A level Law: February 2020

Monday, 10 February 2020

General Elements of Liability and the Elements of a Crime

Elements of a Crime

Remember that to be guilty of a crime there needs to be two elements present:

Actus reus - the guilty act/physical element
Mens rea - the guilty mind/the mental element

Once both elements are established, the defendant will be found criminally liable
The Prosecution have to convince the Judge or Jury that the defendant is criminally liable
The burden of proof in criminal law is very high - to find a defendant guilty it has to be proven 'beyond reasonable doubt' that the crime has been committed:

Woolmington v DPP (1935)

Woolmington showed his wife a gun and said that he would kill himself if she left him
He accidentally shot her
He was acquitted
Subject to some exceptions, it is always for the prosecution to prove beyond reasonable doubt that the defendant committed the crime in question

Actus Reus

The actus reus can be:

a voluntary action
and omission
a state of affairs

The actus reus will be different for each crime, e.g. for murder it is unlawful killing but for theft it is the dishonest appropriation of property belonging to another

A Voluntary Act

The defendant must have committed the act or omission voluntarily
If the act is done involuntarily, the defendant will not be guilty

Hill v Baxter (1958)

The defendant caused death through driving
The court had to decide if criminal liability can be escaped through automatism
Held - yes, but not in this case, as the defendant fell asleep and was not in a state of automatism
He acted voluntarily in recklessness
The courts gave examples of involuntary acts, e.g reflex actions after being hit on the head with a hammer or being stung by a swarm of bees

The criminal law is concerned with fault

A State of Affairs

The defendant has not acted voluntarily but has nonetheless been convicted of a crime
They are 'being' rather than 'doing' offences

Larsonneur (1933)

A French woman was deported to England from Ireland against her will
She was then charged for being an 'illegal alien' even though she had no choice in the matter

Winzar v Chief Constable of Kent (1983)

Man in hospital
Turns out he's drunk so is told to leave
Gets taken outside by police and then arrested for being intoxicated on a public highway - even though they put him there

Actus Reus & Consequence

Some crimes must also produce a consequence for someone to have committed the actus reus
For example, for murder someone has to end up dead. The defendant's act must have produced the unlawful killing

An Omission

A failure to act does not usually result in someone being found criminally liable in English law
Stephen LJ:

"It is not a crime to cause death or bodily injury, even intentionally, by any omission"

However, there are some exceptions to this rule. A person will be held criminally liable to failing to act where:

there is a duty created by statute
they have a contractual duty to act
there is a duty imposed by their official position
they have voluntarily accepted responsibility for another
they have created a dangerous situation
there is a special relationship

Number 1 is a statutory duty - the others are common law duties

Duty Created by Statute

Criminal liability is imposed under the Road Traffic Act 1988 for failure to provide a breath specimen when required
It is also imposed under the Children and Young Persons' Act 1933 for failure to send a child to school

Contractual Duty to Act

This may be contained in the person's contract, e.g a lifeguard has a duty to act to save people's lives if they are in the swimming pool when he's on duty
Pitwood (1902)

Pittwood was a railways employee who was responsible for opening and shutting the gates on the railway crossing
He failed to shut them and went on his break
A hay cart drove across and was hit by a train - the driver was killed
Pittwood found criminally liable

Duty Imposed by Official Position

This can be imposed where a person is guilty of misconduct
Dytham (1979)

An on-duty police officer saw a man being thrown out of a nightclub and being kicked to death by 3 men. He didn't intervene or get help and walked away from the scene
He was found guilty of misconduct

Voluntary Acceptance of Responsibility for Another

Stone & Dobinson (1977)

Both defendants agreed to care for Stone's sister, Fanny, who came to live with them
Fanny was anorexic and eventually became bedridden and unable to care for herself
The defendants were elderly and of low intelligence
Although they tried to get some help, she eventually died
The court held them guilty of manslaughter as they owed Fanny a duty of care and failed in that duty

This duty is often linked with the duty that can be imposed by a special relationship

Special Responsibility

This is usually created in a parent-child relationship - a parent has a duty to care for their children
Gibbins and Proctor:

Gibbins, and several of his children from a previous marriage, lived together with his partner Proctor
The 7 year old daughter was kept separate from the other children and starved to death
The Court held that the Father had a duty of care for his child and Proctor had also taken the responsibility to care for the child
The failure to feed her led to them both being convicted of murder

Khan (1988)

Drug dealer was found not to have a duty of care to his clients and a manslaughter conviction was quashed

Creation of a Dangerous Situation

Miller (1983)

A squatter had fallen asleep smoking. He woke to find his mattress on fire but instead of putting it out, he simply moved to another room and went back to sleep
He was found guilty of arson

Santana-Bermudez (2003)

