• Whether, for example, the law should enforce a contract to labour, when the wages are too low or the hours of work too severe: whether it should enforce a contract by which
  a person binds himself to remain, for more than a very limited period, in the service of a given individual…. Every question which can possibly arise as to the policy of contracts, and of the relations which they establish among human beings,
  is a question for the legislator; and one which he cannot escape from considering, and in some way or other deciding.’ JS Mill, Principles of Political Economy (1848) Book V, ch 1, §2 Over the industrial revolution, English courts became more
  and more wedded to the concept of “freedom of contract”.

• In a number of instances, the courts avoid enforcement of contracts where, although there is a formal offer and acceptance, little objective agreement exists otherwise.

• Along with a number of other critics,[70] in a series of cases Lord Denning MR proposed that English law ought to abandon its rigid attachment to offer and acceptance in favour
  of a broader rule, that the parties need to be in substantial agreement on the material points in the contract.

• Some contracts, particularly for large transactions such as a sale of land, also require the formalities of signatures and witnesses and English law goes further than other
  European countries by requiring all parties bring something of value, known as “consideration”, to a bargain as a precondition to enforce it.

• [42] In addition and in contrast to civil law systems, English common law carried a general requirement that all parties, in order to have standing to enforce an agreement,
  must have brought something of value, or “consideration” to the bargain.

• [34] The courts began by requiring entirely clear information before onerous clauses could be enforced,[35] the Misrepresentation Act 1967 switched the burden of proof onto
  business to show misleading statements were not negligent, and the Unfair Contract Terms Act 1977 created the jurisdiction to scrap contract terms that were “unreasonable”, considering the bargaining power of the parties.

• After reform in the United States,[102] especially the Restatement of Contracts §90 which allows all promises to bind if it would otherwise lead to “injustice”, a report in
  1937 by the Law Revision Committee, Statute of Frauds and the Doctrine of Consideration,[103] proposed that promises in writing, for past consideration, for part payments of debt, promising to perform pre-existing obligations, promising to
  keep an offer open, and promises that another relies on to their detriment should all be binding.

• Moreover, statutory reform in the Contracts (Rights of Third Parties) Act 1999 allows third parties to enforce the benefit of an agreement that they had not necessarily paid
  for so long as the original parties to a contract consented to them being able to do so.

• English law places a high value on ensuring people have truly consented to the deals that bind them in court, so long as they comply with statutory and human rights.

• The Court of Appeal held that there was a contract to pay arising from the rules of the competition between The Satanita’s owner and the owner of Valkyrie II, which he sank,
  even though there was no clear offer mirrored by a clear acceptance between the parties at any point.

• However the courts do not wish to “make contracts for people”, and so in Scammell and Nephew Ltd v Ouston,[78] a clause stipulating the price of buying a new van as “on hire
  purchase terms” for two years was held unenforceable because there was no objective standard by which the court could know what price was intended or what a reasonable price might be.

• [74] Moreover, if two parties think they reach an agreement, but their offer and acceptance concerns two entirely different things, the court will not enforce a contract.

• Contract law works best when an agreement is performed, and recourse to the courts is never needed because each party knows their rights and duties.

• [26] The essential principles of English contract law, however, remained stable and familiar, as an offer for certain terms, mirrored by an acceptance, supported by consideration,
  and free from duress, undue influence or misrepresentation, would generally be enforceable.

• Nevertheless, classical contract law remained at the foundation of those specific contracts, unless particular rights were given by the courts or Parliament.

• [48] An automated vending machine constitutes a standing offer,[49] and a court may construe an advertisement, or something on display like a deckchair, to be a serious offer
  if a customer would be led to believe they were accepting its terms by performing an action.

• While many agreements can be certain, it is by no means certain that in the case of social and domestic affairs people want their agreements to be legally binding.

• In Butler Machine Tool Co Ltd v Ex-Cell-O Corp Ltd[71] this would have meant that during a “battle of forms” two parties were construed as having material agreement on the
  buyer’s standard terms, and excluding a price variation clause, although the other court members reached the same view on ordinary analysis.

• Where agreements totally fail, but one party has performed work at another’s request, relying on the idea that there will be a contract, that party may make a claim for the
  value of the work done, or quantum meruit.

• It is also possible that a contract becomes voidable, because, depending on the specific type of contract, one party failed to make adequate disclosure or they made misrepresentations
  during negotiations.

• Controversially, the House of Lords extended this idea by holding an agreement to negotiate towards a future contract in good faith is insufficiently certain to be enforceable.

• Terms in an agreement are incorporated through express promises, by reference to other terms or potentially through a course of dealing between two parties.

• [33] Consumer contracts came to be regarded as “contracts of adhesion” where there was no real negotiation and most people were given “take it or leave it” terms.

• This approach would potentially give greater discretion to a court to do what appears appropriate at the time, without being tied to what the parties may have subjectively
  intended, particularly where those intentions obviously conflicted.

• [100] It is contentious in the sense that it gives rise to a level of complexity that legal systems which do not take their heritage from English law simply do not have.

• They take upon themselves to determine what contracts are fit to be enforced…. once it is admitted that there are any engagements which for reasons of expediency the law
  ought not to enforce, the same question is necessarily opened with respect to all engagements.

• Actions for debt were in the jurisdiction of the Court of Common Pleas, which had required both (1) proof of a debt, and (2) a subsequent promise to repay the debt, so that
  a finding of deceit (for non-payment) could be made against a defendant.

• It meant that most contracts made by people on an ordinary day were shielded from the power of corporations to impose whatever terms they chose in selling goods and services,
  at work, and in people’s home.

• While contracts can be generally made without formality, some transactions are thought to require form either because it makes a person think carefully before they bind themselves
  to an agreement, or merely that it serves as clear evidence.

• In exceptional circumstances, the law goes further to require a wrongdoer to make restitution for their gains from breaching a contract, and may demand specific performance
  of the agreement rather than monetary compensation.

• Children, mentally incapacitated people, and companies whose representatives are acting wholly outside their authority, are protected against having agreements enforced against
  them where they lacked the real capacity to make a decision to enter an agreement.

• [88] In one situation, statute presumes that collective agreements between a trade union and an employer are not intended to create legal relations, ostensibly to keep excessive
  litigation away from UK labour law.

