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a binding agreement to be formed (exhibited in Storer v. Manchester CC) o Intention to legally commit o Intention that is binding upon acceptance Only an offer is capable of immediate translation into a contract by the fact of acceptance Intention to be bound is assessed OBJECTIVELY HOW TO DETERMINE AN OFFER o Assess whether communication is sufficiently specific with respect to main obligation(s) and price so as to be capable of immediate acceptance o Assess whether statement made with intention that it will be binding upon acceptance o Assess language used: ‘may be prepared to sell’ – NOT an offer (Gibson v. Manchester CC) ‘am prepared to sell’ – VALID offer (Storer v. Manchester CC) ‘first come, first served’ – ARGUABLY VALID OFFER relying on the U.S. case of Lefkowitz v. Great Minneapolis Surplus Stores ‘first 100 replies with $X enclosed’ – ARGUABLY VALID OFFER relying on the U.S. case of Lefkowitz v. Great Minneapolis Surplus Stores Firm Offer of NO effect unless supported by valuable consideration; offer to keep offer open can be withdrawn at any time unless the option is purchased – Routledge v. Grant VENDING MACHINES/AUTOMATIC TICKET MACHINES : OFFER – once money is paid/put into the machine (acceptance), the transaction is complete What is NOT an offer? o Statement of minimum price – Harvey v. Facey o Letter with heading ‘subject to contract’ makes offer not legally binding – Walford v. Miles c/f ‘provisional agreement’ does not have the same effect – Branca v. Cobarro o Invitation to treat – Generally, (Newspaper) Ads, Brochures, Price Lists Prima facie not an offer o ADVERTISEMENT: prima facie an invitation to treat – Partridge v. Crittenden EXCEPTION: Where advertisement is unilateral (promise to pay in exchange for an act); binding upon performance of the stated act – Carlill v. Carbolic Smoke Ball o SHOP WINDOW: invitation to treat – Fisher v. Bell o SHOP DISPLAYS/SHELVES: invitation to treat - Pharmaceutical Society of Great Britain v. Boots o WEBSITE: Arguably the electronic equivalent of shop displays, advertisements or catalogs = Invitations to treat Offer comes from customer at the checkout stage where they follow the instructions to process the order o REQUEST FOR TENDERS: invitation to treat Negotiating device used in commercial contracts NB: The tender would be the Offer EXCEPTION: Request for bids/tenders which commit the person requesting tenders to be bound to accept the highest bid; the highest bid cannot be a referential bid – Harvela Investments v. Royal Trust. Co. of Canada 1
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NB: If the highest bid is not seen as a result of the default/fault of the person inviting the bids, he is still bound by the highest bid (e.g. bid submitted on time but the relevant personnel did not see it was stuck in box ) – Blackpool v Blackpool BC AUCTIONS: invitation to treat Auction is invitation to treat; bidder makes the offer (not auctioneer) – Payne v. Cave It is when the hammer is struck that offer is accepted; Bid is the offer which auctioneer may accept or reject – British Car Auctions v. Wright Notice that an auction will be held on a certain date is not an offer which then could be accepted by turning up at the stated time. It is a statement of intention; no liability if auction not held or lots withdrawn – Harris v. Nickerson Auction stated to be ‘without reserve’, still a statement of intention and there is no need to hold the auction; however, auctioneer is bound to sell to the highest bidder as ‘without reserve’ constitutes a unilateral offer – Barry v. Davies ‘Without reserve auction’: auctioneer MUST sell to the highest bona fide bidder NOT THE SELLER HIMSELF – Warlow v. Harrison Communication of Offer Offer MUST be Communicated; ineffective unless and until it is communicated to the offeree POSTAL RULE DOES NOT APPLY TO OFFER No assent without knowledge – R v. Clarke Motives in accepting offer, irrelevant if he has knowledge of the offer – Williams v. Cawardine Cross offers do NOT constitute an agreement – Tinn v Hoffman TERMINATION of Offer: [Acceptance] Revocation Offer may be revoked at any time before acceptance – Byrne v. Van Tienhoven Must be communicated; revocation ineffective unless & until communicated to offeree May be communicated by a reliable 3rd party – Dickinson v. Dodds Offer made to the whole world must be revoked by taking reasonable steps to inform the public, i.e. must revoke in same manner as advertised (with the same notoriety), e.g. placing ad in the same newspaper – Shuey v. U.S.A. If offer was placed in shop window, taking it down is sufficient Revocation of an offer takes place when the letter is RECEIVED Cannot revoke once performance has commenced – Errington v. Errington and Woods (if mortgage paid off by son & his wife, father would give them house; offer withdrawn shortly before full debt paid IRREVOCABLE); Daulia v. Four Millbank Nominees Lapse (Implied by law) LAPSE/PASSAGE OF TIME: at the end of a stipulated time-period OR after a reasonable time, where no time specified – Ramsgate Victoria Hotel Co. v. Montefiore (attempt to accept offer to buy shares after 5months passed failed; offer lapsed) FAILURE OF A CONDITION: Financings Ltd. v. Stimson – car badly damaged; offer lapsed since it was an implied term that car would remain in same condition as when offer made DEATH: Of the offeror – if K of a personal nature or Offeree has no notice of the death: If performance is independent of the offeror, then acceptance is valid unless revoked before accepted - Bradbury v. Morgan (estate was liable to pay debt guaranteed by the deceased) Of the offeree 2
Rejection EXPRESS: Offeree rejected the offer IMPLIED: Counter-Offer>> Offeree varies terms or introduces a new term – Hyde v. Wrench c/f Request for information ≠ Counter-offer; Generally an enquiry into flexibility of the offer terms; Offer therefore remains open – Stevenson v. Mclean Qualifying cover later attached to a signed and completed application form may be a collateral K which does not affect the offer; completed form is unconditional acceptance – Society of Lloyds v. Twinn NB: if offeree says I accept but…X….and otherwise I will not be able to accept then this is not an acceptance Writing in blank spaces specifically left for that purpose is not acceptance but a counter offer; however if the person writes “approved” on it and they act upon the ‘contract’ it is binding – Brogden v. Metropolitan Rlwy Battle of the forms – counter offer and implied rejection; but if counter offer accepted, then binding K – Butler Machine Tool v. Ex-Cell-O Corpn. Ltd.
