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<?xml version="1.0" encoding="UTF-8"?><rss xmlns:dc="http://purl.org/dc/elements/1.1/" xmlns:content="http://purl.org/rss/1.0/modules/content/" xmlns:atom="http://www.w3.org/2005/Atom" version="2.0"><channel><title><![CDATA[LAW BOOKS]]></title><description><![CDATA[Private Law Tutor has been established since 2010. In 2020 Private Law Tutor Publishing started. In 2022 we opened the IRAC Method Bookshop.]]></description><link>https://www.lawbooks.org/blog</link><generator>RSS for Node</generator><lastBuildDate>Thu, 02 May 2024 22:38:50 GMT</lastBuildDate><atom:link href="https://www.lawbooks.org/blog-feed.xml" rel="self" type="application/rss+xml"/><item><title><![CDATA[BELMARSH CASE]]></title><description><![CDATA[General principle: The courts can quash delegated legislation and make declarations of incompatibility as regards to provisions of Acts...]]></description><link>https://www.lawbooks.org/post/belmarsh-case</link><guid isPermaLink="false">6428804dad339e5263590652</guid><category><![CDATA[CON AND ADD]]></category><pubDate>Tue, 16 May 2023 19:08:36 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_69686c325135462d565941~mv2_d_6240_3996_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General principle: </h2><p><br /></p><p>The courts can quash delegated legislation and make declarations of incompatibility as regards to provisions of Acts of Parliament.</p><p><br /></p><h3>Name:</h3><p><br /></p><p><strong>A and Others v Secretary of State for the Home Department</strong></p><h3>[2004] UKHL 56 (also known as the ‘Belmarsh case’)</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>This case concerned the detention of a number of suspected terrorists held in Belmarsh Prison under the Anti-Terrorism, Crime and Security Act 2001. Section 23 of the Anti-Terrorism, Crime and Security Act 2001 permitted detention of suspected international terrorists without charge or trial. This provision raised serious concerns about compliance with the European Convention of Human Rights, ECHR under Article 5 which protects individuals from arbitrary detention.</p><h3></h3><h3>Ratio: </h3><h3></h3><p><strong>The House of Lords ruled that the derogation did not satisfy the criteria required: as a result, they quashed the derogation order which then allowed them to issue a declaration of incompatibility in respect of section 23 of the Anti-Terrorism, Crime and Security Act 2001.</strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p>The courts have a power to scrutinize the actions of the legislative and executive in order to ensure that they act in compliance with the law.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_a3e01bc91efd4a89a909567a527d500f~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Belmarsh case "></figure><h4>Analysis:</h4><p><br /></p><p style="text-align: justify;">Feldman writes that Parliamentary sovereignty was “preserved” by the Act because of the ability of Parliament to ignore declarations of incompatibility.<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftn1" target="_blank">[1]</a> Practice has shown for example that most of the time Parliament has taken into account the ECHR when legislating, and, in the few times where a declaration of incompatibility has been pronounced, the government has acted to remedy the offending legislation.<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftn2" target="_blank">[2]</a> This can be seen for example in the <strong>Belmarsh case</strong>,<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftn3" target="_blank">[3]</a> where the House of Lords held that the indefinite detention of terrorist suspects without trial which had pursued under the Anti-Terrorism, Crime and Security Act 2001 was incompatible with the Convention.<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftn4" target="_blank">[4]</a> This in turn led to Parliament re-writing the offending legislation and replacing the provisions with “control orders” in the new Prevention of Terrorism Act 2005.<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftn5" target="_blank">[5]</a></p><p><a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftnref1" target="_blank">[1]</a> David Feldman, English Public Law (1st edn OUP 2009) 324.<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftnref2" target="_blank">[2]</a> Keith Syrett, <em>The Foundations of Public Law: Principles and Problems of Power in the British Constitution</em> (2nd edn Palgrave 2014) 228.<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftnref3" target="_blank">[3]</a> <em>A v Secretary of State for the Home Department</em> [2004] UKHL 56.<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftnref4" target="_blank">[4]</a> Anti-Terrorism, Crime and Security Act 2001.<a href="https://manage.wix.com/dashboard/69713f95-6dc7-430d-8385-b71c6b7d11be/blog/c8e7475d-1466-4eeb-8a17-483a27f26ba6/edit?lang=en#_ftnref5" target="_blank">[5]</a> Prevention of Terrorism Act 2005.</p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_92e4c962703e4699a2f39b3ba6ae5f22~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Belmarsh case "></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[R v MOHAN]]></title><description><![CDATA[General Principle: In this case attempt required proof of direct intent (aim/purpose) in respect of the result Name: R v Mohan [1976] QB...]]></description><link>https://www.lawbooks.org/post/r-v-mohan</link><guid isPermaLink="false">64272c0d4efc77c12890aa8a</guid><category><![CDATA[CRIMINAL LAW]]></category><pubDate>Tue, 16 May 2023 18:57:15 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_326e315363694759356449~mv2_d_4000_6000_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>In this case attempt required proof of direct intent (aim/purpose) in respect of the result</strong></p><p><br /></p><h3>Name:</h3><p><br /></p><h3>R v Mohan [1976] QB 1</h3><h3></h3><h3>Facts:</h3><p><br /></p><p>A police officer on duty saw the appellant driving a vehicle. It looked that the car was exceeding the legal speed limit. The officer blocked the vehicle's route and signalled the appellant to stop. The car slowed down, but when it was around 10 yards away from the police, it accelerated sharply and drove directly towards the officer, who stepped out of the path to escape being struck. The appellant was charged with three counts, one of which stated that on the day in issue, while in control of a motor vehicle, he intended to cause physical injury to a police officer by driving recklessly. In relation to this charge, the judge instructed the jury that the Crown must prove that the appellant intentionally drove the vehicle recklessly and that he must have realised at the time that, unless he stopped or there was some other intervening factor, such driving was likely to cause bodily harm, or that he was reckless as to whether bodily harm was caused, but that it was not necessary to prove that he intended to cause bodily harm. The appellant was found guilty on this count and filed an appeal.</p><p><br /></p><h3>Ratio: </h3><p><br /></p><p>The judge erred in instructing the jury that it was necessary for the prosecution to prove that the defendant intentionally drove wantonly, realising that such wanton driving would be likely to cause bodily harm to the police officer (unless interrupted), OR that the defendant was reckless as to whether such bodily harm would be caused by his wanton driving. The defendant was charged with attempting to cause the police officer bodily harm through wanton driving. The Court of Appeal in R v Mohan quashed D’s conviction, ruling that a conviction for an attempt to cause bodily harm by dangerous driving requires proof that D intended to cause harm by dangerous driving. It was not sufficient to prove that D did not care whether he hit the police officer when attempting to escape, nor that he knew it was likely.</p><p><br /></p><h3>Application: </h3><p><br /></p><p>In the same way, the court in O'Toole (2005) said that Defedant must have meant to cause damage by fire in order to be found guilty of attempted arson. Even though careless use of flammables would be enough to convict of the main crime of arson, it is not enough on its own.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_510344f7edbb4abbb35e63dc6214862b~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="R v Mohan "></figure><h4>Analysis:</h4><p><br /></p><p>In relation to the mens rea of murder, it is malice aforethought. Edward must have intended to kill or cause GBH (<span style="background-color: #ffffff;"><strong>R v Vickers </strong></span><span style="background-color: #ffffff;">[1957] 2 QB 664).</span> (really serious harm as per <span style="background-color: #ffffff;"><strong>DPP v Smith</strong></span><span style="background-color: #ffffff;"> [1961] AC 290 </span>or just serious harm according to <span style="background-color: #ffffff;"><strong>R v Saunders</strong></span><span style="background-color: #ffffff;"> [1985] Crim LR 230</span>). The arguments and shouting by Edward do not suggest that his aim was to kill Dawn. However, as he hit her with a frying pan several times as hard as he could on her body and head and kicked her all over repeatedly the jury may find that it was Edward’s direct intention (<strong>R v Mohan</strong> - [1975] 2 All ER 193 ) to cause Dawn really serious harm (<strong>R v Moloney</strong> [1985] AC 905). Therefore there seems to be a strong case of Murder against Edward. However, Edward may be able to rely on the defences of Loss of Control or Diminished Responsibility.