scholarly journals Doing “Practical Justice” for Duress in Contract Law

2009 ◽  
pp. 253-256
Author(s):  
M.H. Ogilvie
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Contract Law ◽  
Complex Case ◽  
Undue Influence ◽  
Trial Judge ◽  
English Court ◽  
Conflict Of Laws ◽  
The Common ◽  
Court Of Appeal

Cases of duress in contract law are few and far between. Most are concerned with improper threats or taking advantage of a weaker party to procure a contract rather than with actual physical threats of the “[y]our money or your life” variety, which are more likely to be controlled by the criminal law. A recent decision on a preliminary issue of law in relation to duress in the English Court of Appeal answered an interesting question that appears never to have been raised in earlier cases about duress, that is, whether rescission of a contract can be granted where restitution is impossible because one of the parties has destroyed documents relating to the contract as required by the contract so that they could not be restored. The trial judge found that rescission could not be granted and that no other remedy was available in the common law for duress, but the Court of Appeal reversed that finding by assimilating the fact situation with those in which equity has done “practical justice,” thereby further fusing the common law and equity relating to duress and undue influence, and possibly also fraud as well. The facts of this highly complex case, which also involved conflict of laws, mistake, frustration, and uncertainty have yet to be resolved at trial, but the Court of Appeal entertained two preliminary questions of law, duress, and conflict of laws before sending the case to trial. This comment is focused on the duress point.

Personalized Legal Areas

2021 ◽  
pp. 61-84
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Standards Of Care ◽  
Criminal Sanctions ◽  
The Common ◽  
The Law

This chapter illustrates personalized law “in action” by examining it in three areas of the law: standards of care under the common law tort doctrine of negligence, mandated consumer protections in contract law, and criminal sanctions. In each area, the chapter examines personalization of commands along several dimensions. In tort law, standards of care could vary according to each injurer’s riskiness and skill, to reduce the costs of accidents. In contract law, mandatory protections could vary according to the value they provide each consumer and differential cost they impose on firms, to allocate protections where, and only where, they are justified. And in criminal law, sanctions would be set based on what it takes to deter criminals, accounting for how perpetrators differ in their motives and likelihood of being apprehended, with the potential to reduce unnecessary harsh penalties.

scholarly journals The Court for Crown Cases Reserved, 1848–1908

2011 ◽  
Vol 29 (1) ◽  
pp. 259-288
Author(s):  
Phil Handler
Keyword(s):  
Nineteenth Century ◽  
Criminal Law ◽  
Common Law ◽  
Legal Doctrine ◽  
Trial Judge ◽  
Old Bailey ◽  
The Face ◽  
The Common ◽  
Convicted Felons

Convicted felons at the Old Bailey and on assize in nineteenth-century England had no right of appeal. They had either to submit to their fate or, if they had the means, petition the Crown for a pardon. The legal avenues for redress were limited. A writ of error would lie to a superior court for legal errors that appeared on the face of the record but by the nineteenth century this was seldom used. More significantly, it was open for the trial judge to reserve questions of law for the informal and private consideration of all the common law judges. In their illuminating studies of this practice in the eighteenth and early nineteenth centuries, James Oldham and Randall McGowen elucidate the ways in which the judiciary used reserved cases to develop legal doctrine and to shape the operation of criminal justice. The trend toward increased formalization of procedure that they identify, culminated in 1848, when Parliament created the Court for Crown Cases Reserved (CCCR). The new court adopted the existing method of reserving cases, but was a court of record that sat and gave judgment in public. It became the highest judicial forum for the determination of questions of criminal law until 1908, when it was superseded by the Court of Criminal Appeal.

‘I, Me, Mine’: Bodies, Parts and Property

1998 ◽  
Vol 3 (4) ◽  
pp. 299-317 ◽  
Author(s):  
Andrew Grubb
Keyword(s):  
Common Law ◽  
Legal Protection ◽  
Recent Case ◽  
Body Parts ◽  
English Court ◽  
Commercial Exploitation ◽  
The Common ◽  
English Law ◽  
The Impact ◽  
Court Of Appeal

The idea that human bodies and their parts are ‘property’ has traditionally found little support in English law. By contrast, philosophers have mused at the prospect of persons owning themselves and the justice of self-ownership and its implications for the product of a person's labours. There are signs that the common law may be prepared to recognise that parts of a body are ‘property’ and subject to control by their source or another. In the recent case of R v Kelly, the English Court of Appeal decided that parts of corpses held as anatomical specimens were ‘property’ and could be stolen. The impact of the court's view may be considerable in respect of tissue and parts held by medical or other institutions for research, storage, archival or transplantation purposes; conferring legal protection where otherwise there would be none. What, however, of body parts or tissue taken from living persons? Is this ‘property’ and, if so, who has “rights” over it? The implications are considerable for patients and others, particularly researchers where commercial exploitation is envisaged.

