Treitel on the Law of Contract by Edwin Peel, G.H. Treitel -- Read -- Imperial Library of Trantor

Index

Cover Half Title Title Page Copyright Preface to the Fourteenth Edition Contents Table of Cases Table of Statutes Table of Statutory Instruments Table of European Legislation 1. INTRODUCTION 2. AGREEMENT

1. OFFER (a) Offer Defined (b) Offer Distinguished from Invitation to Treat (c) Where and When an offer Takes Effect 2. ACCEPTANCE (a) Acceptance Defined (b) Communication of Acceptance (i) General rule (ii) Exceptional cases (iii) Acceptance by post (c) Prescribed Method of Acceptance (d) Acceptance by Silence (e) Acceptance in Ignorance of Offer (f) Acceptance in Unilateral Contracts 3. TERMINATION OF OFFER (a) Withdrawal (b) Rejection (c) Lapse of Time (d) Occurrence of Condition (e) Death (f) Supervening Incapacity 4. SPECIAL CASES 5. CERTAINTY (a) vagueness (b) Incompleteness (i) Agreement in principle only (ii) Agreements “subject to contract” (iii) Execution of formal document required (iv) Terms left open (v) Facts to be ascertained (vi) Agreement to negotiate 6. CONDITIONAL AGREEMENTS (a) Classification (b) Degrees of Obligation

3. CONSIDERATION

1. INTRODUCTION (a) General (b) Definitions 2. ADEQUACY (a) Consideration Need Not Be Adequate (b) Nominal Consideration (c) Attitude of Equity 3. PAST CONSIDERATION 4. CONSIDERATION MUST MOVE FROM THE PROMISEE 5. CONSIDERATION MUST BE OF SOME VALUE (a) Must be of Economic value (b) Illusory Consideration (c) Trivial Acts or Objects (d) Gift of onerous Property (e) Compromise and Forbearance to Sue (i) Valid claims (ii) Invalid and doubtful claims (iii) Actual forbearance (f) Performance of Existing Duty (i) Duty imposed by law (ii) Duty imposed by contract with promisor (iii) Duty imposed by contract with a third party 6. RESCISSION AND VARIATION (a) Rescission (b) variation (c) Waiver (i) At common law (ii) In equity (d) Part Payment of a Debt (i) General rule (ii) Common law limitations (iii) Equitable evasion 7. PROPRIETARY ESTOPPEL (a) Nature and Scope of the Doctrine (b) Requirements (i) Representation or Assurance (ii) Reliance (iii) Detriment (c) Effects of the Doctrine (i) Revocability (ii) Operation of proprietary estoppel (iii) Proprietary and promissory estoppels contrasted (iv) Proprietary estoppel and contract contrasted 8. SPECIAL CASES (a) Defective Promises (b) Unilateral Contracts (c) Bankers’ Irrevocable Credits (d) Firm Offers (e) Auction sales Without Reserve (f) Novation of Partnership Debts (g) Gratuitous Bailments (h) Gratuitous Services 9. PROMISES IN DEEDS 10. PROPOSALS FOR REFORM

4. CONTRACTUAL INTENTION

1. PROOF OF INTENTION 2. ILLUSTRATIONS (a) Mere Puffs (b) Other Statements Inducing a Contract (c) Intention Expressly Negatived (i) Honour clauses (ii) “Subject to contract” (iii) Other phrases (d) Social and Domestic Arrangements (e) Agreements Giving Wide Discretion to One Party (f) Letters of Intent or of Comfort (g) Collective Agreements (h) Other Cases

5. FORM

1. GENERAL RULE 2. STATUTORY EXCEPTIONS (a) Contracts which must be made by Deed (b) Contracts which must be in Writing (i) Bills of exchange, etc (ii) Consumer credit agreements (iii) Contracts for the sale or disposition of an interest in land (c) Contracts which must be Evidenced in Writing (i) In general (ii) Contracts of guarantee (d) Formal Requirements and Electronic Documents 3. FORMAL REQUIREMENTS FOR RESCISSION AND VARIATION (a) Rescission (b) Variation

