Lecture 12:Introduction to

Contract LawFoundation Law

2013/14

Recap-Lecture 11: Law of Torts (2)

• In last week’s lecture we looked at the other types of torts, namely:

The Tort of Defamation;

The Tort of Trespass (both against the person and property); and

The Tort of Nuisance

Tort of Trespass• What is a trespass?

• Trespass is the direct interference with another person or his property, which infringes the person’s right to enjoyment of his land, possession of his goods or freedom of movement

• Trespass is actionable per se

• This means that the claimant only needs to show that the trespass occurred, although it is not necessary to show that the defendant caused any damage or injury.

Trespass to the Person

• There are three categories of trespass to the person:• Assault;• Battery; and• False Imprisonment

Assault• Assault is an act which causes another person to fear

immediate and unlawful force

• The claimant must therefore, prove 2 elements:

1. The defendant intended to threaten physical injury; and

2. This threat caused the claimant to reasonably fear the application of direct and immediate force.

• The claimant must reasonably fear that immediate force will be used against him

Battery• Battery is the application of unlawful force to another

person • The claimant has to prove 3 elements for battery:

1. The defendant intended to apply force to the claimant;

2. The force applied must be direct and immediate; and

3. The force must be unlawful.

Defences to Battery & Assault• Self defence: a person may use reasonable force to

defend himself or another. What is reasonable will depend on the facts of the case

• Lawful arrest: reasonable force may be used to make a lawful arrest. Therefore, it’s possible for a police officer to commit battery/assault, if the force he used to arrest the claimant was unreasonable (e.g., grabbing the claimant by the collar of his shirt.)

False Imprisonment• False imprisonment is whereby without a lawful reason,

the claimant is prevented from moving freely and it is therefore, the deprivation of personal liberty

• LJ Goff in Collins v Wilcock (1984), defined false imprisonment as the “unlawful imposition of constraint on another’s freedom of movement from a particular place”

• The claimant must prove 3 elements:1. The defendant intended to restrict the claimant’s

freedom of movement;2. The claimant’s freedom of movement was completely

restricted (e.g., the claimant had no reasonable means of escape); and

3. The restriction was unlawful.

Defences to false imprisonment

• Lawful arrest: any person who has been lawfully arrested may be detained as per the rules under the Police and Criminal Evidence Act (PACE)

• Court order of imprisonment: an imprisonment sentence passed by a court allows the defendant to be lawfully detained

• Mental health order: the Mental Health Acts allow a person to be held in a mental hospital under certain circumstances. For example, if the person poses a threat to the public or if s/he has suicidal tendencies

Trespass to Land• Trespass to land is defined as any intentional and unjustifiable

interference with the land or buildings of another person

• Like trespass to the person, no damage to the land/building needs to be proven by the claimant

• The claimant must therefore, prove the following 3 elements for trespass to land:

1. The defendant acted intentionally;

2. The defendant’s actions interfered with the claimant’s land; and

3. Such interference occurred without any legal authority

• Defences to trespass to land

Trespass to goods• Trespass to goods consists of direct and unlawful damage to, or

interference with, goods in the possession of another person

• What are goods?

• Goods are moveable objects (“chattels”)- e.g., books, mobile phone, cars…..

• The claimant needs to prove the following 2 elements to the tort of trespass to goods/chattels:

1. the defendant must intentionally interfere with the goods; and

2. the goods must be in the possession of the claimant

What is a nuisance and how is it different from a trespass?

• Unlike a trespass, which is actionable per se, a nuisance is an indirect interference to land which causes damage

• Therefore, the claimant must prove damage

• Private Nuisance: a type of nuisance which unreasonably interferes with the claimant’s use or enjoyment of his land (e.g., branches of a tree hanging over another person’s garden)

• Public Nuisance: a type of nuisance which affects the reasonable comfort and convenience of a group of people (e.g., a faulty street light)

Defamation• Defamation is the making and publishing of a false statement

about a person which damages that person’s reputation.

• Lord Atkins in the case Sim v Stetch (1936) defined defamation as an untrue statement which “causes the claimant to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem” in the eyes of reasonable people

• Two types of defamation:

• Libel: permanent form…actionable per se

• Slander: impermanent/temporary form….not actionable per se

• The claimant must prove the following elements for defamation (both libel and slander):

The statement must be defamatory: the statement must be untrue and must lower the reputation of the claimant in the eyes of the reasonable members of society;

The statement must refer to the claimant; and

The statement must be published.

This week…………

Introduction to Contract Law

Learning Outcomes:

• Explain what a contract is and how contracts are formed;

• Outline the key elements of a contract;

• Explain the difference between an offer and an invitation to treat;

• Become familiar with contract law terminology;

• Apply legal principles to given facts and demonstrate criticality & analysis when answering fact based questions; and

• Analyse case law and be able to apply case law in a persuasive manner to hypothetical case studies.

What is a Contract?

•A contract is:

“An agreement between two parties who promise to give and receive something from each other, known as

consideration, and who intend the agreement to be legally binding”.

7 elements of a ContractOfferAcceptanceConsiderationCapacityIntention to create legal relationsLegalityAgreement

• This week’s lecture will focus on offer and acceptance………..

OFFERS• What is an offer?

