influence is concerned with the surrender of decision making because of the relationship of the parties whether through domination or trust. The presumptions that arise in relation to undue influence, and when they arise, are examined. Consideration is given to the treatment of aggressive and misleading trade practices under the Consumer Protection from Unfair Trading Regulations (as amended by the Consumer Protection (Amendment) Regulations 2014).

Chapter

Cover The Principles of Equity & Trusts

8. Resulting Trusts  

This chapter examines the nature of the resulting trust. It explains that a trust is called resulting when the beneficial interest in the property returns to the person who transferred the property in the first place. It discusses the theoretical foundation of the resulting trust and its categories, which include presumed and automatic resulting trusts. This chapter examines the consequences of a total or partial failure of express trust and the Quistclose trust which arises where property is transferred for a purpose which has failed, and suggests that there is no need to expand the resulting trust to encompass claims in unjust enrichment and following the rescission of a contract.

Chapter

Cover Poole's Textbook on Contract Law

9. Misrepresentation  

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. False statements of fact that induce a contract are known as actionable misrepresentations. In case of a misrepresentation, there are different legal remedies for breaches of contract. A misrepresentation renders the contract voidable (liable to be set aside using the remedy of rescission) so that the contract will be treated as if it had never been made, whereas a breach of contract will have no effect on the existence of the contract (in the absence of a repudiatory breach that will terminate the contract when future contractual obligations will be discharged). The chapter identifies actionable misrepresentations and, in particular, loss in instances where there is a duty of disclosure in English law. There are three types of actionable misrepresentations, dependent upon the state of mind of the one who makes the false statement: fraudulent, negligent, and innocent. This chapter looks at the legal remedies for actionable misrepresentations such as rescission, the availability of damages for different types of misrepresentations, and the provisions of the Misrepresentation Act 1967. It also examines the effect of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) as amended on this area of law, the criminal offences, and civil remedies for consumers, as well as the relationship of misrepresentation to other areas of law. Finally, it looks at clauses that seek to exclude or limit liability for misrepresentation or to deny any actionable misrepresentation, e.g. ‘non-reliance clauses’.

Chapter

Cover Contract Law

5. Misrepresentation and non-disclosure  

In general, contract parties need not disclose important matters about the transaction to each other. But, those who make false statements to induce the other party’s consent to the contract may find themselves liable for damages for misrepresentation and their contracts set aside. This chapter examines: (1) what must be proved in an action for misrepresentation; (2) what, if any, duty is imposed for non-disclosure; (3) when a contract can be set aside (rescinded) for misrepresentation; (4) the different types of money awards that can be made for misrepresentation; (5) the extent to which the parties can exclude or limit liability for making a misrepresentation; (6) the recourse that consumers have against misleading and aggressive practices; and (7) the justifications underlying the remedies for misrepresentation.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

11. Undue influence  

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 examines undue influence in a contract, which is a vitiating factor and also a ground of restitution. It explains that undue influence is hard to define and can more easily be recognised when found than exhaustively analysed in the abstract. This chapter investigates how undue influence is proved by means of a rebuttable presumption based on a relationship of trust and confidence coupled with a transaction that calls for an explanation, and how the resulting presumption is rebutted. It then covers the remedy of rescission for undue influence. Finally it explores undue influence in three-party cases, where relief depends on whether the contracting party had notice, actual or constructive, of the undue influence and whether it had taken reasonable steps.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

13. Common mistake and rectification  

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 examines the situation where both parties to a contract share a common mistake. It analyses several court cases indicating that certain sorts of mistake can render contracts void at the level of common law. It discusses the orthodox approach which asserts that there is a separate legal doctrine whereby certain sorts of common mistakes inevitably render a contract void; it also considers an alternative way of conceptualising common mistake cases, the construction approach, which argues that the effect of common mistake is ascertained by construing and interpreting the contract. This chapter also considers the scope of the equitable remedy of rectification for common and unilateral mistake, which gives the court the jurisdiction, in exceptional cases, to correct transcription mistakes in the parties’ written contractual document.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

9. Misrepresentation and non-disclosure  

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 examines issues related to pre-contractual misrepresentation, which is a vitiating factor. It explains what counts as an actionable misrepresentation and discusses its distinction with the treatment of non-disclosure. It explores the elements for an actionable misrepresentation and the test of cause/reliance. It considers the remedies for misrepresentation, namely rescission which involves setting the contract aside and restoring the parties to the pre-contractual position, and damages, which are available at common law for fraudulent misrepresentation and under the Misrepresentation Act 1967 for other misrepresentations unless the misrepresentor can discharge the burden of reasonable grounds for belief. This chapter also explains that any clause that purports to exclude or restrict liability for misrepresentation is subject to the statutory requirement of reasonableness (for non-consumer contracts), and the normal CRA test of fairness (for consumer contracts).

Chapter

Cover Mayson, French, and Ryan on Company Law

6. Shares  

This chapter considers one way of becoming a shareholder of a company with a share capital: by taking shares from the company in exchange for a contribution of capital. The number and class of shares of the company that the member holds determines the extent of the member’s undertaking to contribute capital, and of entitlement to share in distributions and vote at meetings. Share allotment in exchange for a capital contribution is explained, and the need for public companies to have a minimum contributed capital is emphasised. The chapter also looks at possible remedies available to a person who has been induced to take an allotment of shares by a misrepresentation, including rescission of contract. Finally, it examines ways of altering a company’s share capital.

Chapter

Cover Contract Law Directions

7. Misrepresentation  

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 is concerned with the territory just beyond the borders of the contract, where we find the representations which are not part of the contract but which influenced its creation and which, if false, are remedied by the law on misrepresentation. The discussions cover the key elements of the definition of misrepresentation; the differences between fraudulent, negligent and innocent misrepresentations; and the remedies of rescission and the various rights to damages. This also includes the bars on the right to rescind, the principles of assessment of damages and the controls on excluding liability for misrepresentation.

Chapter

Cover Essential Cases: Equity & Trusts

Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA Civ 195, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA Civ 195, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.