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 concept of unconscionable bargains and the conditions under which it operates as a vitiating factor. It discusses the history of the court’s jurisdiction to give relief in cases of unconscionable bargains and explains the current scope of relief, considering the elements in modern case law on unconscionable bargains.
Chapter
12. Unconscionable bargains
Chapter
10. Leasehold Covenants
This chapter considers covenants that exist in relation to leasehold land—also known as ‘leasehold covenants’. As the name suggests, these are promises made between landlords and their tenants and form the crucial foundation of this leasehold relationship. The chapter explores the nature and importance of leasehold covenants, how such covenants are enforced between the original parties, and enforceability where there are successors to the original parties. In view of changes to the law introduced by the Landlord and Tenant (Covenants) Act 1995, this chapter considers both the pre-1996 and post-1996 regimes for determining enforceability of leasehold covenants. Finally, the chapter discusses the important issue of remedies for landlords and tenants facing a breach of covenant.
Chapter
8. Remedies in National Courts
This chapter, which examines the issues concerning the responsibility for procedural rules and remedies between European Union (EU) and national law, discusses the relevant jurisprudence of the Court of Justice (CJ) and explains how it has developed the principles of equivalence and effectiveness, notably in specific fields such as sex discrimination law. It addresses the question of the extent to which EU law, while respecting the principle of national procedural autonomy, may nevertheless require the creation of new remedies in national legal systems for EU law rights—for instance as regards damages, time limits or interim relief.
Chapter
18. The law governing charities
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 focuses on charitable trusts. Charitable trusts are not subject to the beneficiary principle. These are valid purpose trusts that are enforced, not by beneficiaries, but by the Attorney-General or the Charity Commission. Charities are generally exempt from most taxes. The conditions for charitable status; the charitable character of public purpose trusts; trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; trusts for other purposes beneficial to the community; the law concerning the public benefit requirement; and the application of the cy-près doctrine to save charitable trusts from failure are discussed.
Book
David Fox, Roderick Munday, Baris Soyer, Andrew Tettenborn, and Peter Turner
All books in this flagship series extract key cases, legislation, and academic debate, providing students with an invaluable resource. This new edition includes discussion of new legislation, including the new Insolvency Act 1986, ss 263H–263O; the Payment Services Regulations 2017; the Electronic Presentment of Instruments (Evidence of Payment and Compensation for Loss) Regulations 2018; and the Business Terms (Assignment of Receivables) Regulations 2018. In addition it discusses new case law such as Glencore International AG v MSC (on personal property law and shipping documents); Volcafe Ltd v Cia Sud Americana de Vapores (on bailment); Kaefer Aislamientos v AMS Drilling Mexico, Bailey v Angove’s Pty, and Banca Nazionale del Lavoro v Playboy Club (on agency); PST Energy 7 Shipping v OW Bunker Malta, Bajaj Healthcare v Fine Organics, Gunvor v Sky Oil & Gas, and Euro-Asian Oil SA v Crédit Suisse AG (on sale of goods); The Erin Schulte and Taurus Petroleum v State Oil Company (on trade finance); BP Oil International v First Abu Dhabi Bank (on assignment); Haywood v Zurich Insurance, The DC Merwestone, and Axa Insurance UK v Financial Claims Solutions (on insurance); and Jetivia SA v Bilta (UK) Ltd and JSC BTA Bank v Ablyazov (on insolvency). Other developments are also covered, such as the proposed reform of bills of sale recommended in the 2017 Law Commission report on Bills of Sale. The book contains a new introductory section on the likely detailed impact of Brexit on English commercial law.
Chapter
8. Remedies in national courts
This chapter, which examines the issues concerning the responsibility for procedural rules and remedies between European Union (EU) and national law, discusses the relevant jurisprudence of the Court of Justice (CJ) and explains how it has developed the principles of equivalence and effectiveness, notably in specific fields such as sex discrimination law. It addresses the question of the extent to which EU law, while respecting the principle of national procedural autonomy, may nevertheless require the creation of new remedies in national legal systems for EU law rights—for instance as regards damages, time limits or interim relief.