Policewoman was conducting a search of a suspect. She asked if he had any needles or sharp objects in his pockets]
He said no
She put her hand in his pocket and straight on to a needle, causing her to bleed
He was convicted of ABH. His failure to warn her was sufficient for the actus reus

Involuntary Manslaughter and Omissions

Involuntary manslaughter can be committed either by an unlawful and dangerous act or by gross negligence
Unlawful and dangerous act manslaughter requires a positive act and cannot be committed by an omission
Lowe (1973)

Defendant was of low intelligence
Had a 9 week old baby who became ill and died
He said he had told the mother to take the child to the doctor, but had done nothing further
He was convicted of manslaughter but this was quashed on appeal because there was no unlawful and dangerous act

Lowe should have been charged with gross negligence manslaughter which can be committed by an omission because he owed the child a duty of care

Types of Manslaughter:

Involuntary Manslaughter - where a person lacks the full mens rea for murder
Unlawful Act/Constructive Manslaughter - when a death results from the commission of an illegal act, plus no mens rea for murder
Gross Negligence Manslaughter - when a person breaks their duty of care

Duty of Doctors

Airedale NHS Trust v Bland (1993)

Anthony Bland had been crushed in the Hillsborough Stadium disaster and was on a life support machine with sever brain damage and in a persistent vegetative state.
After three years the doctors applied to the courts, for an order to allow them to stop feeding him, which would obviously lead to his death
The court held that this was in Bland's best interests

Treatment that is in the patient's best interests is not considered to be an omission so is therefore not the actus reus
The law states that one has to be brain dead to be considered deceased
Courts apply 'public policy' to this area - the duty to determine quality of life and the right to end it is only practised by medical experts
Diane Pretty

She had a severely diminished quality of life, due to motor neurone disease, but wasn't allowed to have her husband assist her suicide

R v Nicklinson

Had a stroke
Wasn't allowed to have someone assist his suicide

In both cases it was decided that denying someone the right to die does not contravene someone's human rights - However, if someone is helped by a non-medic to end their life, custody is not at all an automatic consequence, and other factors apply:

Condition
Consent of victim

R v Adomako (1995)

The defendant, a doctor, failed to notice that a respiratory tube had become disconnected from the patient during an operation
The disconnection would have been obvious, and the patient died of cardiac arrest
This satisfied the requirements for gross negligence manslaughter
Gross negligence manslaughter requires a duty of care based on the tort of negligence, a breach which caused death and a breach which was serious enough to be a crime
The doctor was under a duty to take reasonable care of the patient, which was clearly breached
The jury decides whether the breach is serious enough to be considered a crime (Adomako test established)

R v Misra & Srivasteva (2004)

Two doctors convicted of gross negligence manslaughter, they claimed that it wasn't fair for the jury to decide as they would not be medically trained
It was decided not to be against E.C.H.R Art 6 - right to a fair trial
Deciding on the level of negligence is a question of fact for juries (it's literally their job)

Thursday, 6 February 2020

Intro to Crime

A crime is a criminal wrong
Defined as a 'crime' because it breaks the law (of Parliament, Common Law, or both)

For a crime to be committed, you need two things:

Criminal act (Actus Reus)
Criminal intention (Mens Rea)

Diane Roe's definition:

A crime is a wrong against the State
Either by commission or omission
Classified by the State as criminal
And one to which a punishment has been attached
Criminal Law, 3rd Edition, 2005

Proprietary Articles Trade Association v Attorney General for Canada (1931):

Lord Atkin stated:

"the criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: is the act prohibited by penal consequences?"

Criminal Law and Morals

There is a conflict between laws and morals
Some behaviour is just morally wrong, some as just criminally wrong, and others are both

Definition of Crime

Those who commit crimes are prosecuted by the State (as opposed to civil law where actions are taken by individuals). The CPS will conduct these proceedings
The State (i.e Government) develops a code of behaviour for the whole of society to adhere to in order to maintain social control and standards in society
Most criminal law is laid down by Parliament, but some is found in case/common law

Common Law Offences

Murder is the most well known example of a common law offence
It is not defined in any statute
However, originally judges imposed a death penalty for murder until Parliament stepped in and passed the Murder (Abolition of the Death Penalty) Act 1965
Parliament will step in and provide statutory guidelines when they feel it is necessary to bring the law into line with policy

Conspiracy to corrupt public morals:

Shaw v DPP (1962)

The defendant published a book with the names, pictures and services offered by prostitutes and was convicted of conspiracy to corrupt public morals

There was no alternative statutory offence for the defendant to be convicted of so the judges created this themselves

Marital Rape

R v R (1991)

An 18th century precedent stated that a husband could not be guilty of raping his wife. In this case, it was overruled for obvious reasons

