3. Agreement problems

2019 ◽  
pp. 83-122
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Gap Filling ◽  
Difficult Question ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines principles that determine when an agreement can be enforced with sufficient certainty and whether liability will arise in the absence of agreement. An apparent contract will be void if the terms are considered too uncertain or where there is no context for gap filling. But this must be balanced with the need to prevent the parties from using allegations of uncertainty to escape from bad bargains. This chapter therefore considers how the courts deal with the difficult question over agreements to agree. This chapter also considers mistakes that prevent agreement (mutual or cross-purposes mistakes and unilateral mistake as to terms, particularly identity mistakes). It also examines the availability of the remedy of rectification when the contract that does not accurately reflect what the parties agreed. The chapter also considers the defence of non est factum (this is not my deed).

2. Agreement

2021 ◽  
pp. 31-96
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
Mirror Image ◽  
Gap Filling ◽  
Difficult Question ◽  
The Law

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter explains how to determine whether parties have reached an agreement. Traditionally, the existence of agreement is determined objectively on the basis of an offer and corresponding acceptance. However, this approach has been challenged for being artificial and inflexible, and even in the absence of these traditional criteria the courts have occasionally found agreement, particularly where there has been performance. For formation there needs to be an offer (as opposed to an invitation to treat) and that offer must be accepted before it has been rejected or otherwise lapsed. In order to be effective, offer and acceptance must be properly communicated, which normally means ‘received’. The chapter also considers the mirror-image rule, whereby an acceptance must be unconditional and correspond with the exact terms proposed by the offeror. This chapter also examines principles that determine when an agreement can be enforced with sufficient certainty and whether liability will arise in the absence of agreement. An apparent contract will be void if the terms are considered too uncertain or where there is no context for gap filling. But this must be balanced with the need to prevent the parties from using allegations of uncertainty to escape from bad bargains. This chapter therefore considers how the courts deal with the difficult question over agreements to agree.

scholarly journals The Meaning of the Phrase τα στοιχεια του κοσμου in Galatians

2007 ◽  
Vol 53 (2) ◽  
pp. 204-224 ◽  
Author(s):  
MARTINUS C. DE BOER
Keyword(s):  
Historical Context ◽  
Close Attention ◽  
Difficult Question ◽  
The Law

This article seeks a fresh answer to the difficult question of the meaning of the phrase τα στοιχεια του κοσμου in Gal 4.3. The answer is sought by paying close attention to (1) the argumentative context of Paul's use of the phrase in the letter (he posits some sort of equivalence between the veneration of τα στοιχεια του κοσμου and the observance of the Law; he does so for contextually relevant theological and rhetorical reasons), and (2) the cultural-historical context of the addressees, the Gentile believers in Galatia (τα στοιχεια are ‘the gods’ they once venerated; this veneration involved calendrical observances).

scholarly journals The Limits of Interpretation in the Law of Contract

2016 ◽  
Vol 47 (2) ◽  
pp. 191
Author(s):  
Andrew Robertson
Keyword(s):  
Risk Allocation ◽  
Gap Filling ◽  
The Law ◽  
Interpretative Approach ◽  
Do So

In the law of contract questions of risk allocation properly turn, where possible, on interpretation of the agreement. This article will explore the limits of that approach. It will do so by considering two doctrines that lie at the boundaries of contract interpretation: the implication of terms in fact and the remoteness principle. Both doctrines have been commonly understood as gap-filling rules, but in two influential judgments Lord Hoffmann sought to recast them as interpretative principles. It will be argued in this article that the implication of terms in fact can properly be regarded as an interpretative exercise, but the same cannot be said of the application of the remoteness doctrine. The implication of terms in fact can helpfully be understood as interpretative, provided care is taken to explain the paths of reasoning leading to the conclusion that a contractual instrument must be understood to include a particular unexpressed term. Because no common paths of interpretative reasoning can be identified for the determination of remoteness questions, it is unsettling and counterproductive to attempt to take an interpretative approach to these questions.

2. Contracts of employment (1): status, formation, continuity, and change

2019 ◽  
pp. 39-137
Author(s):  
Ian Smith ◽  
Aaron Baker ◽  
Owen Warnock
Keyword(s):  
Employment Law ◽  
Employment Contract ◽  
Continuity And Change ◽  
The Third ◽  
Difficult Question ◽  
Gig Economy ◽  
Part Time ◽  
Areas Of Concern ◽  
The Law ◽  
The Way

This chapter discusses the way in which the law has had to keep up with changing models of ‘employment’. Even the old ‘employee/self-employed’ division is now complicated by increasing use in modern statutes of the term ‘worker’. Part-time, fixed-term, and agency workers have featured prominently in modern employment law and consideration is given to these specifically, along with even more topical areas of concern such as zero-hour contracts and the challenges of the ‘gig economy’ more generally. Three more technical areas are then considered. The first concerns the ‘section 1 statement’ of basic terms and conditions that has been an obligation on employers since 1963 but is still not always given. The second concerns the difficult question of the extent to which an employer can seek to impose limitations on an employee even after employment ends. The third concerns the whole question of how the terms of an employment contract can lawfully be changed by one or both of the parties to it.