Chapter
22. Directors’ duties
This chapter examines the duties placed upon company directors. These include the duty to act within the company’s powers, to promote the success of the company, to exercise independent judgment, to exercise skill and care, and the various duties relating to conflicts of interest (such as the duty to avoid a conflict of interest, and the duty not to accept benefits from third parties). It describes the company transactions that require member approval and explains the limitation period for an action alleging breach of duty by a director. This chapter also considers the ways a director who is liable for breaching his duties may obtain relief from liability.
Chapter
14. Termination of Leases
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the ways in which leases may terminate (natural expiry, giving of notice, merger, surrender, frustration, repudiatory breach by the landlord accepted by the tenant, and forfeiture); forfeiture of leases; modes of forfeiture; forfeiture of a dwelling house; waiver of forfeiture; relief from forfeiture for breaches for non-payment of rent; relief from forfeiture for a breach of covenant other than rent; forfeiture by court proceedings under s146 LPA 1925; remediable or irremediable breaches; relief to subtenants; and the Leasehold Property (Repairs) Act 1938.
Chapter
14. Licences
Licences have long occupied something of an amorphous position; they are not admitted to the category of full proprietary rights, but provide an interesting area where the law seeks to afford protection to licensees against both the licensor and, in certain circumstances, a purchaser of land. It is an area of law where the courts have had to come to terms with informal relationships and seek to accommodate the conflicting pressures of the satisfaction of legitimate expectations, on the one hand, and the desire for security of transactions on the other. This chapter covers the different types of licences, and particularly the contractual licence, as well as the question of revocability. The chapter also analyses judicial attempts to make contractual licences binding upon transferees in equity, and the subsequent retreat from those attempts.
Chapter
10. Leasehold Covenants
This chapter considers covenants that exist in relation to leasehold land—also known as ‘leasehold covenants’. As the name suggests, these are promises made between landlords and their tenants, and form the crucial foundation of this leasehold relationship. The chapter explores the nature and importance of leasehold covenants; how such covenants are enforced between the original parties and enforceability where there are successors to the original parties. In view of changes to the law introduced by the Landlord and Tenant (Covenants) Act 1995, this chapter considers both the pre-1996 and post-1996 regimes for determining enforceability of leasehold covenants. Finally, this chapter discusses the important issue of remedies for landlords and tenants facing a breach of covenant.
Chapter
15. Remedies providing for specific relief and restitutionary remedies
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. Equitable remedies that provide for specific relief refer to remedies for breach of contract which compel actual performance rather than simply compensating for loss caused by breach. Compulsion of performance may take the form of claiming an agreed sum, a claim seeking specific performance, or a claim seeking an injunction. The claim or action for an agreed sum gives effect to the claimant’s performance interest by ordering the party in breach to pay the liquidated sum (debt), his agreed performance under the contract. The chapter examines the remedy of specific performance as a court order that compels actual performance of agreed obligations (other than payment of the price). As an equitable remedy it is available at the discretion of the court but only when damages would be an inadequate remedy. This chapter also examines remedies providing for specific relief and restitutionary remedies, the latter of which refer to recovery based on failure of consideration and quantum meruit. Finally, the chapter examines the availability of specific compensatory remedies in instances where there is no financial loss, namely the exceptional remedy of an account of profit or the remedy of ‘negotiating damages’—and their relationship.
Chapter
14. Restriction of Remedies
Mark Elliott and Jason Varuhas
This chapter considers various factors that may prevent claimants from obtaining relief via judicial review. It first discusses the provisions of the ‘Pre-Action Protocol’ regarding court permission for judicial review before considering the requirement to exhaust alternative remedies. It then reviews the time limits for those who wish to use the judicial review procedure, focusing on the requirements of Senior Courts Act 1981 and Civil Procedure Rules Parts 3 and 54. It also explores questions of ‘prematurity’ and ‘ripeness’, along with the courts' general approach to the exclusion of judicial review and the role of standing, or locus standi, in initiating judicial review proceedings. The chapter concludes with an overview of the application of the ‘no difference’ principle in dealing with restriction of remedies.
