Consideration

Consideration is a driving factor in value exchange. Historically, the consideration concept was
used as a promise with no underlying agreement (Melvin, 1994). The courts' inability to agree on
a unified understanding of contemplation has prompted criticism of the idea. Consideration is
derived from the contract of promise, which imposes a moral responsibility to uphold it. Contract
law is constrained by a high requirement for regard to commitments made for value, which may
fall short of the parties' expectations and legal purposes. The goal of contemplation may be
argued from several angles, including bargain theory, formality, and realist interpretation.
Consideration is necessary for distinguishing between unilateral duties and contracts. As a result,
consideration must be incorporated into the formulation of a legally binding contract. The
concept of consideration recognizes that courts have regularly, albeit inconsistently, taken a
functional approach to bargaining agreement conclusions. Consideration is more important as a
primary signal of the parties' willingness to be bound by their agreement than as a goal in and of
itself. The aims should be made clear before entering into a consideration, and any alterations or
additions to the agreement should be kept to a minimal (Walker v Northumberland County
Council). Better returns or positives can be created if thought is applied effectively. As a result,
consideration should not be removed from contracts, and modern courts should accept its
inclusion as evidence of the parties' purpose.
The idea of consideration is one of the most difficult components of contract law in common law
systems. Despite its detractors, it is still required for contract generation. Contracts, according to
the concept of consideration, are primarily limited to discussions involving an exchange of value
between two parties (Val, 2009). Understanding contract theory is necessary for determining the
consideration requirement. As a result, consideration must be incorporated into the formulation
of a legally binding contract. A hastily struck and unthinking agreement is not legally binding. A
high demand for compensation restricts contract law to value-based agreements and may
frustrate the parties' true expectations and intentions (Trebilcock, 1993). In general, consideration
is essential for the establishment of a contract, despite the fact that the law in the contract is
solely intended for mutual exchanges.
Consideration is defined in contract law as the originating reason and the equivalent of the
promise. Consideration refers to the exchange of value for value. Historically, consideration has
been characterized as either a profit to the promisor or a loss to the promisee; a promise without
any agreement to back it up (Val, 2009). One party's consideration might be an interest, right,
benefit, or profit. It might, on the other hand, be the disadvantage, forbearance, responsibility, or
loss sustained, undertaken, or given by the opposing party.
Because of the uncertainty in scope and meaning, courts have broad discretion in determining the
enforceability of any commitment. This has spurred critics of the ideology. The most difficult
problem arises from focusing just on the outcome rather than articulating why a guarantee in the
agreement is enforceable. The concept of consideration recognizes that courts have regularly, if
inconsistently, applied a functional approach to negotiating determinations (Trebilcock, 1993).
A contract is made up of a promise or obligations made in such a way that the law considers
them reasonable and that may be legally enforced (Melvin, 1994). The simple act of promising
generates a moral duty to keep the commitment. As a result, consumers should recognize that
contracts are not automatically enforced simply because they contain promises. The act of
promising generates a duty to follow through on the promise. In a typical contract transaction,
payment is given in exchange for the promise to transfer property ownership. A promisee could
be required to pay the entire purchase price or payment. As a result, at the request of the
promisor, remuneration must be granted before to or in response to the promise, and it must be
fairly recognized as part of the same transaction. Because previous thought was insufficient, a
new commitment that is not supported by new thought is unenforceable (Walker, 1995). To
make a contract under common law, consideration needs a "mutual exchange." This
demonstrates that the notion of contract in common law is derived from business interactions.
The goal of contemplation can be addressed from a variety of angles. Consideration, according to
the bargain theory, is recognized in contract law and is largely concerned with transactions. The
promise and consideration are mutually inducing in this situation. Because the promisee asks for
something in exchange for the promise, it shows that consideration must be negotiated
(Schwartz, 1994). Promises do not contain any transaction that is economically worth enforcing,
rendering bargain theory ineffective because it does not explain which promises should be
enforced as contracts but just explains present legislation.
Consideration is also seen as a formality. Legal formalities have three purposes: they offer
documentation of the content of a promise or agreement, they act as a preventative precaution,
and they serve as a channeling function to the promise with legal repercussions (Walker, 1995).
Despite the fact that the court draws no distinction between actual and nominal consideration, it
believes that the requirement of consideration is simply to serve as proof of binding purpose.
Despite the fact that neither deeds nor nominal money serve any practical function, legislation
and courts see them as adequate replacements for a tangible exchange of value. In English law,
consideration is not necessary if the promise is in writing and serves as enough proof of purpose
(Atiyah, 1986).
Consideration is created when there is a cause to enforce a contract, according to the realist
viewpoint. In this case, consideration arose as a tool for good cause of enforcement. As a result,
judges are forced to depend on considerations that are not directly stated in the statute but serve
as a backup. As a result, deliberation may be seen as without substantial logic and as
unknowable.
Consideration is necessary for distinguishing between unilateral duties and contracts (Walker,
1995). The lack of consideration does not render the vow null and worthless. As a result, a
promise is an offer that must be accepted rather than a unilateral duty. The use of obligations
gives a useful insight into how a legal system can function in the lack of a contemplation
requirement. The main factor here is whether the parties indicated a willingness to bind
themselves during the procedure.
Rather than being a goal in and of itself, consideration is an essential sign of the parties' desire to
be bound by their agreement. When entering into legal contracts, the objectives should be clear
since any alterations or additions to the agreement should be limited. Similarly, the mere
appearance of payment does not result in a fair contract; courts do not assess or analyze the
appropriateness of consideration.
Better returns or positives can be created if thought is applied effectively (Atiyah, 1986). For
example, the consideration theory safeguards the promisee's reliance. Tolerance or compromise
should be explored when a claim seems questionable. When a contract party acts unexpectedly,
the behaviour may be considered consideration by binding the other party. This adds importance
to a subjective topic since it is what attracts the parties to it. Furthermore, in the absence of
patience, thinking may be employed to encourage finality in conflict settlement.
Though the notion of consideration has long been known, its history in common law has been
relatively uncontroversial (Val, 2009). This is due to the doctrine's absence of unfair
consequences and its established legal position. This characteristic has been linked to judges'
increasingly adaptive viewpoints. Consideration must have actual worth and be harmful to the
one who provides it. Though it does not have to be enough, it must be sufficient for courts to
recognize it as a genuine factor (one with legal importance) (Schwartz, 1994). Consideration, on
the other hand, might have unanticipated repercussions. This is because unenforceable
obligations are unenforceable unless they are written down. As a result, it undermines the
legitimate intents of parties attempting to enter into legally enforceable contracts. Consideration
should not be eliminated, and existing courts should evaluate its presence in the contract to show
the parties' purpose. The conclusions of the contract considerations should represent the true
goals of the considerations.
This paper will look at what constitutes appropriate deliberation and what does not.
Consideration is frequently cited as one of the most contentious topics in English contract law.
Nonetheless, it is a significant reference point in English law. Consideration must be paid to the
construction of a legally binding agreement. Consideration has traditionally been characterized
as either a damage to the promise or a benefit to the promisor.
Currie v Misa (1875) said that "a valuable consideration in the legal sense may consist either in
some right, interest, profit, or advantage accruing to one party, or in some forbearance, harm,
loss, or obligation given, endured, or undertaken by the other."
Consideration must be supplied for a contract to be enforceable. The courts are unconcerned in
determining the worth of the transaction. Consideration must be adequate and legal in character.
The monetary value of the compensation may be little, but it cannot be in acknowledgment of
previous performance or fulfilment of a contractual or public obligation.
By not valuing the transaction, the courts respect the principle of contract freedom. According to
Treitel (Peel, 2011), the offer of consideration implies a clear intention to be bound. This
supports the continued use of a technically demanding and functionally unclear theory.
Regardless of academic disagreement, the judges' approach to the concept in this instance is
pragmatic. Lord Goff said in Johnson v Gore Woods & Co. (A Firm) [2001] that the idea of
consideration is a component of our law and must be implemented by the courts.
Consideration was defined in the case of Thomas v Thomas (1842) as "anything of worth in the
eyes of the law, moving from the claimant, it may be some loss to the claimant or some profit to
the defendant." According to Professor Atiyah, "when the courts found a sufficient rationale for
executing a promise, they executed it; and when they concluded that it was undesirable to
enforce a promise for one reason or another, they did not enforce it." When the term
"consideration" was originally employed in the courts, it most likely signified little more than
that there was a "reason" for the enforcement of a commitment.
In Chappell & Co. Ltd v Nestlé Co. Ltd [1960], Nestlé was selling a record for a cash payment
and three chocolate wrappers in order to increase chocolate sales. Nestlé claimed that the
wrappers had no value since they were discarded upon delivery and hence were not taken into
account. As a result, royalties on the sale of the record were calculated as a proportion of the
cash price and chocolate bar sales by the House of Lords. 'It would be absurd to allege that the
shipment or receipt of the wrappers resulted in actual damage to the sender or gain to the
defendants,' Atiya said. (From 'Consideration: A Restatement,' by Atiyah.) Trietal overcomes the
divide by emphasizing that consideration does not have to be adequate; "no theological difficulty
with arguing that a piece of paper or other act of forbearance of very minor worth can constitute
consideration."
It indicates that "adequate consideration" does not have to be of "great economic worth," but the
issue remains: may the value be non-economic? Yes, the answer appears to be yes. Ward v
Byham [1959] 1 WLR 496 determined that keeping a kid "happy" was a sufficient consideration
for assuring maintenance payments since it went above and beyond the statutory requirement of
caring for the child. However, in White v Bluett (1853) 23 LJ Ex 36, a father's pledge to relieve
his son from his promissory note obligation if the son stopped whining about his intentions for
disposing of his inheritance after his death was determined to be invalid due to a lack of respect.
Because the son had no right to complain, simply not doing something he had no right to do was
inadequate. The US case of Hamer v Sidway (1881) 124 NY 538 provides convincing authority
that abstaining from a lawful act, such as abstaining from drinking, swearing, gambling, or
smoking before the promise's twenty-first birthday, can amount to consideration even when both
the benefit and the detriment appear to be with the promise.
A promise for an act already completed is unenforceable because compensation must be paid in
exchange for the precise promise made. The commitment made in Re McArdle [1951] Ch 669 to
pay for home renovations done to a property could not be reclaimed since the pledge was made
after the works were completed. This rule does not apply if the preceding consideration was
provided at the promisor's request. The plaintiff in Lampleigh v Brathwait (1615) Hob 105 got a
pardon for the criminal. Braithwait recommended a £100 reward.
Despite the fact that this appears to be past consideration, the court held that there was an
implied promise that payment would be made, and that this was sufficient consideration even
though the precise amount was not established until later.
The satisfaction of an existing contractual duty cannot offer significant compensation for the
satisfaction of a new commitment. Stilk v Myrick (1809) held that the extra effort of two absent
crewmen shared among the remaining crew was merely the fulfilment of an existing contractual
duty to complete a journey. The promise of an additional payment was unenforceable due to a
lack of regard. Hartley v Ponsonby (1857) permitted a ship's crew to recover promised bonuses
after half the crew withdrew. The return cruise arrangements were so unlike to those initially
agreed upon that the previous contract was cancelled and a new contract with new parameters
was prepared. The promisor in Williams v Roffey [1991] acquired a "practical advantage" in
exchange for another promise. In Williams v Roffey, the principal contractors, Roffey,
guaranteed Williams an additional payment for the timely completion of apartment renovation,
which was an existing contractual requirement. Although Stilk v Myrick is sound law, it was
ruled that consideration can be demonstrated by getting a tangible advantage in the absence of
coercion and if the bigger payment is the promisor's proposition. Roffey gained a practical
benefit by not violating his own contractual terms, changing the payment structure, reworking
the work plans, and avoiding the need to locate another contractor. Partially repaying debt will
not be considered a "practical advantage" (Re Selectmove Ltd [1995]).
Similarly, performing a recognized public duty does not qualify for consideration (Collins v
Godefroy (1831)). However, in Harris v Sheffield United Football Club Ltd [1988], the cost of
additional policing at football matches was considered because, while the police have a public
duty to maintain law and order, a Saturday would encourage a larger crowd, creating a greater
self-induced risk, necessitating a larger police presence that goes above and beyond the existing
public duty.
Unless the law of promissory estoppel applies, an agreement without consideration is invalid.
The sufficiency of the contract is not assessed, but it must have legal "worth." What would
suffice is often a reflection of the parties' determination to be bound by any indication of
economic hardship. Consideration will not suffice if the commitment is made after the requested
consideration has already been given or if it entails the fulfilment of an existing public or
commercial responsibility. Treitals' notion of Invented Consideration validates the common
interpretation of bargain consideration. Despite this, he emphasizes the need of bargain
consideration flexibility. He also argues that English courts may 'create' thought. This is because
they may see an act or forbearance as valid consideration even if the promisor's intention was not
to get it (Chappell v Nestle 1960). Second, even when the promisee is not biased (Shadwell). The
concept is more limited in the United States: "nothing constitutes consideration unless both