Over many years the judges have developed certain offences and may find it necessary to do so on occasion
However, in Knuller v DPP (1973), the House of Lords stated that they did not feel it was their remit to create offences and that it should be left to Parliament wherever possible

Wednesday, 5 February 2020

Remedies In Contract

Objectives:

Describe the types of common law remedies that can be awarded
Explain the types of equitable remedies that can be awarded, including specific performance and injunctions
Evaluate the limitations on the awarding of remedies under the law of contract

Common Law Remedies

Damages:

All common law remedies are available as of right if a contract is breached

The purpose of damages in contract law is to put the victim, so far as it is possible and so far as the law allows, in the same position he would have been in had the contract not been broken but had been performed in the manner and at the time intended by the parties

Pecuniary Losses - these are the financial losses that result from a breach of contract

Non-Pecuniary Losses - these are other losses, such as mental distress, disappointment, hurt feelings or humiliation. Traditionally, these are not compensated but this rule has been relaxed for contracts, which are specifically for pleasure, relaxation and peace of mind

Key cases:

Jarvis v Swans Tours Ltd (1973):

Jarvis booked a holiday
The holiday wasn't as advertised (it was shit)
Brought a claim for breach of contract based on disappointment
At first no luck, he appealed
Held: Where a contract is entered for the specific purpose of the provision of enjoyment or entertainment, damaged may be awarded for the disappointment, distress, upset and frustration caused by said breach
Basically - loss of enjoyment counts

Farley v Skinner (2001)

Farley got Skinner to do a survey on a property
It was near an airport and Skinner was meant to ascertain whether it would be affected by aircraft noise
He said it was fine so Farley bought it
Turns out there was a lot of noise
Farley had asked specifically for Skinner to check for noise, and so argued the report was sub-standard and in breach of contract
Sought damages for the diminution in enjoyment of his property
He won £10,000

Ruxley Electronics v Forsyth (1995)!

The claimant was able to recover a sum, not just to reflect that the swimming pool he had contracted to have built was not of the depth contracted for, but also that he felt 'unsafe' when diving into the pool as a result of the more shallow depth of the final construction

Limitations on the awarding of damages

Before a court can award damages, it must decide three things:

Who or what caused the loss/damage? (Principle of causation)
Could the person blamed for the losses 'reasonably' have foreseen them if they broke a contract? (Forseeability)
Did the person claiming compensation do all they could to keep the loss/damage to a minimum? (Principle of mitigation of loss - a duty on claimants)

Causation - a person will only be liable for losses caused by their breach of contract:

Quinn v Burch Bros (Builders) Ltd (1966)

Burch Bros breached the contract by failing to supply a step ladder requested by Quinn
To prevent delay, Quinn used a trestle (improperly, as it was not footed by anyone), and injured himself
It was held that Burch Bros were not liable as the injury was caused by Quinn's own voluntary act
Basically it has to be a direct cause and effect

County Limited v Girozentrale Securities (1996)!

Investment advice led to a financial loss, which was made worse by other events, such as an economic downturn as well as the drop in value of the shares concerned

Remoteness - a defendant will only be liable for such losses as were "reasonably foreseeable" as arising from the breach:

Hadley v Baxendale (1854)

Crankshaft broke in claimant's mill
Defendant hired to deliver crankshaft to and from the place of repair
Crankshaft a week late (def's fault)
Claimant unable to use mill and so claimed for loss of profit
Defendant had no idea it was the only crankshaft - so the loss of profit was deemed to be too remote
Held - Damages available for breach of contract include:

Those which may fairly and reasonably be considered arising naturally from the breach OR
Such damages as may reasonably be supposed to have been in the contemplation of both the parties at the time the contract was made

Transfield Shipping v Mercator Shipping (2008)

Man hires ship for fixed period of time
Needs ship longer so extension agreed
During which, owner entered contract with someone else
Ship not returned on time so breach of contract
Owners sue for loss of second lease income and loss of profit
Court said lol no - yes to actual losses but loss of profit too remote

Wiseman v Virgin Atlantic Airways Ltd (2006)

Claimant tried to return home from Nigeria
Someone demanded a bribe at the airport
He was like ummmmmm
Then gets told ticket is invalid and passport out of date (funny that)
Travel is delayed so he claims for travel and accommodation expenses
Gets robbed and dumped whilst out there
Claims for emotional upset and robbery
Yes to expenses, no to robbery and emotional upset because not foreseeable
Illustration of Hadley v Baxendale

Mitigation - claimants are under a duty to mitigate their loss, on other words they cannot recover damages for losses which could have been avoided if they had taken reasonable steps:

Pilkington v Wood (1953)

Claimant bought house with defective title
Turns out someone else living there with share in property
Sale fell through
Claimant suddenly had to move far away for work
Claimant sues solicitor for difference in value and for moving expenses
Yes to difference in value but no for expenses - no one knew he would have to move so not forseeable

Brace v Calder (1895)!