Acceptance DEFINITION o Offeree’s unequivocal expression of intention and assent made in response to and which exactly matches the offer o Acceptance MUST be communicated – Powell v. Lee VALID ACCEPTANCE = Fact of Acceptance + Communication of Acceptance No acceptance where prescribed method of acceptance not followed – Eliason v. Henshaw; Butler Machine Tool v. Ex-Cell-O If no exclusive method prescribed, an equally expeditious or advantageous method may suffice – Manchester Diocese v. Council of Education; Tinn v. Hoffman RULES: o Acceptance must be in response to an offer; person accepting must know of the offer – R v. Clarke If person accepting offer subsequently becomes aware of the offer at the time acceptance is communicated to offeror, then acceptance valid – Gibbons v. Proctor (reward offered for info given to Supt. Penn; offeree had no knowledge of offer at time he gave info but became aware at the time info communicated reached Supt.) As long as there is knowledge, motive irrelevant – Williams v. Cawardine o Acceptance must be communicated to the offeror (or his agent) - Powell v. Lee APPLIES TO TELEPHONE, TELEX, FAX RECEIPT RULE: Acceptance is communicated when & where received by offeror NOT when read Entores v. Miles Far East Where failure of communication is the offeror’s fault, he is liable; Messages at the risk of the recipient if he fails to man telex/fax machine – Brinkibon v. Stahag Stahl Communication during business hours when offeree could reasonably expect offeror to be monitoring machine and would expect communication to occur when fax received is ACTUAL COMMUNICATION – The Brimnes Within ordinary business hours in The Brimnes was deemed where message received between 5:30 p.m. – 6:00 p.m. 3
post may not be reasonable Acceptance even where letter lost in post – Household Fire Insurance Co. Holwell Securities v. v. Alexander suggests it is possible to do this (revoke acceptance by quicker method after it is posted). POSTAL RULE is excluded – Holwell Securities v. Grant Letter is posted when in possession of Post Office (letter handed to post man who only delivers but not authorized to accept is not properly posted) – Re London & Northern Letter must be properly/correctly addressed – Korbetis. HIGHLY DUBIOUS AUTHORITY 4 . address other than designated address used. EMAIL: s. Hughes Retraction or Overtaking of Postal Rule: NO ENGLISH LAW ON POINT By strict postal rule in English law.performance is sufficient no need to communicate one is attempting to perform – Carlill v. not when received – Adams v. Stahag Stahl Receipt deemed to occur on start of next working day – Mondial Shipping v. argue by analogy What would offeree expect? Communication when message played back – RECEIPT RULE EXCEPTIONS Implied waiver of communication Unilateral contracts . Ltd. NO waiver in Bi-lateral contracts – promise in exchange for a promise Silence does not amount to acceptance even where offeror is the one who imposed such a condition – Felthouse v. once posted acceptance communicated and contract formed Countess of Dunmore v. Hughes Where ‘notice in writing’ is required by offeror it requires actual communication. unless stipulated. Astarte Answering machine – no case. Ltd. 20 of the Electronic Transactions Act = Receipt rule (since sender will know if not sent) Where there is a designated e-mail address which was given then: Acceptance communicated via the designated address is when the document reaches the server Where. Carbolic Smoke Ball Co. acceptance communicated when it comes to the attention of the offeror Where no dealings with email and e-mail used to accept – either of the above INSTANCES WHERE ACTUAL COMMUNICATION IS NON-INSTANTANEOUS EVEN THOUGH INSTANTANEOUS METHOD USED When received at night or out of business hours – Brinkibon v. Bindley POSTAL RULE: Acceptance takes place when and where the letter is posted. Lindsell ONLY APPLICABLE TO ACCEPTANCE!!!!! ONLY APPLIES TO LETTERS and TELEGRAMS (non-instantaneous means of communication) It must be reasonable to use post as means of communication – if offer by fax or telephone.
DUNLOP v. payment not for illegal act o Where requirements met. o Reason why promise should be kept i. loss or responsibility given. act is not because of the promise – lacks the bargaining element Roscorla v Thomas – horse promised to be w/o vice AFTER the sale Re McArdle – improvements on building carried out. THIS WAS PAST CONSIDERATION PAST consideration is NO consideration EXCEPTION: o Pau On v Lau Yiu Long (3 Requirements) 1. entirely performed at the time the contract is entered into. law of K only enforces reciprocal agreements o The price paid for a promise to one party or detriment suffered by another. interest.e. this was however changed by WILLIAMS V ROFFEY.e. suffered or undertaken by the other (Currie v Misa) = BENEFIT/DETRIMENT ANALYSIS => criticized. [only a party can sue=Privity of K] 5 . does not explain reciprocity of bargaining. detriment. because of reciprocity o 18th C – merely a support for the fact that parties ICLR (per Mansfield) o Moral obligation o 19th C – it became one of the essential ingredients to uphold a K NB: Consideration does away with legal formalities in some situations DEFINITIONS o Generally.e. i. Must move from promisee – TWEDDLE V ATKINSON . the bargaining element of a K. fails to show distinction between legal benefit/detriment vs. promise for a promise 3. factual benefit/detriment NB: Wlliams v Roffey revived this definition o Price for which the promise of the other is bought (Pollock in Dunlop v Selfridge)=> Preferred definition = shows exchange or bargain Kinds of consideration 1. Circumstances imply/dictate that some payment of money or other benefit will be recovered for service – Re Casey’s Patents 3. i. profit or benefit accruing to one OR forbearance. Hence a promise for a promise Currie v Misa o Right. Executed consideration – a reward for an act i. Executory – a promise to do something in the future. SELFRIDGE 1. this brings together the PROMISE + ACT = ENFORCEABLE K & PAST consideration will be good consideration (Pau On) Rules 1.Consideration HISTORICAL APPROACH TO DEFINITION o 16TH & 17TH C – motives for giving a promise NB: When Denning revived promissory estoppel he opined consideration not necessary. Promise of payment/benefit must be legally recoverable/enforceable prior to agreement.e. afterwards promise & written agreement to pay. Past – a promise of payment or some other benefit which comes AFTER the act Re McArdle – promise is totally independent of the act. NO CONSIDERATION. 2. Promisor requests service/act – Lampleigh v Braithwaite 2.
Consideration MUST be sufficient. SIDWAY 2. NESTLE 1. police could recover money promised – GOOD CONSIDERATION.What is offered as consideration must have some value in the eyes of the law CHAPPEL V NESTLE o Even though wrappers were going to be thrown away.WHITE V. but to win money Chips ARE NOT money’s worth but counters or symbols used for the convenience of all o NO. Nestle gained a benefit as this was a promotion. NO CONSIDERATION . 3. Adequacy is for the parties to decide. was enforceable. however. KARKNELL Solicitor stole money from clients’ used it to gamble and lost Firm sued the Club for the money Club argued they gave chips in exchange for the money and this was good consideration HELD: Gaming chips are not consideration but a mere mechanism to facilitate gambling. etc. but need NOT be adequate – CHAPPEL v. SUFFICIENCY – Question of FACT 1. BLUETT c/f (USA CASE) Promise by uncle to pay nephew $5K on 21st bday if he refrained from drinking. Sufficiency . o C/f CHAPPEL v. swearing. 6 . GOOD CONSIDERATION – HEYMER v. they acted above & beyond what they thought was necessary to maintain law & order in the first place. Arguable. LTD.2. already under statutory/public duty Exception:– o Going above & beyond public duty = GLASBROOK BROS v. Promise by son to stop nagging father in exchange for father putting son in will. not the Courts (caveat emptor) – BOLTON v. MADDEN 2. WARD People do not game to win chips. GLAMORGAN CC – mine owners & police case By assigning police to live on site. wrappers were not a mere condition (Lord Keith) but part of the consideration (Lord Reid) o The contracting party can stipulate quite clearly for whatever consideration he chooses…a peppercorn does not cease to be good consideration if it is established that the promisee does not like peppercorns and throws them away (Lord Summerville) Are casino/gaming chips good consideration? o NO – CHT Ltd. PHH ASSET MGNMNT. Perhaps decision made in interest of fairness and justice as otherwise the Club would have been unjustly enriched. Promise to perform an existing PUBLIC DUTY – COLLINS v. INSUFFICIENT CONSIDERATION 1. only mere mechanism to facilitate gambling – LIPKIN GORMAN v. Promise to forego legal proceedings may be good consideration – PITT V. NESTLE Wrappers were a mechanism to facilitate marketing but were nonetheless GOOD consideration 4. v. money RECOVERABLE. GODEFROY (promise to pay subpoenaed witness unenforceable – NO consideration. there must be some economic value (Treitel) 3.
