Contract Practical Problem by Mathilde Pavis https://padlet.com/m_pavis/lrfliasqtd2f Cycle 9 en-us 2018-03-20 08:21:28 UTC 2018-03-23 20:35:26 UTC hello@padlet.com 1. Relationship with Bob m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874653 2018-03-20 08:23:25 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874653 2. Threat to kill the cat m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874704 2018-03-20 08:23:35 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874704 1. Undue influence m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874926 2018-03-20 08:24:21 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874926 1. Undue influence m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874930 Doctrine of undue influence: 
-       It is actual not presumed undue influence because the relationship between Sheila and Bob does not fall into any of the categories. 
-       Lord Nicholls observed in Etridge, actual undue influence ‘compromises overt acts of improper pressure or coercion such as unlawful threats’ 
Ø  Bob acting bullish and asking daily whether Sheila will enter into the contract 
-       Actual undue influence overlaps with common law duress (Williams v Bailey) 

Feedback
[this is a good structured answer on this point] 
BUT the second condition of undue influence is that there must be an advantaged gained by the person using his/her influence (see definition in Etridge). Is this the case here? What is the gain by Bob of using his influence?

Also, Sheila received your legal advice (in legal foundation) - does that bar undue influence?]
]]> 2018-03-20 08:24:22 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874930 1. Undue influence m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874937 Rescision]]> 2018-03-20 08:24:23 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874937 2. Duress m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874943 2018-03-20 08:24:25 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874943 2. duress m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874950 Duress - cat > duress to property: DSDN  Subsea Ltd v Petroleum Geo-Services ASA 2000 - Dyson J "whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure." Bob is acting in bad faith by threatening the cat.

Feedback
Your answer on this point needs more structure - what are the steps to confirm or inform duress? Make reference to case law as you are outlining those conditions. It is important that you do so to score full points there.]]> 2018-03-20 08:24:26 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874950 2. Duress m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874958 Rescission - contract can be set aside. 
- Barton v Armstrong 1975 - held contract could be set aside. ]]> 2018-03-20 08:24:27 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243874958 3. Bob's statement in relation to costs m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875111 2018-03-20 08:24:52 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875111 4. Dead flowers m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875150 2018-03-20 08:24:59 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875150 3. Misrepresentation m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875683 2018-03-20 08:26:19 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875683 3. Misrepresentation m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875686  Don’t believe the statement induced Sheila into entering into the contract.  As that is needed to establish misrepresentation (*Insert case here*), misrepresentation has not occurred in this case.

Feedback: 
You are on the right track there but your answer needs to give the definition of misrepresentation, and the conditions to satisfy in order to get a remedy (rescision) from it. It is important you make sure you take the time to outline these steps - this shows a good knowledge and understanding of the law (in detail). This will also help structure your argument, and make sure you have not missed anything.

In doing so, you need to insert the relevant case - as you mention!]]> 2018-03-20 08:26:20 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875686 3. Misrepresentation m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875691 As there is no misrepresentation, no remedy is necessary. (otherwise it would be reciscion)]]> 2018-03-20 08:26:21 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875691 4. breach m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875698 2018-03-20 08:26:22 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875698 4. Breach m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875702 incorporation of oral statement: if an oral statement is left out in a written contract, it will be regarded as a representation. (Routledge v McKay)
this is a fundamental condition of the contract as it is incorporated through a written term.

Feedback
You have the right main points here. Again, in your answer, always start from the beginning: explain that the dead flowers was a promise not in the written agreement, that to be bound by a promise, it has to be a contractual obligation (i.e. part of a contract. English contract law takes an objective view on this, and one that favours written contracts over oral statements [insert case here]. However, terms not part of the main written document can be incorporated into it: how? Explain how. Was it fully incorporated here? If yes, then there may be breach (move to the next step). If not, then there is no breach possible. No need to go further. 

How can a contractual term not performed lead to a breach? It must be a term that is either a condition or an innominate term. A term can be a condition if it goes to the 'root of the contract' [insert case here]. It is a innominate term if... {insert detail here]. In this case, we can argue that that the fact that the parties did not write as part of the contract means it was not essential to their agreement, so much so it could be a mere warranty (as in x case, or y). 

This is an example of structure, and how to apply the law, your knowledge of the law to the facts given in the scenario. ]]> 2018-03-20 08:26:23 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875702 4. (b) breach m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875714 2018-03-20 08:26:25 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875714 5. Penalty clause ? m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875718 Feedback:
You have not addressed this point.
how do we identify a penalty clause from a compensatory clause? Why does it matter in general? Why does it matter in this case?

Feedback
You need to address these sub-questions to engage with this part of the practical problem properly.]]> 2018-03-20 08:26:25 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875718 4. Breach m_pavis https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875724 the remedies available depend upon the nature of the breach. this can be held as a fundamental breach of a condition that goes to the root of the contract. a breach of condition can allow the innocent party to terminate the contract (Photo Production Ltd v Securicor Transport Ltd [1980] AC 827)

the court would not find this to be a breach as the 'term' is not a fundamental condition of the contract. The party cannot terminate the contract on this basis.

Feedback: 
This is good. Clear, reference to case law, relevant and to the point.]]> 2018-03-20 08:26:26 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243875724 4 (b). Not enough water supplied https://padlet.com/m_pavis/lrfliasqtd2f/wish/243928984 2018-03-20 11:07:57 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243928984 compensation https://padlet.com/m_pavis/lrfliasqtd2f/wish/243932140 possible remedy might be damages ]]> 2018-03-20 11:19:00 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/243932140 5. Liquidated damages (clause in the contract) ? https://padlet.com/m_pavis/lrfliasqtd2f/wish/244050342 2018-03-20 14:43:38 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/244050342 5. Enforceable term? Penalty or compensatory clause? https://padlet.com/m_pavis/lrfliasqtd2f/wish/244051168 2018-03-20 14:44:49 UTC https://padlet.com/m_pavis/lrfliasqtd2f/wish/244051168 Feedback: You need to tell your client that she has a number of operative causes of action to set aside the contract but this would bar her from relying on the liquidated damages clause or claim damages for non-performance or breach. https://padlet.com/m_pavis/lrfliasqtd2f/wish/244054322


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