</p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_b2fc1500ec184820b653642ecbdc6827~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="R v Mohan "></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[SAUNDERS v VAUTIER]]></title><description><![CDATA[General Principle: Beneficiaries are entitled to terminate the trust if they have attained the age of majority (over 18), if they have...]]></description><link>https://www.lawbooks.org/post/saunders-v-vautier</link><guid isPermaLink="false">6426f384f032811496214f96</guid><category><![CDATA[EQUITY & TRUSTS]]></category><pubDate>Tue, 16 May 2023 14:53:58 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_f8bb6dc0c51f40c9abbbe950a4dcff2f~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>Beneficiaries are entitled to terminate the trust if they have attained the age of majority (over 18), if they have full mental capacity and if they are absolutely entitled to the trust property. </strong></p><h3>Name:</h3><h3>Saunders v Vautier [1841] 41 E.R. 482, Ct of Chancery</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>A testator, by his will, bequeathed to his executors and trustees all the East India stock upon trust to accumulate the dividends until the beneficiary should attain twenty-five. Once reached this age, the trustee was required to transfer capital and accumulated income to the beneficiary. At the age of 21, Vautier claimed the fund. </p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The issue for the court was whether the trustees should transfer trust. Wherever a beneficiary with an absolute interest under a trust is </strong><em><strong>sui juris, </strong></em><strong>i.e. of full age and not a lunatic, he may call for the trust property which represents that interest, and the trustees are obliged to transfer the legal title of it to him; if he is a sole beneficiary, this will result in the complete collapse of the trust. When the beneficiary has an absolute indefeasible interest in the legacy, it is not bound to wait until the expiration of the period. </strong></p><p><br /></p><h3>Application: </h3><p><br /></p><p>The Defendant was held entitled to terminate the trust since<strong> </strong>he had the full beneficial interest. The rule in <strong>Saunders v Vautier</strong> [1841] 41 E.R. 482 represents a significant limitation upon the settlor’s ‘freedom of trust’, but it can be justified in two ways:</p><p><br /></p><p>1) There might be something of an ‘anti-trust’ justification, as follows: while it is fine to empower owners to created structured gifts of property where this is essentially the only means of giving the benefits of property, as for example when money is provided for minor children, this power should not be used to allow an owner to control his beneficiaries when they are fully competent to look after themselves. If you give property to someone, you naturally take the risk that they will use that property in ways which are foolish or which otherwise might defeat your hopes. But that is the price of treating people, including donees of property, as autonomous individuals. The law of trusts should not, therefore, allow settlors to treat sane adults as children, and so the principle of <strong>Saunders v Vautier</strong><em> </em>reflects the law’s desire that all individuals, once <em>sui juris, </em>should be treated as capable of running their own affairs, including their rights over property.<strong> </strong></p><p>2) The second justification is related, and concerns the idea of equitable ownership. In the eyes of equity, the beneficiaries are the owners of the trust property, not the settlor. They have the rights against the trustee, and must enforce the trust themselves. When they reach full age, in essence the trust is in their hands. They can enforce their rights against the trustee or not, may consent to the trustees acting outside the terms of the trust, i.e. doing what would otherwise be a breach of trust, and may vary the terms of the trust as they wish. The settlor has no say in any of this. Thus they are (in theory) in full control of the property via the office of the trustee. But if that is so, why cannot they do with their property what they like, as can any other full owners, and in particular, take the property out of the trust completely if they so desire?</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_c217ee38a437458fa503ed80cb4e8b1c~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Saunders v Vautier"></figure><p style="text-align: justify;"><strong>Analysis </strong></p><p><br /></p><p style="text-align: justify;">The rule that was established in<strong> Saunders v. Vautier</strong> states that the beneficiary or beneficiaries of a trust have the ability to 'collapse' the trust by ordering the trustee to transfer legal ownership to either them or another person of their choosing. As a consequence of this, the equitable interest is converted into the legal interest, and the trust comes to an end as a result. In actuality, the level of difficulty involved in dissolving the trust in accordance with the precedent set by <strong>Saunders v. Vautier</strong> will determine how straightforward the process is; nonetheless, the right to do so will continue to exist in principle.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_16b2fe056aba4d7ca006a6bf4ca49952~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Saunders v. Vautier"></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[SOERING v UK ]]></title><description><![CDATA[General Principle: The ECtHR has drawn a distinction between situations in which other Convention rights may be infringed upon expulsion...]]></description><link>https://www.lawbooks.org/post/soering-v-uk</link><guid isPermaLink="false">6429936db3ed96626f0c8fb9</guid><category><![CDATA[CON AND ADD]]></category><pubDate>Tue, 16 May 2023 14:44:48 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_af3c2ee71be949ac9bf8d5b5fedae11b~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle:</h2><h2></h2><p><strong>The ECtHR has drawn a distinction between situations in which other Convention rights may be infringed upon expulsion and those in which Article 3's ban is absolute.</strong></p><p><br /></p><h3>Name:</h3><p><br /></p><h3>Soering v UK (1989) 11 EHRR 439.</h3><p><br /></p><p>Soering was being held in jail by the United Kingdom at the time but was sought for extradition to the United States on a murder charge carrying the death penalty. It was made quite obvious by the authorities in Virginia, the state where he was sought, that they intended to pursue the death sentence for him. Soering attempted to challenge his removal to that jurisdiction on the grounds that it would be unlawful for a Convention state to remove an individual to a jurisdiction where there was a "real risk" he would suffer treatment contrary to the Convention. He argued that this would violate the Convention, which states that it is unlawful for a Convention state to remove an individual. The violation could not be "contracted out" by the state in the sense that the subject could not be sent to another country to endure treatment that was illegal in their own country. In light of this, it is possible that the Convention might have some extraterritorial impact under these specific conditions.</p><p><br /></p><h3>Ratio:</h3><p><br /></p><p><strong>Notwithstanding the provisions of the Convention, the use of the death penalty was obviously still legal at the time (one of the exceptions in Article 2). It was impossible for Soering to claim that the relocation to face potential execution in Virginia was in violation of the Convention because of this. Instead, he argued effectively that the way in which the process of carrying out the death penalty in the United States would violate Article 3, since it would constitute inhuman or humiliating treatment or punishment. His argument was successful, and the article was found to be violated. It wasn't so much the execution method as it was the drawn-out nature of the legal processes; it wasn't unheard of for convicts to languish on death row for years, if not decades. This was not the actual cause of death, but rather the prolonged nature of the process. This resulted in a mentally debilitating illness known as "the death row phenomenon," which, in the opinion of the Supreme Court, was inhumane.</strong></p><p><br /></p><h4>Application:</h4><p><br /></p><p>The case of Soering v UK brings up the issue of non-refoulement, which is when a person is moved to a state where there is a possibility that their human rights will be violated. This action triggers a state's responsibility to that person because it places that person in jeopardy of having their rights violated. The ruling in the case of Soering upholds the extraterritorial validity of human rights provisions included under the ECHR as well as the absolute ban against torture contained within Article 3.