parties perceive it as such" (Philpots v Gruniger 1872). In comparison to US law, the English
term "contemplation" appears to be more relevant. A broader idea of promissory estoppel is
required in US law.
Misrepresentation
This paper will look at what constitutes and does not constitute proper deliberation.
Consideration is sometimes considered as one of the most difficult topics of English contract
law. Nonetheless, it is an important point of reference in English law. It is necessary to examine
the creation of a legally enforceable agreement. Traditionally, consideration has been
characterized as either a disadvantage to the promise or a benefit to the promisor.
"A valuable consideration in the legal sense may consist either in some right, interest, profit, or
advantage accruing to one party, or in some forbearance, injury, loss, or duty conferred, endured,
or undertaken by the other," Currie v Misa (1875) said.
To be enforceable, a contract must have consideration. The courts are disinterested in evaluating
the worth of the transaction. Consideration must be sufficient and lawful in nature.
Compensation may be insignificant in monetary terms, but it cannot be in acknowledgement of
previous performance or fulfilment of a contractual or public obligation.
The courts support the principle of contract freedom by not valuing the transaction. According to
Treitel (Peel, 2011), the provision of consideration suggests a specific goal to be constrained.
This supports the ongoing development of a technically complex and functionally puzzling
theory. Regardless of philosophical differences, the judges' approach to the concept in this
instance is pragmatic. In Johnson v Gore Woods & Co. (A Firm) [2001], Lord Goff stated that
the notion of consideration is a component of our law and must be enforced by the courts.
In the decision of Thomas v Thomas (1842), consideration was described as "anything of worth
in the eyes of the law, transferring from the claimant, it may be some loss to the claimant or
some benefit to the defendant." "Where the courts established a sufficient foundation for
executing a promise, they performed it; and where they judged that it was undesirable to perform
a promise for one reason or another, they did not enforce it," says Professor Atiyah. When the
term "consideration" was originally employed by the courts, it most likely meant that there was a
"reason" for enforcing a commitment.
In Chappell & Co. Ltd v Nestlé Co. Ltd [1960], Nestlé was selling a record in exchange for a
cash payment and three chocolate wrappers in order to increase chocolate sales. Nestlé stated
that the wrappers had no value since they were discarded upon delivery and hence were not
considered. As a consequence, the House of Lords set royalties on the sale of the record as a
proportion of the cash price and chocolate bar sales. 'It would be ludicrous to claim that the
shipment or receipt of the wrappers resulted in actual damage to the sender or gain to the
defendants,' Atiya said. (From Atiyah's 'Consideration: A Restatement.') Trietal overcomes the
divide by emphasizing that consideration is not required; there is "no theological dilemma in
claiming that a piece of paper or other act of forbearance of very minor worth could constitute
consideration."
It implies that "adequate attention" does not have to be of "great economic worth," but the
question remains: may the value be non-economic? Yes, it looks that the answer is yes. Ward v
Byham [1959] 1 WLR 496 determined that keeping a kid "pleasant" was adequate consideration
for assuring maintenance payments because it went beyond the statutory requirement of caring
for the child. However, in White v Bluett (1853) 23 LJ Ex 36, it was determined that a father's
promise to release his son from his obligation under a promissory note if the son stopped
complaining about his intentions for disposing of his father's property after his father's death was
illegal due to a lack of respect. Simply not doing what he had no right to do was insufficient
since the son had no right to complain. The US case of Hamer v Sidway (1881) 124 NY 538
provides convincing authority that abstaining from a lawful act, such as not drinking, swearing,
gambling, or smoking before the promise's twenty-first birthday, can amount to consideration
even when both the benefit and the detriment appear to be with the promise.
A promise for a completed act is unenforceable because compensation must be provided in
return for the specific promise made. In Re McArdle [1951] Ch 669, the commitment to pay for
home alterations made to a property could not be returned since it was made after the work was
completed. This rule does not apply if the earlier consideration was provided at the request of the
promisor. In Lampleigh v Brathwait (1615) Hob 105, the petitioner obtained a pardon for the
culprit. Braithwait demanded a payment of £100.
Despite the fact that this appears to be past consideration, the court concluded that there was an
implicit promise of payment, which was sufficient consideration despite the fact that the precise
amount was not determined until later.
The fulfilment of an existing contractual obligation cannot offer considerable compensation for
the fulfilment of a new promise. Stilk v Myrick (1809) held that the additional work performed
by two absent crewmen distributed among the remaining crew was merely the fulfilment of an
existing contractual duty to complete a journey. The guarantee of an additional payment was
found unenforceable due to a lack of attention. Hartley v Ponsonby (1857) permitted a ship's
crew to receive a promised bonus when half of the crew resigned. The return journey
arrangements were so different from what had been agreed upon that the previous contract was
terminated and a new contract with new terms was formed. In Williams v Roffey [1991], the
promisor obtained a "practical advantage" in return for another commitment. In Williams v
Roffey, the principal contractors promised Williams an additional payment if the apartment
renovation was completed on time, which was a pre-existing contractual agreement. Despite the
fact that Stilk v Myrick is still regarded excellent law, it was determined that consideration can
be proved by getting a practical benefit in the absence of force and if the higher sum is the
promisor's offering. Roffey profited practically by not violating his own contractual terms,
modifying the payment structure, revising the work plans, and avoiding the need to hire a new
contractor. Repaying debt in part will not be deemed a "practical gain" (Re Selectmove Ltd
[1995]).
Similarly, carrying out a recognized public duty does not count as consideration (Collins v
Godefroy (1831)). However, in Harris v Sheffield United Football Club Ltd [1988], the cost of
increased policing at football matches was considered because, while the police have a public
duty to maintain law and order, a Saturday would encourage a larger crowd, creating a greater
self-inflicted risk, necessitating a larger police presence that goes above and beyond the existing
public duty.
A contract without compensation is void unless the law of promissory estoppel applies. The
contract's sufficiency is not assessed, but it must have legal "worth." What would suffice is
frequently a reflection of the parties' determination not to be swayed by any indication of
financial trouble. Consideration will not suffice if the promise is made after the requested
consideration has already been delivered, or if it includes the fulfilment of an existing public or
contractual responsibility. Treitals' notion of Invented Consideration validates the conventional
understanding of bargain consideration. Despite this, he emphasizes the need of bargaining
flexibility. He also contends that English courts are capable of "generating" ideas. This is
because they may see an act or forbearance as genuine consideration even if the promisor's
purpose was not to get it (Chappell v Nestle 1960). Second, even if the promisee is not
prejudiced (Shadwell). In the United States, the concept is more limited: "nothing constitutes
consideration unless both parties recognize it as such" (Philpots v Gruniger 1872). In comparison
to US law, the English term "consideration" appears to be more relevant. In US law, a larger
concept of promissory estoppel is necessary.
The statement in the question is on the issue of misrepresentation. It also focuses on the various
remedies available if misrepresentation is confirmed, including as rescission. To begin, we shall
define misrepresentation and its many forms before moving on to examine misrepresentation
remedies. Then we'll decide whether the rescission remedy is not just favourable to the claimant,
but also merits enforcement against the deceitful party.
Misrepresentation is/are pre-contractual statement(s) that constitute actionable misrepresentation
and will award remedies under misrepresentation law if they are not incorporated in the
contract's terms. If it is decided that the misrepresentation was part of the terms, the remedies
available will be under breach of contract. An actionable misrepresentation is a clear, misleading
statement of facts that induces a contract. According to [Avon Insurance v Swire Fraser], even
though a statement is partially untrue, it is considered truthful if the claimant relied on the true
portion of the statement to enter into a contract. There is no misrepresentation if the claimant's
understanding of the statement creates uncertainty, according to [McInerny v Lloyds Bank]. As a
result, the assertion must be categorically untrue. Furthermore, as noted in [Curtis v Chemical
and Gordon v Selico], statements are not limited to verbal expression; actions can sometimes
constitute a false statement. Following that, remarks based only on opinion are not factual and
cannot be considered misrepresentation under [Bisset v Wilkinson]. In contrast, the case of
[Smith v Land] demonstrates that if the comment is made by someone who has valid reasons to
make such a statement or awareness of such matters, it will be considered factual rather than an
opinion. Furthermore, unless provided with no goal in mind, future intention announcements are
typically unsuccessful [intrapreneur Pub Co v Sweeney]. Statements of law are regarded
deceptive (Pankhania v Hackney), yet it might be difficult to distinguish between a statement of
law and a statement of truth at times. Finally, the message must persuade the claimant to enter
into a contract. As a result, the representation must be; first, material, as stated in Smith v
Chadwick as an objective criterion. Second, at the moment of representation, the claimant must
be notified (Horsfall v Thomas). Finally, the representation must be put into action (Peekay
Intermark v Australia).
Misrepresentation may be classified into four kinds. There are three sorts of misrepresentation:
fraudulent (Derry v Peek), negligent (Hedley v Byrne and Caparo v Dickman), and innocent
(Derry v Peek). Rescission or damages are the remedies for misrepresentation. We shall
exclusively consider the remedy of rescission for the purposes of the investigation statement.
Rescission is a legal remedy for all kinds of deception, including fraudulent, negligent, and
entirely innocent misrepresentation. It is put aside both retroactively and prospectively with the
goal of returning the parties to their pre-contractual position as much as practicable. In other
words, the contract is null and void, which may be advantageous for a party seeking
misrepresentation protection under the law. While this permission is now accessible, it is subject
to a variety of limitations or "bars" that may result in its revocation. These 'limits to revocation'
justify the legislation's harshness.
To begin, the claimant has no right to withdraw if they authorised the contract after discovering
any sort of fraud. Affirmation is a desire to proceed with the contract when the claimant is aware
of two things: the conditions that trigger the right to rescind and the existence of the right to
rescind. According to Peyman v Lanjani, a person cannot affirm a contract if they are unaware of
their ability to end it. Second, if the items are acquired by a third-party legitimate buyer, the
claimant's right to rescind is lost (in relation to the subject matter). As the case of Ingram v Little
demonstrates, a con artist sold a car to an innocent third party. The claimant would have been
able to withdraw if it hadn't been for the involvement of a third party. However, for other
reasons, the claimant won this lawsuit. This is not always the case in circumstances involving
third-party involvement. Third, the right to retract may be lost if there is a reasonable time delay
that finds the situation inequitable to grant a rescission. According to Salt v Stratstone Specialist,
if the sort of deception is demonstrated to be dishonest, this cannot be interpreted as a barrier to
rescission. However, in the case of Leaf v International Galleries, there was true
misrepresentation, and hence the ability to rescind was lost. Fourth, if the parties' pre-contractual
conditions are not restored, adequate reparation cannot be provided, and the right to rescind is
lost. If the claimant is unable to substantively return what he was awarded, his right to rescind is
forfeited. This is done to guarantee that the claimant does not gain unfairly from rescission, as
found by the Halpern v Halpern ruling. A claimant, for example, cannot recover the purchase
price of goods and retain them; he must return them and may be required to reimburse the vendor
for the use of the commodities (Erlanger v New Sombrero). Finally, if the court decides to give
the claimant damages rather than rescission under section 2(2) of the Misrepresentation Act
1967, the power to rescind may be lost. Section 2 provides that the remedies for an innocent
misrepresentation are rescission or damages in lieu of rescinding (2). This rule can be used by
the courts to protect a defendant who told an innocent untruth and to prevent a claimant from
escaping a defective agreement. This is proven by the judgement of the Court of Appeal in the
case of William Sindall v Cambridgeshire County Council, in which they found that if there was
an innocent misrepresentation, damages would be awarded in place of rescission under section 2.
(2).
Now that we've seen the restrictions of using this remedy, it's clear that it not only benefits the
claimant, but it also allows the defendant party to avoid liability for rescission in some cases. As
a result, even though detailed and straightforward statutes governing rescission are in effect. The
'bars' that must be placed in some cases will always call the availability of rescission into issue.
Furthermore, it is critical to recognise that some of the "bars" in place are very circumstantial
and, to some extent, unjust to the claimant. This is indicated by the 'bars' of genuine involvement
and time lapse. Each of these instances involves variables that are beyond the claimant's control
or reasonable expectations. As a result, as suggested by the preceding discussion, failure to
recognise the claimant's right to rescission may be seen as an unrealistic basis for the existence of
this remedy.
Mistake
The idea of mistake is one of the most difficult topics in English contract law. This area of the
law must be monitored or it will quickly devolve into a mess of misunderstanding. Essentially, if
a contract contains a verified error, the deal is not binding. A voiding scenario is one in which a
contract is rendered meaningless, implying that no contract existed in the first place. A mistake is
an error in understanding or a lack of agreement (consensus ad idem) on the fundamental nature
of the agreement by one or both parties, which results in the contract's invalidation. To have an
effect on a contract, the error must exist before to the contract and cause it. A mistake can be
common if both parties make the same error, or it can be cross purposes/mistake negating
consent if each side has a distinct perspective on the circumstance. Cross-purposes mistakes can
be bilateral (both parties make a mistake) or unilateral (just one party makes a mistake and the
other party is aware of or should have been aware of it). Unilateral faults may be a mistake in the
terms of the offer, as illustrated in the case of Hartog v Colin & Shields, where the defendants
sold animal skin per piece rather than per pound and the consumer gained from the transaction.
After realizing their error, they refused to provide the animal skin, and the customer sued for
breach of contract. Because the clients were aware of the seller's error, there was no contract.