• [52] The Principles of European Contract Law article 2:201 suggests that most EU member states count a proposal to supply any good or service by a professional as an offer.

• [28] Parliamentary legislation, outside general codifications of commercial law like the Sale of Goods Act 1893, similarly left people to the harsh realities of the market
  and “freedom of contract”.

• This old rule is full of exceptions, particularly where people wished to vary their agreements, through case law and the equitable doctrine of promissory estoppel.

• [15] Around the same time the Common Pleas indicated a different limit for contract enforcement in Bret v JS,[16] that “natural affection of itself is not a sufficient consideration
  to ground an assumpsit” and there had to be some “express quid pro quo”.

• Traditionally, English law has viewed the display of goods in a shop, even with a price tag, as an invitation to treat,[44] so that when a customer takes the product to the
  till it is she who is making the offer, and the shopkeeper may refuse to sell.

• The general rule is that contracts require no prescribed form, such as being in writing, except where statute requires it, usually for large deals like the sale of land.

• [96] A person wishing to enforce an agreement must show that they have brought something to the bargain which has “something of value in the eyes of the law”, either by conferring
  a benefit on another person or incurring a detriment at their request.

• In Balfour v Balfour[83] Atkin LJ held that Mr Balfour’s agreement to pay his wife £30 a month while he worked in Ceylon should be presumed unenforceable, because people do
  not generally intend such promises in the social sphere to create legal consequences.

• Although the general rule was to require communication of acceptance, the advertisement had tacitly waived the need for Mrs Carlill, or anyone else, to report her acceptance
  first.

• Generally the courts endeavour to “make the agreement work”, so in Hillas & Co Ltd v Arcos Ltd,[77] the House of Lords held that an option to buy softwood of “fair specification”
  was sufficiently certain to be enforced, when read in the context of previous agreements between the parties.

• [57] It only exists in English law so long as it is reasonable to use the post for a reply (e.g.

• Although the house itself was outside London at the time, in Middlesex, a remedy was awarded for deceit, but essentially based on a failure to convey the land.

• In theory, English law attempts to adhere to a principle that people should only be bound when they have given their informed and true consent to a contract.

• Collective bargaining by trade unions and a growing number of employment rights carried the employment contract into an autonomous field of labour law where workers had rights,
  like a minimum wage,[36] fairness in dismissal,[37] the right to join a union and take collective action,[38] and these could not be given up in a contract with an employer.

• After noting the advertisement was serious enough to be an offer, not mere puff or an invitation to treat, the Court of Appeal held the accepting party only needed to use
  the smokeball as prescribed to get the £100.

• Whether an offer has been made, or it has been accepted, is an issue courts determine by asking what a reasonable person would have thought was intended.

• [94] Finally, English law takes the approach that a gratuitous promise, as a matter of contract law, is not legally binding.

• [27] Further requirements of fairness in exchanges between unequal parties, or general obligations of good faith and disclosure were said to be unwarranted because it was
  urged by the courts that liabilities “are not to be forced upon people behind their backs”.

• [23] But then, the law purported to cover every form of agreement, as if everybody had the same degree of free will to promise what they wanted.

• In Hartog v Colin & Shields,[73] where the seller of some Argentine hare skins quoted his prices far below what previous negotiations had suggested, the buyer could not enforce
  the agreement because any reasonable person would have known the offer was not serious, but a mistake.

• [32] First, specific types of non-commercial contract were given special protection where “freedom of contract” appeared far more on the side of large businesses.

• Agreement[edit] Main article: Agreement in English law The formal approach of English courts is that agreement exists when an offer is mirrored by an unequivocal acceptance
  of the terms on offer.

• In Gibson v Manchester CC[72] he would have come to a different result to the House of Lords, by allowing Mr Gibson to buy his house from the council, even though the council’s
  letter stated it “should not be regarded as a firm offer”.

• Contracts can be made personally or through an agent acting on behalf of a principal, if the agent acts within what a reasonable person would think they have the authority
  to do.

• In principle, English law grants people broad freedom to agree the content of a deal.

• Gradually, the courts allowed claims where there had been no real trouble, no tort with “force of arms” (vi et armis), but it was still necessary to put this in the pleading.

• While it is not always clear when people have truly agreed in a subjective sense, English law takes the view that when one person objectively manifests their consent to a
  bargain, they will be bound.

• [97] In practice this means not simple gratitude or love,[98] not things already done in the past, and not promising to perform a pre-existing duty unless performance takes
  place for a third party.

• While a gift that is delivered will transfer property irrevocably, and while someone may always bind themselves to a promise without anything in return to deliver a thing
  in future if they sign a deed that is witnessed,[95] a simple promise to do something in future can be revoked.

• Increasingly, the English law on contractual bargains was affected by its trading relations with northern Europe, particularly since Magna Carta had guaranteed merchants “safe
  and secure” exit and entry to England “for buying and selling by the ancient rights and customs, quit from all evil tolls”.

• If a contract is not substantially performed, then the innocent party is entitled to cease their own performance and sue for damages to put them in the position as if the
  contract were performed.

• There is a rebuttable presumption that people do not wish to later have legal enforcement of agreements made socially or domestically.

• Where there is a gap, courts typically imply terms to fill the spaces, but also through the 20th century both the judiciary and legislature have intervened more and more to
  strike out surprising and unfair terms, particularly in favour of consumers, employees or tenants with weaker bargaining power.

• If the terms are certain, and the parties can be presumed from their behaviour to have intended that the terms are binding, generally the agreement is enforceable.

• Over the late 17th and 18th centuries Sir John Holt,[18] and then Lord Mansfield actively incorporated the principles of international trade law and custom into English common
  law as they saw it: principles of commercial certainty, good faith,[19] fair dealing, and the enforceability of seriously intended promises.

• In a limited number of cases, an agreement will be unenforceable unless it meets a certain form prescribed by statute.

• A preliminary question is whether the contract is reasonably certain in its essential terms, or essentialia negotii, such as price, subject matter and the identity of the
  parties.

• They are under a duty to mitigate their own losses and cannot claim for harm that was a remote consequence of the contractual breach, but remedies in English law are footed
  on the principle that full compensation for all losses, pecuniary or not, should be made good.

• It may also be that one party simply breaches a contract’s terms.

• The judges of the Court of the King’s Bench was prepared to allow “assumpsit” actions (for obligations being assumed) simply from proof of the original agreement.