6. THE CONTENTS OF A CONTRACT

1. EXPRESS TERMS (a) Joinder of Documents (b) Interpretation (c) The Parol Evidence Rule (i) Statement of the rule (ii) Cases in which extrinsic evidence is admissible 2. IMPLIED TERMS (a) Terms Implied in Fact (i) A broad approach? (ii) Tests (iii) Factors to be taken into account (iv) Examples (b) Terms Implied in Law (c) Terms Implied by Custom or Trade Usage

7. EXEMPTION CLAUSES AND UNFAIR TERMS

1. EXEMPTION CLAUSES AT COMMON LAW (a) Incorporation in the Contract (i) Signature (ii) Notice (b) Construction (i) Contra proferentem (ii) Seriousness of breach (iii) Negligence (c) Other Common Law Limitations 2. OTHER STANDARD TERMS AT COMMON LAW 3. LEGISLATIVE LIMITATIONS (a) The Unfair Contract Terms Act 1977 (i) Preliminary definitions (ii) Ineffective terms (iii) Terms subject to the requirement of reasonableness (iv) Partly effective terms (v) The test of reasonableness (vi) Restrictions on evasions (vii) Situations not covered by UCTA (b) The Unfair Terms in Consumer Contracts Regulations 1999 (i) Relation with Unfair Contract Terms Act 1977 (ii) Preliminary definitions (iii) The test of unfairness (iv) Examples of unfair terms (v) Excluded terms (vi) Excluded contracts (vii) Drafting and interpretation (viii) Effects of unfairness (ix) Restriction on evasion 4. OTHER LEGISLATIVE TECHNIQUES

8. MISTAKE

1. INTRODUCTION 2. COMMON MISTAKE (a) Common Law (i) In general (ii) Mistake as to the existence of the subject-matter (iii) Mistake as to the identity of the subject-matter (iv) Mistake as to the possibility of performing the contract (v) Mistake as to quality (vi) Mistake as to quantity (vii) Mistake of law (b) Equity (i) General (ii) No separate doctrine of common mistake in equity (iii) Refusal of specific performance 3. UNILATERAL MISTAKE (a) Types of Mistake (i) Mistake as to the person (ii) Mistake as to the subject-matter (iii) Mistake as to the terms of the contract (b) Mistake must Induce the Contract (c) When Mistake is operative (i) Contract generally valid (ii) Exceptional cases in which mistake is operative (iii) Mistake may operate against one party only (d) Theoretical Basis (e) Equity 4. RECTIFICATION (a) In General (b) Common Mistake (c) Unilateral Mistake (d) Potential Limitations on the Remedy 5. DOCUMENTS MISTAKENLY SIGNED (a) Development (b) Scope of the Doctrine

9. MISREPRESENTATION

1. GENERAL CONDITIONS OF LIABILITY (a) False statement of fact or law (b) Material (c) Reliance 2. DAMAGES FOR MISREPRESENTATION (a) Liability (i) Fraud (ii) Negligence at common law (iii) Misrepresentation Act 1967 section 2(1) (iv) Contractual statements (v) Damages in lieu of rescission (b) Basis of Assessment and Remoteness (i) Basis of assessment (ii) Remoteness (iii) Fluctuations in value (iv) Misrepresentation Act 1967, section 2(2) (v) Limit of the right to damages 3. RESCISSION (a) Introduction (b) Rescission for Misrepresentation (i) Contract voidable (ii) Mode of rescission (iii) Misrepresentation as a defence (iv) Application to sale of goods (c) Incorporated Misrepresentation 4. LIMITS TO THE RIGHT TO RESCIND (a) Effects of Misrepresentation Act 1967 (b) Bars to Rescission (i) Restitution impossible (ii) Third party rights (iii) Affirmation (iv) Lapse of time 5. EXCLUDING LIABILITY FOR MISREPRESENTATION (a) Scope of the Misrepresentation Act 1967 section 3 (b) The Reasonableness Test (c) Unfair Terms in Consumer Contracts Regulations 1999 6. NON-DISCLOSURE (a) General Rule (i) No duty of disclosure (ii) Representation by conduct (iii) Latent defects (b) Exceptions (i) Representation falsified by later events (ii) Statement literally true, but misleading (iii) Custom (iv) Contracts uberrimae fidei (v) Contracts in which there is a limited duty of disclosure (vi) Fiduciary relationship (vii) Legislation (viii) Duty to clarify legal relationship (ix) Duty of disclosure in performance of contract (c) Effects of Non-disclosure (i) In general (ii) Effects of Misrepresentation Act 1967 7. MISREPRESENTATION AND ESTOPPEL