Unintentional errors may lead to the identification of one of the contracting parties. The trade is
rendered null and invalid by an incorrect identification that is fundamental to the contract. This
must be separated from a contract to avoid confusion regarding attributes rather than identities.
Attributing creditworthiness to a person is a mistake that will result in the contract being intact.

The law presumes that in a face-to-face transaction, the contractual party want to deal with the
party in front of them. A rogue filed a stolen driver's license in the name of Durlabh Patel in the
case of Shogun Finance v Hudson. The information was sent on to Shogun, who ran credit
checks and authorized the rogue's hire buy. The rogue paid 10% of the monthly payments, drove
away with the automobile, and promptly sold it to a third party who purchased it in good faith.
The conman vanished. Mr. Hudson claimed possession of the vehicle, but the transaction was
declared invalid.

The nemo dat quod non habet rule, which is found in English law under the Sale of Goods Act
1979 21 (1), states that you cannot offer something that you do not have. There was no hire
purchase agreement with Shogun under the Consumer Credit Act. The rogue got no title to the
vehicle and so was unable to convey good title to the third party. Overall, the transaction was
inter absentees rather than inter preasentes (face to face), which indicates that the parties did not
meet in person but instead signed a written contract. The finance business and neither the rogue
nor the genuine Patel reached a deal. Patel received a financial offer, but he was unaware of it
and hence did not authorize its acceptance. The firm maintained the car.
Similarly, in Cundy v Lindsay, a fraudster named Blenkarn signed a written contract in the form
of Blenkiron & Co. The claimants delivered the items to Blenkiron & Co, where Blenkarn
accepted them and sold the majority of them to a third party, Cundy, in good faith.

The claimants were able to demonstrate their intent to trade with Blenkiron & co, the signature
on the order, and the firm's identity. However, in the instance of King Norton Metal v Edridge, a
fraudster utilized Hallman & Co to collect goods from the claimants. This was a mistake since
the corporation merely identifies his creditworthiness rather than his identity, which is
insufficient to invalidate the contract but makes it voidable for fraudulent misrepresentation. As
in Shogun Finance, the court was able to move beyond the written document in which the
fraudster disguised his identity because, unlike in King Norton v Edridge, a credit check was
completed on Patel and if he is creditworthy, showing that they wished to deal with the true
Patel.