• [89] A bill of exchange, for instance a cheque, is an order by one person to another (typically a bank) to pay a sum of money to a third person.

• However, where an unforeseen event renders an agreement very hard, or even impossible to perform, the courts typically will construe the parties to want to have released themselves
  from their obligations.

 

Works Cited

[‘Textbooks
• PS Atiyah, An Introduction to the Law of Contract (Clarendon 2000)
• J Beatson, A Burrows and J Cartwright, Anson’s Law of Contract (29th edn OUP 2010)
• H Collins, Contract Law in Context (4th edn CUP 2003)
• R Goode and E McKendrick,
Goode on Commercial Law (4th edn Penguin) chs 3 and 4, 69–176
• E McKendrick, Contract Law (8th edn Palgrave 2009)
• E Peel and GH Treitel, Treitel on the Law of Contract (13th edn Sweet and Maxwell 2011)
Cases and Materials
• A Burrows, A
Casebook on Contract (3rd edn Hart 2011)
• E McKendrick, Contract Law: Text, Cases and Materials (OUP 2010)
Books
• PS Atiyah, The Rise and Fall of Freedom of Contract (Clarendon 1979)
• C Mitchell and P Mitchell (eds), Landmark Cases in the
Law of Contract (Hart 2008)
• AWB Simpson, A History of the Common Law of Contract: the Rise of the Action of Assumpsit (1987)
• SA Smith, Contract Theory (Clarendon 2004)
Articles
• PS Atiyah, “Consideration: A Restatement” in Essays on Contract
(OUP 1986) 195
• LL Fuller, “Consideration and Form” (1941) 41 Columbia Law Review 799
• F Kessler, “Contracts of Adhesion—Some Thoughts About Freedom of Contract” (1943) 43(5) Columbia Law Review 629
• S Gardner, “Trashing with Trollope: A
Deconstruction of the Postal Rules in Contract” (1992) 12 Oxford Journal of Legal Studies 170
• S Hill, “Flogging a Dead Horse – The Postal Acceptance Rule and Email” (2001) 17 Journal of Contract Law 151
• MJ Horwitz, “The historical foundations
of modern contract law” (1974) 87(5) Harvard Law Review 917
• K Llewellyn, “What Price Contract?. An Essay in Perspective” (1931) 40 Yale Law Journal 741
• AT von Mehren, “Civil law analogues to consideration: an exercise in comparative analysis”
(1959) 72(4) Harvard Law Review 1009
• AWB Simpson, “The Horwitz Thesis and the History of Contracts” (1979) 46(3) The University of Chicago Law Review 533
• R Stevens, “The Contracts (Rights of Third Parties) Act 1999” (2004) 120 Law Quarterly
Review 292
• J Steyn, “Contract Law: Fulfilling the Reasonable Expectations of Honest Men” (1997) 113 Law Quarterly Review 433
• H Wehberg, “Pacta Sunt Servanda” (1959) 53(4) The American Journal of International Law 775
Reports
• Law Revision
Committee, Statute of Frauds and the Doctrine of Consideration (1937) Cmnd 5449
• Law Reform Committee, Innocent Misrepresentation (1962) Cmnd 1782
• Law Commission, Report (1986) Cmnd 9700
• Law Commission, Privity of Contract: Contracts for
the Benefit of Third Parties (1996) Law Com 242
• Law Commission, Illegal Transactions: The Effect of Illegality on Contracts and Trusts (1999) Law Com 154
• Law Commission, Unfair Terms in Contracts (2005) Law Com 292