2. Contracts of employment (1): status, formation, continuity, and change

2019 ◽  
pp. 38-134
Author(s):  
Ian Smith ◽  
Aaron Baker ◽  
Owen Warnock
Keyword(s):  
Employment Law ◽  
Employment Contract ◽  
Continuity And Change ◽  
The Third ◽  
Difficult Question ◽  
Gig Economy ◽  
Part Time ◽  
Areas Of Concern ◽  
The Law ◽  
The Way

This chapter discusses the way in which the law has had to keep up with changing models of ‘employment’. Even the old ‘employee/self-employed’ division is now complicated by increasing use in modern statutes of the term ‘worker’. Part-time, fixed-term, and agency workers have featured prominently in modern employment law and consideration is given to these specifically, along with even more topical areas of concern such as zero-hours contracts and the challenges of the ‘gig economy’ more generally. Three more technical areas are then considered. The first concerns the ‘section 1 statement’ of basic terms and conditions that has been an obligation on employers since 1963 but is still not always given. The second concerns the difficult question of the extent to which an employer can seek to impose limitations on an employee even after employment ends. The third concerns the whole question of how the terms of an employment contract can lawfully be changed by one or both of the parties to it.

2. Contracts of Employment (1): Status, Formation, Continuity, and Change

2017 ◽  
Author(s):  
Ian Smith ◽  
Aaron Baker ◽  
Owen Warnock
Keyword(s):  
Employment Law ◽  
Employment Contract ◽  
Continuity And Change ◽  
The Third ◽  
Difficult Question ◽  
Gig Economy ◽  
Part Time ◽  
Areas Of Concern ◽  
The Law ◽  
The Way

This chapter discusses the way in which the law has had to keep up with changing models of ‘employment’. Even the old ‘employee/self-employed’ division is now complicated by increasing use in modern statutes of the term ‘worker’. Part-time, fixed-term, and agency workers have featured prominently in modern employment law and consideration is given to these specifically, along with even more topical areas of concern such as zero-hours contracts and the challenges of the ‘gig economy’ more generally. Three more technical areas are then considered. The first concerns the ‘section 1 statement’ of basic terms and conditions that has been an obligation on employers since 1963 but is still not always given. The second concerns the difficult question of the extent to which an employer can seek to impose limitations on an employee even after employment ends. The third concerns the whole question of how the terms of an employment contract can lawfully be changed by one or both of the parties to it.

A new role for resulting trusts?

Legal Studies ◽  
1996 ◽  
Vol 16 (1) ◽  
pp. 110-131 ◽  
Author(s):  
William Swadling
Keyword(s):  
Specific Topic ◽  
Difficult Question ◽  
The Law

As Millett LJ recently remarked, there can be no doubt that ‘the most difficult question’ to be solved in the law of restitution is the exact circumstances in which a proprietary restitutionary remedy will be available to a restitutionary claimant. The boundary between restitution and property is still largely unmapped and continues to generate controversy. What is needed is a comprehensive and systematic enquiry into the effects that the various restitutionary factors (mistake, duress, failure of consideration and so on) have on the passing of property between plaintiff and defendant. That, however, would require a whole book, or, at the very least, a series of articles. This article takes a modest step in that direction by concentrating on one specific topic within the area of restitution and property, viz, the inter-relationship between the law of restitution and resulting trusts.

I. Harding v Wealands

2007 ◽  
Vol 56 (2) ◽  
pp. 443-453
Author(s):  
Peter McEleavy ◽  
Charles Dougherty ◽  
Lucy Wyles
Keyword(s):  
International Law ◽  
Private International Law ◽  
Northern Irish ◽  
Applicable Law ◽  
Difficult Question ◽  
House Of Lords ◽  
Foreign Law ◽  
The Subject ◽  
The Law ◽  
Vexed Question

In Harding v Wealands1 the House of Lords had to consider the vexed question of where the dividing line between substance and procedure should lie in private international law. The specific issue before their Lordships was whether matters relating to the assessment of damages in tort should be treated as matters of substance, and thus be for the applicable law, or whether they should be treated as matters of procedure, and therefore be left for the law of the forum. The decision of the House of Lords has resolved this difficult question in favour of a procedural characterization. The result of the House of Lords' decision is that in all such cases, regardless of the foreign law element, the assessment of damages will be conducted in accordance with English (Northern Irish or Scottish) law, as the law of the forum. Nonetheless, some reservations do exist as to the justification for the decision and as to how likely it is to remain the last word on the subject.

The law and practice of Treasure Trove

1930 ◽  
Vol 10 (3) ◽  
pp. 228-241
Author(s):  
G. F. Hill
Keyword(s):  
Original Research ◽  
Especial Reference ◽  
Treasure Trove ◽  
Difficult Question ◽  
The Subject ◽  
The Law ◽  
Definition Of

I do not propose on this occasion to make any contribution to the exceedingly obscure and difficult question of the origin of the law of treasure trove. The writer who has most recently discussed the subject, Mr. Cecil S. Emden, states the object of his article as being ‘to emphasize that, the law of treasure trove being indefinite, the practical difficulties in its administration which may arise are due not so much to the complexity attaching to particular cases as to the haze in which the origin of the law rests, and to the casual manner in which the rules have taken shape’. Where many better qualified writers have too often, like the celebrated ‘Mr. Parker, made the case darker, which was dark enough before’, further discussion by one who has no legal qualification is hardly to be encouraged. I shall confine myself therefore to a consideration of the definition of the subject, of the rules governing the administration in recent times, with especial reference to this country, and to the bearing of these rules on the interests of archaeology. Such references to older law and usage as cannot be avoided are made without any claim to original research.

Sign in / Sign up

Export Citation Format

Share Document