3. The Personal and Property Consequences of Marriage, Civil Partnership and Cohabitation

2021 ◽  
pp. 83-107
Author(s):  
N V Lowe ◽  
G Douglas ◽  
E Hitchings ◽  
R Taylor
Keyword(s):  
Criminal Law ◽  
Intimate Relationships ◽  
Financial Support ◽  
Common Law ◽  
Contract Law ◽  
Public Law ◽  
Sexual Relationship ◽  
Civil Partnership ◽  
Legal Relationship ◽  
The Common

This chapter considers how marriage, civil partnership or cohabitation affects the parties’ legal relationship with each other and the wider world. It examines the common law historical approach to marriage before discussing the use of a marital surname, the sexual relationship and the duty to provide financial support. It then discusses the approach taken to intimate relationships by contract law and tort, by public law, including criminal law, and by property law. The end of the chapter considers proposals for reform.

Continuing departures from Woolmington: a South Asian perspective

Legal Studies ◽  
1987 ◽  
Vol 7 (3) ◽  
pp. 279-290
Author(s):  
G. L. Peiris
Keyword(s):  
South Asian ◽  
Criminal Law ◽  
Common Law ◽  
Recent Trends ◽  
The Common ◽  
Court Of Appeal

Recent trends in England represent a dramatic erosion of the sanctity of the rule in Woolmington. These developments are of particular significance today, in the light of the virtually open-ended character of some of the contemporary departures from Woolmington’s case.A decade ago, in Edwards, the Court of Appeal purported to identify in the common law a line of authority which established, as a result of experience and the need to ensure that justice is done both to the community and to the defendants, an exception to the fundamental rule of the criminal law that the prosecution must prove every element of the offence charged. The effect of this exception, which the court sought to extract from rules of pleading, is that where an enactment, on its true construction, prohibits the doing of acts subject to provisos, exceptions and the like, the prosecution is entitled to rely on the exception, with the result that the burden shifts to the defendant to prove that it was lawful for him to do the prohibited act in the circumstances.

Strict liability in Commonwealth criminal law

Legal Studies ◽  
1983 ◽  
Vol 3 (2) ◽  
pp. 117-145
Author(s):  
G. L. Peiris
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Strict Liability ◽  
Mens Rea ◽  
English Court ◽  
American Law ◽  
Criminal Jurisprudence ◽  
The Subject ◽  
The Common ◽  
Moral Blame

It has been observed justly that few legal doctrines have given rise to so vigorous and sustained a conflict of judicial attitudes as the concept of strict penal responsibility. The theory of mens rea which preceded the origins of the common law, is ingrained in English criminal jurisprudence. An English court has asserted that ‘It is contrary to the whole established law of England (unless the legislation on the subject has clearly enacted it) to say that a person can be guilty of a crime in England without a wrongful intent’. In circumstances involving technical guilt bereft of moral blame English judges have looked askance at invocation of the criminal process. The American Law Institute has recently declared that ‘No principle is more broadly accepted than that the criminal law, involving as it does both punishment and condemnation, should be concerned with conduct that is morally reprehensible or culpable’.

Contract Law Concentrate

2021 ◽  
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Third Party ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Essential Information ◽  
Common Mistake ◽  
The Common ◽  
Default Rules

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. Contract Law Concentrate contains a wealth of information on the field of contract law to aid with revision and understanding the elements of the contract law syllabus. It looks specifically at the components of agreement, enforceability criteria comprising intention to create legal relations, consideration, and the doctrine of promissory estoppel. It also focuses on some problems associated with reaching agreement, such as whether the terms are sufficiently certain, and mistakes which prevent agreement. The doctrine of privity determines who has the ability to enforce the contract and whether a third party can take the intended benefit of a contract. Contract Law Concentrate focuses on the terms (or promises) of the contract and breach of contract when those promises are broken. It also examines exemption clauses and unfair contract terms. Next it looks at remedies for the breach of contract. It then turns to contractual impossibility and risk where the default rules of common mistake (initial impossibility) and frustration (subsequent impossibility) will determine the parties’ positions in the absence of party allocation. Finally, it outlines contractual remedies for actionable misrepresentations and looks briefly at the common law doctrine of duress and the equitable doctrine of undue influence.