1. The Judicial Committee
of the Privy Council decided cases on appeal from the Australian courts until 1985, from Canada until 1959, from India until 1948.
2. ^ See further Plato, The Laws, Book 11, §23, Contracts. B Nicholas, An Introduction to Roman Law (Clarendon 1963)
165–193
3. ^ R Glanvill, Tractatus de legibus et consuetudinibus regni Angliae (1188) 216 ff
4. ^ Rattlesdene v Grunestone (1317) Year Books 10 Edw II, Selden Society vol 54
5. ^ Bukton v Tounesende (1348) Baker & Milsom 358
6. ^ See Statute
of Gloucester 1278
7. ^ Magna Carta §41
8. ^ HS Barker, ‘The Rise of the Lex Mercatoria and Its Absorption by the Common Law of England’ (1916–1917) 5 Kentucky Law Journal 20, 24
9. ^ e.g. Dyer’s case (1414) 2 Hen. V, fol. 5, pl. 26
10. ^
Watkins’ or Wykes’ case (1425) Baker & Milsom 380, 383, where a man had promised to build a mill, but had failed, per Martin J, 383, ‘if this action should be maintained… then a man would have an action of trespass for every broken covenant in
the world.’
11. ^ (1442) Baker & Milsom 390
12. ^ (1602) 76 ER 1074
13. ^ e.g. D Ibbetson, ‘Sixteenth Century Contract Law: Slade’s Case in Context’ (1984) 4(3) Oxford Journal of Legal Studies 295, 296
14. ^ See further, AWB Simpson, A
History of the Common Law of Contract: the Rise of the Action of Assumpsit (1987)
15. ^ See further, JH Baker, ‘New Light on Slade’s Case’ (1971) 29 Cambridge Law Journal 51
16. ^ (1600) Cro Eliz 756
17. ^ In the popular consciousness, see
Christopher Marlowe, The Tragicall History of the Life and Death of Doctor Faustus (1604)
18. ^ e.g. Lethulier’s Case (1692) 2 Salk 443, “we take notice of the laws of merchants that are general, not of those that are particular.
19. ^ Carter
v Boehm (1766) 3 Burr 1905
20. ^ Jump up to:a b Pillans v Van Mierop (1765) 3 Burr 1663
21. ^ Luke v Lyde (1759) 97 Eng Rep 614, 618; (1759) 2 Burr 882, 887
22. ^ HJS Maine, Ancient Law (1861) ch 6. This classic interpretation, however, is troubled
by the absence of any historical period where any employment relationship was not heavily regulated by statute, even in the 19th century. See for example the Master and Servant Acts.
23. ^ R Browning, Pied Piper of Hamelin (1842) XV
24. ^ JS Mill,
Principles of Political Economy (1848) Book V, ch 1, ch 11
25. ^ (1875) 19 Eq 462, 465
26. ^ Supreme Court of Judicature Act 1873 s 25(11)
27. ^ Indian Contract Act 1872 (c 9 Archived 22 May 2011 at the Wayback Machine)
28. ^ Falcke v Scottish
Imperial Insurance Co (1886) 34 Ch 234
29. ^ This took place from the Second Reform Act 1867, the Representation of the People Act 1884, male suffrage with the RPA 1918, equal ages for men and women to vote from RPA 1928.
30. ^ 2004 Archived 5
July 2010 at the Wayback Machine
31. ^ Principles of European Contract Law of 2002
32. ^ See generally PS Atiyah, The Rise and Fall of Freedom of Contract (Oxford 1979), MJ Horwitz, ‘The historical foundations of modern contract law’ (1974)
87(5) Harvard Law Review 917 and AWB Simpson, ‘The Horwitz Thesis and the History of Contracts’ (1979) 46(3) The University of Chicago Law Review 533
33. ^ See generally, George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1982] EWCA Civ
5, per Lord Denning MR, ‘the freedom was all on the side of the big concern which had the use of the printing press. No freedom for the little man who took the ticket or order form or invoice. The big concern said, “Take it or leave it.” The little
man had no option but to take it.’
34. ^ F Kessler, ‘Contracts of Adhesion—Some Thoughts About Freedom of Contract (1943) 43(5) Columbia Law Review 629
35. ^ e.g. Olley v Marlborough Court [1949] 1 KB 532
36. ^ Trade Boards Act 1909 and the
National Minimum Wage Act 1998
37. ^ Industrial Relations Act 1971 and Employment Rights Act 1996
38. ^ Trade Disputes Act 1906 and the Trade Union and Labour Relations (Consolidation) Act 1992
39. ^ Landlord and Tenant Act 1985
40. ^ See
G Treitel, The Law of Contract (2003) 1, ‘A contract is an agreement giving rise to obligations which are enforced or recognised by law.’ J Beatson, Anson’s Law of Contract (OUP 2002) 73, ‘English law does not regard a bare promise or agreement
as legally enforceable but recognises only two kinds of contract, the contract made by deed, and the simple contract. A contract made by deed derives its validity neither from the fact of the agreement nor because it is an exchange but solely from
the form in which it is expressed. A simple contract as a general rule need not be made in any special form, but requires the presence of consideration which… broadly means that something must be given in exchange for a promise.’ American Law Institute,
Restatement (2d) of Contracts, ‘A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognises as a duty.’
41. ^ See Smith v Hughes (1871) LR 6 QB 597, per
Blackburn J. See also, Williams v. Walker-Thomas Furniture Co., 350 F 2d 445 (CA DC 1965) per Wright J using the phrase “objective manifestation of consent”.
42. ^ Jump up to:a b Law of Property (Miscellaneous Provisions) Act 1989 s2(1)
43. ^
See Smith v Hughes (1871) LR 6 QB 597, per Blackburn J and RTS Flexible Systems Limited v Molkerei Alois Müller GmbH [2010] UKSC 14, [45] per Lord Clarke
44. ^ See Fisher v Bell [1961] 1 QB 394 and Pharmaceutical Society v Boots Cash Chemists [1953]
EWCA Civ 6, both of which appeared to turn more on whether a criminal statute should create liability for a shopkeeper, at a time when a literal approach to interpretation of legislation was followed.
45. ^ Partridge v Crittenden [1968] 1 WLR 1204
46. ^
Sale of Goods Act 1979 s 57(2)
47. ^ Blackpool and Fylde Aero Club v Blackpool BC [1990] EWCA Civ 13
48. ^ See Barry v Davies [2000] EWCA Civ 235, and the old case Payne v Cave (1789) 3 TR 148.
49. ^ e.g. Thornton v Shoe Lane Parking Ltd [1971]
2 QB 163
50. ^ See Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1; Chapelton v Barry Urban District Council [1940] 1 KB 532.