</p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_a3e01bc91efd4a89a909567a527d500f~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Soering v UK"></figure><h4>Analysis: </h4><p><br /></p><p>The European Court of Human Rights (ECtHR) held that the British authority violated Article 3 ECHR because the applicants were at real risk of execution as the death penalty was a sentence open to the Iraq High Tribunal (<strong>Soering v UK </strong>[1989] 11 EHRR 439). This is very contentious point because as Michael Ignatiefe argues in some countries like Iraq and America death penalty is available which is a clear breach of the ECHR, but still a practice upon which the courts of the given above countries are allowed to adjudicate and send people to death, whilst in country like the UK the courts have to held public authorities liable because they extradited the people in question back to their countries to be sentenced and face death penalty (Soering principle – ‘death row’). </p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_92e4c962703e4699a2f39b3ba6ae5f22~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Soering v UK "></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[VON HANNOVER v GERMANY]]></title><description><![CDATA[General Principle: One may argue that the safeguards provided by Article 8 HRA can only be maintained when the state interferes with them...]]></description><link>https://www.lawbooks.org/post/von-hannover-v-germany</link><guid isPermaLink="false">64298d66158c7f485d75514f</guid><category><![CDATA[CON AND ADD]]></category><pubDate>Tue, 16 May 2023 14:15:14 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_68a035a237b04c57a8520bcf6a03ce6a~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle:</h2><h2></h2><p>One may argue that the safeguards provided by Article 8 HRA can only be maintained when the state interferes with them as opposed to a private party.</p><p><br /></p><h3>Name:</h3><p><br /></p><h3>Von Hannover v Germany (2005) 40 EHRR 1</h3><p><br /></p><h3>Facts:</h3><p><br /></p><p>Notwithstanding this, the Court spent a lot of time talking about how paragraphs 8 and 10 have conflicting interests, namely in relation to the idea of positive duty. The court heard arguments over a number of images that had been taken of Princess Caroline, who is the ruler of Monaco. While some of the pictures were shot of her in a private beach club, the bulk of the photographs were taken in public settings. The German courts had authorised the release of many of the images, but they had forbidden the publication of photographs in which she was seen with her children because they believed that doing so would violate her right to the protection of her family. Princess Caroline brought her case to Strasbourg, where she voiced her dissatisfaction with the insufficient security provided by the state for her private life and her image.</p><p><br /></p><h3>Ratio:</h3><p><br /></p><p><strong>The European Court of Human Rights in Von Hannover v Germany reaffirmed that article 8 protected parts of personal identification, such as a person's name or photograph, and that it may also protect a ‘zone of interaction of a person with others, even in a public context’. The court ruled that there may be positive requirements placed on the state to guarantee effective respect for private or family life. These obligations may include the adoption of measures to ensure respect for private life in the sphere or in the relationships of persons amongst themselves (ie a law of privacy). They recognised that the boundary between the state's positive and negative obligations under the provision did not lend itself to precise definition, but that consideration must be given to the fair balance that needs to be struck between the competing interests of the individual and of the community as a whole; and in both contexts, the state enjoys a certain margin of appreciation'. This was acknowledged despite the fact that the boundary did not lend itself to precise definition. The court came to the conclusion that article 8 was applicable to the situation at hand and also that the state did not provide an acceptable level of protection.</strong></p><p><br /></p><h4>Application:</h4><p><br /></p><p>Yet, the United Kingdom was not involved in this particular instance. The ruling has the effect of imposing a positive responsibility on state governments to make certain that people's article 8 rights are adequately protected within the context of the private sphere of their lives. This has been accomplished in the United Kingdom by "shoehorning" the jurisprudence of articles 8 and 10 into the already existing common law notion of confidence (Douglas v. Hello (no 3) [2006] QB 125). When there is no pre-existing relationship of confidence between the parties, confidence can arise from the defendant acquiring information that he should have known he was not free to use through unlawful or covert means; this was the situation in Douglas v. Hello, and it was also the situation in Campbell v. MGN.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_a3e01bc91efd4a89a909567a527d500f~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Von Hannover v Germany "></figure><h4>Analysis: </h4><p><br /></p><p>In <strong>Von Hannover v Germany</strong> (2004) 40 EHRR 1, (2004) 16 BHRC 545, the</p><p>European Court of Human Rights (ECtHR) stated that Article 8 extended to</p><p>aspects relating to personal identity, such as a person's name or a person's</p><p>picture and could cover a ‘zone of interaction of a person with others, even</p><p>in a public context’.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_92e4c962703e4699a2f39b3ba6ae5f22~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Von Hannover v Germany"></figure><p><br /></p><p><br /></p>]]></content:encoded></item><item><title><![CDATA[GOODWIN v THE UNITED KINGDOM]]></title><description><![CDATA[General principle: The principle of proportionality imposes on contracting States, when pursuing a legitimate aim, to consider using the...]]></description><link>https://www.lawbooks.org/post/goodwin-v-united-kingdom</link><guid isPermaLink="false">642988fafcc3768a3bdfac20</guid><category><![CDATA[EU LAW]]></category><pubDate>Tue, 16 May 2023 13:56:29 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_866d14b0b69944c193e0465a055626b2~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General principle: </h2><p><br /></p><p style="text-align: justify;"><strong>The principle of proportionality imposes on contracting States, when pursuing a legitimate aim, to consider using the less restrictive measures in order to justify interferences to a conditional right. </strong></p><p><br /></p><h3>Name:</h3><p><br /></p><h3>Goodwin v. The United Kingdom, no 17488/90, 27/03/1996, ECHR</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p style="text-align: justify;">This case concerned a disclosure order granted to private company requiring a journalist to disclose the identity of his source. A fine was subsequently imposed on the journalist for having refused to disclose the identity of his source.</p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The Court in Goodwin v The United Kingdom concluded that there was not, in sum, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. The restriction which the disclosure order entailed on the applicant journalist’s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 (art. 10-2), for the protection of Tetra’s rights under English law, notwithstanding the margin of appreciation available to the national authorities.</strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p style="text-align: justify;">In this case, the Court developed the idea of proportionality as a concept imposing on contracting States to refrain from taking measure that are not strictly necessary to achieve the legitimate aim invoked. If there was a suitable alternative less restrictive to the applicant’s rights and the responding State did not make a reasonable use of it, the Court will certainly declare the interference disproportionate. </p><p><br /></p><p style="text-align: justify;">In addition to this, the Court observes that the nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (<strong>Sürek V. Turkey (No. 1), no 26682/95, 08/07/1999,</strong> ECHR). Accordingly, a fine of a significant amount of money or a very restrictive measure in terms of its impact on the applicant’s rights, will generally speak in favour of the disproportionate nature of the interference to the legitimate aim.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_a3e01bc91efd4a89a909567a527d500f~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Goodwin v The United Kingdom"></figure><h4>Analysis:</h4><p><br /></p><p>It may be submitted that the first successful international human rights case which was based on the issue of sexual orientation which was taken under the European Convention on Human Rights that focused on the privacy of same sex relations is that of <strong>Dudgeon v United Kingdom </strong> [1981] ECHR 5 in which it was held that the criminalisation of such practices was considered as a violation of protection of privacy under article 8 of the European Convention on Human Rights. The European Court of Humans Rights also further recognised the privacy protection under the ECHR for transsexual people as can be seen in the cases of <strong>I v United Kingdom</strong> and <strong>Goodwin v United Kingdom </strong>[2002] IRLR 664, these cases involved male to female transsexuals that claimed the UK refused to alter their legal identities in order to correspond with their newly acquired genders and therefore constituted discrimination. The court in these cases overturned previous decisions and went further to hold that their right to respect their private lives and their rights to marry had undoubtedly been violated under article 8 and 12 of the European convention on Human Rights. This is a good example of how the laws in the UK have changed over the years and developed in recognising transsexuals and according them with the same rights as every other human being. </p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_92e4c962703e4699a2f39b3ba6ae5f22~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Goodwin v United Kingdom "></figure><p><br /></p><p><br /></p>]]></content:encoded></item><item><title><![CDATA[VAN GEND EN LOOS]]></title><description><![CDATA[General principle: The EU must be regarded as a unique legal order distinct from either national or international Law. Name: Van Gend en...]]