Pgdl/hk May 2001 Qu 1 Offer/acceptance We have to advise Fred as to whether he has a contract with !!

a" #efine contract and state ingredients" $hen work through the events chronologically%& On 'unday !!a e!ails Fred" (s this an offer) #efine offer and distinguish fro! invitation to treat" (t does see! *uite definite and !ay constitute an offer" (s she +ound to keep the offer open until $hurs) ,o" ven if the offer is declared to re!ain open until a certain ti!e it !ay +e withdrawn +efore that ti!e as long as the rules relating to revocation are adhered to" -nless consideration has +een given to keep the offer open she is not +ound to do so" $his does not see! to +e the case here" . /outledge v 0rant On Monday Fred e!ails a reply" Would this for! a contract) #efine acceptance and state rules & !ust +e a+solute1 correspond with the offer and +e co!!unicated" 2ere he appears to +e willing to pay the asking price +ut wants to pay in instal!ents" #iscuss counter&offer and its effect & 2yde v Wrench" #istinguish a !ere re*uest for infor!ation & 'tevenson v Mc3ean" 2ere it see!s that Fred4s *uery ought not to +e treated as a counter&offer and should +e answered +y !!a" 2owever1 the 2nd e!ail sent +y Fred appears to +e an unconditional acceptance" (s it co!!unicated) $he general rule is that acceptance is not co!plete until it is co!!unicated to and received +y the offeror" !ail is an electronic device which trans!its an instantaneous !essage" Would this suffice) & ntores v Miles Far ast 5orp and 6rinki+on v 'tahagsathl see! to suggest that co!!unication is not co!plete until it is actually received" 6ut note the words of 3ord Wil+erforce in 6rinki+on" May+e when co!!unication is ,O$ instantaneous so!ething e*uivalent to the postal rule should apply)" Might this +e the case here where !!a +egins the negotiations +y e!ail" Perhaps she ought to have +een !ore vigilant in anticipating an early reply fro! Fred) When she sells the car to 2arry on Monday evening she appears to have entered into a valid contract with 2arry to sell the car to hi!" $his would a!ount to a revocation of her offer to sell to Fred" 7s previously stated !!a is within her rights in withdrawing the offer +efore $hursday"

'tate the rules relating to revocation & possi+le at any ti!e +efore acceptance1 +ut it is not effective until co!!unicated to and received +y the offeree & 6yrne v 8an $ienhoven" (t would see! that !!a has !ade no atte!pt to co!!unicate the revocation to Fred" 2owever1 he does learn of the sale to 2arry +efore co!!unication of acceptance +y the e!ails" Would this suffice) 9es according to #ickinson v #odds" Fred was in no dou+t that the car +rought in +y 2arry is the car Fred wished to +uy fro! !!a" 2owever1 Fred has written to !!a accepting her offer1 +efore seeing 2arry" (dentify the postal rule as an e:ception to the general rule that acceptance !ust +e co!!unicated & 7da!s v 3indsell Will the postal rule apply here) Possi+ly as Fred4s other efforts to co!!unicate with !!a do not see! to have +een successful" (t !ay +e reasona+le to reply +y post on $uesday if such can +e e:pected to +e received +efore the deadline e:pires on $hursday" Might the postal rule +e e:cluded +y the ter!s of the offer) & ;9ou have until $hursday to 3 $ M <,OW=" $his !ay +e analogous to 2olwell 'ecurities v 2ughes1 which !ay !ean that acceptance will not take effect until the letter is received +y !!a on Wednesday" 7s the letter and e!ails are read +y !!a on Wednesday !orning it !ay +e that co!!unication co!es too late after Fred has +een !ade aware of the revocation on $uesday" Qu"2 5onsideration (n advising 7!y we !ust recognise that the su+>ect area in the *uestion relates to consideration" $his can +e identified as a vital ingredient of a contract and should +e defined" $he central issue is whether 7!y is +ound to pay $i! an additional ?21000" $i! was +ound to co!plete the yacht +y 1"@"2000 for the agreed contract price of ?2A1000" $he issue is whether in co!pleting the yacht as agreed $i! has given any consideration for the additional pay!ent of ?21000" (t !ust +e asked what is $i! giving in return for 7!y4s pro!ise of e:tra pay!ent" (f1 in co!pleting the yacht +y 1 7ugust1 he is only doing what he is already +ound to do how can this +e said to +e giving sufficient consideration) :plain sufficiency of consideration and distinguish fro! ade*uacy" Perfor!ance of an e:isting contractual o+ligation owed to the pro!isor & 'tilk v MyrickB cf 2artley v Ponson+y" (f this +asic rule is to +e applied then $i! will not have given consideration for the additional pay!ent and 7!y !ay seek to recover it"