51. ^ See the Consumer Protection from Unfair Trading Regulations 2008 rr 5, 8–18 (SI 2008/1277). This is secondary
legislation, passed under the Trade Descriptions Act 1968.
52. ^ See the Equality Act 2010. See also Constantine v Imperial Hotels Ltd [1944] KB 693 and Lefkowitz v Great Minneapolis Surplus Stores, 86 NW 2d 689 (1957)
53. ^ Entores Ltd v Miles
Far East Corporation [1955] EWCA Civ 3
54. ^ See also, The Brimnes [1974] EWCA Civ 15
55. ^ The general rule was confirmed in Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34. See also, S Hill, ‘Flogging a Dead
Horse – The Postal Acceptance Rule and Email’ (2001) 17 Journal of Contract Law 151, arguing that email is the same as telex and fax.
56. ^ See Adams v Lindsell [1818] EWHC KB J59 and S Gardner, “Trashing with Trollope: A Deconstruction of the
Postal Rules in Contract” (1992) 12 Oxford Journal of Legal Studies 170. Historically a post officer was the agent of the recipient of letter, who would often pay for receiving it. Giving a letter to the postman or putting it in the postbox was construed
as communicating acceptance at the time of posting.
57. ^ See the Principles of European Contract Law art 2:205. Common law countries mostly inherited the same rule from England, and it found its way into the United Nations Convention on Contracts
for the International Sale of Goods arts 16(1) and 18(2)
58. ^ See Henthorn v Fraser [1892] 2 Ch 27 and Holwell Securities Ltd v Hughes [1974] 1 WLR 155. See also Bramwell LJ’s dissenting judgment in The Household Fire and Carriage Accident Insurance
Company (Limited) v Grant (1878–79) LR 4 Ex D 216.
59. ^ nb Manchester Diocesan Council for Education v Commercial and General Investments Ltd [1969] 3 All ER 1593, holding a prescribed mode need not necessarily mean it is the only mode of acceptance.
60. ^
See Felthouse v Bindley
61. ^ (1877) 2 AC 666
62. ^ [1893] 2 QB 256
63. ^ See Williams v Carwardine [1833] EWHC KB J44 and Gibbons v Proctor (1891) 64 LT 594. The Australia case, R v Clarke (1927) 40 CLR 227 opined that reliance on the offer
is also necessary, however this appears to go further than what English law requires. See P Mitchell and J Phillips, ‘The Contractual Nexus: Is Reliance Essential?’ (2002) 22(1) Oxford Journal of Legal Studies 115
64. ^ See Errington v Errington
[1952] 1 KB 290 and Daulia Ltd v Four Millbank Nominees Ltd [1978] Ch 231
65. ^ Byrne v Van Tienhoven (1880) 5 CPD 344
66. ^ Dickinson v Dodds (1876) 2 Ch D 463
67. ^ Stevenson, Jacques & Co v McLean (1880) 5 QBD 346
68. ^ (1840) 3 Beav 334
69. ^
The Satanita [1897] AC 59
70. ^ e.g. Lord Wilberforce in The Eurymedon [1975] AC 154, “English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of
forcing the facts to fit uneasily into the market slots of offer, acceptance and consideration.”
71. ^ [1977] EWCA Civ 9
72. ^ [1979] UKHL 6
73. ^ [1939] 3 All ER 566
74. ^ cf Smith v Hughes (1871) LR 6 QB 597, where it was held that even
though an oats dealer knew that a racehorse trainer was making a mistake about the kind of oats he was buying, the dealer had no obligation to inform him otherwise and the trainer was bound to his agreement.
75. ^ [1864] EWHC Exch J19
76. ^ See
British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504
77. ^ Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2
78. ^ [1941] 1 AC 251
79. ^ nb Sale of Goods Act 1979 s 8(2) stipulates that where a contract for goods is silent
on price, a reasonable price must be paid. See also May and Butcher Ltd v R [1929] UKHL 2
80. ^ [2001] EWCA Civ 274
81. ^ Walford v Miles [1992] 2 AC 128, overturning a decision of Bingham LJ in the Court of Appeal.
82. ^ [1968] EWCA Civ 4
83. ^
[1919] 2 KB 571
84. ^ Jones v Padavatton [1968] EWCA Civ 4
85. ^ Merritt v Merritt [1970] EWCA Civ 6
86. ^ Parker v Clark [1960] 1 WLR 286
87. ^ See Esso Petroleum Co Ltd v Customs and Excise [1975] UKHL 4
88. ^ See Rose & Frank Co v JR
Crompton & Bros Ltd [1924] UKHL 2, Lord Atkin, however, emphasising that it was a case where “business people” were regulating their “business relations”, rather than a situation involving two parties with an imbalance of bargaining power.
89. ^
See Trade Union and Labour Relations (Consolidation) Act 1992 s 179. This follows an old theory popularised by Otto Kahn-Freund of the best kind of industrial relations being one of “collective laissez-faire”.
90. ^ See L Fuller, ‘Consideration
and Form’ (1941) 41 Columbia Law Review 799
91. ^ Law of Property Act 1925 ss 52 and 54(2) require that such leases are made by deed.
92. ^ Consumer Credit Act 1974 ss 60 and 61
93. ^ Bills of Exchange Act 1882 s 3(1)
94. ^ See Statute of
Frauds 1677 s 4 and Actionstrength Ltd v International Glass Engineering In.Gl.EN.SpA [2003] UKHL 17 Archived 10 March 2012 at the Wayback Machine, holding that while this requirement may be undesirable, it could not be circumvented through estoppel.
95. ^
Law of Property (Miscellaneous Provisions) Act 1989 s 1
96. ^ See E Peel, Treitel: The Law of Contract (12th edn 2007) ch 3
97. ^ See Thomas v Thomas (1842) 2 QB 851, 859, and Currie v Misa [1875] LR 10 Ex 153, Lush LJ, “A valuable consideration,
in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.”
98. ^ Bret v JS (1600) Cro Eliz
756 and White v Bluett (1853) 23 LJ Ex 36
99. ^ See Shadwell v Shadwell (1860) 9 CB (NS) 159 and Pao On v Lau Yiu Long [1980] AC 614.
100. ^ Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847, 855, approving the definition of F Pollock,
Principles of Contract (13th edn) 113
101. ^ See AT von Mehren, ‘Civil law analogues to consideration: an exercise in comparative analysis’ (1959) 72(4) Harvard Law Review 1009
102. ^ e.g. K Llewellyn, ‘What Price Contract?. An Essay in Perspective’
(1931) 40 Yale Law Journal 741
103. ^ (1937) Cmd 5449
104. ^ See E Peel, Treitel: The Law of Contract (12th edn 2007) 3-169
105. ^ [1809] EWHC KB J58