The claimant was a partner in a business that was dissolved. Two remaining partners offered to re-employ the claimant on the same terms as before, but the claimant refused, and sued on the basis that the original dissolution of the partnership had rendered him unemployed
HELD - This was an unreasonable refusal to mitigate losses by refusing an offer of employment from the defendants

British Westinghouse Electric Co Ltd v Underground Electric (1912)!

A contract for the purchase of turbines was broken when the equipment supplied proved to be inefficient. The defendants then replaced these with better ones that helped to save the claimants costs over a time, but they still sued for the original breach of contract
HELD - There were no real losses to recover here, except for the period of time that it took for the defendants to replace the faulty turbines

Calculating Loss

Loss of expectation - the courts will aim to put claimants in the position they would have been in had the breach not occurred - i.e the claimant would have expected a certain result from the contract so the damages will compensate for the loss of this expectation:

Golden Victory case (2007)

Relating to the lease of a boat
Contract allowed either side to terminate in the event of war
Gulf War broke out, justifying termination
Held - The claimant could only sue for actual losses, not potential
The 'potential' losses on the facts were too 'remote'

Modahl v British Athletic Federation Ltd (1999)

Athlete suspended for doping
Panel found her guilty
Turns out lab was unaccredited
Ban lifted
Claimed for breach in failing to appoint a panel in accordance with rules
No breach as no actual contractual responsibility for individual panel members

Reliance Loss - where this is the basis for calculating damages. The courts will seek to put the claimant in the position they were in before the contract was made

Anglia Television Ltd v Reed (1972)

TV company contractually agreed with Reed that he would act in a play they were televising
Reed backed out and claimants sued for wasted costs incurred up to that point, rather than loss of future profits
Held - fair enough - correct under Hadley v Baxendale as the losses were foreseeable

A claimant can choose whether to base a claim on a loss of expectation or a loss of reliance. A claimant cannot claim for both. Loss of expectations is the most common

Loss of expectation

The idea here is to put the claimant in the same financial position as if the contract had been performed. This may be:

The difference in value between the goods or services of the quality indicated in the contract and those actually delivered where they are of inferior value
The difference between the contract price and the price obtained in an 'available market'

Charter v Sullivan (1957)

Defendant bought car from claimant but refused to accept it
Claimant got the money for loss of profit but also tried to claim for sales he could've made if he was not busy with the case
Yes to the agreed price of the car, no to the money he could've made from other cars as too remote

Loss of profit

Caparo!

Loss of a chance

Chaplin v Hicks

Actress entered beauty contest that could have led to employment
Didn't receive her invitation until it was too late
Brought action for loss of chance of employment
Awarded £100
Hicks appealed saying the damages were speculative and incapable of assessment
Appeal dismissed - no matter if she would've got the job or not, she still missed the opportunity

Restitution

This is a repayment to the claimant of any money or benefits passed to the defendant in advance of the contract. Restitution in theory, is available where there is no contract, which could be for the following reasons:

a contract has not been made
the contract has been discharged, or
the contract was void (e.g because of illegality)

Key cases:

Fibrosa Spolka Akcyjna v Fairbarn Lawson (1943)

English company had contract with Polish company
Polish company part paid £1000 upfront
War broke out, Poland becomes enemy territory
Contract frustrated - no longer possible due to illegality

Hunt v Silk (1804)

Total failure of consideration and restitution
Lease agreement stated tenant would pay £10 and move in immediately
Landlord meant to do repairs a few days later; he didn't
Tenant left and sued for his £10 (restitution)
Failed because he had received a benefit
If the party has received anything under the contract, restitution is impossible

Law Commission: Pecuniary Restitution on Breach of Contract (No.65) and later No.121

Quantum Meruit

This is recovery of an unqualified sum in respect of services already rendered. There are three common circumstances where such an award is made:

Where there is a contract for services that is silent on the issue of remuneration

Upton RDC v Powell (1942)

Fire broke out on Powell's farm
Powell called Upton fire brigade
Turns out he was in the Pershore district so wasn't entitled to free Upton services
Had to pay for services, as there was an implied contract

Where the circumstances of the case show that a fresh agreement can be implied in place of the original one

Stevens v Bromley (1919)

Shipowners agreed charter fee for transportation of steel billets
Charterers loaded general merchandise, breaching the agreement
Nominal damages only? Or inferred contract?
Held - beyond nominal damages and shipowners entitled to general rate for the "breaching cargo" that was loaded

Where a party has been elected to consider the contract discharged by the other's breach, or where a party has been prevented from performing by the other party, in either case they might claim for work they have already done

De Barnady v Harding (1853)

Claimant was an agent of the defendant
Contract stated payment of a price and expenses for the agency work
Defendant ended contract wrongly and tried to pay expenses only
Held - No - it's literally in the contract
Price not specified therefore Quantum Meruit applies

Equitable Remedies
These are solutions to breach of contract situations that aren't awards of money.