Contract variation in the common law

2018 ◽  
Vol 47 (3) ◽  
pp. 196-207
Author(s):  
James C Fisher
Keyword(s):  
Common Law ◽  
Contract Law ◽  
The Common ◽  
Appeal Decision ◽  
English Law ◽  
The Law ◽  
The Uk ◽  
Business Exchange ◽  
Court Of Appeal

This note analyses the UK Supreme Court’s decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd, a case that confirms the long uncertain ability of ‘No Oral Modification’ clauses to exclude informal variations in English law. This note argues that, while the Court was correct to reject the putative oral variation in question, the majority’s description of the law is unsatisfactory because of its detachment from wider contract law principle, and compares unfavourably with the alternative ratio by which Lord Briggs reached a concurring outcome. This note also comments on the Supreme Court’s (cursory) treatment of the portentous Court of Appeal decision in Williams v Roffey Bros, which has reformulated the law on contract variation across common law jurisdictions. The Court acknowledged, but declined to resolve, the tensions Roffey introduced in to the law on part payment of debts. While it is unfortunate that the opportunity to resolve these tensions was missed, this note endorses the Court’s ( obiter) rejection of the analysis by which the Court of Appeal below sought to extend Roffey to the part payment of debts.

they are called the appellants, and again lost. They then appealed to the House of Lords, where they also lost. There was a lot of money at stake: the difference between the £201.60 that the seeds cost as awarded by the Court of Appeal or the £90,000+ that the trial judge awarded. Consider, for a moment, what you have read and what you know so far. Does it seem fair to you that George Mitchell won? If so, why? If not, why not? So far we have considered: (a) Procedural history. (b) Facts. (c) The operative rules of law: • It is known that both common law rules and statutory rules are relevant to the case. • Further, it is known that if the common law rules are found to apply in the seller’s favour he still has to jump the hurdle presented by the statutory rules. • Recall, if there is a clash between common law rules and statutory rules, the statutory rules prevail. (d) A verbatim account of the two issues in the case (however, these are probably not fully comprehended yet, despite Figures 4.13 and 4.14, above!): • It is clear that Lord Bridge will argue through each of the issues. • If the appellants succeed in issue 1 they may still fail overall if they fail over issue 2. (Can you understand why? The answer is in the first sentence of text setting out ‘the second issue’. See Figure 4.14, above.) • Logically, one would expect Lord Bridge to commence with the arguments over issue 1, the common law issue, as this is the gateway to an argument over issue 2 which will only take place if issue 1 is decided in the appellant’s favour (and this is contentious limitation clause what he does). (e) Understanding the clause. This is set out in Figure 4.15, below. Until all of these matters are linked and understood it is not possible to fully comprehend the reasoning in the case. Now take time to consolidate the information we have so far and return to the judgment of Lord Bridge, concentrating on his arguments concerning issue 1 (Appendix 1, p 310, para 3). 4.5.2.5 Stage 4: breaking into Lord Bridge’s speech You will have already read Lord Bridge’s speech by now. It is also now appreciated that the arguments in this case are quite complex and the initial method of breaking into the text for understanding is to look at each paragraph. Paragraphs are intended to convey a new idea. So each paragraph represents an idea or a cluster of ideas. Careful ordering of paragraphs is essential in a piece of writing if a sense of progression is to be maintained. Therefore when reading for understanding a précis of each paragraph begins the process of understanding.

2012 ◽  
pp. 100-100
Keyword(s):  
Common Law ◽  
Text Setting ◽  
Trial Judge ◽  
House Of Lords ◽  
Stage 4 ◽  
The Common ◽  
The Difference ◽  
Court Of Appeal ◽  
Initial Method

• Discusses the finding of the trial judge that under the common law the ‘relevant condition’ could not be relied upon by the sellers. The reason being the seed delivered was ‘wholly different’. (As we have already noted issue 2 (see Figure 4.14, above), the statutory issue, need only be dealt with if issue 1 (see Figure 4.13, above) is decided in favour of the sellers.) • Discusses the finding of Denning LJ in the Court of Appeal. Denning LJ thought the common law issue should be decided in favour of the sellers. He said that the wording of the condition was sufficient to cover the situation. Kerr and Oliver LJJ decided the common law issue against the sellers. • Kerr LJ’s reasoning was that the condition would only cover them for defects in the ‘correct’ named seeds. Not for delivery of the wrong seeds. • Oliver LJ’s reasoning was that the condition did not cover the breach because it only happened through the negligence of the seller. • The Court of Appeal, however, was unanimous in deciding the statutory issue against the sellers. • Lord Bridge discusses the way that Denning LJ traced the history of the court’s approach to such conditions. The conditions being ones that limit’ or totally ‘exclude’ a contractual party’s liability for any damage caused. • Lord Bridge picks out two relevant cases (Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 101 and Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 All ER 101) and uses these to explore the common law issue. Note that the judge is beginning to deal with cases decided previously and commenting upon them in relation to whether he is bound by the doctrine of precedent.

2012 ◽  
pp. 103-103
Keyword(s):  
Common Law ◽  
Trial Judge ◽  
Relevant Condition ◽  
History Of ◽  
The Common ◽  
Court Of Appeal ◽  
Photo Production ◽  
The Way
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