></description><link>https://www.lawbooks.org/post/van-gend-en-loos</link><guid isPermaLink="false">6426d4e2ad339e5263585096</guid><category><![CDATA[EU LAW]]></category><pubDate>Tue, 16 May 2023 12:42:23 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_3c11a24c83084359b9b1be02fa731b8a~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General principle: </h2><p><br /></p><p><strong>The EU must be regarded as a unique legal order distinct from either national or international Law.</strong></p><p><br /></p><h3>Name:</h3><p><br /></p><h3>Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>The case was related to the introduction of a Dutch law on taxes, relatively increasing the duty payable and resulting on a loss suffered by the claimant that which claimed an incompatibility with European Law. The importer was charged 8% tax on importation of chemicals from Germany, placing him at a disadvantage over domestic sellers.</p><h3></h3><h3>Preliminary Ruling: </h3><p><br /></p><p><em>“The Community constitutes a new legal order in international law for whose benefits the states have limited their sovereign rights, albeit within limited fields”.</em> </p><h4></h4><h4>Application: </h4><p><br /></p><p>The EEC Treaty that was at stake in the case was not an ordinary international Treaty because Members agreed to limit their sovereignty rights. <strong>Van Gend en Loos</strong> does not give a complete definition of supremacy. However, by declaring that the Treaty had established a new legal order in which Member States had limited their sovereign rights, the judgment paved the way for the establishment of this principle of EU law.</p><p><br /></p><p>A clear conclusion can be made about the inputs of <strong>Costa and Van Gend en Loos. </strong>The Member States have transfer certain of their sovereign powers to the Community in order to make law that would bind them and their individual. As a result Member States cannot introduce new national laws that would contradict EU Law. </p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_e7a19d23a97844f19d3b2e2cd053200d~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Van Gend en Loos"></figure><h4>Analysis </h4><p><br /></p><p>A directive must be "clear and specific" and "unconditional" according to the <strong>Van Gend en Loos</strong> principle in order to qualify as EU law. In addition, per <strong>Pubblico Ministero v. Ratti</strong>, the implementation period must have expired. In this instance, the implementation period has not expired; rather, it has been incorrectly transposed into national law, providing less protection by not requiring the state to install protective lead doors, and the Radiation Safety Act has failed to establish the Italian national x-ray authority. The logic of the <strong>Ratti</strong> decision applies when a Member State implements a directive only partially or inaccurately. </p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_233a0473f63f426a88a4f171b63c690a~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Van Gend en Loos"></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[DAULIA v FOUR MILLBANK NOMINEES]]></title><description><![CDATA[General Principle: An offer for a unilateral contract cannot be withdrawn if performance has been started or completed by the offeree....]]></description><link>https://www.lawbooks.org/post/daulia-v-four-millbank-nominees</link><guid isPermaLink="false">6426d0331cc3a0c09c1c48b9</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 12:22:33 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_325f4b3832677839556b38~mv2_d_6000_4000_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>An offer for a unilateral contract cannot be withdrawn if performance has been started or completed by the offeree.</strong></p><p><br /></p><h3>Name:</h3><p><br /></p><h3>Daulia v Four Millbank Nominees [1978] 2 All ER 557, CA </h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>Daulia (complainant) wanted to buy a series of different properties from Millbank Nominees (defendant). Inquiries were made and draft contracts were prepared. Millbank agreed that if Daulia co-produced the draft contract and a bankers' draft by a specific time, they would enter into a full contract with her. Daulia obtained the bankers' draft and submitted it to Millbank Nominee's offices before the deadline. However, Millbank ultimately refused to proceed with the deal. </p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>Brightman J rejected Daulia's claim for damages, as the collateral contract did not fall into line with S40 of the Law of Property Act 1925. However, Goff LJ said obiter that </strong></p><p><br /></p><p><em><strong>“while the offeror of a unilateral contract is entitled to require full performance of his condition and short of that is not bound, there must be an implied obligation on his part not to prevent the condition becoming satisfied, and that obligation arises as soon as the offeree starts to perform.”</strong></em></p><p><strong> </strong></p><h4>Application: </h4><p><br /></p><p>Until the offeree starts to perform, the offeror can revoke the entire offer. However, once the offeree has started to carry out the obligations of the agreement, it becomes too late for the offeror to go back on his offer.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Daulia v Four Millbank Nominees"></figure><h4>Analysis:</h4><p><br /></p><p>Two days later Brett arrives at York. Whether he will be able to get the reward will depend on where the courts deem when the acceptance took place, before the race or on the starting line of the race. In <strong>Daulia v Four Millbank Nominees</strong> [1978] 2 All ER 557, CA Goff LJ said obiter that “while the offeror of a unilateral contract is entitled to require full performance of his condition and short of that is not bound”. Thus until the Brett starts to perform, the offeror can revoke the entire offer. However, once the offeree has started to carry out the obligations of the agreement, it becomes too late for the offeror to revoke his offer (Andrews, N. H. "Reporting case law: unreported cases, the definition of a ratio and the criteria for reporting decisions." Legal Studies 5.2 (1985): 205-232).</p><p style="text-align: justify;"></p>]]></content:encoded></item><item><title><![CDATA[THE BRIMNES]]></title><description><![CDATA[General Principle: If it can be demonstrated that revocation was sent and could have been reasonably read, then that revocation is valid....]]></description><link>https://www.lawbooks.org/post/the-brimnes</link><guid isPermaLink="false">6426ce290a2f70a36dc76d7a</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 12:14:54 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_6c5e6b6ab4b94523893b235dd0e71bdb~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>If it can be demonstrated that revocation was sent and could have been reasonably read, then that revocation is valid.</strong></p><h3>Tenax Steamship Co v Owners of the Motor Vessel Brimnes (The Brimnes) [1975] QB 929 </h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>Tenax Steamship hired a ship named The Brimnes, under the condition that the payment be prompt and paid in advance. When the payments arrived late, the owners withdrew their offer as they were entitled to under the agreement. They issued this withdrawal via telex, and no one in the office read the telex although the revocation was sent during business hours. The issue arose as to whether revocation had taken place when the telex arrived with the revocation or when it was picked up and read.</p><h3></h3><h3>Ratio: </h3><p><br /></p><p><strong>The Court of Appeal held the withdrawal took place when it was received in the charterer’s office, not at the point it was read.</strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p>If a litigant could prove that his revocation of offer could have been reasonably read, then the offer is officially revoked when it is delivered.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Tenax Steamship Co v Owners of the Motor Vessel Brimnes (The Brimnes) "></figure><h4>Analysis: </h4><p><br /></p><p>However, a reason why there is no binding acceptance is because acceptance must communicated. Here Janet listened to this message only on 24th April once she changed her mind to sell. The onus is on Samson to communicate acceptance. This principle is found in the case of <strong>Entores v Miles Far East</strong> [1955] 2 Q.B. 327 where Lord Denning said:</p><p><br /></p><p><em>“Suppose, for instance, that I shout an offer to a man across a river or a courtyard but I do not hear his reply because it is drowned by an aircraft flying overhead. There is no contract at that moment. If he wishes to make a contract, he must wait till the aircraft is gone and then shout back his acceptance so that I can hear what he says. Not until I have his answer am I bound” (</em>[1955] 2 Q.B. 327 at 332).