2owever1 the case of Willia!s v /offey !ust +e considered" (t see!s that consideration !ay +e found if a practical +enefit can +e identified as accruing to the pro!isor and so long as the new pro!ise is not !ade as a result of econo!ic duress applied +y the pro!isee"" (n Willia!s v /offey such a practical +enefit was identified and there was no evidence of duress" $he previous principle in 'tilk v Myrick was1 however1 confir!ed" (ts effect was said to have +een refined and li!ited" (t would still apply if no +enefit could +e found" $his see!s to +e a concept1 which is capa+le of so!e !anipulation1 and if the court wants to !ake the new pro!ise enforcea+le it will find the re*uisite +enefit" (t is so!ewhat difficult to reconcile Willia!s v /offey with 'tilk v Myrick on this consideration point" #id the captain in 'tilk v Myrick not receive the +enefit of having his ship worked ho!e) 2owever1 it was felt +y the 57 that the result in Willia!s v /offey was co!!ercially necessary and that safeguards against a+use in the future will +e in the application of the doctrine of econo!ic duress" (f such is found to e:ist then the new pro!ise will not +e enforcea+le" (n the pro+le! there is clearly a practical +enefit accruing to 7!y in agreeing to pay the additional ?21000 as she is to receive the yacht in ti!e for the race" (s there econo!ic duress) ,ot easy to tell on the facts given" #efine duress" :plain what conduct will a!ount to econo!ic duress" Make reference to case law including Pao On v 3au 9iu 3ong" 7!y was reluctant to pay the ?21000 and had to incur de+t to do so" (n asking for the e:tra pay!ent !ight it +e said that $i! was applying i!proper pressure) (f so the pay!ent of the e:tra ?21000 !ay +e said to have +een !ade under econo!ic duress and !ay +e recovera+le +y 7!y" Qu" C Privity Qu"A :e!ption clauses (n answering the first part of the *uestion we will need to advise 3isa that the issue is whether Pest 5ontrol are a+le to rely on the clause that refunds cannot +e paid unless co!plaints are !ade within C0 days of purchase" $he clause is an e:e!ption clause and would +e su+>ect to +oth co!!on law and statutory controls"

7t co!!on law the clause could only +e relied upon if it was found to +e incorporated into the contract and if1 as a !atter of construction1 it could +e said to apply to the +reach1 which occurred" Firstly the invoice would have to +e identified as a contractual docu!ent" i"e" one which the party su+>ect to its ter!s would e:pect to contain ter!s & 5hapelton v 6arry -#5 $his is likely to +e the case here" 7s the docu!ent is not signed +y 3isa the ne:t *uestion to +e addressed is whether sufficient and reasona+le notice of the clause was given to 3isa +efore or at the ti!e that the contract was entered into With respect to the ti!ing of the notice it could +e argued that notification ca!e too late as she receives the invoice after the contract has +een !ade apparently over the phone & Olley v Marl+orough 5ourt 2otel" 2owever1 it is possi+le for notice to +e inferred +y reference to a previous course of dealing +etween the parties & <endal v 3illico% 'purling v 6radshaw" We are told that 3isa has used Pestcontrol4s service previously" Would this instance +e regarded as a previous course of dealing) & 2ollier v ra!+ler Motors" 7lso it would have to +e shown that the course of dealing was consistent" $hey would have to have included a si!ilar clause in previous dealings" (t is not clear whether this is the case here & Mc5utcheon v #avid Mac 6rayne" (f notice could not +e inferred +y reference to the previous dealings +etween the parties could it +e said that 3isa was given ade*uate notice when the contract was !ade over the phone) We would need to look at what was !eant +y sufficient and reasona+le notice" 3ord Mellish in Parker v ' /ly & the person seeking to rely on the clause !ust show that they have done what is reasona+le to +ring the clause to the attention of the other contracting party" (s reference to the Dusual4 conditions of sale sufficient) (f the clause is found to +e incorporated into the contract it !ust +e *uestioned whether the clause covers the +reach that has occurred" $his will +e su+>ect to the 5ontra Proferente! rule" $he words used +y the defendant !ust +e precise and specific1 otherwise they will not +e a+le to +e relied upon & 2ollier v /a!+ler Motors" $he words here see! fairly clear and una!+iguous" $hen the clause will +e su+>ect to statutory controls" -5$7 would need to +e considered" (t applies pri!arily to +usiness lia+ility as defined +y s"1ECF" $his would +e satisfied as Pestcontrol are operating in the course of a +usiness""