Specific Performance
An order of Specific Performance is an order compelling one side of the contract to perform their obligations under a contract
For Specific Performance to apply:

Damages must be inadequate:

Beswick v Beswick (1968)

Claimant's husband left his business to their nephew on the condition that the nephew pay his aunt (Claimant's wife) £5 a week
Nephew didn't pay
She wanted to enforce the contract but couldn't because she wasn't a party in the contract

It must not cause any hardship to the defendant:

Patel v Ali (1984)

Mr and Mrs Patel contracted to sell their house
Completion was delayed, Mrs Patel got sick and reliant on neighbours
Buyer sought specific performance
Specific performance denies because it would "cause hardship amounting to injustice" - even though it wasn't the buyer's fault, it would be cruel to force the contract

The contract must be made fairly:

Walters v Morgan (1861)

Defendant purchased land
Claimant wanted to mine it and pressured the defendant into signing a draft lease
Defendant realised the value and refused to allow the claimant to mine
Claimant sued for breach
Defendant wanted contract rescinded for misrepresentation
Held - no misrepresentation, only silence. However, specific performance refused because the claimant was taking advantage

Exceptions:

Contracts involving personal services
Contracts which involve continuous duties
Contracts which are vague as to the performance required

Injunctions

An injunction will usually compel the defendant to do a particular thing

Key cases:

Warner Bros Pictures v Nelson (1937)

Actress agreed to only work for Warner Bros, taking no other job
She moved to England and breached contract by contracting to act for another
Warner Bros sought injunction
Injunction granted, but only for acting, she was allowed other jobs

Page One Records Ltd v Britton (1968)

Pop group wanted to end contract with manager
Manager sought injunction
Held - injunction refused because the group would have had to work for the same manager, or not at all - it would be like ordering specific performance for a contract involving personal services

Warren v Mendy (1989)

Professional boxer wished to split with manager for new manager
Old manager wanted injunction against new manager
Held - No. Boxers need managers and courts will not force working relationships

Lauritzencool AB v Lady Navigation (2005)

Ship hire
Defendants broke the terms of the lease and claimants sought injunction to prevent them continuing to breach the lease
Held that injunctions don't exist to enforce general performance of a service, only to prevent a specific breach of contract

Discharge of Contract

Objectives:

Explain what is meant by discharge of contract
Explain what is meant by discharge by agreement, including bilateral and unilateral agreements
Explain what is meant by discharge by breach, including anticipatory breach
Explain what is meant by discharge by frustration
Explain what is meant by discharge by performance

When a contract is ´discharged´ it is actually terminated

The contracting parties are free from further obligations under the contract

Discharge by performance
This is where all the obligations under the contract have been met (both parties have successfully performed as promised) - if there is a time stated in the contract, both parties have to perform according to the time. If there is no time stated, the contract has to be performed within reasonable time
General rule:
Cutter v Powell (1795) - if a contract requires entire performances, and a party fails to perform the contract in its entirety, they are entitled to nothing under the contract from the other party

Where a sailor signed a contract to crew a vessel from Jamaica to Liverpool, the contract required him to complete the journey.
When he died part way through the voyage home, his wife failed in her bid to sue for his wages under part-performance of the contract...it was an all or nothing contractual agreement

There are ways in which the harshness of this rule can be mitigated:

Substantial performance
Severable contracts
Acceptance of part performance
Prevention of performance

Substantial Performance:

If a party has done substantially what was required under the contract, then the doctrine of substantial performance can apply
The party can recover the amount appropriate to what has been done under the contract
Key cases:

Dakin & Co v Lee (1916)

defendants promised to build house according to spec
they failed to carry out exactly all the specs
CoA held they were entitled to recover the contract price as it was a case of bad workmanship and negligence, NOT where the job had been abandoned nor the items in spec being omitted
basically, they did a shit job, but because they still did it, it counts (bit rude but okay)

Hoeing v Isaacs (1952)

Contract for redecoration (£750)
Upon completion - £350 left to pay
There were defects that cost £55 to repair
Employer refused to pay claiming breach of contract
Court held that contractual promise to complete work is NOT a condition precedent to payment
Employer cannot deprive contractor of any payment due to defects (basically same as above, also rude)
Whether the entire performance of a contract is a condition precedent to payment depends on the construction of the specific contract