</p><p><br /></p><p>Another case which could be used in support of this argument (although this concern telex and is not directly relevant) is <strong>Tenax Steamship v The Brimnes (The Brimnes)</strong> [1974] 3 All ER 88 where Cairns LJ, felt that the sender should not rely on the recipients' reading every communication at once, and that in some circumstances a notice arriving late in the working day might quite legitimately not be “received” until the following morning.</p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="THE BRIMNES"></figure><p><br /></p><p><br /></p>]]></content:encoded></item><item><title><![CDATA[HOLWELL SECURITIES v HUGHES]]></title><description><![CDATA[General Rule: The postal rule cannot be relied on in cases where acceptance mandates actual notification or communication. Name: Holwell...]]></description><link>https://www.lawbooks.org/post/holwell-securities-v-hughes</link><guid isPermaLink="false">6426cb2e6264b4fb198795d5</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 12:01:45 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_ddc1215bd47240b9a5623167791822a1~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Rule: </h2><p><br /></p><p><strong>The postal rule cannot be relied on in cases where acceptance mandates actual notification or communication.</strong></p><p><br /></p><h3>Name:</h3><p><br /></p><h3>Holwell Securities v Hughes [1974] 1 WLR 155</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>Holwell Securities (the claimants) were allowed by the defendant to have an option <em>“exercisable by notice in writing to</em> [Hughes, the defendant] <em>at any time within six months from the date hereof.</em>” On 14th April 1972, Holwell Securities gave notice to Hughes in writing as a means of invoking the option. However, the letter never arrived. The claimants, Holwell Securities, applied for specific performance of the option they agreed with the defendants. They argued that it was complete on 14th April, which is when the letter confirming acceptance was posted. </p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The courts in Holwell Securities v Hughes held that Holwell securities had not legitimately exercised their option. </strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p>If acceptance requires actual notice, the notice becomes a term of acceptance. Applying postal rule in these cases results in absurdity as it would violate terms of the offer. As such, postal rule can be set aside.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Holwell Securities v Hughes"></figure><p><strong>Analysis:</strong></p><p><br /></p><p style="text-align: justify;">Partly because of these problems and partly because of technological advances (the post is no longer a such crucial method of communication), courts seem to be confining the scope of the postal acceptance rule. This is a rationale behind the decision in <strong>Holwell Securities v Hughes</strong> [1974] 1 WLR 155. In this case, the postal acceptance rule did not apply because the offeror did not intend that it would apply. While this case is authority for the proposition that the terms of an offer must be met for acceptance to be valid, it also illustrates the reservations modern courts have over the postal acceptance rule.</p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Holwell Securities v Hughes"></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[HOUSEHOLD FIRE INSURANCE v GRANT]]></title><description><![CDATA[General Principle: If acceptance is communicated through a letter that then becomes lost in the post, a contract will still be seen to...]]></description><link>https://www.lawbooks.org/post/household-fire-insurance-v-grant</link><guid isPermaLink="false">6426c904cfe7307352cb6801</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 11:52:15 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_6453756130614264535455~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>If acceptance is communicated through a letter that then becomes lost in the post, a contract will still be seen to have formed at the moment it is mailed.</strong></p><h3>Name:</h3><h3></h3><h3>Household Fire Insurance v Grant (1879) 4 ExD 216</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>Grant took an interest in potentially buying shares in the plaintiff’s company. The company was content with the application, and sent Grant a letter in the post stating this, but it got lost in the postal system. The company liquidated soon afterwards. The liquidator, acting for the company, brought action against Grant in relation to any outstanding balance on the shares. Grant disputed the fact that he had to pay. He said he did not have to because he had not received a reply to his offer to buy the shares. </p><h3></h3><h3>Ratio: </h3><p><br /></p><p><strong>The court in Household Fire Insurance v Grant held that a contract came into existence the moment the letter of allotment of shares (the acceptance) was posted. </strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p>The “postal rule” still applies if the letter which communicates acceptance is lost in the post. Similarly to Adams v Lindsell, a contract is formed as soon as the letter is mailed, the fate of the letter has no effect on the validity of the contract.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt=" Household Fire Insurance v Grant "></figure><h4>Analysis:</h4><h4></h4><p>The question here is whether Maisy’s acceptance is valid even though the letter was delivered improperly. “The postal rule” was laid down in <strong>Adams v Lindsell </strong>(1818), Where it was decided that the acceptance of an offer takes effect from the moment the letter of acceptance is properly posted. Furthermore, in <strong>Household fire insurance v Grant</strong> (1879), the courts held that the postal rule for acceptance still stood, even if the letter never reached the offerer. Therefore even though Jack never received the letter, Maisie’s acceptance is still valid from the moment she properly posted it via the postal rule. The offer has been accepted and thus there is a legally binding contract between Jack and Maisy for sale of the piano.</p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Household Fire Insurance v Grant "></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[TINN v HOFFMAN]]></title><description><![CDATA[General Principle: If the offerer requests acceptance through a specific mode, then acceptance can only take place through this mode of...]]></description><link>https://www.lawbooks.org/post/tinn-v-hoffman</link><guid isPermaLink="false">6426c4a6cef913ce32f30916</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 11:34:43 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_44524c70414e5446394841~mv2_d_6016_4016_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>If the offerer requests acceptance through a specific mode, then acceptance can only take place through this mode of communication.</strong></p><p><br /></p><h3>Name: </h3><h3></h3><h3>Tinn v Hoffman (1873) 29 LT 271, Exch.Ch</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>The claimant wrote to defendant to make an inquiry as to how much it would cost to buy 800 tons of iron. The defendant replied, saying that it would cost £3 per ton and requesting the claimant respond "by return". </p><h3></h3><h3>Ratio: </h3><p><br /></p><p><strong>The court in Tinn v Hoffman held that, as the offer was not actually accepted by return of post, no contract existed. </strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p><strong>The offeror can ask for a specific method of acceptance. Honeyman J, on the other hand, stated obiter that a telegram, communication verbally or any other kind of communication that was at least as fast as a letter written by return of post would have sufficed. With this in mind, if an offerer asks for acceptance by post and the offeree sends acceptance through text message, a contract could be held to exist.</strong></p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Tinn v Hoffman"></figure><p><br /></p><h4>Analysis:</h4><p><br /></p><p>The Email further states that if Anna accepts the offer, to confirm the order by letter. The general principle is if the offerer requests acceptance through a specific mode, then acceptance can only take place through this mode of communication. The authority for this is <strong>Tinn v Hoffman </strong>(1873) 29 LT 271, Exch.Ch. where the offeror asked for acceptance by return of post, the court stated that, due to the offer not being accepted by return of post, the contract therefore did not exist.<strong> </strong>Anna has accepted the offer by post.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Tinn v Hoffman"></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[STEVENSON v MCLEAN]]></title><description><![CDATA[General Principle: A request for information is not a counter-offer. Name: Stevenson v McLean (1879 – 80) LR 5 QBD 346 Facts: The...]]></description><link>https://www.lawbooks.org/post/stevenson-v-mclean</link><guid isPermaLink="false">6426c2f0638627f0f1b9280d</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 11:27:01 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_7852447545654731545649~mv2_d_5472_3648_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>A request for information is not a counter-offer.