10. DURESS, UNDUE INFLUENCE AND UNCONSCIONABLE BARGAINS

1. DURESS (a) In General (b) Duress of the Person (c) Duress of Goods (d) Economic Duress (e) Unlawful Demands for Payment (f) Remedies 2. UNDUE INFLUENCE (a) Actual Undue Influence (b) Presumed Undue Influence (i) Types of presumptions (ii) The presumption of undue influence (iii) Rebutting the presumption (c) Remedies (d) Undue Influence and Third Parties 3. UNCONSCIONABLE BARGAINS (a) Catching Bargains (b) Dealing with “Poor and Ignorant” Persons 4. CONSUMER PROTECTION (a) Unfair Credit Relationships (b) Unfair Commercial Practices 5. INEQUALITY OF BARGAINING POWER

11. ILLEGALITY

1. THE PROBLEM OF CLASSIFICATION 2. TYPES OF ILLEGALITY (a) Contracts Involving the Commission of a Legal Wrong (i) Contracts amounting to a legal wrong (ii) Contracts to commit a crime (iii) Contracts to commit a civil wrong (iv) Use of subject-matter for unlawful purpose (v) Unlawful method of performance (vi) Contracts to indemnify against liability for unlawful acts (vii) Promises to pay money on the commission of an unlawful act (viii) Effect of changes in the law (b) Contracts Contrary to Public Policy (i) Agreements by married persons to marry (ii) Agreements in contemplation of divorce (iii) Agreements inconsistent with parental responsibility (iv) Agreements in restraint of marriage (v) Marriage brokage contracts (vi) Contracts promoting sexual immorality (vii) Contracts interfering with the course of justice (viii) Contracts purporting to oust the jurisdiction of the courts (ix) Contracts to deceive public authorities (x) Sale of offices and honours (xi) Lobbying & Bribery (xii) Trading with the enemy (xiii) Contracts which involve doing an illegal act in a friendly foreign country (xiv) Contracts restricting personal liberty 3. CONTRACTS IN RESTRAINT OF TRADE (a) Introduction (b) Sale of a Business and Employment (i) Interest (ii) Reasonableness (iii) Public interest (iv) No actual covenant against competition (v) Restraint operating during employment (vi) Establishing validity of restraint (c) Restrictive Trading and Similar Agreements (d) Trade Unions and Employers’ Associations (e) Exclusive Dealing (i) In general (ii) Whether such agreements are within the restraint of trade doctrine (iii) Requirements of validity (f) Covenants Affecting the Use of Land (g) Other Agreements (h) Competition Law (i) Other Aspects of European Union Law 4. EFFECTS OF ILLEGALITY (a) Enforcement (i) Position of guilty party (ii) Position of innocent party (iii) De facto enforcement (b) Restitution (i) General rule (ii) Class-protecting statutes (iii) Oppression (iv) Misrepresentation (v) Mistake (vi) Repudiation of illegal purpose (vii) No reliance on illegal transaction (viii) Restitution in respect of services (c) Severance (i) Severance of consideration (ii) Severance of promises (iii) Statutory severance (d) Collateral Transactions (e) Evaluation

