This chapter discusses how the manner in which a contract is concluded can potentially affect its validity. Before discussing the terms and details of a contract, it is important to note that a contract may fail due to one or both parties not possessing the capacity to establish a contract. Some of the common reasons includes a mistake by one or both parties, a provision that has been misrepresented in the negotiations, or the use of undue influence or placing the other party under duress in the process of concluding the contract. Some of the reasons listed in this chapter may be common, but the emphasis here is to identify where problems may occur that could prevent the successful operation of the contract despite fulfilling the essential features discussed in the previous chapters.
Chapter
7. Factors Affecting The Validity of a Contract
Chapter
23. Common mistake: contracts void for failure of a basic contractual assumption
This chapter examines contracts which were avoided because of the failure of a basic contractual assumption before the contract has been concluded. If a contract has been concluded based on a particular contractual assumption, then the failure of that assumption before the contract has been concluded means that the contract is void. This is because both parties have made a fundamental mistake about a basic assumption. A contract cannot be void due to a common mistake where the risk of an assumption failing has been allocated to one of the parties under the contract, or where the failure is attributable to the fault of one of the parties. Very few assumptions are held to be ‘basic’; the threshold is set at a very high level. The failure of the assumption must, at the very least, render performance of the contract fundamentally different from what was reasonably envisaged.
Chapter
24. Frustration: contracts discharged for failure of a basic contractual assumption
This chapter examines contracts which were avoided because of the failure of a basic contractual assumption after the contract has been concluded. If the failure of a basic contractual assumption occurs after the contract has been concluded, the contract may be frustrated. A frustrating event kills off the contract automatically. However, everything that was done from the making of the contract up to its frustration was, and remains, validly done in pursuance of that contract. A contract cannot be frustrated where the risk of an assumption failing has been allocated to one of the parties under the contract (for example by a force majeure clause), or where the failure is attributable to the fault of one of the parties. The Law Reform (Frustrated Contracts) Act 1943 will determine the consequences of frustration. This legislation provides a statutory mechanism for adjusting the rights of parties after a contract has been frustrated.
Chapter
7. Renewal of Process
After proceedings commence by issuing a claim form or other originating process, they must be brought to the attention of the defendants or respondents by service. Generally, originating process remains valid for the purpose of service for a period of four months. Service of proceedings marks a watershed in the litigation process. It is at this point that the defendant is put on formal notice that legal proceedings have been brought, and the time limit on service of proceedings is one which is relaxed with extreme caution. This chapter discusses periods of validity; power to renew; claims in respect of cargo carried by sea; multiple defendants; effect of stay; procedure on seeking an extension; and challenging an order granting an extension.
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27. Grounds for Invalidity: Novelty, Individual Character, and Relative Grounds
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter explores the criteria that are applied to determine the validity of a design, whether a registered design in the UK or an unregistered design: the design must be ‘new’; the design must have ‘individual character’; the applicant or the right holder must be entitled to the protected design; and the design must not conflict with earlier relevant rights (including earlier design applications, copyright, trade mark rights, and rights relating to certain types of emblem). The factors to take into account to determine the novelty of a design, such as prior art, are also considered. The chapter concludes by looking at relative grounds for design invalidity.
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10. Judicial protection and EU remedies
Albertina Albors-Llorens
This chapter provides an overview of the various procedural avenues to the Court of Justice of the European Union. It uses as a template the division between two main sets of proceedings: direct actions and preliminary references. Direct actions are brought directly either before the Court of Justice or the General Court; these are dealt with in their entirety by these courts. By contrast, preliminary references begin before a national court. When this court encounters a question on the interpretation or the validity of EU law, it may (or sometimes must) make a preliminary reference on this particular point to the Court of Justice.
Chapter
7. Renewal of Process
After proceedings commence by issuing a claim form or other originating process, they must be brought to the attention of the defendants or respondents by service. Generally, originating process remains valid for the purpose of service for a period of four months. Service of proceedings marks a watershed in the litigation process. It is at this point that the defendant is put on formal notice that legal proceedings have been brought, and the time limit on service of proceedings is one which is relaxed with extreme caution. This chapter discusses periods of validity; power to renew; claims in respect of cargo carried by sea; multiple defendants; effect of stay; procedure on seeking an extension; and challenging an order granting an extension.
Chapter
3. The law of treaties
This chapter examines the principles and rules of the international law of treaties as reflected in the 1969 Vienna Convention on the Law of Treaties (VCLT). It discusses the treaty as a legal concept and provides an overview of the regulation of who can conclude treaties, how consent to be bound by a treaty is expressed, the rules on entry into force, treaty reservations, the interpretation of treaties, amendments and modifications, the invalidity of treaties and the termination of and withdrawal from treaties. The VCLT is meant to be applied to all types of written treaties and it therefore governs treaties as diverse as a bilateral agreement to construct infrastructure as well as a multilateral document such as the UN Charter. In practice, however, the concrete application of the Convention may differ depending on the type of treaties.