$hen the clause would pro+a+ly +e su+>ect to +oth s"2 Gs"C +ecause the failure of the preparation to work could a!ount to +oth a +reach of contract and the tort of negligence" 6oth sections would need to +e clearly e:plained" (n applying +oth it would see! that the clause would only +e effective if it could satisfy the test of reasona+leness" /efer to the test in s"11" Make reference to the guidelines within the 7ct to assist the court in deter!ining whether the clause is fair and reasona+le" One of the 'chedule (( guidelines is particularly pertinent" & see 0reen v 5ade 6ros Far!" 7s the product need to +e used for A0 days1 +ut the co!plaint !ust +e !ade within C0 days this could !ake reliance on the clause unreasona+le" 7lso refer to case law" $he court will take into account 733 the circu!stances & Mitchell v Finney 3ock 'eedsB '!ith v 6ush" 7lso the clause !ay +e su+>ect to -$55/ 1HHH as it is included as a ter! in a consu!er contract1 which has not +een individually negotiated" (t will +e su+>ect to a test of fairness" :plain what this !eans" Might the consu!er derive greater protection fro! the /egulations than -5$7) & still not sufficiently tested" $he second part of the *uestion involves looking at the situation if 3isa wanted to use the product in her +usiness" $hen the clause would +e su+>ect to the sa!e controls as +efore" $he possi+ility that as a restaurant owner she !ight have had !ore +argaining power !ay influence the court in deciding whether the clause could +e considered to +e reasona+le" $he fact that in the 2nd scenario 3isa is a restaurant owner and not a consu!er is significant in that it would !ean that the contract would ,O$ +e su+>ect to the -$55/ 1HHH" (t could still +e su+>ect to s"2 and s"C -5$7 if1 in the latter case1 the contract could +e said to have +een !ade on the +asis of Pestcontrol4s written standard ter!s" Qu I -ndue (nfluence & not e:a!ined in 200C Qu J $er!ination & Frustration $he principle issue here is whether the +uilders can clai! that the contract has +eco!e ter!inated +y frustration" $his is a recognised way in which a contract !ay co!e to an end and the parties +e e:cused fro! future perfor!ance" 7 contract is frustrated if its perfor!ance +eco!es i!possi+le1 illegal or radically different fro! that conte!plated +y the parties & #avies 5ontractors v Fareha! -#5" (t is clear that the contract will not +eco!e frustrated !erely +ecause its perfor!ance +eco!es !ore onerous or !ore e:pensive to perfor! and the courts have +eco!e very reluctant to invoke the doctrine in !odern

ti!es" For this reason it is co!!on for the parties to include a force !a>eure clause in their contracts providing for what would happen if future perfor!ance +eco!es i!possi+le or very difficult to perfor!" $aylor v 5aldwell is an e:a!ple of a case where the doctrine was invoked +ecause future perfor!ance +eca!e i!possi+le when the su+>ect !atter of the contract was destroyed +y fire" 7dditionally the doctrine !ay +e invoked if future perfor!ance +eco!es illegal as in the Fi+rosa case where future perfor!ance +eca!e illegal as one of the parties +eca!e an ene!y alien" $he pro+le! scenario does not involve either of these situations1 +ut the contract !ay also +e frustrated if future perfor!ance +eco!es radically different +y a change in circu!stances" $his can occur if the co!!ercial purpose of one of the parties +eco!es affected" (t is this type of frustrating event1 which $ravelworn will seek to persuade the court has happened" <rell v 2enry & where the contract was frustrated when the coronation procession of dward 8(( was cancelled and the letting of a roo! overlooking the route lost all its purposeB cf" 2erne 6ay 'tea! 6oat 5o v 2utton where the contract was not found to +e frustrated as so!e part of its perfor!ance was still possi+le" -nlike the for!er case it was not felt that the foundation for the contract had +een lost" $ravelworn would have to +e a+le to persuade the court that the World 5ycling 5ha!pionships were crucial to the hotel4s +uilding contract" $his !ay prove difficult" (f they cannot do this and they wish to cancel the +uilding work then they !ay +e found to +e in +reach of contract with 66" and +e lia+le to pay da!ages" (f the contract is found to +e frustrated then certain conse*uences follow" ach party would +e auto!atically discharged fro! future o+ligations under the contract" 7t co!!on law the loss lay where it fell" 7s this could result in in>ustice where the contract cannot +e perfor!ed without fault on either party1 the legislature stepped in to provide for a !ore >ust allocation of loss where the contract is discharged +y frustration" $hey enacted the 3aw /efor! EFrustrated 5ontractsF 7ct 1HAC" 6y virtue of s"1E2F su!s paid +efore the frustrating event !ay +e recovera+le1 and su!s paya+le cease to +e so" 7lso the court can allow the perfor!ing party to recover/retain !onies to cover e:penses in accordance with what the court thinks >ust in the circu!stances" 7ccording to the 0a!erco case it see!s that the courts have a very wide discretion in this respect"