12. CAPACITY

1. MINORS (a) Valid Contracts (i) Necessaries (ii) Service contracts (b) Voidable Contracts (i) Cases of voidable contracts (ii) Loans for voidable contracts (iii) Rules relating to repudiation (iv) Why are these contracts voidable? (c) Other contracts (d) Liability in Tort (e) Liability in Restitution (i) Minors’ Contracts Act 1987 section 3(1) (ii) Effects of fraud (iii) Liability in restitution at common law 2. MENTAL INCAPACITY (a) In General (i) Incapacity known to other party (ii) Property and affairs subject to control of the court (b) Necessaries 3. DRINK AND DRUGS 4. CORPORATIONS (a) Common Law Corporations (b) Statutory Corporations (i) Companies created under the Companies Act 2006 (ii) Limited Liability Partnerships (iii) Corporations incorporated by special statute

13. PLURALITY OF PARTIES

1. PLURALITY OF DEBTORS (a) Definitions (b) Differences Between Joint, and Joint and Several, promises (i) Parties to the action (ii) Judgment (iii) Survivorship (c) Similarities Between Joint, and Joint and Several, promises (i) Defence of one (ii) Release of one (iii) Contribution 2. PLURALITY OF CREDITORS (a) Definitions (b) Parties to the Action (c) Survivorship (d) Defence Against One (e) Release by One (f) Payment to One (g) Consideration Moving from One

14. THIRD PARTIES

1. INTRODUCTION 2. THE COMMON LAW DOCTRINE (a) Parties to the Agreement (i) Collateral contracts (ii) Agency (iii) Multilateral contracts (iv) Corporations (b) Party to the Consideration (c) Reasons for the Doctrine (d) Development (e) Operation of the Doctrine (i) Promisee’s remedies (ii) Position between promisee and third party 3. SCOPE (a) General (b) Liability in Negligence to Third Parties (c) Intimidation (d) Restitution? 4. EXEMPTION CLAUSES AND THIRD PARTIES (a) The Benefit (i) Privity and exceptions (ii) Himalaya clauses (iii) Other drafting devices (iv) Clauses defining duties (b) The Burden (i) General rule (ii) Exceptions 5. EXCEPTIONS (a) Judge-made Exceptions (i) Covenants concerning land (ii) Agency (iii) Assignment (iv) Trusts of promises (v) Covenants in marriage settlements (b) Contracts (Rights of Third Parties) Act 1999 (i) Third party’s right of enforcement (ii) Right to rescind or vary the contract (iii) Promisor’s defences against third party (iv) Exceptions to third party’s entitlement (v) Third party’s other rights unaffected (vi) Nature of the third party’s rights (vii) Effect on Unfair Contract Terms Act 1977 section 2 (viii) Promisee’s rights (c) Other Statutory Exceptions (i) Insurance (ii) Law of Property Act 1925 section 56 6. IMPOSING LIABILITY ON THIRD PARTIES

15. ASSIGNMENT

1. AT COMMON LAW 2. EQUITABLE ASSIGNMENTS 3. STATUTORY ASSIGNMENTS (a) Absolute Assignment (b) Debt or Other Legal Thing in Action 4. GENERAL REQUIREMENTS (a) Formalities (b) Intention to Assign (c) Communication to Assignee (d) Notice to Debtor (i) How to give notice (ii) Effects of notice 5. CONSIDERATION (a) Assignments of Future Property (b) Statutory Assignments (c) Equitable Assignments (i) Before the Judicature Act 1873 (ii) After the Judicature Act 1873 6. SUBJECT TO EQUITIES (a) Defects of Title (b) Claims by Debtor against Assignor (i) Claims arising out of the contract assigned (ii) Claims arising out of other transactions (iii) Assignee cannot recover more than assignor 7. NEGOTIABILITY 8. RIGHTS WHICH ARE NOT ASSIGNABLE (a) Contracts Expressed to be Not Assignable (b) Personal Contracts (c) Mere Rights of Action (i) Claims in tort (ii) Liquidated claims (iii) Unliquidated claims (iv) Public policy 9. ASSIGNMENT BY OPERATION OF LAW (a) Death (b) Bankruptcy 10. ASSIGNMENT DISTINGUISHED FROM TRANSFER OF LIABILITIES (a) Novation (b) Benefit and Burden (c) Operation of Law