The Shogun judgement overturned the Ingram v Little ruling. The contract was declared null and
invalid when Ingram used the face-to-face principle. The third party's identification was verified,
and only then did they accept the cheque, indicating that they preferred to deal with Hutchison at
the indicated location. The case was obviously decided incorrectly.

In Lewis v Avery, however, it was determined that the transaction was valid and that good title
flowed to Avery since the claimants intended to speak and contract with the person in front of
them (face to face) concept. Due to fraudulent misrepresentation, the contract between the
fraudster and the claimant was voidable, but rights had already been gained since the claimant
failed to prevent it before a third party. He mistook the performance for creditable, which was an
error in qualities rather than identification. Similarly, in Phillips v Brook, the ring contract was
legal, and the third party received good ownership because the transaction took place in person.

Finally, it should be emphasized that in Shogun Finance, it was said that oral evidence cannot
trump what is included in a written contract. As a result, where oral evidence contradicts the
provisions of a written contract, the parole evidence rule always takes precedence. When a
contract is formed in person, the law presumes that the contractual party intended to conduct
business with the person in front of him. The legislation on the implications of an identification
mistake on any transaction is clearly impossible to defend. There is a fine line to be drawn
between qualities and identity, as well as the facts of the case as applied by the inter ansentes and
inter preasentes rules, and whether or not the contract was in writing.
: In general, two sorts of mistakes are recognised in English contract law; bilateral mistakes and
unilateral mistakes. This topic requires a discussion of bilateral mistakes, which occur when two
people make the identical mistake. If just one side is incorrect, this is referred to as unilateral
mistake, which is irrelevant to this issue. There are two forms of bilateral mistakes: mistake to law
and mistake to equity.
To begin, a legal error needs the presence of the subject matter (Res Exincta), which means that if
both parties are incorrect regarding the existence of the subject matter of the contract, the contract is
null and invalid. This is supported by Galloway v Galloway (1914).
A misconception about the existence of a contract's subject matter instantly makes the contract
invalid. According to Section 6 of the 1979 Sales of Products Act, when a contract for the sale of
commodities is created and the goods expire without the seller's knowledge at the time the contract
is made, the transaction is null and void.
Couturier (1856)'s contract was illegal because there was an implicit condition previous to the
contract's fulfilment, which Denning followed in Solle v Butcher (1950). In Couturier, the parties
proceeded on the idea that the maize could be sold, which it could not.
The structure of the contract determines whether or not the contract is valid. In the Australian case
of McRae (1951), D asserted that the contract was void because the subject matter did not exist.
The court dismissed D's claim, concluding that D made a commitment and subsequently broke it.
The D pledged the presence of the things and was liable for damages if that promise was broken.
For the grounds indicated above, it appears that (McRae) is not the same person as Couturier. The
McRae judgement looked to be completely reasonable because the defendants had accepted the risk
of the tanker's nonexistence, and the ruling's consequence was to place that rick on the D. In terms
of policy, there is little question that McRae should be followed, and the CA ended in Great Peace
(2002).
Second, if both parties believed they were dealing with the same object but were actually dealing
with something else, the contract would be null and invalid. In Nicholson, D auctioned off a dinner
napkin that was legally owned by Charles I. (1947). This, however, turned out to be untrue. Hallet J
determined that the C might have avoided the contract since their error was so fundamental.
Third, there is the potential of contract performance, which occurs when both parties believe the
contract may be fulfilled yet it cannot. Treitel (2015) classified them as three types:
First, physical impossibility: in Sheikh Brothers (1957) (Privy Council), neither party was ready to
jeopardize the land's potential to produce. As a result, because it is physically impossible, the
contract was deemed null and invalid.
Second, there is a legal impossibility: the contract requires something that is illegal. Cooperation
(1867)
Third, commercial impossibility: in Griffith (1903), the court decided that the contract was null and
invalid since both parties made mistakes at the heart of their agreement. Although the deal could
still be physically and legally performed, the cancellation of the procession weakened the business
goal of the accord.
Miscommunication occurs when both parties misjudge one another. According to Raffles, this sort
of error might result in negative consent in the following situations: When the phrase of the offer
and acceptance has such underlying ambiguity that it is impossible to rationally infer any discussion
between the parties, the contract is invalid (1864).
Finally, a quality flaw committed by both parties is not typically enough to invalidate a contract
under common law, because such a mistake does not make performance as originally agreed
impossible. The defendants in Bell v. Lever Brothers breached their employment contracts (1932).
The C discovered the Ds' violations of their agreement after receiving the payments. C tried to
reclaim the monies paid to the D's. The jury's determination that the Ds did not intend to breach the
agreements when they signed them was a key component of the case. The HL concluded that the C
could not recover the money by a three-to-two vote. Lords Atkin and Thankerton determined that
the error was not fundamental enough to warrant breach of contract.
The CL took a different approach in Great Peace (2003), saying that the following components
must be present before a common defect can prevent a contract from being violated. There must be
a common assumption about the existence of a state of affairs; neither party must promise that the
state of affairs exists; the non-existence of the state of affairs must not be attributable to either
party's fault; and the non-existence of the state of affairs must make contract performance
impossible. The errors on both sides must be serious.
Second, mistake in equity varies from error in law in three important ways: the doctrine's reach is
wider, and the test used in equity is less strict than the norm used in law. In Solle v Butcher, L
Denning argued that this idea had to be basic since a mistake at law rendered a contract invalid, but
a mistake in equity constituted a contract voidable. As a result, when an equity contract was set
aside for error, innocent third-party rights may be retained, and the court had more remedial
flexibility since it could set aside the contract on conditions.
The very restricted concept of common error in English law was augmented by mistake in equity in
Bell v Lever Brothers (1932). Only a legal error may have rendered a contract null and invalid.
According to paragraphs 157, 160, and 161 of Great Peace (2003), the cause of error in justice is a
flexible theory, and the decision is Solle v Butcher (1949). It was feasible to make a legal or
equitable mistake. Magee vs. Grist (1969), Grist vs. Bailey (1967). (Associates Japanese Bank,
1988). However, as discussed further in Great Peace (2003), only legal faults enable a party to
declare a contract null and invalid. Later in the case (Pitt v Holt, 2013), L Walker stated that Great
Peace had been effectively overturned (Solle v Butcher). When a common basic error results in a
contract, an equitable jurisdiction to provide rescission on conditions provides greater flexibility
than a common law concept that deems the contract unlawful in such instances. Just as the Law
Reform (Frustrated Contracts) Act of 1943 was required to alleviate the effects of the common law
concept of frustration, legislation is required to provide our law of mistake with more flexibility
than the common law offers.
In any event, the link to the Law Reform (Frustrated Contracts) Acts of 1943 appears to be
inaccurate, because the Act is concerned with managing the remedial implications of a contract that
has already been set aside, but the question in this case is whether the contract should be set aside at
all. It's interesting that the CA in Great Peace bemoaned a lack of flexibility when it was their fault.
The opinion in Great Peace has not been widely accepted in the field of common law. Goudge JA
observed in the Canadian CA case of Miller Paving (2007) that the lack of flexibility required to
redress wrongful enrichment occurs in significantly different situations that would result from
abolishing the equitable notion of shared error, and that it is a step backward.
Restrain of Trade
"A person deciding to forfeit some freedom that he could otherwise have had" is what trade
constraint means. Individual autonomy is critical in the formation and maintenance of
contractual agreements. A person's freedom to practise their profession or expertise should not be
limited by the law. A market economy, on the other hand, necessitates unrestricted labour and
resource mobility. Both ideas serve the community, and the courts should be commended for
their attempts to balance these diametrically opposed goals. The courts must explain why,
depending on the facts of each case, they pick a certain principle.

While increased competition is promoted, there is a growing recognition of the value of

contractual connections. It might be claimed that a party to a contract subject to trade restrictions
rejects the sanctity after benefiting from trading freedom. Limitations are an inherent outcome of
contraction. The extent of judicial intervention may be related to economic theory, namely the
encouragement of competition. Unjustified trade restrictions that limit an individual's capacity to
trade hurt society and the economy. Some limits, however, are advantageous to public policy.
Exclusionary contracts, as well as vote trading, would be outlawed (to avoid oligopolistic
collaboration and the creation of monopolistic markets).

Inequality, misuse of authority, and injustice can all call into question the limits of contract
freedom. The courts' goal is not to decide the value of negotiating or the legitimacy of a contract
based on fairness. Furthermore, Lord Atkinson remarked in Herbert Morris v Saxelby that
procedural unfairness is immaterial in the context of trade limitation. Contract freedom must be
restricted, and those restrictions must be justified. The concept is also constrained by social
justice, basic rights, fair dealing, and good faith principles. While liberty must be exercised, it
must not be abused, the interests of the wider people or cause the free market to collapse

There is no exhaustive list of contracts that may be subject to trade restrictions. Lord Wilberforce
stated in Esso Petroleum Company Ltd. v Harper's Garage (Stourport) Ltd. that "the
categorization must remain flexible and the categories can never be closed." This judgement also
emphasises the importance of implementing the doctrine in line with a broad and flexible logic.
Although this presents some concerns about when and how the concept should be used, trade
restrictions should be enforced only in response to public policy demand. Uncertainty may lead
to inconsistency and, perhaps, injustice.
When parties have equal negotiating strength, trade restraint should be viewed seriously.
Although bargaining leverage is not a deciding element in commercial sales contracts, courts are
inclined to impose restraint measures. "When two experienced merchants are bargaining on
equal terms, and one has accepted a constraint for reasons that are acceptable to him, the court
runs a serious risk of stultifying itself if it claims to know that trader's interest better than he does
himself," Lord Reid remarked in Esso. Rejecting a voluntarily agreed-upon contractual
requirement certainly does not represent the objectives of the parties. Uncertainty regarding the
enforcement of clauses may result in a breach of confidentiality in the development of
contractual duties. However, this point of view emphasises the need of contract integrity.

