8. Filling the gaps

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
Common Law ◽  
Attorney General ◽  
Good Faith ◽  
Privy Council ◽  
The Law

This chapter focuses on contracts which leave some issues unaddressed and the law of implied terms used by the courts to deal with such situations. It first explains the nature of implied terms and the process of implication that requires the court to strike a difficult balance, along with the tests for implication. It then considers terms implied in law, paying attention to implication by statute and at common law, before discussing terms implied in fact. More specifically, it explores the test of business efficacy, obviousness and the officious bystander, and the approach used based on Lord Hoffmann's judgment in the Privy Council in Attorney General of Belize v Belize Telecom. The chapter also analyzes implication by custom, along with good faith and cooperation as requirements for parties to a contract.

8. Filling the gaps

Contract Law ◽  
2019 ◽  
pp. 207-239
Author(s):  
TT Arvind
Keyword(s):  
Common Law ◽  
Attorney General ◽  
Good Faith ◽  
Privy Council ◽  
The Law

This chapter focuses on contracts which leave some issues unaddressed and the law of implied terms used by the courts to deal with such situations. It first explains the nature of implied terms and the process of implication that requires the court to strike a difficult balance, along with the tests for implication. It then considers terms implied in law, paying attention to implication by statute and at common law, before discussing terms implied in fact. More specifically, it explores the test of business efficacy, obviousness, and the officious bystander, and the approach used based on Lord Hoffmann’s judgment in the Privy Council in Attorney General of Belize v Belize Telecom. The chapter also analyses implication by custom, along with good faith and cooperation as requirements for parties to a contract.

Contract Formation in Hong Kong

2018 ◽  
Author(s):  
Lusina HO
Keyword(s):  
Hong Kong ◽  
Social Context ◽  
Common Law ◽  
General Rule ◽  
Good Faith ◽  
Local Context ◽  
General Duty ◽  
Contract Formation ◽  
Formal Requirement ◽  
The Law

This chapter examines the law on contract formation in Hong Kong which is closely modelled on the English common law but adapts the English solutions to the local context if and when required. The test for ascertaining the parties’ meeting of the minds is objective, the agreement (an offer with a matching acceptance) must be certain, complete, and made with the intention to create legal relations—the latter being presumed to be present in a commercial context and absent in a familial or social context. Offers are freely revocable although the reliance of the offeree is protected in exceptional circumstances. Acceptances become effective as soon as they are dispatched. In the ‘battle of forms’ scenario, the Hong Kong courts follow the traditional ‘last-shot’ rule. There is no general duty to negotiate in good faith, and even agreements to negotiate in good faith are normally unenforceable for lack of certainty. As a general rule, contracts can be validly made without adhering to any formal requirement. Online contracts will normally be valid and enforceable; the formation of such contracts is governed by common law as supplemented by legislation.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

Aspects of theBeit-ElandEilon MorehCases

1980 ◽  
Vol 15 (4) ◽  
pp. 476-495
Author(s):  
Julius Stone
Keyword(s):  
International Law ◽  
Common Law ◽  
Exact Nature ◽  
Executive Order ◽  
Privy Council ◽  
The Law ◽  
The Moment

Judges whose daily tasks are to interpret the law of their own State frequently find difficulties in expressing the exact nature and hierarchical value of the rules of international law, which from time to time they are required in some sense to apply.Perhaps the classical example of this in countries applying the English common law is that of prize courts and the law which they should apply. Under international law belligerent States, by whom maritime captures (prizes) may be made, have a duty to create some forum before which issues can be tried as to the lawfulness of such captures and its consequences. As Lord Parker observed inThe Zamoraas to the title in the property seized, “from the moment of seizure the rights of all parties are governed by international law”. In the final ruling in that case, the Privy Council held that the neutral property at issue had been unlawfully requisitioned, even though such requisition was authorised by a British Executive Order-in-Council, because that Order-in-Council itself was inconsistent with the rules of international law governing requisition of neutral property.

IMPLIED TERMS: THE JOURNEY OF THE MAN ON THE CLAPHAM OMNIBUS

2011 ◽  
Vol 70 (3) ◽  
pp. 607-622 ◽  
Author(s):  
John McCaughran
Keyword(s):  
Attorney General ◽  
Privy Council ◽  
The Law ◽  
Court Of Appeal

This article is about the implication of terms into contracts based upon the presumed intention of the parties. It is particularly concerned with the decision of the Judicial Committee of the Privy Council in Attorney General of Belize v. Belize Telecom Limited,1 a number of recent Court of Appeal decisions thereafter, and whether there has been any change in the law. Before getting to Belize, it is necessary to consider, as briefly as possible, what went before.

scholarly journals Lies, Collateral Lies and Insurance Claims: The Changing Landscape in Insurance Law

2018 ◽  
Vol 22 (2) ◽  
pp. 237-265
Author(s):  
Baris Soyer
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Insurance Fraud ◽  
England And Wales ◽  
Insurance Law ◽  
Significant Challenge ◽  
The Common ◽  
Utmost Good Faith ◽  
The Law ◽  
Definition Of

Determining the scope of the fraudulent claims rule in insurance law has posed a significant challenge for the courts, particularly in the last two decades. In the shadow of the doctrine of utmost good faith, the law in this area has developed in an uncompromising fashion introducing draconian remedies against an assured who submits a fraudulent claim. The Supreme Court's most recent intervention has provided much needed guidance on the state of the law. This article, taking into account the fact that in other areas of law more proportionate remedies have gradually been introduced, discusses the boundaries of the fraudulent claims rule in insurance law as it applies in England and Wales and Scotland. Considering that the insurers might be tempted to introduce fraudulent claims clauses into their contracts to expand the common law definition of insurance fraud at the claims stage, this article also evaluates the wording of such clauses often used in practice and concludes that they lack the desired clarity.