KAFCO – driver for contracted haulers refused to move goods until agreement for more money entered into and signed – ECONOMIC DURESS CRITICISM – ARTIFICIAL – South Caribbean Trading v. was vastly different from previous K. B ordered delivery to C o C promised to unload the coal o HELD: A could enforce C’s promise – A’s delivery of the coal was GOOD consideration EURYMEDON o Consignee requested stevedore to remove goods. BYHAM – promise by father of illegitimate child to pay mother $$ to keep child well looked after and “happy” was enforceable – GOOD consideration. of 19 only 4 or 5 able sea men Circumstances had changed so drastically and become so dangerous that original K had therefore come to an end and parties entered new contract which. GOOD consideration Requirements – promise is binding & money recoverable where: K for goods/services in return for payment o NB: Re Selectmove – Court refused to extend principle beyond Ks for goods/services A has reason to believe B will not complete work on time A promises to pay B more to finish on time A secures a practical benefit or obviates a disbenefit Promise given without duress or fraud o ATLAS v. Duty owed to 3rd party SCOTSON v. – GOOD consideration 7 . mother acted above and beyond her public duty of simply maintaining. UNPOPULAR VIEW GAVE BY DENNING – not about exceeding statutory duty but providing a benefit under the public duty 2. PEGG o A agreed to deliver coal to B’s order. Trafigura Beheer 3. although already contracted by carrier to do so. PONSONBY -if more than originally promised is performed then there is GOOD consideration Crew of 36. promise to pay higher wages ENFORCEABLE – GOOD consideration o THE ATLANTIC BARON – promisee provided additional benefit and/or incurred additional detriment o WILLIAMS v. promise of extra pay UNENFORCEABLE – NO CONSIDERATION EXCEPTIONS: o HARTLEY v. MYRICK o Desertion of 2 sailors covered by the contract which stated that crew members had to cover for all emergencies. 19 deserted. A promise to perform an EXISTING CONTRACTUAL DUTY STILK v. ROFFEY – promisor gains a factual benefit or obviates a disbenefit.o WARD v. on account of the perilous circumstances. feeding and clothing child by keeping child happy (Where is the economic value???).
Promisee in reliance on the promise alters his position Not necessarily to his detriment.4. A clear.e. payment is made: At an earlier time At a different place By a different method Is payment by negotiable instrument. although there is an argument that detriment should be involved EMERY v. contractual) right will not be enforced 3. reliance Based on Hughes v. i.e. A contract 2. TRIP (1846) o NO – GODDARD v. Metropolitan Railway (time on a notice stopped running during negotiations) but established/revived OBITER in HIGH TREES (Landlord could only recover rent for post-war years when flats fully occupied) Used to mitigate harshness of Rule in Pinnel’s case REQUIREMENTS 1. O’BRIEN (1882) o NO . unequivocal.D & C Builders Ltd. WAYNE (18th C) o YES – SIBBERY v. a different method? o NO – CUMBER v. Rees (1965) rd o Payment by 3 party – HIRACHAND PUNACHAND v. equity prevents A from going back on promise where it would be unfair to do so ESTOPPEL = Promise + Reliance o Provides an alternative explanation as to why a promise is binding. UCB CORPORATE SERVICES 8 . BEER although Court opined that rule not consistent with commercial realities EXCEPTIONS: o Where original sum was unliquidated or disputed in good faith o Where AT THE CREDITOR’S REQUEST. cheques. e. Promise to pay a lesser sum PINNEL’S CASE – payment of a smaller sum will not discharge duty to pay higher sum/full amt (even where creditor agrees!!!) o Applied in FOAKES v.g. v. TEMPLE o Composition agreement with creditors o Promissory Estoppel ___________________________________________________________ o Promise made by deed or in return for consideration o Payment accompanied by an additional benefit 3. (express or implied) promise or representation that a strict legal (i. In such a case. Consideration cannot be of the past – can’t claim benefit for act completed (Re Mcardle) PROMISSORY ESTOPPEL DEFINITION o Equitable concept o Where A promises not to enforce his legal right and B relies on this promise.
o Defendant cannot rely on promissory estoppel if not acting equitable (“He who seeks equity must do equity” – CLEAN HANDS PRINCIPLE) D & C BUILDERS v. REES – Defendant argued estoppel where Claimant brought action for remainder of money. Consequently.Carr. This has not been followed despite the Australian case of WALTON’S STORES where it was used to create a new right of action. It would be inequitable for the promisor to go back on his promise – The Post Changer LIMITATIONS o It is a DEFENCE to a claim. ARUN DC. NOT a cause of action (Shield. promissory estoppel then could be used as a cause of action. solicitor threatened to sue for final payment but did nothing further until limitation period passed. (Emery was in too bad a financial standing and had no chance of recovery) SEECHURN v. COMBE does not create a new cause of action – BAIRD TEXTILES v. MARKS and SPENCER NB: Claimant can rely on promissory estoppel where it is not the main cause of action – HUGHES v. Promissory Estoppel – discussed in Brikom Investments v. NO ESTOPPEL – Rees did not act equitably in putting undue pressure on D & C to accept smaller sum EFFECT of Promissory Estoppel TOOL METAL v. TUNGSTEN : o EXTINCTINCTIVE – as regards existing obligations – HIGH TREES > DURING WAR – right to full rent extinguished o SUSPENSORY – as regards future obligations .HIGH TREES > POST-WAR – right to full rent after war when full occupancy was revived (obligation was suspended then revived) Waiver vs. METROPOLITAN Rlwys In CRABB v. NO ESTOPPEL – no evidence that Seechurn acted to his detriment 4. not a Sword) – COMBE v. it was doubted whether distinction between PROMISSORY and PROPRIETARY estoppel was helpful. ACE INSURANCE In personal injury suit. Oppenheim Consider Promissory estoppel where issue arises re repayment (after looking at Consideration) 9 . Estoppel claim failed because Emery could not show that they had altered their position to their detriment or that they would have acted differently. Rickards v.
ITCLR o Barman v. Crompton Bros. Clarke – couple sold house as instructed by older couple in exchange for the promise to get older couple’s house after they died >>>ITCLR MUTUALITY: Simpkins v. Snelling o Commercial Agreements – heavy presumption of ITCLR Difficult to displace based on purpose of such Ks and undesirability for ITCLR to be a further hurdle for party seeking to enforce K Commercial K’s meant to be legally binding – EDWARDS v. Presumption is that the parties did not intend to create legal relations. v. Balfour . ITCLR.B. the Claimant must discharge burden of proving commercial agreement. consideration. AUFFN NOTE: Where nature & context of parties’ dealings fall between a transaction and social agreement. – notice of guarantee intended to be read and would be reasonably read by customers as constituting a binding offer which customers would accept by booking with member tour operators. when parties in amity different. PRESUMPTIONS o Social/Domestic Agreements – NO ITCLR appears to be public policy Rebutted by:.Intent to Create Legal Relations – judged objectively based on presumptions You can have offer. they bargain keenly not relying on honourable understandings Jones v.T. and acceptance and don’t have valid K Begs question – is it intention or Public policy. Carbolic Smoke Ball – deposit of $$ . REYNOLDS 10 . Malaysia Mining Corp.A. certainty of terms. A. Rebutted By: Express words denying that the agreement is to have legal consequences/enforceable in Courts – Rose and Frank v. Trade Union & Collective Bargaining Agreements – Ford v. Merritt – ITCLR. Vernon Pools Comfort Letters – Kleinwort Benson Ltd. when breakdown.clear reliance. Padavatton – promise to pay fees and living allowances. seriousness of promise (No express statement will suffice) Balfour v. breakdown of relationship takes agreement outside domestic arrangements.NO ITCLR o c/f Merritt v. NO ITCLR where daughter lived in a house where other rooms let DETRIMENT: Parker v. Statement that it is ‘binding in honour only’ – Jones v. Pays – ITCLR >> pooling of funds for lottery and entering in one person’s name BUSINESS ARRANGEMENT: Snelling v. – SADDLER v. SKYWAYS Advertising generally mere puff Exceptions: o Carlil v.