Any trade restriction must adhere to the severance principle. As long as the contract's text is
preserved, the court may strike words that make the provision unduly wide. The House of Lords
considered severance in Nordenfelt, often known as the "blue pencil test." The theory's
application may be found in the case of Goldsoll v Goldman. Both parties were selling
counterfeit jewellery, and in order to prevent competition, the defendant sold his firm to the
plaintiff. The defendant was forbidden from working in firms selling real or fake jewellery in
more than five nations for two years under the restriction rule. The restriction could only be
implemented if the geographical reach of the provision was reduced and the sale of genuine
diamonds was forbidden. Such limits may increase competitiveness and represent the advantages
of a free market. Restriction in one area does not limit the party's flexibility in other industries.

In general, trade restriction enforcement is more likely to succeed in business-sale contracts. The
use of trade restrictions in the workplace is becoming increasingly widespread. This might be
attributed to adjusting to capitalism and the free market environment. In general, there are no
implicit restrictions in the legislation, and employees are totally free to compete with a former
company following termination. A trade stifling

Only if the employer has a genuine desire to protect may this apply. There is both goodwill and
sensitive information presented. While equity law may protect sensitive information, goodwill
must be particularly safeguarded. The court set significant restrictions on the enforcement of
restraining orders. The employer's interests should not be preserved for a longer length of time
than is essential, nor should the restraint be extended across a larger geographical region than is
necessary. The use of flexible working strategies and the availability of information are expected
to extend the legislation controlling trade barriers.

Beckett Investment Management Group Ltd. v. Hall codifies pre-existing post-employment

forbidden behaviour laws. Restriction clauses should be placed only on senior individuals with
access to sensitive information, and the limits of the limitation should be justified by reasonable
reasoning. According to this decision, the maximum term of restriction appears to be 12 months.
The restrictions are recognised. Employees in lower-level jobs or doing regular activities should
not be barred from participating.

It must also be demonstrated that the termination was not the employer's fault. Wrongful
dismissal should be treated as a breach of contract, and the employee should be released from the
trade restraint. This was later investigated in the case of Rock Refrigeration Ltd. v Jones. Phillips
L.J. noted in his decision that "given the later development of this area of the law, not every
restrictive covenant would be discharged upon a repudiatory termination of the employment."
Without a doubt, this strategy introduces procedural unfairness into trade restrictions. Contracts
should not bind innocent individuals or make it difficult for them to earn a life.

Decisions on post-employment restrictions might be uneven at times. In G.W. Plowman & Son
Ltd. v Ash, the Court of Appeal imposed a two-year prohibition on soliciting any farmer or
gardener. The employee was restricted from dealing with clients and working in comparable
firms for a year due to the trade obstacle claimed in Marley Tile Co. v Johnson. The Court of
Appeal ruled that this restriction was unjustified. Despite the fact that the trade restriction was
greater, both workers had little influence over consumers and only a tiny fraction of customers
were known to them. Once again, trade constraint reveals the flexibility and economic
importance of the factor.

Contractual responsibilities that are primarily concerned with profit maximisation and a free
market environment inevitably limit contract freedom. The flexible and comprehensive approach
to trade limitation demonstrates plainly that the tension between contract freedom and trade
freedom is balanced.
Frustration
The consequences of the absolute contracts rule, such as in Paradine v Jane (1647), have been
mitigated somewhat by the development of the theory of frustration, which allows a change in
circumstances to discharge contractual obligations beginning on the date of the frustrating
occurrence (Taylor v Caldwell) (1863). Davis Contractors Ltd v Fareham UDC [1956] repeats
this judgement and articulates the present criterion for dissatisfaction as an event that renders the
contract impossible to fulfil, unlawful, or significantly different from what was previously agreed
to. Lord Griffiths' version articulates the doctrine's additional constraints: there must be an
intervening occurrence that is unexpected and beyond either party's control.

The categories of frustration are not exhaustive. The nature of the'unforeseen incident' is less
important than its impact on the contract. The examples from the 1903 Coronation demonstrate
how the same intervening event might be inconvenient in one set of circumstances but not in
another. The cancellation of the Coronation Parade was used as a disappointing event in Krell v
Henry [1903] in connection with a contract for the lease of an apartment on Pall Mall on the days
of the Coronation procession. The purpose of the rental was not mentioned in the contract. The
key aim established at the heart of the contract was to witness the parade, and the King's sickness
jeopardised this purpose. The contract in Herne Bay Steam Boat Co. v Hutton [1903] did include
a Royal Navy inspection of the ships, which was once again postponed due to the King's
sickness. The contract was not broken. The contract did, however, serve a function; tours of the
harbour could be done, and the fleet could be observed. As a result, even if an intervening
circumstance is unexpected and beyond the parties' control or even cognition, it will not
constitute dissatisfaction until it materially affects the original contract. As a result, the
sentence's representation of displeasure is substantially more constrained. Furthermore, it does
not let participants to abandon a transaction that has grown less profitable or helpful (Davis
Contractors Ltd v Fareham UDC). Contracts will only be terminated in exceptional cases.

Lord Griffiths concedes that for the philosophy of frustration to be successful, the intervening
episode must be unexpected. The theory will not apply if the parties make express provision for
the claimed breach of contract since the parties have shared the risk. This is often accomplished
via the use of hardship or force majeure provisions. The risk may also be attributed to one party
instead of the other. The buyer would run the danger of being classified in Amalgamated
Investment and Property Co. Ltd v John Walker & Sons Ltd [1977].
According to Lord Griffiths' definition, the parties have no influence over the intervening
occurrence. This extends beyond clearly unlawful or irresponsible behaviour to a circumstance in
which a person with authority or choice is barred from relying on the idea because the annoyance
was self-inflicted. The judgement in Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] to
give a restricted number of permits to particular vessels meant that the remainder boats could not
be chartered to fish lawfully. This finding supports Lord Griffiths' control arguments. The
sinking of one of two vessels capable of hauling drill rigs on the Super Servant Two [1990]
amounted to self-inflicted dissatisfaction because there was a choice as to which vessel could
have transported the rig, despite the fact that the only control or choice available was which
contract to break. To avoid self-inflicted dissatisfaction, the contract must have explicitly
apportioned the services of the Super Servant Two or both ships must have been destroyed.
Although the judgement looks harsh, it forces the parties to share risk and prohibits preferences
from being expressed. The plaintiffs were given the Super Servant Two, illustrating the
defendants' predilection for carrying out contractual tasks to hirers with whom a contract was
created later but at a greater price.

The Law Reform (Frustrated Contracts) Act of 1943 permits limited recovery of cash paid, costs
spent, or substantial profit obtained; it does not share losses. Prior to the Act, losses were
assigned to the date of the disappointing event, meeting all contractual obligations at that time.
As a result, any deposit or money owed prior to the date of frustration remained payable or
uncollectible, but money owed after the supervening event no longer existed. Money spent may
be repaid if the consideration was completely fruitless, according to the judgement in Fibrosa
Spolka Akcyina v Fairburn Lawson Combe Barbour Ltd [1943]. The 1943 Act also absolves all
duties as of the irritating incident's date. The Act, on the other hand, allows for the recovery of
payments received prior to the frustrating event without the necessity for a comprehensive failure
of consideration, but only if the other party who has made expenditures in the fulfilment of the
contract section 1 retains funds (2). 13 Only expenditures may exceed money paid or payable
before to the triggering occurrence. Just expenditures are granted at the discretion of the court
(Gamerco SA v ICM/Fair Warning (Agency) Ltd [1995]).