106. ^ Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87, per Lord Somervell
107. ^ c.f. UK
insolvency law, IA 1986 s 238 allows the court to declare a contract by an insolvent company void if it was at an undervalue to protect the general body of creditors.
108. ^ e.g. National Minimum Wage Act 1998
109. ^ e.g. Autoclenz Ltd v Belcher
[2011] UKSC 41
110. ^ See Eastwood v Kenyon (1840) 11 Ad&E 438
111. ^ See Lampleigh v Brathwait (1615) Hob 105, and also the American case Webb v McGowin, 168 SO 196 (1935)
112. ^ e.g. Stilk v Myrick [1809] EWHC KB J58
113. ^ [1989] EWCA Civ
5
114. ^ This essentially followed the earlier judgment of Denning LJ in Ward v Byham [1956] 1 WLR 496
115. ^ [1884] UKHL 1. This followed Pinnel’s case (1602) 5 Co Rep 117a, from an age where, without any modern bankruptcy law, there was great
concern that crafty debtors might hold their creditors to ransom.
116. ^ See also D & C Builders v Rees [1966] 2 QB 617
117. ^ [1993] EWCA Civ 8
118. ^ See the Supreme Court of Judicature Act 1875
119. ^ (1877) 2 App Cas 439
120. ^ [1947]
KB 130
121. ^ [2007] EWCA Civ 1329. This decision essentially copies the obiter dicta of Lord Denning MR in D & C Builders v Rees [1966] 2 QB 617
122. ^ e.g. Combe v Combe [1952] EWCA Civ 7
123. ^ Walton Stores (Interstate) Ltd v Maher (1988)
164 CLR 387
124. ^ See, Crabb v Arun District Council [1976] 1 Ch 170. See also Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55
125. ^ e.g. PS Atiyah, ‘Consideration: A Restatement’ in Essays on Contract (OUP, 1986) 195
126. ^ [1861] EWHC
QB J57
127. ^ (1996) Report No 242, 5.10. See A Burrows, ‘The Contracts (Rights of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, but also, heaping criticism on the reforms, R Stevens, ‘The Contracts
(Rights of Third Parties) Act 1999’ (2004) 120 LQR 292
128. ^ CRTPA 1999 ss 1(1)(a), 1(1)(b) and 1(2) respectively.
129. ^ See Nisshin Shipping Co Ltd v Cleaves & Co Ltd [2004] 1 Lloyd’s Rep 38, [23]
130. ^ CRTPA 1999 ss 1(5) and 1(6)
131. ^
CRTPA 1999 s 2
132. ^ Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500
133. ^ [1967] UKHL 2
134. ^ [1961] UKHL 4
135. ^ [1974] UKPC 1
136. ^ See The Mahkutai [1996] AC 650, 664–5, where Lord Goff opined that
it was “perhaps inevitable” that there should develop “a fully-fledged exception to the doctrine of privity of contract, thus escaping from all the technicalities with which courts are now faced in English law.”
137. ^ One case that would not be
decided differently in its result is Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, which involved the anti-competitive practice of resale price maintenance.
138. ^ CRTPA 1999 s 4
139. ^ [1974] EWCA Civ 12
140. ^ UKHL 11
141. ^
See The Albazero [1977] AC 774, 847 per Lord Diplock and Alfred McAlpine Construction Ltd v Panatown [2001] 1 AC 518, 538 per Lord Goff
142. ^ See D&F Estates Ltd v Church Commissioners for England and Wales [1989] AC 177 and Linden Gardens Trust
Ltd v Lenesta Sludge Disposals [1993] UKHL 4. Contrast Dutton v Bognor Regis Building Co Ltd [1972] 1 QB 373, where Lord Denning MR found no difficulty in granting a transmissible warranty of fitness for a building, but overruled by the House of Lords
in D&F Estates. See also Junior Books Limited v Veitchi Company Limited [1982] UKHL 4
143. ^ e.g. Lord Jessel MR in Printing and Numerical Registering Co v Sampson (1875) 19 Eq 462, 465
144. ^ See George Mitchell (Chesterhall) Ltd v Finney Lock
Seeds Ltd [1982] EWCA Civ 5
145. ^ See in particular George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] QB 284 and Johnson v Unisys Ltd [2001] UKHL 13
146. ^ Heilbut, Symons & Co v Buckleton [1912] UKHL 2, [1913] AC 30, 50–1, Lord
Moulton, ‘The intention of the parties can only be deduced from the totality of the evidence.’
147. ^ [1957] 1 WLR 370
148. ^ [1965] EWCA Civ 2
149. ^ Jump up to:a b (1877) 2 CPD 416
150. ^ See Allen v Pink (1838) 4 M&W 140, on the parol
evidence “rule”. The better view appears to be that this is not a rule, but a presumption: KW Wedderburn, ‘Collateral Contract’ [1959] CLJ 58. See also City and Westminster Properties (1934) Ltd v Mudd [1959] Ch 129 on collateral contracts. In California,
the rule has been circumvented, see Pacific Gas & Elec. Co. v. G. W. Thomas Drayage Co., 69 Cal. 2d 33 (1968)
151. ^ L’Estrange v F Graucob Ltd [1934] 2 KB 394, the purchaser of a faulty cigarette machine could not get a refund, because she had
signed a document exempting the seller for any liability if it did not work. However, today this would be found unfair under UCTA 1977 ss 3, 6 and Sch 2
152. ^ See Grogan v Robin Meredith Plant Hire [1996] CLC 1127 and Gallie v Lee [1970] UKHL 5,
[1971] AC 1004.
153. ^ Autoclenz Ltd v Belcher [2011] UKSC 41
154. ^ See the Unfair Terms in Consumer Contracts Directive 93/13/EEC and UTCCR 1999
155. ^ e.g. Bankway Properties Ltd v Pensfold-Dunsford [2001] EWCA Civ 528, [45]
156. ^ [1956]
EWCA Civ 3, [1956] 1 WLR 461. See also Olley v Marlborough Court [1949] 1 KB 532, where Denning LJ held a notice behind a door to a washbasin in a hotel guest’s room was not prominent enough to exclude the hotel’s liability for failing to prevent
a thief stealing Mrs Olley’s fur coat.
157. ^ [1971] 2 QB 163
158. ^ [1987] EWCA Civ 6, [1989] QB 433
159. ^ [2001] EWCA Civ 1279
160. ^ [1972] 2 QB 71
161. ^ [1973] EWCA Civ 6, [1975] QB 303
162. ^ See also Henry Kendall Ltd v William
Lillico Ltd [1969] 2 AC 31 and Scheps v Fine Art Logistics Ltd [2007] EWHC 541
163. ^ Jump up to:a b [1997] UKHL 28, [1998] 1 WLR 896
164. ^ e.g., Lovell & Christmas Ltd v Wall (1911) 104 LT 85, Lord Cozens-Hardy MR stated, “it is the duty of
the court… to construe the document according to the ordinary grammatical meaning of the words used therein.”
165. ^ [1952] AC 192
166. ^ See Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805, Harbutt’s Plasticine Ltd v Wayne Tank Pump
Co Ltd [1970] 1 QB 47 and Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