risk must be obvious in all circumstances and unreasonable. Nothing less than intention will suffice o o o Was death/GBH the natural consequence Did D foresee one or other as a natural consequence of his act If so. D drove at high speed swinging car until officer thrown off and killed. Hancock & Shankland – Big brick over bridge – probability = foresight. substantial risk not enough Matthews & Alleyne – court MUST find intention if death or GBH was a VCC. Jury may infer a result is directly intended when: the result of D’s act is a virtually certain consequence of his actions. can find intention need not go one step further to infer.Intention . but is not obliged to do so R v Woollin – man throws baby – confirmed Nedrick test virtual certainty. when D knows that it is a virtually certain consequence. CAN INFER intention R v. Stevenson – a man is reckless where he carries out a deliberate act appreciating that there is a risk that damage (to property) may result from his act. Indirect Intention – Jury Question. this will suffice as evidence which the jury can use to find intention. the greater the probability of a consequence the more likely that it was foreseen. and more likely foreseen more likely it was intended. Reasonable man. He intended to cause GBH and held murder) – objective test – reasonable man Subjective Hyam v DPP – D lit mailbox fire to scare V – High degree of probability of death or GBH– intention R v Moloney – wedding shotgun – If result was a natural consequence and the defendant foresaw the consequence as being natural then he intended the consequence.evidence n not substantive law Direct Intention – Where D brings about a desired result. risk must have entered his mind 11 . then he intends such a result (R v Mohan). this direction Wrong Recklessness SUBJECTIVE R v Cunningham (removed gas meter escaped into neighbour’s house who inhaled it) – Was there an obvious risk which D consciously took or unconsciously took? Objective test. Police jumped on car bonnet. He has intention where he has purpose and foresight of certainty. R v Nedrick – Paraffin through letter box which was set afire – Jury MAY infer intention if D recognized that death or GBH would be a virtually certain consequence. DPP v Smith – (natural and probable consequence) Intention can be formed instantly (man signalled to stop.
V died of exposure. HELD: Ds act from moment he first struck her to when he threw her in the river was a serious of acts to cause death Le Brun – D hit wife on chin intending serious harm and knocking her unconscious. Believing he was dead. he accidentally lost his grip. he may still be convicted o Thabo Meli – Ds hit V over head intending to kill him but only knocked him unconscious. Actus reus .OBJECTIVE Caldwell and Lawrence – (Caldwell -D drunk set fire to hotel. HELD: impossible to divide up what was really one series of acts. Participation Who is a secondary party? Aid or abet the P offender before or at the time of the commission of the offence. Lawrence – caused death by dangerous driving).aid abet counsel or procure Mens rea – as long as u intended to aid…. o Does not extend to foetus – A-G’s Reference No. Ds guilty of murder Church – D beat woman unconscious and in a panic thinking she was dead. HELD: time lag between first strike and Vs death did not stop it being a single sequence of events.. While he was trying to drag body along the street to avoid detection. he will not be liable under transferred malice (R v Pembliton – stone thrown at people breaks window) Coincidence of Actus Reus & Mens Rea D forms M/R but A/R not completed until later and at a time where he no longer necessarily satisfies M/R. they rolled him off a cliff. She died from drowning. Her head hit pavement. and in an effort to fake an accident.(national coal board v gamble) 12 o o . threw her into a river. fracturing her skull and causing her death. Transferred Malice If D with the mens rea of a crime does an act which causes actus reus of same crime he is guilty even though result is unintended (R v Latimer . person is reckless where he does an act which creates an obvious risk that property destroyed or damaged and when does the act has not given any thought to risk or takes it even after recognizing o Caldwell Lacuna – What if D gave thought to the risk but thought there would be no harm (Shimmen) R v G – overruled Caldwell in light of lacuna o Not blameworthy to do something involving risk…if one genuinely does not perceive the risk Once obvious and serious risk is proved.belt). 3 However if D with mens rea of a crime does an act which causes actus reus of another. D's only way out is to prove he considered the matter and there was no risk/negligible risk.
communication not required – R v O’Flaherty If planned. R v English.Joint Enterprise – participation of 2 or more persons in a crime.parties (2ndary) need to realize that death or GBH was possible In R v English – if “weapon” fundamentally different then “scotch free” Duress by threats – (Hudson v Taylor) By threats To a person Immediacy Withdrawal If spontaneous. communication and acts reasonable to prevent crime – Rook 13 . only principal liable (Davies v DPP) The threshold for the mens rea for 2ndary party is lowered (murder) R v Powell. each assumes liability of the other – a common design General – both liable for accidental or unforeseen (R v Baldessare) Exception.major departure.
o Lumley v Wagner TYPES – based on time-span 1.Injunctions DEFINITION o Equitable remedy o In personam o Order by the Court for a party to do something (Mandatory) or to refrain from doing a particular act (Prohibitory) Prohibitory . granted pending trial of substantive matter May be prohibitory.compelled not to do (restraint of trade clauses) Mandatory – compels defendant to do what he is promised to do o NOT GRANTED WHERE . there is still a matter to be heard in the end. prior to Cyanamid. Interlocutory/Interim – deals with the matter in the interim. severe hardship. a ‘mini-trial’ which looked at merits of the case without hearing sufficient argument Where injunction granted. i.e. may be granted for shorter period GENERAL GUIDELINES o Right sought must be known to law or equity Cannot seek injunction because you dislike something – DAY v. or defendant disadvantaged o Restrain breach of contract of employment Warner Bros v Nelson. Stratford & Sons v. D would generally not proceed to trial – FAST-TRACKING of matter. Perpetual – Order finally settles dispute 2.T. mandatory or quia timet (“because he fears” – injunction before D does something) Usually remains in force until substantive trial of the matter.Supervision.American Cyanamid v. Ethicon 1975 o Pre Cyanamid – J. BROWNRIG o Damages not adequate Mandatory injunctions granted less frequently than prohibitory Mandatory injunction ≠ Specific performance o Mandatory inj – may act as restorative remedy to have D undo a wrongful act or compel D to carry out positive obligations o Specific performance granted where contractual obligations are at issue (Mandatory inj can be given but this is rare) PRINCIPLES . Lindley Strong prima facie case that your rights have been infringed Damages would be inadequate Balance of convenience favour the grant Hence. Claimant had to show that it was more than likely that he would succeed at trial Effectively. Claimants did this deliberately 14 .
W. State of Trinidad & Tobago Special factors which may take case outside Cyanamid Principles: o This is the precise reason why Cyanamid did not lay down any hard and fast rules Fellowes & Son v. let alone a straight-jacket” – Cambridge Nutrition v. BBC o Ends of justice not served by laying down hard inflexible rules from which no departure can ever be made – Jagdeo Singh v. Case not frivolous or vexatious Balance of convenience o Carried over from precious dispensation o If Balance of Convenience does not favour grant: Preservation of status quo when all else fails the strength of each parties case must be considered. if present consider special factors –r they aspects or departure? Damages Inadequate o Carried over from b4 RATIONALE: Courts should not be embarking on massive fact-finding missions at such a stage Post-Cyanamid o Lord Diplock’s enunciation in Cyanamid have not done away with previous dispensation principles entirely o Cyanamid is guideline and “must never be used as a rule of thumb. relevant test is still ‘strong prima facie case’ as prior Cyanamid 15 . Fisher – Lord Diplock refused injunction saying he did not feel bound by Cyanamid as there were escape routes from Cyanamid Lord Brown commented that there was flexibility NB: Denning still preferred ‘strong prima facie case’ as he believed such matters warranted expeditious treatment o ‘Special factors’: Trade disputes – strong prima facie case. Smith Libel cases inapplicable – Bonnard v. capable of serious argument 2. Perryman Life saving treatment to a child – Re J (A minor) Claimant cannot give a worthwhile undertaking in damages Mandatory Interlocutory Injunctions .o Current/Cyanamid REQUIREMENTS: 1.Mareva and APO NB: If Cyanamid not applicable. Cyanamid doesn’t apply Trial of action unlikely or delayed No arguable defence – Patel v.H. Serious Question to be tried instead of ‘strong prima facie case’.
