20. Limitation of Actions

At common law, lapse of time does not affect contractual rights. But it is the policy of the law to discourage stale claims because, after a long period, a defendant may not have the evidence to rebut such claims and should be in a position to know that after a given time an incident which might have led to a claim is finally closed. Accordingly, in the Limitation Act 1980, the Legislature has laid down certain periods of limitation after the expiry of which no action can be maintained. Equity has developed a doctrine of laches, under which a claimant who has not shown reasonable diligence in prosecuting the claim may be barred from equitable relief.

13. Discharge by Agreement

Contract rests on the agreement of the parties: as it is their agreement that binds them, so by their agreement they may be discharged. This chapter begins by identifying two sources of difficulty, which render the topic of discharge by agreement one of considerable artificiality and refinement, and then discusses the forms of discharge by agreement, covering release, accord and satisfaction, rescission, variation, waiver, and discharge provisions contained in the contract itself.

11. Illegality

This chapter considers what counts as illegality and the effect of illegality on a contract (and consequent restitution). The approach of the Courts to illegality has been transformed for the better, and simplified, by the Supreme Court in Patel v Mirza in 2016. Illegal conduct, tainting a contract, can vary widely from serious crimes (eg murder) to relatively minor crimes (eg breach of licensing requirements) through to civil wrongs and to conduct that does not comprise a wrong but is contrary to public policy. As regards the effect of illegality, where a statute does not deal with this, the common law approach is now to apply a range of factors. A final section of the chapter examines contracts in restraint of trade.

3. Form

English law recognizes only two kinds of contract: the contract made by deed, and the simple contract. A contract made by deed derives its validity solely from the form in which it is expressed. A simple contract as a general rule need not be made in any special form, but requires the presence of consideration, which broadly means that something must be given in exchange for a promise. This chapter examines contracts by deed and (simple) contracts for which writing is required.

1. Introduction

This introductory chapter first considers the nature and function of contract. It then discusses the contractual obligations in English law; the content of the contract law as set out in this book, which is concerned with the ‘general principles’ of contract rather than the detailed rules applicable to different types of contracts; the location of contract as part of the law of obligations and its relation to other parts of the law of obligations, tort and restitution of an unjust enrichment, and property law.

22. Assignment

This Chapter considers assignment, that is to say, the transfer of B’s contractual rights against A to C by means of an agreement between B (the assignor) and C (the assignee) irrespective of A’s (the debtor’s) consent. It examines the rules governing assignment and distinguishes it from several similar concepts: the negotiability of ‘negotiable instruments’, vicarious performance, novation, and the transfer of rights and liabilities by operation of law.

19. Restitutionary Awards

This Chapter considers restitutionary remedies for breach of contract. It discusses the recovery of money paid, restitution in respect of services or goods, and an account of profits or damages measured by benefit to contract-breaker.

15. Discharge for Breach

If one of the parties to a contract breaches an obligation which the contract imposes, that party is in breach of contract. The breach may consist in the non-performance of the relevant obligation, or its performance in a manner or at a time that fails to comply with the requirements of the contract. This chapter sets out the rules governing the discharge of a contract by breach. It shows that the breach may give rise to discharge only if it is sufficiently serious in its effects (a breach which ‘goes to the root of the contract’, or a ‘repudiation’ of the contract) or if it is a breach of a sufficiently serious term of the contract (breach of ‘condition’).

14. Discharge by Frustration

This chapter traces the history of the doctrine of frustration and examines the scope of its present application. The discussion covers instances of frustration, the theoretical basis of frustration, incidence of risk, self-induced frustration, leases and contracts for the sale of land, and effects of frustration.

9. Misrepresentation and Non-Disclosure

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.