167. ^ See also Hollier v Rambler Motors Ltd [1972] 2 QB 71, where Salmon LJ held that even if the clause excluding liability for fire had been incorporated through
a course of dealings, because a reasonable person would not believe it referred to the business’ negligence, it would be construed to not cover that.
168. ^ See George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] QB 284, and also Ailsa
Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1981] UKHL 12, [1983] 1 WLR 964, Lord Fraser notes Lord Morton’s principles do not apply fully to limitation as opposed to exclusion clauses.
169. ^ Lord Wilberforce in Rearden Smith Lines Ltd v Hansen
Tangan [1976] 1 WLR 989 was taken as inspiration by Lord Hoffmann, a judgment passed as it was clear unfair terms legislation was to be enacted.
170. ^ See HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6. This position
reflects most civil law countries since the 19th century, e.g. in Germany BGB §133 where “the actual will of the contracting party, not the literal sense of words, is to be determined”
171. ^ Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38
172. ^
e.g. Lord Steyn, ‘Contract Law: Fulfilling the Reasonable Expectations of Honest Men’ (1997) 113 LQR 433
173. ^ Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2010] UKSC 44
174. ^ See Frederick E Rose (London) Ltd v William H Pim Jnr & Co Ltd
[1953] 2 QB 450
175. ^ Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10
176. ^ However where contracts are avoidable for lack of good faith, misrepresentation, duress or undue influence, or lack of capacity, and an order to reverse
unjust enrichment is imposed, the same functional result may be reached.
177. ^ For instance, the Model Articles for companies incorporated under the Companies Act 2006 contain many such default rules, while the terms of the Employment Rights Act
1996 cannot be contracted out of.
178. ^ Equitable Life Assurance Society v Hyman [2000] UKHL 39, [2002] 1 AC 408, 459. The same test is used for implying contracts, Baird Textiles Holdings Ltd v Marks & Spencer plc [2001] EWCA Civ 274, [2002] 1
All ER (Comm) 737.
179. ^ [2002] 1 AC 408, 459. See also Paragon Finance plc v Nash [2002] 1 WLR 685 and AG of Belize v Belize Telecom Ltd [2009] UKPC 10, [20]-[21]
180. ^ The Moorcock (1889) 14 PD 64 and Southern Foundries (1926) Ltd v Shirlaw
[1940] AC 701
181. ^ [2009] UKPC 10
182. ^ Cunliffe-Owen v Teather & Greenwood [1967] 1 WLR 1421, per Ungoed Thomas LJ. See also Hutton v Warren [1836] EWHC Exch J61
183. ^ [2002] 1 AC 408
184. ^ [1977] AC 329. The judgment of Lord Denning
MR in the Court of Appeal, [1976] QB 319, is notable for asserting that the judiciary should be able to imply terms whenever it is reasonable.
185. ^ See Scally v Southern Health and Social Services Board [1992] 1 AC 294, cf Crossley v Faithful
& Gould Holdings Ltd [2004] EWCA Civ 293
186. ^ e.g. Wilson v Racher [1974] ICR 428
187. ^ [1998] AC 20
188. ^ [1992] QB 333
189. ^ [1992] QB 333, respectively Leggatt LJ at 347–349, Sir Nicholas Browne-Wilkinson VC at 349–352, and Stuart
Smith LJ at 340–347.
190. ^ See EC Regulation 261/2004
191. ^ See EU Directive 2000/31/EC
192. ^ See SI 1999/2083, implementing the EU Unfair Consumer Contract Terms Directive 93/13/EC
193. ^ Law Commission, Unfair Terms in Contracts (2005)
Law Com 292 Archived 10 February 2009 at the Wayback Machine
194. ^ UCTA 1977 s 11(4)(b), Sch 2(a) and 2(c). Although Sch 2 stipulates that its criteria are only for ss 6(3), 7(3)-(4) and 20–21, the courts say these criteria are relevant for the
rest of the Act, per Clarke J in Woodman v Photo Trade Processing Ltd (7 May 1981) Unreported, Exeter County Court, and R Lawson (1981) 131 NLJ 933.
195. ^ [1982] EWCA Civ 5, [1983] QB 284 and [1983] 2 AC 803
196. ^ e.g. in Timeload Ltd v BT plc
[1995] EMLR 459 Sir Thomas Bingham MR held it was arguable that BT’s standard term that it could terminate a business customer’s phone connection “at any time” on one month’s notice was unreasonable because it did not require that BT gave any kind
of good reason.
197. ^ [1990] UKHL 1, [1990] 1 AC 831
198. ^ c.f. R&B Customs Brokers Ltd v United Dominions Trust Ltd [1988] 1 WLR 321, where under UCTA 1977 the Court of Appeal held that an incorporated small business could count as a consumer.
199. ^
[2001] UKHL 52
200. ^ [2009] UKSC 6
201. ^ [2009] EWCA 116
202. ^ [2009] UKSC 6, [113], per Lord Mance.
203. ^ See also, the Unfair Contract Terms Bill (2005) Law Com 292 Archived 19 April 2009 at the Wayback Machine, in clause 4(5) says price
“does not include any amount, payment of which would be incidental or ancillary to the main purpose of the contract”.
204. ^ [1898] 1 QB 673
205. ^ Arguably, however, he could get back the cost of some building materials in a restitutionary claim
if the materials had (unlike the facts) been freely accepted. On the facts they were not. See Goff and Jones, 441-2.
206. ^ [1972] EWCA Civ 5
207. ^ [1952] EWCA Civ 6, [1952] 2 All ER 176. See also, Jacob & Youngs v. Kent, 230 NY 239 (1921)
208. ^
Anomalously, given that employment contracts are to be intellectually segregated from the law on general contracts, Gisda Cyf v Barratt [2010] UKSC 41, [39], the doctrine against payment for insubstantial performance was deployed in the 1980s against
trade union members who through industrial action worked 3 hours less than their 37-hour week, or refused to answer telephone enquiries from their employers but were otherwise at work. Miles v Wakefield MDC [1987] AC 539 and Wilusynski v London Borough
of Tower Hamlets [1989] ICR 493. This is reminiscent of Cutter v Powell [1795] EWHC KB J 13, where a widow could recover no wages on behalf of her husband who died aboard a ship bound back from Jamaica but who had given service for most of the voyage.
209. ^
[1962] AC 413
210. ^ See Workers Trust v Dojap Investments Ltd [1993] UKPC 7, [1993] 2 All ER 370, where a 30% deposit had to be given up.