$hus $ravelworn !ay ask for the return of the ?201000 paid in advance and 66" !ay seek to retain fro! this su! a!ounts which reflect what they have incurred in e:penses in perfor!ing the contract thus far" (f 66" have e:pended !ore than ?201000 in perfor!ing the contract then no !ore than the su! paid or paya+le in advance can +e recovered under s"1E2F" (f this is the case1 however1 it !ay +e possi+le for 66" to recover a su! which the court thinks >ust under s"1ECF $his su+section needs to +e e:plained" Where a party has conferred a valua+le +enefit on the other in perfor!ing the contract the court has power under s"1ECF to award what they think >ust in the circu!stances" (n deciding what is >ust the court is re*uired to take into account any su!s recovered applying s"1E2F1 7,# the effect on the +enefit of the frustrating event" 'o!e controversy e:ists as to how this +enefit is to +e valued in cases where the frustrating event destroys the +enefit & as !ight have +een the case if a fire had destroyed the whole of the hotel including the e:tension" 6P :ploration v 2unt per 0off K" suggests that in this kind of case the value of the +enefit would +e nilL $his could have a very un>ust effect if a case like 7pple+y v Myers were to +e decided today" (t is suggested that 0off K4s interpretation of s"1ECF is incorrect as it re!oves all discretion fro! the courts to do what is >ust in the circu!stances of the case and that cannot have +een the intention of the legislature" $hus1 it is suggested that the +enefit should +e valued i!!ediately +efore the frustrating event and then the effect of the frustrating event on that +enefit should +e relevant in deciding what a >ust su! to award in the circu!stances would +e" (n our circu!stances this pro+le! would not arise as presu!a+ly the +enefit & the partly co!pleted e:tension & still re!ains after the frustrating event and a value could +e placed on it as the court considers what a >ust su! to award would +e in the circu!stances" $he court would not +e +ound to award the whole of the value of the +enefit +ut it has a wide discretion to award a su!1 which it considers >ust in the circu!stances" $hey !ight1 for e:a!ple1 take into account whether either party !ight have insurance cover against loss" iF (n the first alternative scenario it !ay +e that the contract !ay not +e frustrated" $his is +ecause the doctrine cannot +e invoked if perfor!ance is affected +y an event1 which is self&induced" & Mariti!e ,ational Fish 3td v Ocean $rawlersB $he 'uper 'ervant $wo" 5an this apply if this is as a result of a negligent act) (t is not clear1 +ut this !ay +e the case & $he #an <ing