• Oxford Dictionary of Law definition: “ an indication of willingness to do or refrain from doing something that is capable of being converted by acceptance into a legally binding contract”

• Offers therefore, generally refer to a willingness to do/not to do something…..offers are usually made with respect to underlying terms/conditions of an agreement. For example, offer of a price.

• “Offeror”- the person who is making an offer (For example, Sue is offering to buy Jen’s car for £5000)

• “Offeree”- the person to whom the offer is made (in the example above, this would be Jen)

Invitations to Treat

Invitations to Treat• An offer is NOT the same thing as an invitation to treat!

• An invitation to treat is essentially an invitation to someone to make an offer. It is not an offer. This “invitation” or “offer” can either be accepted or rejected by the offeree.

• Pharmaceutical Society of Great Britain v Boots Cash Chemists Ltd (1953): items displayed for sale are invitations to treat

• Fisher v Bell (1961): held that displaying a flick knife with a price tag in the shop window, was an invitation to treat and not an offer for sale

• Harris v Nickerson (1873): it was held that an advertisement giving details of a forthcoming auction was not an offer but an invitation to make an offer (upheld in Partridge v Crittenden (1968))

Invitations to Treat• Therefore, articles displayed for sale and

advertisements are invitations to treat and not offers

• However, reward posters are considered to be offers, as outlined in Carlill v Carbolic Smoke Ball Co (1893)

Offers

• There are 5 key rules relating to offers:

1.An offer may be made to one or more parties2.Offers need not to be made in writing3.The offer must be communicated4.Revocation of an offer5.Other ways of terminating an offer

An offer may be made to one or more persons• Carlill v Carbolic Smoke Ball Co (1892): A company advertised a

flu cure. They said, in the offer that if you used the remedy and then suffered from flu, they would give you £100. They put £1000 in the bank to show sincerity. A woman used it and caught flu. She argued that the company should give her £100.

• The court held that:

• An offer can be made to many people: it need not simply be between two people

• Advertisements are not usually offers. However, the company intended it to be an offer; because they deposited £1000 in the bank.

Offers need not be made in writing

• Writing is a form of evidence that an offer has been made but it is not a requirement

• Therefore, oral offers and offers made by gestures (actions), are recognised

The offer must be communicated• The offeree must be made aware of the offer

• The offer must be effectively communicated, so that a contract can be born

Revocation of an offer

• Revocation of an offer refers to its termination

• However, an offer can only be revoked if the offer has not yet been accepted

• The offeror must communicate the revocation to the offeree- Bryne v Van Tienhoven (1880)

• When someone pays to make an offer for a certain amount of time (e.g. an advertisement in a newspaper), then the offer cannot be revoked until that amount of time has elapsed.

Other ways of ending an offer• Offers may also be terminated by one of the following ways:

a) Refusal: the offeree refuses to accept the offer

b) Counter-offer: when the offeree rejects the offeror’s original offer and makes an alternative (counter) offer for the offeror to consider. The original offer can also be varied , in which case the new offer will also be considered as a counter offer

c) Lapse of time: The offeror can state that his offer will only exist for a certain amount of time. But if he does not state a time period, the offer will last for a “reasonable period of time”. This will vary according to the facts

d) Death: of either party. However, if the person accepting the offer does not know of the offeror's death AND the deceased offeror's representatives are able to carry out the contract, then the offer will not end

Acceptance of Offers• Acceptance of an offer is final and once an offer is

accepted then the contract is in existence and can only be revoked if the parties agree

• However, there are 5 key rules relating to the valid acceptance of an offer:

1)The offer can only be accepted by the offeree2)The acceptance must be absolute and unqualified3)Acceptance must be communicated to the offeror4)Acceptance must generally be in the form that the offeror

specifies5)The offer must still be in existence when it is accepted

Acceptance by the offeree• Boulton v Jones (1857): only the person to whom the offer is made

may accept the offer

• Carlill v Carbolic Smoke Ball Co (1892)

Acceptance must be absolute and unqualified• The terms/ conditions of the final offer must be absolute and

unqualified

Acceptance must be communicated to the offeror• Communication can be orally or in writing and it can

also take the form of conduct (For example, in Carlill v Carbolic Smoke Ball Co, the purchase of the remedy was acceptance of the terms of the offer)

• Felthouse v Bindley (1862): silence does not constitute acceptance

Acceptance must generally be in the form that the offeror specifies• Where there is no form specified, then reasonable methods of

communication will be accepted

The offer must still be in existence when it is accepted• An offer ceases to exist once the time limit by which it

has to be accepted lapses

• Where no time limit has been set, the law assumes that the offer exists only for a “reasonable period of time” but not indefinitely

• Ramsgate Victoria Hotel v Montefiore (1866): the courts made it clear that the delay between 8th June and 25th November was not reasonable and far too great.

The Postal Rule

• This rule only applies where post is held to be the most reasonable means of communicating offer and acceptance, (OR if the offeror states that post is the preferred method of communication):

the offer is effective when it arrives

Postal acceptance also is only effective when it arrives, rather than when it is placed in the letter box. However, if the offeror intends that acceptance is effective when placed in the letter box, then this will be sufficient

Preps. For Seminar 12:• Hand-out:

• Reading List:

• Jacqueline Martin, “GCSE Law”, 5th edition, Chapter 30-Rights and responsibilities: contract law

• List of cases

• Preparatory Questions