</strong></p><p><br /></p><h3>Name:</h3><h3></h3><h3>Stevenson v McLean (1879 – 80) LR 5 QBD 346</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>The defendant, McLean, sent a telegraph to the complainant, Stevenson. In it he offered to sell 3,800 tons of iron “at 40 shillings a ton…up until Monday”. On Monday morning the complainant wired over a telegraph to McLean: <em>“please wire whether you would accept forty for delivery over two months or if not longest limit you would give”</em>. McLean did not respond and at 1:34pm the complainant sent another telegram, accepting the original offer. McLean sold the iron off to a third party in that time, later proceeding to advise Stevenson by telegram. Stevenson brought action on the grounds that McLean was in breach of their agreement. His main argument was that the Monday morning telegram amounted to a counter-offer. </p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The court in Stevenson Jacques v McLean held Stevenson had not made a counter-offer. Instead, he had just made an inquiry and could not amount to the rejection of the offer. </strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p>Is it possible to phrase counteroffers as questions to see if the offeror is willing to accept the new term(s) without nullifying the original offer.</p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Stevenson Jacques v McLean"></figure><h4>Analysis:</h4><p><br /></p><p style="text-align: justify;">Yasmin telephones Robin and makes an offer to buy the car for £90,000.’ This is rejected by Robin who makes an offer of £95,000. The general principle is a counter-offer nullifies the original offer. In the case of <strong>Hyde v Wrench</strong> (1840) 3 Beav 334 Hyde tried to accept the first offered price of £1000 whilst bringing action against Wrench for breaching the contract when Wrench sold the farm to the third party. The court held that a contract did not exist. Using this authority we can confirm that Robin by coming back with a price has made counter offer and the proposed price of £90k is nullified. </p><p><br /></p><p style="text-align: justify;">An hour later, Yasmin leaves an answer phone message with Robin asking what colour the Aston Martin is. The general principle is a<strong> </strong>request for information is not a counter-offer. The case of <strong>Stevenson Jacques</strong> v <strong>McLean</strong> (1879 – 80) LR 5 QBD 346 the court held Stevenson had not made a counter-offer. Instead, he had just made an inquiry and could not amount to the rejection of the offer.<strong> </strong>Using this case<strong> </strong>Yasmin asking about the colour is a request for information and not a variation of the contract (i.e. counter offer) that should be answered. </p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Stevenson v McLean "></figure><p><br /></p><p><br /></p>]]></content:encoded></item><item><title><![CDATA[BLACKPOOL AND FLYDE AEROCLUB LTD v BLACKPOOL BOROUGH COUNCIL]]></title><description><![CDATA[General Principle: A collateral warranty arises if a bid is properly submitted within time and not considered. Name: Blackpool and Flyde...]]></description><link>https://www.lawbooks.org/post/blackpool-and-flyde-aeroclub-ltd-v-blackpool-borough-council</link><guid isPermaLink="false">6426c0c69177747ca34961d5</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 11:17:13 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_49353945354c3376314563~mv2_d_4489_2986_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>A collateral warranty arises if a bid is properly submitted within time and not considered.</strong></p><p><br /></p><h3>Name: </h3><h3></h3><h3>Blackpool and Flyde Aeroclub Ltd v Blackpool Borough Council [1990] 1WLR 1195</h3><h3></h3><h3>Facts: </h3><p><br /></p><p>The Blackpool Aeroclub (claimants) and an additional six potential suitors were invited to submit tenders for the ability to fly leisure flights from Blackpool Airport. The claimant lodged a tender correctly. However, this tender was not considered because there was an admin processing error. The defendant (Blackpool Borough Council) argued that the claimant had simply submitted an offer that had just not been accepted. </p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The Court of Appeal in Blackpool and Flyde Aeroclub Ltd said there was an implied collateral warranty. Blackpool Council had chosen the parties that they wanted to invite to make tenders. What this implied is that anyone who was invited and who also followed the pre-determined procedure would be allowed to have his tender properly considered. </strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p><strong>In Lord Bingham’s leading judgement, it was stated that: </strong></p><p><br /></p><p><em>“</em><em><span style="background-color: #ffffff;">A tendering procedure of this kind is, in many respects, heavily weighted in favour of the person inviting. He can invite tenders from as many or as few parties as he chooses. He need not tell any of them who else, or how many others, he has invited.”</span></em> </p><p><br /></p><p><span style="background-color: #ffffff;"><strong>Parties that make invitations to tender are bound to consider a tender that is submitted before a pre-determined deadline.</strong></span></p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Blackpool and Flyde Aeroclub Ltd v Blackpool Borough Council [1990] 1WLR 1195"></figure><h4>Analysis:</h4><p><br /></p><p style="text-align: justify;">As by the 9th July XYZ had received no reply to this e-mail, so they faxed a letter to CUPD stating that their tender was now withdrawn, because they had been awarded other contracts and that they now had a full workload. No contract has been formed between the parties yet because Communication of acceptance is not valid because an <span style="background-color: #ffffff;">agreement can only exist when a clear offer is made that is then mirrored by a clear statement of acceptance</span>. Therefore an early withdrawal of the tender by XYZ is no breach of contract as no contract was formed. However, what did exist was a collateral warranty which arose between the parties to keep the offer open for 45 days. Collateral warranties are used as a supporting agreement to a primary contract where an agreement needs to be put in place. The use of collateral warranty has been seen in cases such as<strong> Blackpool and Flyde Aeroclub Ltd v Blackpool Borough Council </strong>[1990] 1WLR 1195.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Blackpool and Flyde Aeroclub Ltd v Blackpool Borough Council "></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[HARVELA INVESTMENTS v ROYAL TRUST]]></title><description><![CDATA[General principle: Referential bidding by tender should be discouraged by the courts. Name: Harvela Investments Ltd v Royal Trust Co of...]]></description><link>https://www.lawbooks.org/post/harvela-investments-v-royal-trust</link><guid isPermaLink="false">6426c026e4deb1a3dd1ee7fc</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 11:14:25 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_6168486e34382d7a4b576f~mv2_d_6000_3192_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General principle: </h2><p><br /></p><p><strong>Referential bidding by tender should be discouraged by the courts.</strong></p><p><br /></p><h3>Name:</h3><h3></h3><h3>Harvela Investments Ltd v Royal Trust Co of Canada [1986] AC 207</h3><h3></h3><h3>Facts: </h3><p><br /></p><p>Two parties were invited to bid secretly for a block of shares, on the understanding that the shares would be sold to whoever bid highest. Harvela’s (complainant) bid $2 175 000, while the other party (Royal Trust of Canada: defendant) bid "$2 100 000, or $10 000 more than any other cash bid, whichever is higher".</p><h3></h3><h3>Ratio: </h3><p><br /></p><p><strong>The House of Lords in Harvela Investments v Royal Trust said the referential bid was ineffective and that Harvela’s cash bid should have been accepted. </strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p><strong>If someone who makes a tender says that they will accept the highest offer to buy goods or the lowest for someone to provide certain items, or their services, the tender can be seen as something that is either an offer or an invitation to place offer. Placing a tender that references someone else’s’ bid will invalidate the tender.</strong></p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Harvela Investments Ltd v Royal Trust Co of Canada [1986] AC 207"></figure><h4>Analysis:</h4><p><br /></p><p>Identify the unilateral offer made in <strong>Harvela Investments v Royal Trust of Canada</strong>. Has a similar unilateral offer been made in our case? If yes, which party accepted the unilateral offer?</p><p><br /></p><p><br /></p>]]></content:encoded></item><item><title><![CDATA[SPENCER v HARDING]]></title><description><![CDATA[General Principle: An invitation to tender is usually classed as an invitation to treat. Name: Spencer v Harding (1870) LR 5 CP 561...]]></description><link>https://www.lawbooks.org/post/spencer-v-harding</link><guid isPermaLink="false">6426bf0d73a6734f2cb08a23</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 11:10:53 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_364151696759726674626b~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>An invitation to tender is usually classed as an invitation to treat.</strong></p><p><br /></p><h3>Name: </h3><p><br /></p><h3>Spencer v Harding (1870) LR 5 CP 561</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>Harding (defendant) distributed advertisements that said he was putting some stock up for trade. It also said that he was willing to accept tenders. The defendants decided not to sell the stock to the highest bidder, which was Spencer. Spencer sued, saying that Harding was compelled to accept the highest offer.