Chapter
9. Misrepresentation and Non-Disclosure
Jack Beatson, Andrew Burrows, and John Cartwright
This chapter focuses on relief for misrepresentation and for the exceptional cases in which there may be relief for non-disclosure, and considers misrepresentations that have not been incorporated as a term of the contract. In such cases, the misled party will sometimes be entitled to claim tortious damages in respect of loss sustained by reason of the misrepresentation. If the misrepresentation was made fraudulently, damages in the tort of deceit can be recovered. If it was made without reasonable care being taken to ascertain its truth, the misled party may recover damages by virtue of statute, or at common law in the tort of negligence. Where the party making the misrepresentation believed, and had reasonable grounds to believe, that the facts represented were true, although the contract is still voidable at the suit of the misled party, tortious damages cannot be claimed but damages may sometimes be awarded in lieu of rescission. A misrepresentation made by a trader to a consumer may also constitute a ‘prohibited practice’ under the Consumer Protection from Unfair Trading Regulations 2008, which will give the consumer ‘rights to redress’ under the Regulations. A pre-contractual misrepresentation therefore may give rise to a wide range of remedies: rescission of the contract, as well as damages by statute or at common law, in contract or tort.
Chapter
15. Breach of trust: defences and relief
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. A trust must be duly administered in accordance with the provisions of the trust instrument, if any, and the general law. Similarly, a trustee should be liable for a dishonest breach of trust. Not every breach of trust is deliberate or dishonest. Liability may arise due to lack of care and other inadvertent breaches of trust, and even due to an essentially ‘technical’ or ‘formal’ breach of fiduciary duty. This chapter examines the extent of trustees’ civil liability for breach of trust, whether there might be a valid defence to a breach of trust and whether a trustee’s liability should be reduced by some form of relief. It looks at the remedies available against trustees for a breach of trust, a claimant’s election between inconsistent remedies, comparison with common law remedies, capital repayment, interest on the judgment, the Limitation Act 1980, the doctrine of laches, the beneficiary’s instigation of or consent to the breach and the beneficiary’s acquiescence in breach.
Chapter
14. Directors’ duties
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 is concerned with the duties which a director owes to the company, including duty to act within powers, duty to promote the company’s success, duty to exercise independent judgement, duty not to accept benefits from third parties, and duty to avoid conflicts of interest. After reviewing the general duties of directors under Part 10 of the Companies Act 2006, the chapter discusses the fiduciary position of directors, the remedies for breach of directors’ duties, and the liability of those who assist a director in the course of a breach of fiduciary duty. Finally, it considers three ways in which a director who is in breach of duty may be relieved from liability.
Chapter
15. Remedies providing for specific relief and restitutionary remedies
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. Equitable remedies that provide for specific relief refer to remedies for breach of contract which compel actual performance, rather than simply compensating for loss caused by breach. Compulsion of performance may take the form of claiming an agreed sum, a claim seeking specific performance, or a claim seeking an injunction. The claim or action for an agreed sum gives effect to the claimant’s performance interest by ordering the party in breach to pay the liquidated sum (debt), his agreed performance under the contract. The chapter examines the remedy of specific performance as a court order that compels actual performance of agreed obligations (other than payment of the price). As an equitable remedy it is available at the discretion of the court, but only when damages would be an inadequate remedy. This chapter also examines remedies providing for specific relief and restitutionary remedies, the latter of which refer to recovery based on failure of consideration and quantum meruit. Finally, the chapter examines the availability of specific compensatory remedies in instances where there is no financial loss, namely the exceptional remedy of an account of profit or the remedy of ‘negotiating damages’—and their relationship.
Chapter
8. Articles 101 and 102: private enforcement in the courts of Member States
This chapter describes the private enforcement of competition law, that is to say the situation where litigants take their disputes to a domestic court or, quite often, to arbitration. It will deal with the private enforcement of Articles 101 and/or 102 as a matter of EU law, with particular emphasis on the Damages Directive. It also describes private actions for damages and injunctions in the High Court and the UK Competition Appeal Tribunal. The chapter considers the use of competition law as a defence, for example to an action for breach of contract or infringement of an intellectual property right. The chapter concludes with a brief discussion of issues that can arise where competition law disputes are referred to arbitration rather than to a court for resolution.