16. AGENCY

1. DEFINITION (a) Agreement (b) Intention to Act on Behalf of Principal (i) Agency distinguished from other relationships (ii) Whose agent? (c) Commercial Agents 2. CAPACITY 3. CREATION OF AGENCY (a) Agency by Agreement (i) Express authority (ii) Implied authority (b) Agency without Agreement (i) Apparent authority (ii) Usual authority (iii) Authority of necessity (c) Ratification (i) What amounts to ratification (ii) When ratification possible (iii) Effect of ratification 4. EFFECTS OF AGENCY (a) Between Principal and Third Party (i) Rights of principal against third party (ii) Liability of principal to third party (b) Between Agent and Third Party (i) Under the contract (ii) Under a collateral contract (iii) Implied warranty of authority (iv) Other liability for misrepresentation (c) Between Principal and Agent (i) Rights of agent (ii) Duties of agent (d) Effects of Non-consensual Agency 5. TERMINATION (a) Modes of Termination (i) Consensual agency (ii) Non-consensual agency (b) Irrevocable Agency

17. PERFORMANCE AND BREACH

1. METHOD OF PERFORMANCE 2. VICARIOUS PERFORMANCE (a) With the Creditor’s Consent (b) without the Creditor’s consent (c) Vicarious Performance Distinguished from Assignment 3. ORDER OF PERFORMANCE (a) Condition Precedent (b) Concurrent condition (c) Independent Promises (d) Criteria for Drawing the Distinction (e) Effects of the Distinction (f) Wrongful Refusal to Accept Performance (i) Where injured party terminates the contract (ii) Where injured party does not terminate the contract (iii) Evaluation 4. ENTIRE AND SEVERABLE OBLIGATIONS (a) Entire Obligations (b) Severable obligations (c) Distinction Between Entire and Severable Obligations (d) So-called Doctrine of Substantial Performance (e) Voluntary Acceptance of Benefit (f) Apportionment Act 1870 (g) Criticism 5. BREACH (a) Failure or Refusal to Perform (b) Defective Performance (c) Incapacitating Oneself (d) Without Lawful Excuse (e) Standard of Duty (i) Strict liability (ii) Liability based on fault (iii) Fault and excuses for non-performance (iv) Conditional contracts (f) Breach Distinguished from Lawful Termination 6. ANTICIPATORY BREACH (a) The Doctrine of Anticipatory Breach (b) Acceptance of the Breach (c) Effects of Accepting the Breach (i) Damages for anticipatory breach (ii) Termination for anticipatory breach (d) Effects of Not Accepting the Breach

18. TERMINATION FOR BREACH

1. INTRODUCTION 2. NATURE AND EFFECT OF TERMINATION (a) Nature (b) Effects of Termination or Affirmation (i) Termination (ii) Affirmation or failure to terminate (iii) Change of course 3. AVAILABILITY OF THE RIGHT TO TERMINATE (a) General Requirement of Substantial Failure (b) Exceptions to the Requirement of Substantial Failure (i) Conditions, warranties and intermediate terms (ii) Express provision for determination (iii) Unilateral contracts and options 4. LIMITATIONS ON THE RIGHT TO TERMINATE (a) Affirmation, Waiver & Estoppel (b) Acceptance (c) Both Parties in Breach 5. STIPULATIONS AS TO TIME 6. CRITICISM