Section 1(3) authorises the court to provide reasonable compensation for a valuable benefit that
continues after the troubling incident. The primary authority on these awards is BP Exploration
Co. (Libya) Ltd v Hunt [1979]. Because no machinery survived the fire, no useable advantage
would survive to benefit the opposing party, and hence no fair price would be awarded as a
consequence of this finding, and the decision in Appleby v Myers (1867) would stand. The
picture of discontent by Lord Griffiths shows the doctrine's restricted area of applicability. It will
be difficult for a party to establish displeasure in order to quit what has become a faulty
agreement, and any remedies do not allow for loss apportionment. The concept will be of little
benefit and will almost always be utilised as a last-ditch defence to a breach of contract lawsuit.
When the law recognises that a contractual responsibility has become impossible to perform
without the default of either party, the contract is ruled null and invalid.
When a contract is frustrated, it will undoubtedly come to an end, regardless of the parties'
mistakes (Hirji Mulgi v Cheongyue). Courts use a "multifactorial approach" to determine
whether or not a contract has been violated (Edwinton v Tsavilris). What matters is that there is a
gap in the identity between what was intended and the new performance; judges will find it
difficult to determine if such a divergence exists (CTI Group Inc v Transclear). Courts should
examine the contract provisions, the transaction's matrix or backdrop, the parties'
comprehension, expectations, and so on.
Frustration has a relatively narrow scope. The notion was most likely employed to safeguard the
contractual party from the natural consequences of bad negotiation, according to Lord Roskill in
(The Nema). The court will file a "Non –Hack in Fodara Vini" under Frustration, stating that I
did not follow through on my promises. The court will never allow a bad bargain to take
advantage of impatience, nor will it allow irritation to be used as a means of escape.
(((((((((((((((((((((((
First and foremost, the possibilities that irritate are unachievable. In Taylor v Caldwell, the court
determined that if the contract's subject substance is destroyed, the contract is null and invalid. If
the subject matter is not available, the contract will be null and invalid (Backline v Arthur). The
absence might be brief (Jackson v Union Minister). A strike may be enough to incite unrest.
(This was adapted from The Nema.)
If a foreseen occurrence occurs, a contract is not null and void (Walton v Walker). Any
reasonable person would anticipate a predictable incident to occur (Treitel).
Personal incapacity may jeopardise a deal. Personal incapability occurs when the individual
performing the contract dies or is otherwise unable to complete the transaction. (Condor vs. The
Baron Knights) The simple increase in the cost of the contract does not render it unenforceable
(Tsakiroglou v Nobble Thorl) and (Davis Contractors v Fareham UDC). Furthermore, a contract
can be ruled null and void if an event does not occur; in (Krell v Henry), the court found that the
contract is declared null and void if the transaction's principal aim is destroyed.
The court concluded in (Herne Bay v Hutton) that a contract is not frustrated if it serves many
purposes and just one of them is destroyed.
The contract in (Krell) was declared null and void because its common basis was breached, and
the court must determine what the contract's common purpose is. However, (Krell) has become a
very limited option in recent years and has been distinguished in modern scenarios such as
(Amalgated v John Walker).
If one party enters into a contract with another for an illegal purpose, or if a government decision
renders the transaction impractical, the contract is null and void (Fibrosa v Fairbairn). The parties
may depend on force majeure provisions or hardship clauses to limit the extent of frustration at
the time of contracting, but no explicit provision can prohibit the doctrine of frustration from
working (Metropolitan Water Board v Dicker).

A contract will not be ruled null and void if either party is at fault (Maritime National Fish v
Ocean Trawlers).
The issue of contract discontent has now arisen. As we all know, when a contract is broken, its
value diminishes; nonetheless, there are various consequences under common law and statute. To
begin, when a contract is broken, the parties are released from their contractual responsibilities
under common law (Fibrosa v Fairbairn). The House of Lords in (Fibrosa) softened the
harshness of common law by ruling that a full failure of consideration in terms of non-
performance would allow the parties to discharge the obligation or reclaim the money.
The Law Reform (Frustrated Contracts) Act 1943, on the other hand, governs the allocation of
loss under the statute. According to Section 1(2), any money owed under the contract ceases to
be owed, and any money paid may be returned. Expenses may be subtracted from amounts owed
or paid as they occur. This is at the court's discretion and is determined by what is reasonable and
equitable in the facts of the case. There is no way to recover expenditures that exceed the
amounts paid or due. s.1 (3)-A valuable benefit must be rewarded when it is supplied. The courts
will analyse all of the facts of the action (BP Exploration (Libya)). Lord Goff believes the edge
was gained as a result of the frustrating circumstances.
Damage and Remedies
When a contract is breached, the damaged party will sue for damages. The court considers it
simpler to analyse economic losses or pecuniary damages that are directly connected to the
breach of contract when assessing suitable compensation. The court must, however, examine
non-economic loss as a result of the breach of contract, which is known as non-pecuniary
damages. Non-monetary damages include pain and suffering, as well as mental anguish.
Because it is not uncommon for the wronged party to experience such distress when a contract
is breached, and because it is a type of non-economic damages, there is no universal method to
calculate such loss, the court's difficulty stems from the link between the breach of contract and
the non-pecuniary damages themselves. Furthermore, the court argued that non-pecuniary
damages would fail the remoteness test as applied by the court.

Because non-monetary damages are impossible to predict, paying the counterparty for
circumstances over which they have no control is considered immoral. The Addis v
Gramophone Co Ltd decision created the non-pecuniary damages rule, which tightened this
limitation. Non-pecuniary damages have grown in legal terms over time, and the fact that pain,
suffering, and emotional distress now have their own phrase suggests that such losses are being
recognised. Non-monetary losses, despite the fact that they are inescapable, have never been
more essential.

When the vacation fell short of the requirements described in the brochure, the offended party
was sometimes bound into a contract with a non-economic value that outweighed the economic
worth, as in Jarvis v Swan Tours Ltd. Mr. Jarvis' economic compensation was only half of
what he paid for the vacation, so he filed a claim for non-pecuniary damages, which the court
granted him, and as a result, the court awarded him more than he was paid because of the
horrible holiday experience, which can only be valued in non-monetary terms. In order for the
court to provide proper compensation, some form of evaluation must be used as a basis for the
court to analyse when analysing the injured party's non-pecuniary losses. Distance, causality,
and mitigation in general can all be viewed as forms of evaluation. The court will almost
definitely examine the contract's worth and quantify it from there by comparing the amount
paid to the true value; nevertheless, in some cases, the court has provided more. We'll also
discuss whether this type of evaluation is appropriate for giving enough compensation for non-
monetary losses.
A contract is a collection of rights and responsibilities that must be fulfilled by both parties,
and a contract breach occurs when one of them fails to do so. When a main commitment is
broken, the court normally imposes a secondary obligation on the breacher to pay monetary
damages to the opposing party. The court must be able to calculate and analyse the loss caused
by the breach of contract by taking into account variables such as the cost of cure, difference in
value, reasonableness, and/or loss of amenity (also known as pecuniary damages). The
significance of these evaluations was emphasised in the 1996 case of Ruxley Electronics and
Construction Ltd v Forsyth. In summary, the complaint involves the construction of a
swimming pool whose depth was not factored into the contract's value. We can all agree that
the promisor plainly breached the contract by failing to build the swimming pool according to
the contract. The problem is noteworthy because of the small difference in value indicated by
the promisee as the justification for pursuing the incentives. The Ruxley case demonstrated the
need of adopting an accurate evaluation to calculate the appropriate amount of monetary
damages. Some, however, thought the case fell within non-pecuniary damages.

Despite the fact that the promisee's loss is not monetary, the statement characterises it as a
"consumer surplus" rather than a non-pecuniary loss. Even though the core rule of the Addis
case remains widely accepted, the court may have authority to award non-pecuniary damages
in specific circumstances. There are three exceptions to the general rule in the case of Addis.
The first is that the intangibility of the contract's structure will not prevent courts from
awarding non-monetary damages if the plaintiff can prove a direct relationship between the
non-monetary losses they suffered and the contract's violation.

Second, when the contract's principal goal is to provide some type of pleasure or delight. The
third exemption applies where the plaintiff has suffered serious physical harm as a result of a
contract breach. We'll go over the second and third exceptions before getting to the first.

We might conclude that common law courts are presently highlighting inconsistencies in non-
pecuniary damages awards. The same might be stated about the method used to determine the
amount of non-monetary damages granted. So far, it appears that the judges are taking the high
road in order to avoid dealing with the fundamental question of whether non-pecuniary
damages are unlimitedly recoverable. The enormity of the prize may be apparent in instances
where the source of the award is unclear. Despite the fact that the outcome is linked, the judges
never present a coherent explanation in their judgement to address this issue. Everyone agrees
that their approach is compatible with how they determined the award for non-pecuniary
damages, which allows for interpretation for a loss considered intangible and unquantifiable.
A contract compels the parties to fulfil their obligations. However, one of the contractual parties may
refuse to keep his promise, so breaching the contract. This is known as a breach of contract. When one
party breaches a contract, the other party has the right to the remedies outlined below immediately.
Without limiting any other right or remedy available to any party, each party acknowledges and agrees
that damages alone may not be an adequate remedy for any breach or anticipated breach of the provisions
of this Agreement, and that in the event of such a breach or anticipated breach, injunction and/or an
orphan clause may be available.
Specific performance is utilised in breach of contract situations where monetary damages are insufficient.
Specific performance as a discretionary remedy may not be granted if damages are adequate, contract
provisions are ambiguous, the action has been delayed, or fraud has occurred. A specific performance
lawsuit may demand the parties to carry out exactly what they agreed to in the contract. When this option
is chosen, the party who violated the contract is taken to court, and the plaintiff asks the court to force the
defendant to perform the precise contract responsibilities that have not been fulfilled or to desist from
participating in an activity that is banned by the contract.