o Known as a ‘Search Order’ o It is NOT a search warrant o Court order which mandates the defendant to permit the Claimant to enter his premises and effect a search and seizure of evidence o If Defendant does not comply. without notice. suppliers. (notably the Claimant may be a competitor) o May lead to destruction of business custom o Effectively overrides the right of the citizen to an unprecedented extent o Can lead to gross injustice to Defendant. etc. esp.g.e. based solely off of affidavit evidence Draconian measure REQUIREMENTS o NB: Cyanamid rules DO NOT apply o Claimant must show: 1. negative inferences will be drawn against him at trial o Aim: to prevent destruction of incriminating evidence o Described as an innovation which has proved its worth time and time again Usually obtained ex parte. Strong prima facie case 2. Le Roux – although Mareva Case. e. sensitive or confidential information re the business. even if prejudicial to Claimant Order revoked if full & frank disclosure not made (Fourie v. at the very least o Woman must be present at search of private home where woman may be alone o Experienced Attorney must be present and make comprehensive list of items taken 16 .) o Claimant cannot be going on a ‘fishing expedition’ 4. MANUFACTURING PROCESSES LTD. its clients. Actual or potential damage of a very serious nature 3. There is a real possibility of them being destroyed before an application notice can be made DRACONIAN EFFECT o ‘Strikes without warning’ – since no notice o Violates audi alteram partem rule . creditors. i.ANTON PILLER ORDER DEFINITION o Named after ANTON PILLER KG v. where Claimant abuses situation or Order o Co-opts ‘innocent’ 3rd parties into complying with an Order issued out of proceedings to which they were not parties – 3rd parties may hold the information or documents which are subject to the order o Potentially violates the Defendant’s rights against self-incrimination o Any defence re self-incrimination is only applicable to the Defendant.based solely off of affidavit evidence brought by Claimant o Allows for exposure of sensitive information. third-parties may not be protected SAFEGUARDS o ‘Strong prima facie case’ threshold which needs to be met by Claimant o Strict duty of full and frank disclosure of all relevant matters. he is in contempt of Court and also. still applicable) o Execution of Order must not be oppressive – executed within business hours so Defendant can get legal advice. Clear evidence that defendant has incriminating evidence (documents. etc.
Karageorgis o Known as a ‘Freezing Injunction’ o Interlocutory injunction ancillary to a substantive pecuniary claim for a debt or damages o Considered by Lord Denning as the greatest piece of judicial reform of his time (albeit he was doing the reforming) o Aim: prevent the Defendant from dissipating assets or removing them from the jurisdiction before trial so as to render judgment against him useless o Usually obtained ex parte. First granted in Nippon v.based solely off of affidavit evidence brought by Claimant o May lead to destruction of business custom as assets are frozen. otherwise. banks) usually hold the assets which are subject to the order Once served with a notice. Ltd. without notice. not the first time Order granted. Worldwide freeze of Defendant’s assets Derby & Co. Duvalier 17 .e. giving security in suitable cases o Claimant must establish that there is a risk of the removal of the assets outside of the jurisdiction DRACONIAN EFFECT o ‘Strikes without warning’ – since no notice o Violates audi alteram partem rule . v. Hibben MAREVA INJUNCTION DEFINITION o Named after MAREVA COMPANIA NAVIERA SA v. 3rd party must not facilitate disposal of assets without a Court Order. Weldon (No. o Effectively overrides the right of the citizen to an unprecedented extent o Co-opts ‘innocent’ 3rd parties into complying with an Order issued out of proceedings to which they were not parties – 3rd parties (e. it will be in contempt of Court o Recent expansion of jurisdictional reach Originally involved a foreign national who had assets in England Today: May extend to ALL of the Defendant’s assets (although. Defendant unable then to fulfill obligations to employees.g. a limit is usually specified) o i. INT’L BULKCARRIERS SA However. creditors. Robinson and Universal Thermosensors v. i. etc. 3 and No. based solely off of affidavit evidence May be sought with APO Does NOT rest on Cyanamid principles REQUIREMENTS o Good arguable case o Full & frank disclosure of all material information o Claimant must give particulars of his claim o Claimant must undertake in damages.o o Defendant may opt not to deliver up evidence which is self-incriminating – Rank Film Distributors NB: Not available to 3rd parties Framework of safeguards refined in Columbia Pictures Industries v. 4) Republic of Haiti v.e.
but any expense incurred by 3rd party to comply with Order must be met by the Applicant/Claimant o 3rd party may have a remedy/right of set-off that it would normally have had prior to injunction o Execution of Order must not be oppressive Must not interfere with convenience or freedom of action of a third-party Galaxia Maritime – Freezing order obtained for cargo on ship. even if prejudicial to Claimant Order revoked if full & frank disclosure not made (Fourie v. May be granted against locals with assets outside jurisdiction SAFEGUARDS o ‘Good arguable case’ threshold which needs to be met by Claimant o Strict duty of full and frank disclosure of all relevant matters. Ship owner obtained discharge of the Order as it would have interfered with the crew’s arrangements for Christmas 18 . Le Roux) o Applicant/Claimant has no action against 3rd party for negligence.
relief granted – Wakeham v. it will usually be available to the other 19 . that they be in writing o If binding agreement and sufficient acts of part performance. Court may still grant relief by specific performance – Sutton v. Nelson. McKenzie Part performance may be sufficient in cases where: Claimant takes possession of premises Claimant carries out work on premises Claimant pays rent in advance Claimant pays down substantial amount as deposit o Part performance – cant unless it’s a severable K – when significant work is done as it would be inequitable (design n build) CONTRACTS FOR THE SALE OF LAND o COGENT v. ought not to be granted in respect of personal property.when c/l remedies not apply o Discretionary. governing principles are not to be avoided by seeking an injunction in the alternative. Lipman: specific performance would not have been ordered if property was sold in ‘arms-length transaction’ to bona fide purchaser for value without notice (company other than that owned by the Defendant) Courts are not in the business of supervising (corp insurance V argyll stores) Delay defeats equity Equity does not assist a volunteer o Given in the context of a contractual agreement o Order of the Court requiring a party to perform his obligation under the contract specifically Remedy in personam . GIBSON Unique nature of land makes it amenable to specific performance Since purchaser can get specific performance against Vendor. Lord Baltimore o Generally. but granted on settled principles E. v. unless item is peculiar o Subject to the maxims of equity He who comes must come with clean hands Equity does not act in vain – Jones v. Sutton Sufficient part performance may then displace requirements of Statute of Frauds re Land contracts.Penn v. Sky Petroleum Ltd. Courts have in fact ordered injunctions with the effect of specific performance and admitted to doing so – Warner Bros.g. v. sale or lease). in the absence of written agreement for land contract. VIP Petroleum Ltd. DOCTRINE OF PART PERFORMANCE o If a party has sufficiently performed part of the contract (esp. MUTUALITY PRINCIPLE applies and Vendor can therefore obtain specific performance against Purchaser (even though it is a contract to pay money) o MUTUALITY PRINCIPLE Where S/P can be ordered in favour of one party. however. particularly.Specific Performance DEFINITION o Equitable Remedy.