</p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The court in Spencer v Harding held that the submission of a tender was an offer, and not acceptance of a contract. There was no agreement in place. The circular was nothing more than a declaration of purpose, and as such, it functioned as an invitation to treat. The bids served as offers, which the defendants were at liberty to either accept or decline.</strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p><strong>A person has no obligation to accept the highest tender.</strong></p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Spencer v Harding (1870) LR 5 CP 561"></figure><h4>Analysis:</h4><p><br /></p><p style="text-align: justify;">In contract law for a contract to exist one party (“the offeror”) needs to make a clear and certain offer and the other party (the offeree) needs to communicate their equally clear and unequivocal acceptance. A competitive tender is where the proposed contractors provide the CUPD with a confidential bid for the work. The CUPD then choses the lowest bid to conduct the work. The CUPD’s invitation to tender is an invitation to treat. An invitation to tender is usually classed as an invitation to treat. As a result, the person making the invitation to tender is not obliged to accept any of the offers (in the form of responses) to the tender. This was seen in <strong>Spencer v Harding</strong> (1870) LR 5 CP 561 where the court held the offer begins with the person issuing the tender, which can then be accepted or rejected. It is an invitation to treat and, therefore, it cannot amount to an offer. The tender is the offer and then CUPD choosing the lowest tender is the acceptance. </p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Spencer v Harding"></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[HARRIS v NICKERSON]]></title><description><![CDATA[General Principle: Items can be withdrawn before the auction takes place. Name: Harris v Nickerson (1873) LR 8 QB 286 Facts: Nickerson...]]></description><link>https://www.lawbooks.org/post/harris-v-nickerson</link><guid isPermaLink="false">6426be641ce22f907add3dc0</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 11:06:55 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_6337466c57783344455849~mv2_d_6000_4000_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>Items can be withdrawn before the auction takes place.</strong></p><p><br /></p><h3>Name:</h3><p><br /></p><h3>Harris v Nickerson (1873) LR 8 QB 286</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>Nickerson (the defendant) posted a newspaper advert for an auction. The plaintiff took the time to travel, at their expense, to where the auction was being held in order to put in a bid on some office furniture. The listing of the office furniture was unexpectedly withdrawn. The Plaintiff sued for loss of time and expense. The plaintiff argued that the advertisement amounted to a contract between themselves and the defendant. </p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The court in Harris v Nickerson held the advertisement of a sale did not mean that there was a contract to mandate that any specific items, such as the office furniture, would actually be put up for sale. </strong></p><p><br /></p><h4>Application: </h4><p><br /></p><p><strong>The important principle that can be applied from this case is that something which advertises that items will be put up for auction does not create nor extend an offer to anybody that the items will really be put up for sale. As a result, the advertiser is actually able to withdraw the items from the auction at any time before the auction is set to begin. </strong></p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Harris v Nickerson (1873) LR 8 QB 286"></figure><h4>Analysis:</h4><p><br /></p><p>The travel expenses are unlikely to be recovered by VC, since they are not a result of a breach of contract. In <strong>Harris v Nickerson </strong>(1873) LR 8 QB 286 the defendant posted a newspaper advert for an auction. The plaintiff took the effort to go to the auction site at their own cost in order to place a bid on certain office equipment. The listing was taken down suddenly. The plaintiff claimed damages for lost time and money. The plaintiff claimed that the advertising constituted a binding contract between them and the defendant. The court decided that just because an advertisement was posted, this did not imply there was a contract requiring any advertised item to be placed up for sale. The main message from this case is that adverts that announce that objects will be placed up for auction does not make or extend an offer to anybody that the items would really be put up for sale. As a consequence, the advertiser has the ability to remove the products for sale at any point prior to the offer being accepted. Any claim for damages and any effort to sue ELtd would be futile since there was no breach of contract because there was no offer, just an ITT, incapable of acceptance.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Harris v Nickerson "></figure><p><br /></p><p><br /></p><p><br /></p>]]></content:encoded></item><item><title><![CDATA[CARLILL v CARBOLIC SMOKE BALL]]></title><description><![CDATA[General Principle: In unilateral contracts, the performance of a requested action amounts acceptance and binds the offeror to give a...]]></description><link>https://www.lawbooks.org/post/carlill-v-carbolic-smoke-ball</link><guid isPermaLink="false">6426bbbb8d4165339b6fa03b</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Tue, 16 May 2023 10:55:34 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/0f1de5_47de5238bc9c4f14868e629df414ac9e~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p>In unilateral contracts, the performance of a requested action amounts acceptance and binds the offeror to give a reward. </p><p><br /></p><h2>Name:</h2><p><br /></p><h3>Carlill v Carbolic Smoke Ball Co. [1892] 1 QB 256</h3><p><br /></p><h2>Facts: </h2><p><br /></p><p>At the time of an influenza epidemic, the defendants advertised the sale of a device called a ‘smoke ball’. They posted the advert in the newspapers, which stated that they would pay £100 to anybody who ‘caught influenza, a cold, or any other kind of disease that came from catching a cold’ after they used the ‘smoke ball’ three times a day for fourteen days, in accordance with the instructions they provided with each ball. Carbolic Smoke Ball Company also mentioned in the advertisement that they had put aside £1000 in a bank account to be able to pay such fees. Mrs. Carlill bought a smoke ball and followed all of the instructions, but caught influenza and, as such, went on to claim £100 from the company. The company responded by saying that the advert was nothing but a ‘sales puff,’ or a piece of sales talk (e.g. Red Bull gives you wings), and thus there was no offer; furthermore, they argued it would be unreasonable and impossible to contract to the entire world at large.</p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The Court of Appeal held that the offer was actually a unilateral one; one with the intention to create relations to anyone who met the conditions of the offer to claim £100. The court also rationalised that because it was a unilateral offer, there was no need for communication of acceptance. The court finally addressed the point that an offer to the world at large could be made if it was capable of acceptance, so long as the conditions stated were fulfilled. Mrs. Carlill was, therefore, able to claim £100. </strong></p><p><br /></p><h4><strong>Application:</strong> </h4><p><br /></p><p><strong>Carbolic Smoke Ball Co. claimed that their advertisement was too vague to be treated as a definite offer. However, if an advertisement is precise and detailed to the point where completing the stated conditions would fulfil a contract, then it is an enforceable unilateral contract and not merely a “sales puff.” </strong></p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Carlill v Carbolic Smoke Ball Co. [1892] 1 QB 256"></figure><h4>Analysis</h4><p><br /></p><p style="text-align: justify;">Rita put an advertisement in a local newspaper declaring that she wants to sell and antique diamond brooch for a thousand pounds. Stefan replied to the advertisement by offering an immediate payment of the sum. Rita refused the payment. Did such circumstances amount to an acceptance of the offer, hence to a binding contract? To begin with, it must be settled whether the advertisement constituted an offer. Regarding advertisements, the principle is that they are regarded as statements inviting for further negotiations or invitations to treat (<strong>Partridge v Crittenden</strong> [1968] 1 WLR 1204) unless it is a unilateral offer or if the advertisement is absolutely clear, precise and unequivocal (<strong>Carlill v Carbolic Smoke Ball Co.</strong> (1893) 1 QB 256). Hence, having regard to the case law, the advertisement that Rita placed in the local paper will most likely be regarded as an invitation to treat. The advertisement is not sufficiently precise to amount to an offer; it only states what the item is and its price. There are no indications of how the payment shall be made and if the price is final or negotiable. Hence, it turns out that Stefan was the offeror as he made an offer to Rita to buy her brooch for a thousand pounds his offer was precise, clear and unequivocal however Rita clearly refused to either accept or reject the offer. A contract has consequently not been formed because there was no acceptance of the offer. </p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Carlill v Carbolic Smoke Ball Co"></figure><p><br /></p>]]></content:encoded></item><item><title><![CDATA[COSTA v ENEL]]></title><description><![CDATA[General principle: National law cannot override EU law. Name: Flaminio Costa v ENEL (Case 6/64) [1964] ECR 585 Facts: ENEL was an...]]