The claimant has suffered no financial loss, which is the most common reason for judging compensatory
damages inadequate. In the instance of Wrotham Park v Parkside Homes, same rationale was stated
(1974). To summarise, constructions were built on property that was subject to a restricted covenant. The
judge determined that a mandatory injunction to demolish houses built in violation of the covenant would
be disproportionate because it would remove much-needed housing stock, but compensatory damages
would be insufficient because the value of the claimant's land would be unaffected by the construction of
new houses, so he made a different assessment of damages and awarded "gain-based" damages based on
the value of the claimant's land.
Another reason for not awarding damages is that no amount of compensation would be adequate to
compensate the claimant for the contract's exceptional performance. We might easily imagine a number
of instances in which a performance would be considered remarkable. Another factor to consider is
whether the claimant's losses would place him or her in a worse situation than the contract's performance;
damages are deemed insufficient if they are just too difficult to assess. Consider the case of Esso v. Niad
(2001). Courts will not award damages if they consider it will place defendants in a position where they
may easily breach contracts simply by paying damages.
The insufficiency assumption is based on the premise that the court should "denounce and ban" contract
violations in order to ensure transaction security. In most cases, compensatory damages are adequate to
deter contract breaches; nonetheless, the contract breaker may abuse his negotiating position to avoid
payment, necessitating the deployment of an additional remedy. The first remedy to the problem of
insufficient damages is specific performance. In practise, however, judges are generally unwilling to
demand precise performance. This hesitancy could be due to a number of factors, including the following:
the performance deadline having passed; the parties no longer wishing to communicate with one another;
or if the contract is for the provision of personal services; or if the contract is for the provision of goods
and services, the court would have a difficult time overseeing the performance.
As previously indicated, the most typical alternative to a defined remedy is gain-based damages. Some
consider gain-based damages to be a monetised type of particular performance. This might imply that the
defendant loses all of his gains or, as in the instance of Wrotham Park, a portion of his profit.
Contract drafters typically incorporate wording in their contracts limiting responsibility for specific sorts
of damages. In AB v CD (2014), the claimant requested an injunction to prohibit the defendant from
terminating the agreement, claiming that the limitation of liability clause in the agreement would result in
the Claimant not being fully reimbursed for the defendant's claimed wrongful termination. The court
found in favour of the defendant on this issue, holding that the stipulation was contained in the amount the
claimant agreed to pay when signing the contract. In a 2004 case identical to this one, the Court of Appeal
decided against the party trying to utilise the liquidated damages provision, but did not rule out the
possibility of the court providing other appropriate relief: Bath and Northeast Somerset District Council
vs. Mowlem PLC (2004). The judge in AB v. CD attempted to distinguish the previous Court of Appeal
decision in Bath by ruling that there was a fundamental difference between a liquidated damages clause
that attempted to estimate and compensate a party's losses in the event of a breach and a clause that stated
that certain heads of loss would not be compensated at all. He said that the former shows a contractual
willingness to fully pay, whilst the latter does not.
Finally, in some cases, paying damages may be deemed insufficient as a remedy for breach of contract.
As an alternative to maintaining the lawfully agreed performance, the court will consider either particular
performance or gain-based damages.
Duress and Undue Influence
The equitable principle of undue influence permits a court to cancel or amend the terms of a
contract. In Royal Bank of Scotland v Etridge (No. 2) (2001), a mortgage was set aside due to a
husband's improper influence on his wife. If the contract was cancelled, the bank would be
unable to enforce its security. 1 The case examines the concept as a whole and provides creditors
with clear guidance on how to protect their rights.
Prior to the Etridge (No. 2) decision, the concept was classified into two types: real undue
influence and inferred undue influence. Actual undue influence, like duress, is characterised by
overt acts of unlawful coercion that limit one's will, but it extends beyond threats. According to
Lord Hobhouse in Etridge (No. 2), actual undue influence is a wrong committed by the dominant
party against the other that makes it unattractive for the dominant party to exercise their legal
rights against the other.
The category of presumed undue influence has more subtle characteristics, and there have
traditionally been two sub-categories of an undue influence presumption: first, an irrebuttable
presumption based on the nature of the relationship, such as between a doctor and a patient; and
second, a rebuttable presumption in which a claimant would have to demonstrate that they did
actually place trust and confidence in the other party (husbands and wives fell into this category).
Following the proof of influence, the claimant must demonstrate that the transaction requires an
explanation. According to Etridge (No. 2), such assumptions added little to the discussion of
whether the idea would succeed. Contacts between physicians and patients, for example, almost
definitely enhance the likelihood that a transaction will need to be scrutinised, but having one
broad category recognises that connections differ from person to person. Once it has been
established that one party has faith and confidence in the other and that the influence exists, it
must be proven that the effect was excessive. This raises the question of whether any form of
wrongdoing is necessary. According to Etridge (No. 2), the position taken in the older case of
Allcard v Skinner (1887) will be upheld; the transaction requires explanation since it cannot be
logically justified on the basis of friendship, relationship, or any ordinary reason. Etridge (No. 2),
like National Westminster Bank plc v Morgan, eliminated the requirement of demonstrating
obvious disadvantage as a prerequisite for undue influence (1985). The claimant lost her case
because she was unable to demonstrate that she profited by residing in the marital house longer
than she would have if the extra money had not been provided. Although the vulnerable spouse
appears to benefit from the doctrine that does not require manifest disadvantage as a legal
requirement in cases such as Etridge (No. 2), the presence of manifest disadvantage as a result of
the transaction will almost always tip the scales in favour of the finding of undue influence.
Perhaps the compromise reached in Etridge (No. 2) between the creditor and the individual
alleging undue influence is that the creditor is advised that the debtor is a non-commercial party
with the potential for undue influence. A court will not rule too hastily as unfair since it is natural
for a wife to want to aid her husband's company, but the responsibility must fall on the creditor.
Guarantee that procedures are taken to ensure that decisions may be made freely. As a result, a
woman in this case may find it difficult to rely on the notion unless she can establish that the
husband used unfair means to get her assent, such as fraud, or that there is a large imbalance
between the husband's benefit and the wife's loss. This looks to provide more protection to the
creditor, but by being inspected, they are seen to have constructive awareness of any anomaly,
which they must dispel. This can be achieved by demonstrating that the transaction's beneficiary
acted freely. In an Etridge (No. 2) case, the simplest way to demonstrate this is to prove that
independent counsel was received prior to entering into the transaction. In First National Bank
plc v Achampong (2003), the creditor was strongly advised to ensure that the independent
consultant addressed all of the critical topics mentioned in the Etridge decision (No. 2). The
presence of counsel did not ensure that a transaction was not tainted by undue influence in
Pesticcio v Huet (2004).
Etridge (No. 2) requires that the creditor is made aware of the possible harm to the proposed
transaction when a surety is given by a person who may have been subjected to improper
influence, regardless of the source of the relationship. The greatest defence for a creditor is to
ensure that protocols are followed to prove that a transaction was freely entered into. It is
difficult for the claimant to demonstrate undue influence, especially if the transaction is not
unique, even if they would have preferred not to take such a risk in the first place. The Etridge
(No. 2) standards, which require certification of having had independent counsel, were meant to
first allow a creditor to shift the burden of evidence for the accuracy of advice provided to
another expert to another expert. To ensure that the matter is fully understood, current case law
has turned the focus back to the creditor. By concentrating on the creditor's actions rather than
just the claimant's, this may assist to balance the books.
Terms
The process of implication, in which the law supplements the terms expressly agreed to by the
parties, is an important source of contractual terms. In general, a court may infer a word as a
matter of fact or law. Implication in fact, which aims to identify language based on the intentions
of the parties, and implication in law, which seeks to identify terminology based on larger
concerns, are plainly separate strategies. The functioning of the implication processes raises
concerns concerning how the parties' intentions will be exposed, as well as what is meant by
"wider considerations."
Terms implied in fact obligate courts to give effect to the parties' unsaid purpose; that is, the
parties formed an agreement but made silent assumptions or otherwise failed to sufficiently
clarify terms fundamental to their agreement. The courts, on the other hand, must not create the
contract for the parties—and obviously, the reasonableness of a word is not enough to allow
implication (Liverpool City Council v Irwin [1977] AC 239); the courts' task is to give effect to
that unexpressed intention, objectively determined (J N Hipwell & Son v Szurek [2018] EWCA
Civ 674). Courts have historically used two separate standards to determine the parties' purpose:
the commercial effectiveness test and the officious observer test. 3 The business effectiveness
test analyses if a contract has a condition that the parties would have inserted if they had given it
any thought: 14 PD 64, The Moorcock (1889). The officious onlooker test asks courts to
examine whether a phrase is so self-evident that the parties must have meant it to be a contract
term. 206 Kilobytes 2 Southern Foundries Ltd. v. Shirlaw (1926) According to MacKinnon U., if
a curious observer provided an express stipulation for their agreement while the participants
were discussing it, they would "testily suppress him with a common, "Oh, of courser." The tests
achieve the same goal—determining the purpose of the parties—but in different methods. The
term must be necessary for the contract to function as intended under the business efficacy test,
but the officious bystander test focuses on the phrase being so obvious that it does not need to be
specified. Despite what Lord Simon seemed to imply in BP Refinery (Westernport) Pty Ltd v
Shire of Hastings (1977) 180 CLR 266, Because the requirements were cumulative yet
overlapping, the precise connection of the exams was not always clear. The aforementioned tests
were to be interpreted in light of the Privy Council's decisions in AG of Belize v Belize Telecom
Ltd [2009]. Ten for the UKPC. The process of making a contract, according to Lord Hoffmann,
includes the use of words. 6 His Lordship stated that "if some provision should be implied in an
instrument, the question for the court is whether such a provision would spell out in express
words what the instrument, read against the relevant background, would reasonably be
understood to mean," and that the traditional tests were "different ways of expressing the central
idea that implied terms must spell out what the contract actually means." This research of
incorporating the notion of implication into the process of contract interpretation sparked debate