Mutuality Principle (above) 2.g. Contracts for company to take up and pay debentures 4. rent) o Specifically enforceable as it prevents Claimant from going to Court each time Defendant defaults on payment. Where one party could not get S/P against the other. Courts have granted injunctions which have had effect of S/P (and they have admitted to doing so) 1. if B has completed the obligations for which S/P would not have been available by the time of judgment. Scott-Lewis – a resident porter: ENFORCEABLE 2. Agroexport Exceptions 1. Contracts for payment of annuity or other periodic sums (e. Where S/P ordered. Parsons. such as in department store. Boland CONTRACTS TO PAY MONEY o Not normally enforceable by specific performance – since damages would be adequate: Locabail International Finance v. ordering S/P for transfer of land because personal services rendered may be far too much. Posner v. not whether S/P could be obtained at time of K – Price v. there may be an award of damages in acknowledgment of the services – Jennings v. Lumley v. Ryan v. no S/P as A would not be able to get against B What is important is completion by date of judgment. which applied 2. just not act in another film o RULES Court will not generally award S/P where contract would require constant supervision 1. Beswick 3. Mutual Tontine – a specific porter: NOT ENFORCEABLE Equity does not act in vain – S/P not granted if it cannot be ensured that it would be carried out 1. then other party should not get S/P – Flight v. Hill v. Defendant’s default is contempt of Court CONTRACTS FOR PERSONAL SERVICES o Generally. Nelson – Court opined that the injunction although having effect of specific performance was not tantamount to slavery as the actress could have worked elsewhere. however. not specifically enforceable: Tantamount to slavery Requires supervision o Rule cannot be avoided by seeking injunction However. Warner Bros. Wagner – SINGER COULD BE INJUNCTED FROM SINGING ELSEWHERE 3. Strange Since equity is equality. Contracts to pay money to a 3rd party ( since damages awarded to Claimant would only be nominal) – Beswick v. Co-Op Insurance v. Argyll Stores o NOTE: If A makes promise to B in return for personal services. B can obtain S/P against A If B has not completed by date of judgment. Rice 20 . v.
Trust of homes Institutional form of trust imposed by law to grant a claimant an equitable remedy.look at whole course of dealings not only truth conditions – baroness haye – based on conduct what must have been the intention? 21 . Truth conditions Common intention to share of property Detrimental reliance Lord Denning new model constructive trust (eves v eves) – remedial effect – lose predictive value Lloyds bank v rossett – detrimental reliance =financial contributions Ossley v hisscock – household duties – saving u from paying these thus contribute to mortgage joint acct(grant v edwards) Stack v Dowden.
they also lost profit on metal. metal which had to be discarded and profit lost on discarded metal recoverable.Tort Negligence To establish Negligence there must be Duty of care – Donoghue v stevenson – Neighbour principle – you must take reasonable care to avoid acts or omissions which you can reasonably foresee would injure your neighbour. HeldOnly the damages to furnaces. Consider Caparo v Dickman where D had done audit for company being taken over. not the P. then must show that it wasn't fault of D and he had taken all reasonable steps 22 . o Current test in Jamaican law – Anns v Merton – 1) Is there sufficient relationship of proximity so that carelessness of D might cause damage to P so that prima facie duty arose? 2) Are there considerations which would limit the scope of the duty? Economic Loss – Usually not recoverable. Neighbour is persons who are so closely and directly affected that I ought to have them in my contemplation as being affected when doing the acts or omissions. the test expects standards in accordance with a responsible body of opinion. this caused physical damage to factory furnaces and metal. however this standard may be too low – Blyth v Birmingham waterworks – D had done what the reasonable person would've done. The adviser knew the advice would be communicated to the advisee. Losses from factory being shut down for 15 hours not recoverable. However where there is: Loss consequent to physical damage of property – Spartan Steel v Martin – Where plaintiffs suffered electricity loss as a result of negligence of D. 2. 4. Held that door under control of company and they were negligent. It was acted upon by the advisee to his detriment. Though it isnt ordinarily. 3. Advice given in social occasions may have liability attached. Held: Not D's problem as D did the work for the company. usually man on the clapham bus. Advisor actually or inferentially knew that the advice was required for a purpose. Jamaica Omnibus v Hamilton – Where Bus door flew open around a corner and Passenger fell out. Negligent Misstatement – Headley Byrne v Heller – Requirements – 1. P could've gotten independent audit. (Chaudhry v Prabhakar) Advisors may protect themselves by a disclaimer however this cant be applied where the notice is unreasonable (Smith v Eric Bush – Purchasing house surveyer) o Breach – Standard is the reasonable man test. o Novices must show same standard of care as a reasonable person with that skill. and P acted on the audit. If part of car fails. No allowance given for lack of experience. It was known that the advice would be acted upon by the advisee without independent inquiry. Child D is expected to meet the standard of reasonable child of same age Public authorities only liable for misfeasance and not for negligence for failure to act or to provide a service (under jamaican law) Res Ipsa Loquitor – Evidence speaks for itself – Raises prima facie inference of negligence > Reverses burden of proof requiring D to show that damage was not caused by his failure to take reasonable care. o Bolam Test – Where D has repersented himself as having more than average skills.
the court may regard first event as cause of the harm. If there are multiple causes must prove that one particular breach caused the damage. C's own conduct. Later it was found that C had a spinal disease which would gradually rendered him unable to work. D argued liability extinguished by 2nd incident. o o Novus Actus interveniens – can be either act of nature. Held Prior loss was in no way reduced by amputation of leg. Current Test – Wagon Mound #1 test – Only the harm that was reasonably foreseeable is recoverable. Held that D only had to pay for damages up to when the spinal disease took over because it would've happened anyway. Extent of damage need not be foreseeable though (Thin skull rule applies R v Blaue jehovah witness) Claimant has duty to mitigate. Remoteness o o Previously in Re Polemis – Held that once some harm was foreseeable the D was liable for full extent of the harm. Subsequently in the course of his employment C was victim of armed robbery where he got shot in the left leg and it had to be amputated. Causation o Causation in Fact – Claimant must prove on balance of probabilities that D's breach caused the harm. doesnt have to be main cause. or act of a 3rd party – Jobling v Associated Dairies – C's employer negligently caused a slip disk which reduced his earning capacity. Baker v Willoughby – C sufferred injuries to left leg as a result of D's negligence. provided that it materially contributed. May be sufficient to prove that D's breach made risk of injury more probable (McGhee v National Coal Board) Causation in law – Where there are 2 successive causes of harm. o 23 .
State of D's land – Occupier must take steps to prevent/minimise dangers to adjoining land – Leakey v National Trust – D had mound of earth which was gradually eroding into P's property. damages – amenity value. Interference with enjoyment (smell. Eg: Unreasonable use and obstruction of highway. Public Nuisance An act which materially affects the reasonable comfort/convenience of her majesty's subjects. Halsey v Esso Petroleum – Held that doing work at 10am is fine. D refused to cut tree and told him to move car. But at 10pm is not fine. it isnt interference with enjoyment of land. (if activity is useful for community as a whole may not be nuisance) Malice – Christie v Davey – Music lessons ruined by neighbour. since respondent was occupier. Work disturbed neighbours sleep and caused damage to clothes from acid smut. C had warned D about tree. landlord – if he has knowledge of nuisance. Remedies – Damages. Held D must take steps to prevent or minimise danger from natural hazards on his land. *NB – Interference with TV reception by building is not an actionable nuisance. Who may sue – Persons with proprietary interest or exclusive possession (Dobson v thames water) Who may be sued – Creator of nuisance. Abatement Titus v Duke – Tree in yard damaged C's car. A single act can however rarely amt to nuisance (Crown River Cruises v Kimbolton fireworks) Unlawful/Unreasonable – C must prove D's conduct unreasonable. Injunctions. Was private nuisance affecting some residents. Interference with the use/enjoyment of land or right over it. statutory authority Remedies – Injunction. Must prove special damage over and above others AG v PYA Quarries – quarrying activities showered neighbourhood with stones and dust and vibrations. It is a crime and a tort. Utility – Harrison v Southwark – Building work carried out at reasonable times of day is not nuisance. making it unlawful (sic utere tuo ut alienum non laedas – use own property as not to injure your neighbour's). Held D not liable. noise). Cost of cure. Encroachment on N land (overhangs).Nuisance What is it? Continuous unlawful interference with the use or enjoyment of land (or right In land) Private Nuisance – Physical injury to the land (flooding). Court will take factors into account when assessing reasonableness o o o o o Locality – Sturges v Bridgeman – What is nuisance in belgravia may not be in berdmondsey Sensitivity – Robinson v Kilvert – Abnormally sensitive paper damaged by heat from adjoining premesis. Requirements Continuous – Over a period of time. Defences – Prescription – 20 yrs. but not a public affecting all. could've taken steps to remedy. 24 .