Thomas and Hilaire v. Baptiste and the Attorney-General of Trinidad and Tobago

2000 ◽  
Vol 49 (2) ◽  
pp. 463-466
Author(s):  
Margaret Demerieux
Keyword(s):  
Trinidad And Tobago ◽  
Attorney General ◽  
Fundamental Rights ◽  
Bill Of Rights ◽  
Fundamental Issue ◽  
Privy Council ◽  
Legal Regime ◽  
The Law

The extent to which it is appropriate to interpret constitutional provisions and in particular fundamental rights in accordance with the law and understanding current at the time of their promulgation, is a fundamental issue in any legal regime into which a Bill of Rights is introduced. This is well illustrated in a recent decision by the Judicial Committee of the Privy Council.

scholarly journals A Question of Seduction: The Case of MacMillan v. Brownlee

1969 ◽  
pp. 447
Author(s):  
Thomas Thorner ◽  
G. N. Reddekopp
Keyword(s):  
Social History ◽  
Common Law ◽  
Detailed Account ◽  
Legal Issue ◽  
Privy Council ◽  
Administration Of Justice ◽  
The Common ◽  
The Law

In a detailed account of the action for seduction involving a former premier of Alberta and his stenographer, the authors review the decisions of the courts from trial level to Privy Council The common law and the effect of statute are discussed in an explanation and analysis of the law of seduction. By reviewing newspaper accounts of public reac tion to the lawsuit, the authors are able to provide both an interesting perspective on Alberta's social history and also a glimpse at an important yet often neglected legal issue: the public's perception of the administration of justice.

Bhasin v Hrynew - The New Duty of Good Faith in Contract

1969 ◽  
Author(s):  
Brittany Scott
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
The Past ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Over the past number of years, the law surrounding the requirement to operate in good faith in conducting contractual obligations has been a developing principle in common law countries from Australia, to the United Kingdom to Canada. In Canada, this principle has developed separately within the civil and common law legal traditions respectively. While the Quebec Civil Code has historically provided for an expectation of parties to a contract to operate in good faith, the common law in Canada has not been as clear.  Prior to 2014, the Canadian common law duty to negotiate in good faith was an unsettled body of law, recognized in certain areas, but not across the discipline as a whole. It has only been since the Supreme Court of Canada decision in Bhasin v. Hrynew that this duty to negotiate in good faith has been outlined as a coherent set of guiding principles. Parties to a contract are now both bound by a general organizing principle of good faith in contracts and are expected to act honestly in the performance of their contractual obligations. While new to the Canadian common law, numerous cases have been quick to test the court’s interpretation of this change in scope to the law of good faith. As Canadian common law jurisprudence moves forward, this principle will continue to expand and develop.

Brownsword, R and Howells, G, ‘The implementation of the EC Directive on Unfair Terms in Consumer Contracts – some unresolved questions’ [1995] JBL 243. Brownsword, R, Howells, G and Wilhelmsson, T (eds), Welfarism in Contract, 1994, Aldershot: Dartmouth. Burrows, A, (ed), Essays on the Law of Restitution, 1991, Oxford: Clarendon. Burrows, A, The Law of Restitution, 1993, London: Butterworths. Burrows, A, Understanding the Law of Obligations, 1998, Oxford: Hart. Burrows, A, ‘Free acceptance and the law of restitution’ (1988) 104 LQR 576. Carr, C, ‘Lloyd’s Bank Ltd v Bundy’ (1975) 38 MLR 463. Cheshire, G, Fifoot, C and Furmston, M, Law of Contract, 13th edn, 1996, London: Butterworths/Tolley. Chitty (Guest, AG (ed)), Contracts: General Principles, 27th edn, 1994, London: Sweet & Maxwell. Coase, R, ‘The problem of social cost’ (1960) 3 Journal of Law and Economics 1. Collins, H, Law of Contract, 3rd edn, 1997, London: Butterworths. Collins, H, ‘Good faith in European contract law’ (1994) OJLS 229. Cooke, PJ and Oughton, DW, The Common Law of Obligations, 3rd edn, 2000, London: Butterworths. Coote, B, Exception Clauses, 1964, London: Sweet & Maxwell. Coote, B, ‘The Unfair Contract Terms Act 1977’ (1978) 41 MLR 312. De Lacey, J, ‘Selling in the course of a business under the Sale of Goods Act 1979’ (1999) 62 MLR 776. Dean, M, ‘Unfair contract terms – the European approach’ (1993) 56 MLR 581. Duffy, P, ‘Unfair terms and the draft EC Directive’ (1993) JBL 67. Evans, A, ‘The Anglo-American mailing rule’ (1966) 15 ICLQ 553. Fehlberg, B, ‘The husband, the bank, the wife and her signature – the sequel’ (1996) 59 MLR 675.

1995 ◽  
pp. 808-808
Keyword(s):  
Law And Economics ◽  
Common Law ◽  
Contract Law ◽  
Good Faith ◽  
European Contract ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Anglo American ◽  
Unfair Terms
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