></description><link>https://www.lawbooks.org/post/costa-v-enel</link><guid isPermaLink="false">6426d5a28b58194d0e7b36bc</guid><category><![CDATA[EU LAW]]></category><pubDate>Mon, 15 May 2023 12:46:14 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_5133434f315a4f5a365a49~mv2_d_5184_3456_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General principle: </h2><p><br /></p><p><strong>National law cannot override EU law.</strong></p><h3>Name:</h3><p><br /></p><h3>Flaminio Costa v ENEL (Case 6/64) [1964] ECR 585</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>ENEL was an electric company that has been put under state ownership by the Italian government. Costa, a shared owner of the company before its nationalisation, has suffered a loss attributable to the Italian Government. He argued before its national Courts that the Italian law nationalizing the industry was incompatible with EC monopoly laws. The case was referred to the ECJ. Throughout the procedure, the Italian government claimed that national law should prevail as it was enacted after the law ratifying the EC Treaty.</p><p><br /></p><h3>Preliminary question before the Court: </h3><p><br /></p><p>Whether or not a national law, enacted after the law ratifying the founding treaties of the Communities, could contravene to its main objectives?</p><p><br /></p><h3>Preliminary Ruling: </h3><p><br /></p><p>The answer of the Court in Costa v ENEL is clearly negative; incompatible domestic provisions cannot override Community law, regardless whether or not they were enacted after the ratification of the founding treaties.</p><p><br /></p><p>The ECJ based its reasoning on the framework of <strong>Van Gend en Loos</strong><em> </em>but extended it:<em> “By creating a Community of limited duration having (…) a transfer of powers from the states to the community, the member states (…) have thus created a body of law which binds both their nationals and themselves”. </em>Thus, according to the Court, the supremacy of EU law logically stems from the Member Stats’ transfer of power that created an independent body of law. </p><h4></h4><h4>Application: </h4><p><br /></p><p>This case defines and develops the principle of the supremacy of EU law justifying it by the “special and original” nature its legal order. </p><p>Regarding the contributions of <strong>Costa </strong>and <strong>Van Gend en Loos</strong>, a clear conclusion can be reached. The Member States have delegated a portion of their sovereign authority to the Community in order to enact laws that bind them and their citizens. Thus, Member States cannot enact new national legislation that conflict with EU law.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_e7a19d23a97844f19d3b2e2cd053200d~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Flaminio Costa v ENEL"></figure><h4>Analysis:</h4><p><br /></p><p>Moreover, in <strong>Costa v ENEL </strong>(1964) Case 6/64 the ECJ as they were then held:</p><p><br /></p><p><em>“the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves...Such a measure cannot therefore be inconsistent with that legal system… the law stemming from the treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question."</em></p><p><br /></p><p>The point to note is that supremacy of the EU law was created by ECJ and is not something which is in Treaties. ECJ talked about “spirit” of Treaty, this was not the drafters’ intentions. Commentators argue that EU law should be accorded superiority because it stems from the treaty that has been made by the MSs when they joined the EU and formed a new legal order. Yet, no reference to the constitution of MSs was made. This perhaps should have been done. Functional commentators argue the aims of the Treaty would not be achievable unless EU law was accorded supremacy. The security of uniform application of EU law and it effectiveness is the only way the EU can achieve its purpose. Dougan in <span style="background-color: #ffffff;">"When worlds collide! Competing visions of the relationship between direct effect and supremacy." Common market law review 44.4 (2007): 931-963 </span>has argued that the doctrine of primacy produces exclusionary effects within national legal systems, in that it sets aside domestic laws that are inconstant with a <em>“hierarchically superior norm of Community law”. </em>This is distinguished from the substitution effects where the direct application of Community law is concerned.</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_233a0473f63f426a88a4f171b63c690a~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Costa v ENEL (1964) Case 6/64"></figure><p><br /></p><p><br /></p><p></p>]]></content:encoded></item><item><title><![CDATA[ERRINGTON v ERRINGTON AND WOODS]]></title><description><![CDATA[General Principle: When someone has begun to carry out the terms of a unilateral offer and keeps on doing so, the unilateral offer cannot...]]></description><link>https://www.lawbooks.org/post/errington-v-errington-and-woods</link><guid isPermaLink="false">6426cfa4e841227adb393db5</guid><category><![CDATA[CONTRACT LAW]]></category><pubDate>Mon, 15 May 2023 12:20:01 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/nsplsh_42856737e52642d2ac46bd8e6f241171~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Law Books</dc:creator><content:encoded><![CDATA[<h2>General Principle: </h2><p><br /></p><p><strong>When someone has begun to carry out the terms of a unilateral offer and keeps on doing so, the unilateral offer cannot be retracted.</strong></p><p><br /></p><h3>Name:</h3><p><br /></p><h3>Errington v Errington and Woods [1952] 1 KB 290</h3><p><br /></p><h3>Facts: </h3><p><br /></p><p>Mr Errington purchased a house for both his son and daughter-in-law (Ms. Woods) to live in. He paid £250 in cash and borrowed the remaining £500 from a building society. The house was registered in the name of the father. However, he said that as long as they paid the regular instalments on the mortgage, he would transfer the house to them as soon as it had been repaid. Fifteen years after the father died, his estate brought action to seek possession of the house. </p><p><br /></p><h3>Ratio: </h3><p><br /></p><p><strong>The Court of Appeal in Errington v Errington and Woods held that a unilateral contract existed. Woods and Errington were not obliged to keep paying out money, but if they did so because the father was obliged to transfer the house to them in accordance with his promise, that was acceptable.</strong> </p><p><br /></p><h4>Application: </h4><p><br /></p><p>Denning LJ said obiter that: <em>“a unilateral contract cannot be revoked once the potential acceptor has started to perform their obligations under the contract arrangements.” </em></p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_1eefe2366ef74e749976e809a110f602~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Errington v Errington and Woods"></figure><h4>Analysis: </h4><h4></h4><p>Once Elijah notifies Brett of Alan’s revocation prior to the start of the walk, Brett consults his email and sees the message from Alan cancelling the reward, but decides to continue. The law faculty’s offers can certainly be withdrawn, but it is unfair if the law faculty could withdraw their offer just before Brett "accepts" the offer through embarking on the task. The general principle is when someone has begun to carry out the terms of a unilateral offer and keeps on doing so; the unilateral offer cannot be retracted. In <strong>Errington v Errington and Woods </strong>[1952] 1 All ER 149, Mr Errington purchased a house for both his son and daughter-in-law (Ms. Woods) to live in. He said that as long as Ms.Woods paid the regular instalments on the mortgage, he would transfer the property to them on completion of instalments. Fifteen years later, the father died, his widow brought action to seek possession of the house. The Court of Appeal held that a unilateral contract existed. Woods and Errington were not obliged to keep paying out money, but if they did so, the father was obliged to transfer the house to them in accordance with his promise, that was acceptable. Denning LJ affirmed: </p><p><br /></p><p><em>“a unilateral contract cannot be revoked once the potential acceptor has started to perform their obligations under the contract arrangements.” </em></p><p><br /></p><p>Therefore it seems if the court consider Brett buying equipment and preparing of the race as acceptance then revocation at the start line will not be possible (McRae, D. M. "Revocation of Unilateral Contracts." Otago L. Rev. 1 (1965): 149).</p><p><br /></p><p><br /></p><figure><img src="https://static.wixstatic.com/media/6f07ba_fdcc85edb8ed460da3e968cbbd9111aa~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Errington v Errington and Woods"></figure><p><br /></p><p><br /></p>]]></content:encoded></item></channel></rss>If you would like to create a banner that links to this page (i.e. this validation result), do the following:
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