$he party alleging that the event was negligently self&induced would have to prove it" $his !ight +e the case where the e!ployee of 66" had caused the collapse of the +ridge" (f so1 then 66" would +e found to +e in +reach of contract and +e su+>ect to pay da!ages" iiF (n the 2nd alternative scenario then it !ay +e considered whether the doctrine can apply where the parties have !ade provision in the contract for what would happen if certain events occurred" $he parties are free to include provision in the contract of this kind and in these circu!stances the doctrine of frustration cannot +e applied" $he courts are fairly strict though in the interpretation of such provisions" 2ere the provision see!s to +e !ore in the nature of an agreed da!ages clause or penalty clause in the event of a +reach" (f so it would +e su+>ect to the rules relating to such" $hese should +e outlined" Qu M $er!ination +y 6reach of 5ontract 7 2 part *uestion & the first !erely asking for the e:planation of certain legal ter!s & condition1 warranty and inno!inate ter!s" (t should +e pointed out why it is significant" 7 contract !ay +e ter!inated +y +reach of contract1 +ut this would not +e the auto!atic result of a +reach of contract" 7 +reach always entitles the innocent party to the co!!on law re!edy of da!ages" 7 party will only +e a+le to treat the contract as discharged in 2 cases%& 1" Where there has +een a funda!ental +reach" 2" Where there has +een repudiation" $he first part of the *uestion involves the first of these possi+ilities" 7ll contractual ter!s are not of e*ual i!portance" 'o!e are regarded as !ore i!portant so that a +reach of this kind of ter! would +e regarded as !ore serious" $raditionally all contractual ter!s were categorised as either conditions or warranties" 7 condition is a serious or !a>or ter! of the contract +reach of which will entitle the innocent party to treat the contract as at an end as well as +ringing action for da!ages" 7 warranty is treated as a !ore !inor ter!1 +reach of which entitling the innocent party to the re!edy only of da!ages and not to treat the contract as at an end"

$his classification of contractual ter!s ca!e initially fro! the 'ale of 0oods 7ct 1@HC1 +ut +egan to +e used for other contracts other than sale of goods" More recently though the courts have introduced a further classification & that of the inno!inate ter!" With the condition/warranty classification the approach is to deter!ine the character of the ter! at the ti!e the contract was entered into +y reference to the court4s assess!ent of the intention of the parties as to whether they intended the particular ter! to +e regarded as either an i!portant or !inor ter! i"e" it involves deter!ining the status of a particular ter! in advance and predicting what the conse*uences of +reach would +e" $he inno!inate ter! approach classifies ter!s +y reference to the effect of the +reach" (f it is so serious as to deprive the innocent party of su+stantially the whole +enefit1 which he ought to receive under the contract then and only then will ter!ination of the contract +e >ustified" (f +reach of the ter! would cause only !ini!al loss then ter!ination is not >ustified and the innocent party will +e confined to the re!edy of da!ages only" $his approach was first identified in 2ong <ong Fir 'hipping v <<< where the court was unwilling to identify as ter! as to seaworthiness as either a condition or a warranty" $he task of the court was to wait and see what the effect of the +reach was and to see if ter!ination was >ustified" $he court thought not in the circu!stances of that case" (t is not always easy to predict how courts will classify contractual ter!s" $he condition/warranty approach is said to have the advantage of certainty in that the conse*uences of a +reach can +e predicted in advance" (t is said that this approach is still to +e favoured in standard contracts where the parties can e:pect to learn of how the courts have categorised a particular ter! & 6unge 5orp v $rada: :port 2owever1 the inno!inate ter! approach is said to have the advantage of fle:i+ility and to allow the courts to do >ustice in particular cases & 2ansen $angen v /eardon" Further the apparent certainty in the condition/warranty approach !ay +e so!ething of an illusion in Done&off4 or non&standard contracts when the parties would still not know until the court pronounced its decision what the effect of +reach of a particular ter! !ight +e"

+F /e*uires application of the a+ove (n the pro+le! scenario here where the +ank have engaged 7pe: we are to consider if a +reach of contract has taken place and what the conse*uences of that +reach would +e" (n EiF the 6ank have infor!ed 7pe: that its services are no longer needed" (f the contract is to +e ter!inated as a result of this +reach it would have to +e identified as the 2nd category of situations where +reach of contract will lead to ter!ination & i"e" where there has +een repudiation when a perfor!ing party !akes it clear that he does not intend to perfor! his o+ligations when they fall due in the future" Where 6etter 6ank say that they no longer wish to continue with the contract +efore 7pe: has perfor!ed at all this is treated as anticipatory +reach" (n this kind of case the innocent party has 2 options" 2e can either1 accept the repudiation and sue i!!ediately for da!ages or he can elect to continue with the contract1 affir! it and await the date of perfor!ance" $his option has to +e looked at in the light of the general duty of an innocent party to !itigate his losses" Where there is a +reach the innocent party is entitled to da!ages as of right +ut he is under a general duty to do what is reasona+le to !ini!ise the loss suffered" (f he does not do so he will not +e a+le to recover that part of the loss which is due to his failure to take such reasona+le steps" 2owever1 it see!s that in cases of anticipatory +reach if the innocent party elects to continue with the contract then he will +e a+le to and !ust perfor! his side of the contract and will +e under no duty to !itigate" $he result is that the innocent party will +e a+le to continue with perfor!ance even if they know that this is not re*uired +y the other party" $his would !ean that 7pe: could continue to design the +uilding even though this is not wanted +y 6etter 6ank & White G 5arter 5ouncil v Mc0regor" $his was a !a>ority decision of the 23" $he result was descri+ed as startling +y 3ord <eith" (t see!s that White G 5arter !ay not apply in so!e circu!stances%& 1" (f the active co&operation of the defendant is re*uired +efore perfor!ance can take place & 2ounslow 65 v $wickenha! 0arden #evelop!ents" $his !ay the case here as the work involves the pre!ises of the +ank and so!e co&operation !ay +e needed