among academic writers and apprehension in the courts; witness, for example, Arden U's
comments in Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd. [2011] 543
EWCA Civ. Hooley (2014) appreciated Lord Hoffmann's analysis but said that the customary
tests that coexisted with Lord Hoffmann's explanation of the law generated confusion and that
future references to the tests should be removed. The Supreme Court is presently considering
Lord Hoffmann's approach in Marks & Spencer plc v BNP Paribas Services Trust Co. (Jersey)
Ltd [2015]. 72.8 UKSC While the plain text of a contract must be evaluated before considering
implication of words, Lord Neuberger, who argued for the majority, stated that the processes of
interpretation and implication are distinct. Lord Hoffmann views his approach as "inspired
conversation" rather than "authoritative counsel on the law of implicit agreements." Following
the Belize decision, His Lordship stated that the rule on phrase implication remained intact and
was based on the requirements of "economic need" and "obviousness." The fact that they may be
viewed as alternatives clarifies the relationship between the requirements, as only one must be
met for a word to be inferred in reality. Lord Carnwath was more sympathetic to the Belize case,
but admitted that it did not affect the "traditional, somewhat restrictive view to term implication."
It is, however, a stringent procedure that requires a suggested implied phrase to be required, not
merely acceptable, and the proof must show that both parties meant the same word that is not in
conflict with the contract's specified responsibilities.
Rather than looking for the parties' intent, the method of proposing words in law is based on the
courts identifying elements to be implied into particular types of contracts, such as employment
contracts, construction contracts, and landlord and tenant contracts (although the parties may
seek to exclude the operation of such terms, subject to, for example, legislative controls). The
problem here is that the courts decide what contract terms should be, which means that the
contract is only partially designed. Liverpool CC v Irwin is the pivotal case on this technique of
implication. This case involved a contract between a local government landlord and a flat tenant
over shared facilities in a multi-unit complex. The House of Lords included a provision in the
contract requiring the landlord to take reasonable care to keep the common spaces of the block of
flats in reasonable repair. The majority argued that the phrase should be included into such
contracts because of 'necessity,' while Lord Cross argued that implication in law should be
founded on'reasonableness.' 10 The House of Lords did not define the scope of need or the
concept of reasonableness in Liverpool CC v Irwin. Scally v Southern Health and Social
Services Board [1992] 1 AC 294 observed that phrases indicated in law were reliant on "broader
causes." In Crossley v Faithful & Gould Holdings Ltd [2004] EWCA Civ 293, Dyson LJ
observed that the test of necessity was 'elusive' and 'protean,' accepting the vagueness of the test.
11 (It should be noted that using the word "necessary" to refer to implied objects creates some
terminological difficulties.) Rather than relying on the false idea of necessity, His Lordship
highlighted that the presence and extent of standardised inferred terms contain concerns of
fairness, justice, and the balance of competing policy objectives. This accepts that while deciding
whether a certain form of contract should be subject to a specific term, the courts consider policy
problems. According to Peden (2001), this implication process is driven by a variety of policy
considerations, including which party is better placed to handle the loss, the parties' bargaining
positions, the quantity of the burden, and the effect on society. She goes on to say that while the
courts play a part in balancing, the list of policies is not complete, and the weight assigned to
them is not set. Crossley v Faithful & Gould Holdings Ltd, in which the Court of Appeal rejected
the concept of a legal phrase requiring employers to consider their employees' economic well-
being, exemplifies the impact of bigger issues. According to the judgement in Scally v Southern
Health and Social Services Board, the House of Lords rejected such a wide word because it
would impose a 'unfair and unjustifiable burden on businesses.'
Finally, while Scally indicated in law a provision requiring an employer to tell its employees of a
valuable privilege included inside a contract (a contract modification agreed upon by an
employer's representatives and trade unions on behalf of the employees), the judgement was
restricted. According to the House of Lords, the word should only be used in particular forms of
employment contracts.
To summarise, the courts are involved in two separate processes: one is a search for the parties'
purpose, which are terms implied in fact, and the other is a search for terms to be implied into all
contracts of a given type based on necessity and wider considerations, which are terms implied in
law. Despite the fact that certain House of Lords authority suggests that the distinction is not
entirely different in effect. While the fundamentals of each process are well understood, their
execution is fraught with unpredictability. This is exemplified by terminological problems, a lack
of clarity in the methods used to assess the parties' purpose, and the courts' failure to identify
precise reasons for words to be inferred in law.
Privity
Lord Diplock and Lord Steyn have both raised doubts about the privity rule, the former calling it
"an archaic infirmity that has long been regarded as a shame to the law" and the latter
proclaiming it "no place in our more sophisticated economic world." Tweedle v Atkinson was
the judgement that created the concept of contract privity, in which the courts found that third
parties to an agreement have no legal entitlement to it and cannot derive any rights or be subject
to any obligations imposed by it.
The common law concept of privity has been a fundamental component of English contract law
for almost 200 years. It was previously unknown that contracts could not be enforced against a
third party. For a number of reasons, the benefit rule, which holds that a contract cannot be
enforced by third parties, has proven to be more troublesome.
In this piece, I'll look at such arguments against the four-contract law judicial philosophies to see
if the concept of privity is unjust and inconvenient. In addition, I'll look at examples of how the
concept of privity is utilised to determine if it supports or refutes claims of unfairness and
discomfort.
The first and most obvious weakness of the rule is that it disregards the parties' intentions, as
demonstrated in Beswick v Beswick. This might be considered the major source of inequality. In
contrast to formalism's rejection of the circumstance, a realist may deviate from the norms and
consider the disagreement as a whole in order to get a fair conclusion.
Second, due to the concept of privity, both Wallace and Stevens raised an issue in which the
person who experienced the loss (i.e. the third party) is unable to sue, while the one who has not
suffered any harm (i.e. the promisee) is entitled to sue, causing commercial difficulties. Wallace
called this the legal "black hole." In exceptional cases, courts have granted particular
performance to the promisee; but, this remedy will not be available in every situation.
Furthermore, even if the promisee has the ability and willingness to sue the promisor for huge
quantities of money or specific performance, the promisee may be unable or unwilling to do so.
Using the Dunlop case from 1914 as an illustration of how the doctrine might result in unfair and
unjust treatment.
Similarly, even if a contract is made to benefit someone who is not a party to it, that person (third
party) typically lacks the right to sue in order to fulfil the contractual duty. This rule has the
potential to create significant commercial upheaval. Contracts, for example, commonly
incorporate exclusions of responsibility and indemnities in favour of third parties; but, as both
Midland Silicone and The Eurymedon acknowledged, third parties may have to rely on the
capabilities of a contractual party to get a meaningful remedy. It is important to note that in the
Eurymedon case, the courts departed from a formalist stance and used consideration factors to
obtain a reasonable decision for the third party. This demonstrates that, despite its sound
foundations, the theory has been framed to meet consumer welfare ideals rather than operating in
an unfair manner.
Similarly, the law has recognised that some changes are required to accommodate the
increasingly complex world of commerce; for example, the doctrine provides a list of statutory
exceptions, such as collateral contracts (as seen in Shanklin Pier v Detel Products), enforcement
by contracting party (as seen in Albazero), and agency and trust. These lowered criteria have
created a path for redress in some circumstances and, to a limited extent, can now provide justice
to individuals who have been denied it. Although this appears to be compatible with the
argument of market individualists that rules should be flexible enough to allow commercial
behaviour, it does not appear to be consistent with the position that the concept is inconvenient.
On the other hand, greater bureaucracy may delay ordinary operations due to confusing laws and
omissions.
Third, privity regulations have the potential to produce unequal results. Consider the case of
Beswick, where the justices disagreed with Lord Denning's conclusion that Mrs. Beswick may
make a claim as a third party aiming to profit from the contract. If the case had not gone to the
House of Lords, some would have thought it was unjust that, despite the fact that she was
intended to benefit from the contract, she would be unable to enforce it and therefore lose out.
Customers who value justice would be enraged. One could also argue that, while Mrs. Beswick
eventually obtained what she wanted, her inability to do it under her own name caused her
complications (and possibly financial and emotional anguish). Without rejecting other scholarly
complaints of the theory, the final one I'll address is that it restricts the parties' contractual
flexibility, contributing to the idea that the doctrine is inconvenient, much to the disappointment
of market individualists who encourage such self-reliance and independence. Without rejecting
other scholarly complaints of the theory, the final one I'll address is that it restricts the parties'
contractual flexibility, contributing to the idea that the doctrine is inconvenient, much to the
disappointment of market individualists who encourage such self-reliance and independence.
To assess the truth of the contested assertion, the doctrine must be considered in its context,
which includes the supporting modification to the Contracts (Rights of Third Parties) Act 1999.
The Act, which was prompted by the Law Commission's recommendations, has an impact on all
aspects of commercial law and makes significant changes to the concept of privity, thus it should
be explored. Third parties now have a limited right of action under the Contracts (Rights of Third
Parties) Act. It also has some ramifications for granting such a right of action, such as the need
that the third party be "expressly mentioned," which was a problem in the instance of
Avraamides.
Cliona Kelly stated that in practise, privity does not cause real difficulties because of the
statutory exceptions devices that are frequently used to circumvent the rule, and thus presents an
argument in favour of sticking to the original doctrine's'status quo,' but I have refuted this so far,
demonstrating problems of injustice and inconvenience. According to my opinion, the 1999 Act
is useful since it addresses past concerns raised by the idea of privity. Section 1(1)b of the
legislation, which allows a third party to sue on its own, would now partially resolve Jackson v
Horizon Holidays Ltd. It does, however, result in unconstructive development, as I will
demonstrate shortly.
The major reason for changing privity was to give effect to the contractual parties' goals;
nevertheless, because the contract provides for a third party's right of action, it is now evident
that this suits the parties' goals. However, while it broadens the scope, it remains limited because
there is still no complete freedom of contract as desired by realists, but rather a small broadening
that prohibits situations similar to Tweedle v Atkinson; if this case had occurred after 1999, the
groom would have been able to enforce the contract because there was explicit provision that he
could, which is consistent with the idea of freedom of contract and sanctity.