211. ^ [1997] UKPC 5, [1997] AC 514
212. ^ Dunlop Tyre Co Ltd v New Garage Co Ltd [1914] UKHL 1
213. ^
[2005] EWCA Civ 963
214. ^ See Office of Fair Trading v Abbey National plc [2008] EWHC 875 (Comm), [2008] All ER (D) 349
215. ^ (SI 1999/2083) Sch 2(1)(d)-(e)
216. ^ [1863] EWHC QB J1
217. ^ Paradine v Jane [1647] EWHC KB J5, (1647) Aleyn
26
218. ^ e.g. Fibrosa Spoka Akcjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32
219. ^ See Krell v Henry [1903] 2 KB 740, but contrast Herne Bay Steam Boat Co v Hutton [1903] 2 KB 683, which is typically said to be distinct on the basis
that the claimant could still substantially enjoy the boat trip anyway.
220. ^ [1956] UKHL 3, [1956] AC 696. Also, see Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] UKPC 1, [1935] AC 524, the frustrating event must be unforeseeable.
221. ^
e.g. Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154
222. ^ Also known as J Lauritzen A/S v Wijsmuller BV [1989] EWCA Civ 6, [1990] 1 Lloyd’s Rep 1
223. ^ See Appleby v Myers (1867) LR 2 CP 651, ameliorated
by Fibrosa Spoka Akcjna v Fairbairn Lawson Combe Barbour Ltd [1942] UKHL 4, [1943] AC 32, where if consideration failed totally, money could be recouped.
224. ^ LRFCA 1943 s 1(2) refers to money, and s 1(3) refers to non-monetary benefits.
225. ^
See BP Exploration Co (Libya) v Hunt (No 2) [1979] 1 WLR 783; [1982] 1 All ER 925, per Lawton LJ. Goff J in the High Court would have held that an objective assessment of unjust enrichment should guide the court, with less discretion. See also Gamerco
SA v ICM Fair Warning Ltd [1995] EWHC QB 1.
226. ^ [1931] UKHL 2
227. ^ [2002] EWCA Civ 1407
228. ^ See Amalgamated Investment and Property Co Ltd v John Walker & Sons Ltd [1977] 1 WLR 164
229. ^ [1856] UKHL J3, (1856) 5 HLC 673
230. ^ (1867)
LR 2 HL 149
231. ^ McRae v Commonwealth Disposals Commission [1951] HCA 79, (1951) 84 CLR 377, High Court (Australia).
232. ^ [1931] UKHL 2, [1932] AC 161
233. ^ [1950] 1 KB 671
234. ^ Jump up to:a b (1876) 1 QBD 183
235. ^ See this language
being used in Photo Production Ltd v Securicor Transport Ltd [1980] UKHL 2 by Lord Diplock, probably inspired John Austin, The Province of Jurisprudence Determined (1832)
236. ^ See Hochster v De La Tour [1853] EWHC QB J72, White and Carter (Councils)
Ltd v McGregor [1962] UKHL 5 and The Alaskan Trader [1984] 1 All ER 129
237. ^ See Reardon Smith Line Ltd v Yngvar Hansen-Tangen and Sanko SS & Co Ltd [1976] 3 All ER 513
238. ^ See SGA 1979 s 15A, added by the Sale of Goods (Amendment) Act 1994
s 4(1)
239. ^ See The Hansa Nord or Cehave NV v Bremer Handelsgesellschaft mbH [1976] QB 44
240. ^ [1973] UKHL 2, [1974] AC 235
241. ^ See Rice (t/a Garden Guardian) v Great Yarmouth Borough Council (2001) 3 LGLR 4, [2000] All ER (D) 902, where
a contract parks maintainer successfully claimed wrongful termination even though he had provably defaulted on some tasks.
242. ^ [1981] UKHL 11, [1981] 2 All ER 513
243. ^ [1995] UKHL 8.
244. ^ [1972] EWCA Civ 8. Compare the privity case, Jackson
v Horizon Holidays Ltd [1975] 1 WLR 1468, which held a husband could recover disappointment damages on behalf of his wife and children.
245. ^ [2001] UKHL 49
246. ^ See Addis v Gramophone Co Ltd [1909] UKHL 1, [1909] AC 488 and Sutherland v Hatton
[2002] EWCA Civ 76
247. ^ [1854] EWHC Exch J70
248. ^ Jump up to:a b [2008] UKHL 48
249. ^ Also known as Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10, [1997] AC 191
250. ^ [1854] EWHC Exch J70. Compare the Uniform
Commercial Code, 2-715, “Consequential damages… include any loss… which could not reasonably be prevented by cover or otherwise.”
251. ^ See also The Heron II [1967] UKHL 4, [1969] 1 AC 350 and H Parsons (Livestock) Ltd v Uttley Ingham & Company
Ltd [1977] EWCA Civ 13, [1978] QB 791
252. ^ British Westinghouse Ltd v Underground Ltd [1912] AC 673
253. ^ See Banco de Portugal v Waterlow [1932] UKHL 1
254. ^ See the Law Reform (Contributory Negligence) Act 1945 ss 1 and 4
255. ^ [1972]
1 QB 60
256. ^ Note C & P Haulage v Middleton [1983] EWCA Civ 5, [1983] 1 WLR 1461, where expenses of Mr Middleton’s improvements to a property could not be recovered given that he did so of his own accord.
257. ^ See Johnson v Agnew [1980] AC
367, and also Habton Farms v Nimmo [2004] QB 1
258. ^ Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323
259. ^ Sky Petroleum v VIP Petroleum [1974] 1 WLR 576
260. ^ See Lumley v Wagner (1852) 64 ER 1209
261. ^ Patel v Ali [1985]
Ch 283
262. ^ [1997] UKHL 17
263. ^ See Rookes v Barnard [1964] AC 1129, which makes clear such damages are available for tort.
264. ^ [2000] UKHL 45
265. ^ [1974] 1 WLR 798
266. ^ Compare Surrey CC v Bredero Homes Ltd [1993] EWCA Civ 7,
which was probably wrongly decided given the dicta in Blake.[according to whom?]
267. ^ [2003] EWCA Civ 323, [2003] 1 All ER (Comm) 830
268. ^ The Wall Street Crash and ensuing Great Depression was triggered in part by a failure to regulate the
sale of shares to ensure transparency, as well as unequal power within corporations. See AA Berle and GC Means, The Modern Corporation and Private Property (1932)
269. ^ In the Financial crisis of 2007–08, this was derivatives, particularly collateralized
debt obligations of mortgage-backed securities, and credit default swaps, whose value ultimately “derived” from people who were unable to pay off unfair mortgage agreements in the United States. See E. Warren, ‘Product Safety Regulation as a Model
for Financial Services Regulation’ (2008) 43(2) Journal of Consumer Affairs 452 and JC Coffee, ‘What Went Wrong? An Initial Inquiry into the Causes of the 2008 Financial Crisis’ (2009) 9(1) Journal of Corporate Law Studies 1
270. ^ See Redgrave
v Hurd (1881) 20 Ch D 1 and Allcard v Skinner (1887) 36 Ch D 145
271. ^ See Hedley Byrne & Co Ltd v Heller & Part Photo credit: https://www.flickr.com/photos/calliope/4242976586/’]