Bolton v Mahadeva (1972)

Claimant installed hearing
Agreed price - £560
Defects cost £174
Claimants attempt to enforce was denied because the court held that there was no sustantial performance (that's more like it)

Severable Contracts:

A contract is severable when payment becomes due at various stages of performance, rather than in one lump sum when performance is completed
Major building works usually operate in this way
The price for each stage can be claimed when that stage is completed - if you take on a childminder for six weeks and pay weekly, the childminder can claim the first week's pay even if they then refuse to work the following five weeks

Acceptance of part performance

Where one of the parties has performed the contract, but not completely, if the other side has shown willingness to accept the part performed, then the strict rule in Cutter v Powell will usually not apply
This may occur where there has been a shortfall in the delivery of goods or where a service is not fully carried out
Key cases:

Sumpter v Hedges (1898)

Claimant agreed to build 2 houses and stables
£565 was agreed to be payable on completion
Claimaint commenced performance but then ran out of money and was unable to complete
He had performed just over half of the contract
The defendant completed the rest by himself
Claimant wanted £333 for the work he had completed
He argued that the defendant had accepted partial performance as he had completed the work himself
FAILED - Court held that the defendant had no choice as he was left with a half completed house on his land

Prevention of performance

If the other party prevents a party from carrying out his or her obligations because of some act or omission, then the rule in Cutter v Powell cannot apply
In these circumstances, the party trying to perform may have an action for damages
Key cases:

Planche v Colburn (1831)

Claimant agreed to write book for defendant
Agreed £100
Claimant had completed a great deal when defendant cancelled the series
Defendant refused to pay despite the work already completed and the fact that the claimant was still willing to complete
Claimant was entitled to recover £50 cause the defendant had prevented the performance
Established quantum meruit?

Startup v Macdonald (1843)

Contract for 10 tons of oil to be delivered within last 14 days of March
Claimant delivered oil at 8:30pm on 31st March
Defendant refused to accept the delivery because of how late it was
The claimant had tendered performance within the agreed contractual period and was thus entitled to damages for non-acceptance

Breaches of terms concerning time

If the other party performs all of their obligations, but not within the time stipulated, this will give rise to damages because a breach has occurred, but not repudiation of the contract
Three occasions where time will be considered "of the essence" and a repudiation of the contract will be available:

Where the parties have made an express stipulation in the contract that time is of the essence
Where the surrounding circumstances show that time of performance is critical, as would be the case with the delivery of perishable goods
Where one party has already failed to perform their obligations under the contract. In this case, the other party is able to confirm that unless performance is then completed within a stated period repudiation will occur

Key cases:

Charles Rickards Ltd v Oppenheimer (1950)

Oppenheimer bought a Rolls Royce Chassis and agreed a body to be built upon it by a fixed date
The body was not completed by that date
After pressing for delivery, he gave a notice that unless the work was completed and the car delivered within four weeks, he would cancel the contract
Car still not delivered
When the claimant then tried to deliver the car, it was rejected
They tried to sue
Held: The defendant was entitled to cancel the contract

United Scientific Holdings Ltd v Burnley Borough Council (1978)

PRINCIPLE - If a contract is not specific about a time when something has to happen, then the time that the event must occur has to be 'reasonable'
The landlord leased the premises to the tenant for 15 years. This lease contained two rent review provisions. The first rent review was at the end of the fifth year and the second review was at the end of the fifth year and the second review was at the end of the tenth year of the lease. The landlord, however, failed to provide notice by the first rent review date
ISSUE - was time of the essence or was the landlord obliged to wait until the tenth year of the lease to provide the rent review notice to the tenant?
HELD - On appeal, the HoL held that time was not of the essence. This was because there was nothing in the lease to displace the presumption that strict adherence to the time-tables specified in their respective rent-review was not of the essence of the contract. Therefore, the landlord was allowed to provide notice to the tenant before the tenth year of the lease

Discharge by frustration

If after a contract is made, something happens, through no fault of the parties, to make its performance impossible, the contract is said to be 'frustrated'

General Rule:

Taylor v Caldwell (1863) - action failed because performance of the contract had become impossible due to a building where a concert was due to take place, burning down.