(Robinson v kilvert –steam damage paper crt says no)/(mckinnon industries v walker –orchids) Duration and frequency Locality Malice – (Christie v Davey) Interference with use prove physical damage or peaceful enjoyment (halsey v esso petroleum – noise and vibration)/(hunter v canary wharf – interference with tv reception ) persons with proprietary interest or exclusive possession (Dobson v thames water) creator of nuisance. and D knew about it.knowledge of nuisance. Prescription – 20 yrs. noise) Requirements Continuous interference – Unlawful interference – a single act can amt to nuisance (crown river cruises v kim Bolton) fireworks unreasonable use causes unlawful use – sensitivity of claimant (give n take). Coconut fell from tree in D yard and struck policeman. What is it? Continuous unlawful interference with the use or enjoyment of land (or right In land) Types of private nuisance – Physical injury to the land (flooding) Encroachment on N land (overhangs) Interference with enjoyment (smell. whether liability arises. abatement Who may sue Who may be sued Defences Remedies What kind of nuisance is applicable. in not other torts? Negligence? 25 .Charles v Charles – Police walking along road. damages –amenity value. landlord. cost of cure. come n continue nuisance. Happened before. Liable in nuisance and negligence. statutory auth injunction.
injunctions – can get for personal injuries Remedies 26 . Unreasonable use and obstruction of highway. Eg.Public Nuisance AG v PYA Quarries What is it? An act which materially affects the reasonable comfort/convenience of her majesty subjects. It’s a crime and a tort (prove special damage – over n above others) damages.
o Common Benefit – If danger was maintained for benefit of both C & D o Act of a stranger – If stranger responsible not liable o Statutory authority o Act of God D brings on his land for his own purposes something likely to do mischief It escapes Non. provided there is no negligence will be a defence. Note. the harm was too remote) Defences – contributory negligence.Rylands v Fletcher Rylands v Fletcher 1. The thing was something likely to cause mischief if it escaped. D made non-natural use of his land 3.claimant must have interest to sue -dangerous or high risk thing Defences – contributory negligence.natural use Foreseeable harm Cambridge water company. The thing escaped and caused damage 5. Defendant brought something onto his land. this is a Barbadian case. Thus. Now there is further requirement that the harm must have been foreseeable ( Cambridge water v Eastern Counties leather – Held that though all requirements of Rylands v Fletcher were there.only foreseeable harm is recoverable Transco PLc.no personal injury How relevant? Tort of negligence (Donoghue v Stevenson) FOR JAMAICAN LAWYERS: Just an update – as it relates to electrocution – there is a case in Barbados – Phillips v Barbados Light & Power. unforeseeable act of a stranger Remedies. which says that you CAN recover damages for personal injury in Rylands v Fletcher – FOLLOWING THE POLICY FOR SUCH RECOVERY IN AUSTRALIA. 2. No personal injury though (usually negligence) Defences – Consent (Where claimant consents to the presence of source of danger. 27 .courts took restrictive approach . you have the option of following the English jurisprudence or using the Barbadian case. 4. unforeseeable act of a stranger Remedies – Damages for Physical harm to land itself and other property.
ENGLISH LAWYERS: STILL GO ALONG THE ROUTE OF NEGLIGENCE AS PERSONAL INJURY IS NOT RECOVERABLE IN ENGLISH LAW. Laskey) or R v F (Cambridge Water) o Distinctions LIABILITY R v F – founded upon escape of accumulation (therefore. principle of ‘reasonable user’ R v F – ‘reasonable user’ similar to principle of natural use. generally excludes things occurring naturally) Nuisance – liability may arise for things occurring naturally (Charles v. Rylands v.) and private nuisance No recovery for personal injury in private nuisance (Malone v. anyone who suffers damage may claim irrespective of whether they are occupiers of adjoining land – British Celanese Private Nuisance – founded upon proprietary interest – Molone v. in Transco Lord Bingham showed preference to ‘ordinary’ use Foreseeability of damages important in R v F (Cambridge Water Co. Fletcher vs. Private Nuisance o R v F and nuisance can be invoked indifferently – Read v. Lyons o Courts have refused to push the rule in R v F forward. Polsue) STANDING/LOCUS STANDII R v F – once escape is established. Laskey 28 . Charles) TANGIBLE/INTANGIBILE R v F – accumulation of tangible matter likely to cause damage if it escapes and which escapes Nuisance – can cover damage caused by escape of intangible escapes such as noise (Rushmer v. stated clearly that R v F is a sub-species of nuisance – Transco o Current trend of eroding non-fault basis of liability in R v F which has been reinforced in recent time – Cambridge Water o Similarities Nuisance – liability where unreasonable interference with C’s proprietary interest in land.
and ius accrescendi does not apply On death of Tenant in Common. EQUITY PREFERS CERTAINTY 2. EQUITY IS EQUALITY 3. Inequality – JT may get entire interest without having contributed anything at all or only a small portion. on Title) o c/f England – where only JT at law Where conveyance/transfer without words of severance. Unconscionable nature – JT is not allowed to do what he may with his ‘portion’ of the property. no-one knows which JT will out live the other(s).Malayan Credit 29 . ius accrescendi thus acts without conscience or compassion as it relates to not just wishes of JT but also the needs of those who may depend on him All owners viewed as a single legal entity Co-owners own ALL the land.e. generally. where parties purchase as co-owners. JT at law –equity follows the law So. Lottery effect/uncertainty – survival of the fittest. JT is presumed o SPECIAL CASE Commercial undertakings – right of survivorship incompatible with commercial undertakings so really TIC (in equity) Co-owners for partnership (business or otherwise) – Lake v Craddock Purchasing for individual business purposes . no separate ownership All co-owners must act in concert o Tenancy In Common Co-owners hold a separate but undivided share in the land Each co-owner can deal with their undivided share as they see fit Less perfect since only one Unity.Co-Ownership DEFINTION o Simultaneous/concurrent ownership of land by 2 or more persons o Simultaneous interest in the same land o Land subject to several and separate ownership in various forms TYPES o Joint Tenancy 4 unities Time Title Interest Possession Viewed as more perfect type of co-ownership because of Ius accrescendi Ius accrescendi IS The right of Survisorship Odious in equity because of: 1. unity of possession. co-owners may be Joint Tenancy or Tenancy in Common at law (i. his undivided share devolves to his estate In Jamaica.
Williams v. depends on circumstances in respect of their conduct o E. interests of the children only taken into account insofar as they affected the equities in the matter as between the two beneficially entitled persons However. it is suggested that the conflict is merely a matter of language – Cousins v.can the purpose of the trust still be carried out All surrounding circumstances must be taken into account Whether in light of the moment and circumstances. Hensman No hard and fast rule. Dzosens o Court will consider: Intention of creator of trust Purpose of trust Welfare of the children 30 . esp. as the case may be) FORCE OF SALE o Decision based on parties’ relationship in light of ALL circumstances. NO SALE Re Holliday – purpose of trust was matrimonial home. potential share would be referable to number of parties If JT seeks to sell. Hankle – inter vivos deed of transfer did not conform to requirements under Registration of Titles Act but was nevertheless a sufficient act showing alienation of interest o Severance creates a trust situation – Legal owners (on title as JT) hold on trust for themselves and persons in equity (those who severed.nothing short of a registered transfer will suffice (Generally) Gamble v. not some Need not be in writing – Burgess v. HANKLE) . SEVERANCE o Act of transforming joint tenancy into a tenancy in common o Severance must be inter vivos – Williams v. Rawnsley Mutual Conduct . (GAMBLE v.g.Williams v. Statute of Frauds must be met Other JT’s need not know Mutual Agreement . it would be right and proper to order sale Whether voice of person seeking force of sale should prevail Re Evers Trust – purpose of trust was to provide a family home. where there is a trust Starting point – Re Buchanan-Wollaston’s Conveyance . Hensman o Cannot sever legal title. Hensman ALL JT’s must agree. etc. MAHFOOD).Williams v. can only operate in equity o METHODS: Alienation . Hensman JT acts on his potential share. SALE POSSIBLE. if they partitioned house or treated one side of house as belonging to one and the other side to the other Homicide – common law forfeiture rules against unjust enrichment o NB: Notice IS NOT sufficient (LAWRENCE v.
