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BY Ellie Palmer The following note supplements the lecture on undue influence - It deals with the second aspect of Policing the Contract (2): Duress, Undue Influence, Inequality of Bargaining Power and Unfair Terms. (See class outline, p 18) Introduction Undue influence like misrepresentation and economic duress renders a contract voidable. This means that one party can seek to rescind ‘or set aside’ (avoid) the contract, either as a claimant, or by way of a defence. For example, the claimant may seek the return (restitution) of a gift that has been ‘tainted’ by undue influence; or may rely on undue influence as a defence, to resist the enforcement of an oppressive contract. McKendrick notes that two approaches have been taken in the cases to establishing undue influence. In some cases the stress has been on the vulnerability of the complainant leading to an impairment of consent. In other cases the courts have emphasised the wrong-doing of the defendant, ie the deliberate abuse ...

•Domestic and Social Agreements •“Rebuttable Presumption” that there is no intention to create legal relations •Balfour v Balfour [1919] 2 KB 571 –Deft/husband went to work abroad –He agreed to pay clmt/wife £30 per month –Clmt/wife agreed not to ask deft for further maintenance –Clmt/wife sought to enforce the agreement –Held (CA): though apparently supported by consideration, the agreement was not an enforceable contract –that most such agreements between husband and wife are not intended to have legal consequences –that such agreements are usually based on considerations of natural love and affection –that the courts would be flooded if such arrangements were held to result in legal obligations •Domestic and Social Agreements •“Rebuttable Presumption” that there is no intention to create legal relations •Jones v Padavatton [1969] 1 WLR 328 –In 1962, daughter accepted mother’s suggestion to move from Washington DC, where she was a secretary, to read for the Bar in England –Mother ...

•Consideration & Estoppel •Despite Williams v Roffey Bros (supra), as a general rule, consideration is still required for a promise (not made by deed) to be enforceable •Williams v Roffey Bros only makes it easier to find the existence of consideration in certain cases •Note also that according to Re Selectmove (supra), the decision in Williams v Roffey Bros does not extend to part payment of a debt which, without more, will not discharge the whole debt • “Estoppel” relates to exceptional circumstances where the courts may enforce a promise even in the absence of consideration. •Consideration and Estoppel •“Estoppel” derived from equity = “equitable doctrine” or “equitable estoppel” •Origin often traced to Hughes v Metropolitan Rly Co (1877) 2 App Cas 439 –Landlord gave tenants 6 months notice to do some repairs else the lease would be forfeited –Parties began negotiations for the sale of the lease –Negotiations broke down after the 6 months deadline for repair work –Landlord clai...

•Consideration 2 •‘Sufficient’ Consideration •Performance of a duty imposed by law –Collins v Godefroy (1831) 1 B & Ad 950 –Witness required under subpoena to attend court and give evidence –Promised 6 guineas by deft for doing so –Deft refused to pay –Held: as he was already under a legal duty to give the evidence, doing so was not good consideration for the promise to pay him •Consideration 2 •‘Sufficient’ Consideration •Performance of a duty imposed by law •Compare: doing more than the legal duty –Glassbrook Bros v Glamorgan CC [1925] AC 270 –Owners of a mine asked for police presence during a mine –Police said that then current regular checks were enough –Owners insisted on officers being stationed at the mine and agreed to pay extra cost of £2,200 –Owners later refused to pay –Held: anything beyond what police honestly and reasonably thought necessary was an extra service and amounted to good consideration for the promise to pay •Consideration 2 •Also: Ward v Byham [1956] 1 WL...

•Law of Contract LW101 •Consideration •Consideration (1) •Consideration as a required element for a valid contract •Exceptions –Contract made by ‘Deed’ –‘Promissory Estoppel’; Re-negotiation and ‘practical advantage/benefit’ etc. •Consideration still a requirement for most contracts •Consideration(1) •Definition of Consideration •As a benefit to the promisor or a detriment to the promisee –Currie v Misa (1875) LR 10 Ex 153, 162 –“A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other ….” per Lush J •As the price for which one party buys the other’s promise –Dunlop Pneumatic Tyre Co v Selfridge & Co [1915] AC 847, 855 –“An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.” per Lord Dune...

•Acceptance and Revocation in Unilateral Contracts •Acceptance (in unilateral contracts) made by performing required act – even, possibly, without giving notice –e.g. Carlill v Carbolic Smoke Ball co. •Question: when can an offer be revoked in a unilateral contract; consider a situation where the offeree had already started the act of acceptance •Traditional position: that there must be full performance before acceptance is complete –Per Brett J in Great Northern Rly. Co. v Witham (1873) LR 9 CP 16, 19 (if A offers B £100 to walk to York, A could revoke at any time before B reached York) –Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 (estate agent found buyer for 2 cinemas; principal refused to sell to buyers; held agent not entitled to the commission of £10,000) •Acceptance and Revocation in Unilateral Contracts •Cf. implication of term, in respect of a unilateral contract, that the offeror should not do anything that prevents the offeree from completing the act of acceptance • Erring...

•Law of Contract •The Agreement - Offer and Acceptance •Offer •Offer – a definite proposal or final statement by one party of the terms in which s/he will enter into a contract •Can be made in writing, orally or by conduct •Can be made to a specific person(s) or to the whole world •Leads to a contract if matched by ‘acceptance’ by the other party •Offer •Generally, courts require to identify an offer matched by acceptance for there to be a contract •Gibson v Manchester CC [1979] 1 WLR 294 –MCC wrote to G explaining that they may be prepared to sell the property he occupied to him for £2180 –G completed and returned the relevant form, but left the space for the price blank – asking for possibility of a price reduction –MCC replied that the price could not be changed –G asked them to ‘carry on with the purchase as per my application’ –MCC later refused to sell the house to G –Held: there was no contract as MCC’s letter was not an offer and thus not capable of acceptance •Compare Storer v...