2" (f to continue with perfor!ance would +e wholly unreasona+le the innocent party ought to accept the +reach and seek a re!edy in da!ages" C" (f the innocent party has no legiti!ate interest in continuing perfor!ance then the re!edy of da!ages should +e sought & 7laskan $rader 'o!eti!es1 however1 the innocent party !ay +e pre>udiced +y discontinuing perfor!ance and the White G 5arter principle !ay +e >ustified" $his !ight +e so if the innocent party is hoping that perfor!ance of the contract !ight enhance his reputation" $his !ight very well +e the case here" 7lso if the innocent party has entered into co!!it!ents with C rd parties which he !ust honour1 or if part of the loss !ay +e legally irrecovera+le +ecause it is too re!ote then again continuance with perfor!ance !ight +e >ustifia+le & $he Odenfield (n EiiF whether or not the +ank can ter!inate their contract with 7pe: will depend on whether this is considered to +e either +reach of a condition or a serious +reach of an inno!inate ter!" $hus the considerations discussed in part EaF of the *uestion will +e relevant and would need to +e applied to these facts" Qu" @ /e!edies 5learly 2air #esign are in +reach of contract with 'hafina1 +ut we have to consider what re!edies she will +e entitled to" $he ai! of da!ages is to co!pensate and not to punish and to put the innocent party in the position he/she would have +een if the contract had +een perfor!ed & /o+inson v 2ar!an (t will have to +e deter!ined what type of loss she is entitled to and this involves outlining the re!oteness rules in 5ontract" 3osses can only +e recovered if they are within the reasona+le conte!plation of the parties" 2adley v 6a:endale & state test 8ictoria 3aundry v ,ew!an (ndustries 2eron (( Parsons v -ttley (ngha! 6rown v <M/% <poharor v Woolwich 6' $he !easure of da!ages will need to +e considered to *uantify 'hafina4s loss"

0enerally the courts will award e:pectation losses +ut so!eti!es the clai!ant !ay seek to recover reliance losses only in circu!stances where it !ay +e difficult to predict with any accuracy what the loss !ight +e" aFEiF ,on&pecuniary loss is generally not recovera+le in contract & 7ddis v 0ra!ophone 5o :ceptions N where physical loss occurs & 0odley v Perry" $his !ay +e the case here O/ where the contract is one to provide pleasure or prevent distress & Karvis v 'wans $oursB 2eywood v Wellers" O/ where inconvenience is caused & Watts v MorrowB Farley v 'kinner $his !ay also +e applica+le here" EiiF 3oss of earnings for C !onths pro+a+ly will +e loss1 which arises in the usual course of things applying the first li!+ of 2adley v 6a:endale" EiiiF (na+ility to co!pete in Miss -niverse) ven though the loss !ight +e considered speculative the court !ay atte!pt to put so!e value on her e:pectation loss here" (t !ay +e recognised that she has lost the opportunity to earn a reward as in 5haplin v 2icks" 2owever1 would this satisfy the re!oteness rules) (s it loss1 which would arise in the usual course of things) Pro+a+ly not unless it could +e shown that 'hafina had !ade the hair&dresser aware that she intended to co!pete & <e!p v (ntersun +F 7lso relates to special rules governing !easure of da!ages" /e*uires e:planation of the duty to !itigate & 6race v 5alder" (t !ay +e considered unreasona+le not to undertake such work when her appearance would not see! to +e crucial"