19. FRUSTRATION

1. DEVELOPMENT 2. APPLICATIONS (a) Impossibility (i) Destruction of a particular thing (ii) Death or incapacity (iii) Unavailability (iv) Failure of a particular source (v) Method of performance impossible (vi) Impossibility and impracticability (b) Frustration of Purpose (c) Illegality (i) Illustrations (ii) Supervening and antecedent prohibition (iii) Partial and temporary illegality (d) Prospective Frustration (e) Alternative Obligations (f) Events Affecting Only One Party’s Performance (g) Special Factors Affecting Land (i) Leases (ii) Sale of land (h) A Question of Fact or Law? 3. LIMITATIONS (a) Contractual Provision for the Event (i) In general (ii) Qualifications (iii) Provision for non-frustrating events (b) Foreseen and Foreseeable Events (i) In general (ii) Qualifications (c) Self-induced Frustration (i) Events brought about by one party’s conduct (ii) Negligence (iii) Choosing between several contracts (iv) Burden of proof 4. EFFECTS OF FRUSTRATION (a) In General (b) Problems of Adjustment (i) Rights accrued before frustration (ii) Rights not yet accrued (iii) Casus omissus? (iv) Special cases (v) Contracts excluded from the 1943 Act 5. JURISTIC BASIS (a) Theories of Frustration (b) Practical Importance (c) Frustration and Mistake

20. DAMAGES

1. GENERAL PRINCIPLES (a) Damages are Compensatory (i) Loss to claimant the criterion (ii) What constitutes loss? (iii) Breach having no adverse effect (iv) Damages based on the gain made by the defendant (v) Punitive damages (b) Compensation For What? (i) Loss of bargain (ii) Reliance loss (iii) Restitution (iv) Relationship between loss of bargain, reliance loss and restitution (v) Incidental loss 2. QUANTIFICATION (a) The Bases of Assessment (i) Reliance and restitution (ii) Loss of bargain (b) Actual and Market Values (i) Where there is a market (ii) Where there is no market (iii) Other loss (c) Speculative Damages (d) Interest (e) Taxation (f) Alternative Modes of Performance (g) Time for Assessment (i) Time of breach (ii) Time of discovery of breach (iii) Possibility of acting on knowledge of breach (iv) Reasonableness of acting on knowledge of breach (v) Late performance (vi) Damages for anticipatory breach 3. NON-PECUNIARY LOSSES (a) Mental Distress (i) General principle (ii) Exceptions (b) Loss of Reputation 4. METHODS OF LIMITING DAMAGES (a) Causation (b) Remoteness (c) Mitigation (i) The duty to mitigate (ii) Mitigation in fact (d) Contributory Negligence 5. LIQUIDATED DAMAGES, DEPOSIT AND PART-PAYMENT (a) Liquidated Damages (i) Distinction between penalty and liquidated damages (ii) Effects of the distinction (iii) Analogous provisions (iv) Unfair Terms in Consumer Contracts Regulations 1999 (b) Deposit and Part-payment

21. SPECIFIC REMEDIES

1. ACTION FOR AN AGREED SUM (a) Distinguished from Damages (b) Availability of the Action (i) Duty to pay the price (ii) Rules of law (iii) Conduct of the injured party 2. SPECIFIC RELIEF IN EQUITY (a) Specific Performance (i) Granted where damages not “adequate” (ii) Discretion (iii) Contracts not specifically enforceable (iv) Mutuality of remedy (v) Specific performance and third parties (b) Injunction (i) General (ii) No indirect specific performance (c) Damages and Specific Performance or Injunction

22. RESTITUTION

1. UNJUST ENRICHMENT (a) Recovery of Money Paid (i) Failure of consideration (ii) Money paid under a void contract (b) Recovery of non-money benefits

23. CONSUMER RIGHTS ACT 2015

1. KEY DEFINITIONS 2. CONTRACTS FOR GOODS (a) The Consumer’s Rights (b) The Consumer’s Remedies (c) Exclusion or Restriction of the Trader’s Liability 3. CONTRACTS FOR DIGITAL CONTENT (a) The Consumer’s Rights. (b) The Consumer’s Remedies (c) Exclusion or Restriction of the Trader’s Liability 4. CONTRACTS FOR SERVICES (a) The Consumer’s Rights. (b) The Consumer’s Remedies (c) Exclusion or Restriction of the Trader’s Liability 5. UNFAIR TERMS (a) Scope of Part 2 (b) Test of fairness (c) Effect of Unfairness. (d) Drafting and Interpretation (e) Negligence Liability (f) Restrictions on evasion (g) Enforcement by a Regulator

Index

A B C D E F G H I J L M N O P Q R S T U V W

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