Dowden principles 31 . WHERE SALE SUCCESSFUL Where financial contribution. but NOT secured creditors. without more o APPORTIONMENT OF PROCEEDS. Interest of any secured creditors – NB: Gov’t agencies such as Inland Revenue are considered preferential creditors. Gallant Absence of express declaration – Stack v. resulting trust. Dyer o Presumption Rebuttable where: Declaration – Goodman v. otherwise constructive trust Presumed intention resulting trust arises as a result of contribution to purchase money o Contribution – resulting trust as tenants in common referable to contribution – Dyer v.
Bernstien v. DT and ST 2. Capable of a Grant -capable grantee/grantor – sound mind and age -sufficiently definite – footpath. McAdam Passage of air through specific channel – Wong v. Griffiths Storage – Wright v. Owned and occupied by separate persons (Diversity) o Cannot have right over own land or right against oneself 3. Ackland) -analogous to existing easement – in nature of rights held to be easement Recognized easements Right of way – Borman v. EMCER Right to light – Colls v. Ladbroke Right to use communal Gardens – Mulvary v. Beaumont Right to require ST owner to put up fencing – Crowe v. (No right to privacy (Brown v. sells ST o Grant of an easement express grant by deed legal Must be in writing Clear on the face of it that intended to be a deed Signed by person making deed in presence of witness who attests signature Delivered as a deed express grant by K – equitable Not delivered as deed But in writing > Statute of Frauds satisfied 32 . Wood Right to put sign on neighbour’s land – Moody v.Easements DEFINITION o A right to use a person’s land for the benefit of another piece of land (right in rem) ESSENTIALS o Re Ellenborough Park 1. Skyways). Jackson Right to use neighbour’s toilet – Miller v. Right must accommodate or benefit the DT o Right must not be a personal benefit to owner – Hill v. Home & Colonial Stores Right to light for business purposes is sufficient light for the premises for ordinary business use Right to light of itself is insufficient to form easement S. No right to a view (Aldred’s case). etc. Flower. 3 Prescription Act – 2oyrs enjoyment makes right indefeasible -must not exclude servient tenement owner altogether o If Re Ellenborough not met. Tupper 4. Right to general flow of air – Chasty v. then there may be a licence Creation of easements o Easements may be granted or reserved Granted – sells DT Reserved – retains DT. Steggles Parking – London & Blenheim v.
9 Conveyancing Act every Conveyance of land passes with it all liberties. Royston o Must be no evidence of alternate route – Menzies v. 9 not expressly excluded o Right meets Ellenborough Park o DT and ST owned by same person. Griffiths For leases < 3yrs. Prescription Act – 20yrs Reservation -legal express – deed Must be in writing Clear on the face of it that intended to be a deed Signed by person making deed in presence of witness who attests signature Delivered as a deed implied by necessity – absolute necessity 33 . but upon circumstances of the situation . written K o S. privileges.does not apply to Ks >> Borman v. but occupied by different persons o o prescriptive easements – legal without force without permission without secrecy BASIS: long user as of right TYPES: Common law – time immemorial = 1189. Griffiths Also applicable where common owner sells DT and ST to X and Y at the same time implied grant s. rights & advantages appertaining to or reputed to appertain to the land or any part thereof REQUIREMENTS: o DEED. easements.Nickerson v Barraclough implied by mutual intention – legal implied into deed Courts give effect to what it believes intention of parties was o Wong v Beaumont Trust implied grant (Wheeldon v Burrows) can be either as to document Single owner DT sold Maturation of quasi-easement REQUIREMENTS: o Continuous & apparent o Necessary for the reasonable enjoyment of land sold o In use prior to and at time of sale for benefit of DT Example: Borman v. Lost Modern Grant (rebutted by showing no-one could have possibly given grant). Signed by or on behalf of both parties and containing express terms of agreement implied by necessity –legal easement Implied into deed Absolute necessity – Titchmarsh v. Breadalbane o Not created simply because of public policy.
it will be within the initial grant White v Grand Hotel Eastbourne – house changed to hotel. Royston o Must be no evidence of alternate route – Menzies v.Jelbert v Davis 34 . British Rlwys Board v. Breadalbane o Not created simply because of public policy.Nickerson v Barraclough implied by mutual intention implied into deed Courts give effect to what it believes intention of parties was Wheeldon v. right can be challenged .9 o WB continuous and apparent Necessary for reasonable enjoyment In use previously existed and at time of sale Owning the whole – transfer part Applies to contracts o S9 Single owner. but upon circumstances of the situation . diverse occupation doesn’t require continuous does not apply to k far wider than wb PROTECTION o LEGAL EASEMENT – binding upon the world o EQUITABLE EASEMENT – binding upon all except bona fide purchaser for value without notice Increase in use of DT will not necessarily extinguish easement o as long as nature of the use does not vary. Burrows v S. Implied into deed Absolute necessity – Titchmarsh v. Glass – railway crossing used for crossing cattle then caravans were given permission to use by the person entitled to easement – WITHIN GRANT. as above o If use is excessive.
murder (DPP v Majewski) “Dutch courage” .g. did not know it was wrong (legally) Defendant to prove own insanity Disease of mind legal concept not medical Rule which negatives the mens rea Duress Limited not applied to murder or attempted murder 35 .Defences Insane automatism (insanity) (M’Naughten rules) Sane automatism Complete loss of control due to an external cause and it is not self-induced Denial of actus reus (R v Quick) Intoxication (voluntary or involuntary) Voluntary intoxication Alcohol and dangerous drugs Partial defence to crimes of specific intent e.public policy Intoxication other than alcohol and dangerous drugs (R v Bailey) Defence to crimes of specific and basic intent provided not reckless (Myquil) Involuntary intoxication (spiking drinks) Complete defence to all crimes (R v Kingston) Self-defence Proportionate and reasonable use of necessary force (R v Williams) – D commit no offence if the force used was reasonable in the circumstances as he believed them to be Defect of reason by disease of mind which renders the defendant to not appreciate the nature and quality of the act or even if he did.
Threat and offence near By circumstances (analogous to necessity) Threats from external source Necessity – D committed crime in order to avoid an even greater evil (Re A (Children) 2 reasons for recognizing the defence Unjust to punish D for something a reasonable person would have done in same circs The law should encourage D to choose the lesser and avoid greater evil on public policy Mistake Ignorance of the law excuses no one Mistakes of fact denies mens rea – bear Mistakes as to the actus reus – Tolson (1889) Honest reasonable belief – now bad law Mistake should be honestly Equitable remedies Damages – monetary compensation for non-performance of contractual obligations Available as of right 36 .By threats (R v Hasan) Threat to kill or do GBH To self or person for whom one is responsible Immediate.
Specific performance Substitution not possible eg fine art Adequacy of damages / appropriateness of damages SP not granted Too difficult to supervise No mutuality Used to be thought of at the time of contracting Price v Strange – time for considering mutuality is time of trial Risk of hardship to defendant Equity will not assist a volunteer If claimant has not given consideration for promise eg. Contracts by deed Delay defeats equity (laches) Damages can be awarded in lieu of specific performance 37 .
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