If someone who feels he is the aggrieved party in a contract, and his attorney proves in a court of law that the other party has used undue influence to gain advantage in a contract with the aggrieved party, the court can declare the contract as null and void, and also order compensation if the court feels it is due. Duress If a person can prove in a court of law that he is a victim of coercion and signed a contract as he was being threatened indirectly or directly, this is referred to as a case of duress. For duress to be proved, the victim has to tell the court exact circumstances that were created to make him act in a way that he or she would otherwise not act in normal circumstances. Duress is also used in jurisprudence by attorneys to get a person convicted if he exploits a woman sexually or makes her do something that she would not do otherwise. It is also used to justify an act that is considered unlawful to get a lenient sentence from the jury.
Firstly, in contract law, the claimant has to prove that the defendant is at fault on a balance of probabilities. It can be argued that fault based liability is a fundamental principal in English law when breach of contract by one party occurs. Breach of contact can be either actual or anticipatory; an actual breach is when the contract is performed differently, defectively or not at all. The loss caused can be minor or serious and this is determined by the type of the term which has been broken. A breach of condition for example, gives the right to the injured party to terminate the contact or affirm it and in both cases claim damages.
Since the company excludes liability for manufacturer defects to the product and prejudiced to consumer rights to refund or even replace the product whereupon, If a consumer believes that this term of the contract being an unfair term he can complain to the Office of Fair Trading (OFT) or to one of several consumer-related organizations that can act against unfair consumer contracts. Such a complaint may lead to court action. As an analysis for the reasonableness in the light of UCTA 1977, the company has to meet the following requirements: The contract / notice must not include terms which to exclude or restrict liability for breach of contract, providing an inadequate service, or providing goods that have been misdescribed, are not of satisfactory quality or are not fit for their purpose. This is the case unless such a term is reasonable, although exceptions exist, for example when
Reasonableness itself is any clause which purports to either exclude or restrict liability for a breach of contract (s.3 of the Unfair Contract Terms Act 1977), this applies where the party subject to the term is either dealing as a consumer or on the other party’s written standard terms of business. Meaning that a non –consumer party will be subject to a test of reasonableness (s.3(2)(a)). In s.3(2)(b) it goes further into discussing the extension towards any contractual term by virtue which a party may claim to be entitled. Within these provisions we can infer that it’s this section is trying to exclude liability indirectly, by using the clauses that define a party’s obligations very restrictively. The requirement of reasonableness is set out in s 11 of the UCTA 1977, the main element of the test is that ….a fair and reasonable one to be included having regard of the circumstances which were or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
It’s entirely up to the court of law to determine if a duty of care exists in some certain negligence cases. Most especially in an economic-loss negligence claim. On the test for a duty of care, in Carparo Industries v Dickman, the three- fold-test was put into test. The three-part test,’’ if the damage was foreseeable, proximity between claimant and defendant, and, if it’s fair to just create a duty of care’’; are what courts uses as points of consideration in determining if a duty of care is owed to a claimant. This test was examined in the Carparo Industries Plc.
Although often the two types of secret trusts are dealt with together this creates some difficulties because they are so different even to the extent that they break different convention rules. Lord Viscount Sumner said in Blackwell v Blackwell [1929] that once the trustee agrees to the testator's intentions "the proposed donee encourages him to bequeath the money in the faith that his intentions will be carried out." The two types of secret trusts share some rules such that the secret trustee must accept the trust. This acceptance can be express or implied; Wallgrave v Tebbs [1972]. The secret trustee must be under a legally binding obligation, a purely moral one is inadequate; McCormack v Grogan.
On a contract for a purchase, if the title proves bad and the vendor is (without fraud) incapable of a good one, I do not think that the purchaser can be entitled to any damages for the fancied goodness of the bargain which he supposes he has lost “ We would even go so far to say that the eighteenth century contract law was subordinate to the property law. However, as the time passed, the conjecture has changed and classical contract law has arisen due to the new developments. First of all, it is necessary to point out two distinctive approaches as regards with the roots of the principles of classical contract law. On the one hand there
The contract that Gerald and Kids Care formed is a bilateral contract “promise for a promise” created by two parties, which may be enforceable and considered under the doctrine of promissory estoppel (also called detrimental reliance). The doctrine of promissory estoppel can help enforce a promissory contract in a court of law. The doctrine of promissory estoppel may be applied when problems concerning consideration are present. According to the Business Law (Miller & Hollowell, 2012) textbook, in order for the doctrine of promissory estoppel to be applied, a number of elements are required: 1.
The Third Coast Auto Group, LP may have been unintentional but took careless actions that became their responsibility. Third Coast Auto Group also known as TCAG was negligent in keeping their guard dog restrained while work hours putting his employees, and customers and nay other individual at actual harm. In the tort of negligence there are three possible things that need to be proven in order to succeed. VanHouten has to prove that the defendant owed a duty of care, secondly that the defendant breaks that duty of care within the standard of care required by law, and finally breach of duty of care results in damages to the plaintiff. In this case of Kelly Kanton Labaj and Third Coast Auto Group, LP VS Deeann VanHouten the defendants were liable for her injuries because they knew or should have known of the dog’s dangerous and vicious propensities.
An example of fault being used in the law is the Mens Rea requirement in s.18 OAPA. This requires specific intention, which shows that the D must have been culpable voluntarily. Regarding its role in civil law, it is essential to prove fault in some areas, but not in others. For example proving fault is crucial for a successful claim in negligence. Here, fault is tested in breach, which states that D is at fault if they do not act like the ordinary, sensible individual.