The doctrine will operate in three main types of circumstance:

Impossibility
Illegality
Commercial sterilisation

Impossibility

This is where the contract is frustrated because performance has become impossible, for example:

Destruction or unavailability of something essential for the contract's performance:

Taylor v Caldwell (1863)

Claimant hired a hall to throw some concerts
He went to great expense and effort
A week before the first concert the hall was destroyed by a fire
Claimant said it was breach of contract
Claim failed - the contract had been frustrated as the fire meant that the contract was impossible to perform

Death of either party
Unavailability of the party:

Robinson v Davidson (1871)

A contract by a pianist to perform on a specific day was held to be frustrated when the pianist became too ill to perform

Method of performance is impossible:

Nicholl and Knight v Ashton Edridge & Co (1901)

Agreed by contract that a cargo of cotton seed was to be shipped from Egypt to England
The contract specified the ship, The Orlando
This ship became damaged and was being repaired when the contract was to take place
The contract was frustrated as they had named the ship, and it was impossible for that ship to carry the cargo within the contractually agreed period

Illegality

This is where after the contract is formed, a change in the law makes its performance illegal
This can often happen in times of war when laws may change rapidly and cause a contract to be frustrated
Key cases:

Pioneer Shipping Ltd v BTP Tioxide Ltd (1981)

A charter body was contracted to make six voyages in nine months, but this was halved due to a strike at the port
Although performance was possible, it wasn't what they originally contracted for

Metropolitan Water Board v Dick Kerr & Co (1918)

There was a contract to build a reservoir
The contract accounted for possible delay
Policy caused the project to be delayed indefinitely
The contract was frustrated because although delay was accounted for, permanent delay was not

Commercial Sterility

This is where the commercial purpose of the contract has disappeared as a result of the intervening event, the contract may be frustrated
It is also sometimes known as 'pointless' - performance of the contract becomes pointless, even though it is still technically possible
Key Cases:

Krell v Henry (1903)

A flat was rented for the purpose of viewing the King's coronation procession
The procession was cancelled due to the King's illness and the contract was discharged as the sole reason for which it was rented ceased to exist

Herne Bay Steamboat Co v Hutton (1903)

Defendant hired out claimant's steamship
The purpose was to take paying passengers to view the Naval Review (part of the King's coronation celebrations)
The defendant was also offering a day's cruise for the passengers
The Naval Review was cancelled cause the King was ill
The defendant didn't use the steamship
Claimant brought an action for the agreed price
Defendant argued that the contract had become frustrated due to the cancellation of the Naval Review
Held: Contract not frustrated as it had not been deprived of its sole commercial purpose as it was still possible to do the day cruise

Discharge by agreement

In some cases, the parties themselves will agree to terminate a contract, so that one or both parties are released from their obligations

Bilateral discharge - here the assumption is that both parties are to gain a fresh but different benefit from the new agreement

Unilateral discharge - the benefit is only to be gained by one party, who is therefore trying to convince the other party to let them off the obligations arising under the original agreement

Discharge by breach

Whenever a party fails to perform an obligation, or performs defectively an obligation, or indicates in advance that they will not be performing as agreed an obligation arising under a contract then that party can be said to be in breach of contract

Actual Breach

This is where a party to a contract does not perform their obligations under the contract at all
Key cases:

Platform Funding Ltd v Bank of Scotland PLC (2008)

Surveyor was meant to inspect and value 1 Bakers Yard for a mortgage lender
Surveyed 5 Bakers Yard by mistake
Mortgage lender sued the surveyor for breach of contract
Held - even though the surveyor exercised reasonable care and skill in inspecting and valuating the property, it was the wrong house
He may have done the work, but on the wrong house, so he lost

Pilbrow v Pearless de Rougemont & Co (1999)

Claimant asked to see a solicitor, but instead saw someone who was experienced, but unqualified - his status was not made clear
He later refused to pay the bill
Held - the firm had broken the practice rules
He was contracted to see a solicitor, as he didn't, he didn't have to pay

Modahl v British Athletic Federation Ltd (1999)

Athlete accused of doping
Found guilty by disciplinary committee appointed by defendant
She appealed and it was lifted
She tried to claim damages because the lab was unaccredited and she was not given a fair trial
Held - though there was no written contract between her and the defendant, they had accepted an obligation to appoint a panel in accordance with their rules
However, they were not liable for breach of rules of natural justice by individual panel members because they had provided the appeal

Abramova v Oxford Institute of Legal Practice (2011)

Claimant sought damages saying that the defendant had failed to provide her with the Legal Practice Course promised
The complaints included one of the practice of having students mark their own mock exam papers
Held - in such claims expert evidence must be produced that the Bolam Standard had not been met - she was unable to do this and so the claim failed

Anticipatory Breach

This is where a party indicates in advance that they will not be performing their obligations as agreed
Key cases:

Frost v Knight (1872)

Knight promised to marry Frost after Knight's father's death
While his father was still alive, Knight told Frost that he was not going to marry her after his father's death
Frost brought an action for breach of promise
Held - Frost was deemed entitled to accept Knight's repudiation of the contract to marry her, and sue him

Avery v Bowden (1855)

Claimant was to carry cargo for defendant
Claimant arrived early and was told by defendant to sail on as they had no cargo and wouldn't by the agreed date
Claimant decided to wait around in the hope that the defendant would be able to supply some cargo
However, before the initial agreed date, the Crimean War broke out
This meant that the contract became frustrated
The claimant therefore lost their right to sue for breach
Had they brought their action immediately, they would have had a valid claim

Fercometal Sarl v Mediterranean Shipping Co (1989)

A contract for the hire of a ship contained a clause stating that the hirer would be entitled to end the contract if it was not loaded by 9th June. On the 2nd of June - and within the contractual time limit - the ship owners asked for an extension of time. At that point, the hirers unilaterally decided to hire a different ship, thereby breaking the original contract
Instead of ending the contract of hire at that point, the ship owners decided to carry on the contract. Meanwhile the hirers themselves carried on using the other ship that they had hired
The ship owners then decided to sue the hirers for anticipatory breach of contract - because they had tried to get out of the contract before it was due to be performed on the 9th June
HELD - since the ship owners had chosen to continue with the hire contract, instead of ending it when the hirers chose a different boat, they were still bound by the original terms...which were that the boat had to be ready to hire by 9th June
The ship owners couldn't stick to the 9th of June and therefore were themselves in breach of the original contract
PRINCIPLE - It is often much better to discharge a contract BEFORE a repudiatory breach actually happens, as soon as you get notice that this is what the other side intends to do because that way you keep your losses to a minimum

White and Carter Ltd v McGregor (1962)

Claimant supplied bins and was allowed to display adverts on them
Defendant's sales manager entered into a contract with the claimant for them to place adverts on the bins for three years
Agreed price was payable by three annual installments, and if one was late, the full sum would become immediately due
Defendant had not authorised it and phoned the claimant on the same day, saying that he did not want the advertising
Claimant ignored this and went ahead anyway
Defendant refused to pay
Claimant submitted bill for full three years
Held - Claimant not obliged to accept breach of contract - thus entitled to payment
This case seems to ignore the general rule of the duty to mitigate loss applicable to claims for damages
Under this case the court laid down certain restrictions on when an unwanted contractual performance could be seen as legitimate in the eyes of the court

You can't recover fully consequential damages for a breach when the other side simply refuses to co-operate with the contractual performance
You can't seek to regard a contract as legitimate if all you are going to do is use it as an excuse to claim damages
PRINCIPLE - when there is a contract that both sides have agreed but one party decides not to co-operate with it, the innocent party can choose to sue for damages for breach, or can regard the contract as continuing and then sue at the end of teh contractual performance for all the losses that have arisen as a result

Martin-Smith v Williams (1999)

Where all band members had signed a recording agreement. Robbie Williams had decided unilaterally to breach that agreement in order to carve out a solo recording career. He tried to say that one of the reasons that he did this was that the claimant had threatened to withhold royalties from him...for songs that the whole band had recorded
HELD - Robbie Willians was alleging a 'repudiatory breach' of contract by the manager, that justified his own subsequent breach
This is not the case. Williams had simply decided to no longer perform the contract for personal reasons and this was a straightforward example of a contractual breach by him...that went right to the heart of the band's recording agreement

Problems with Discharge of Contract

Performance

Problematic because of its definition. There is statutory protection in the form of implied terms in contracts, so we know if any attempt is made to reduce those then the court will act
The issue arises when parties have to confront the fact that the contract has not wholly been performed.
The issue however is probably incapable of adequate clarity because by necessity performance must be assessed on a case by case basis
More problems arise when you consider what damages/remedies will be recoverable

Discharge by Agreement

Agreement is usually hard to achieve without going through mediation etc. There are also formal requirements for entering a new agreement where both sides have agreed to suspend the present contractual arrangements - this is called a Deed of Variation and is often an expensive option to take. If complete renegotiation of a contract is decided against the process is costly and complicated

Frustration itself as a principle

The issue of loss protection can arise - what would be reasonable to attribute to frustration in terms of loss? There is also the matter of applying rules of damages awarded under Caparo
Frustration will still only be interpreted in strictly limited circumstances...the courts are more than happy to see if there is an opportunity to circumvent a so-called frustrating event
Frustration will NOT apply:

Where a change only results in a loss of profit to one side
If there is actually an alternative way to perform the contract
If there is actually something in the contract dealing specifically with frustration
Where the frustrating event is actually self inflicted

Any statutory protection given by Law Reform (Frustrated Contracts) Act 1943

The Act States:

Any money paid before the frustrating event can be recovered
Any money payable after the frustrating event is not payable
Expenses incurred before the frustrating event can be recovered as long as they don't exceed what would have been payable to you before the frustration occurred
It may be possible for the court to award a sum representing a valuable benefit that you would have received had the frustrating event not occurred