Category: Contract

The question in the title was provoked by Ciara Kenny‘s House Hunter column in today’s Irish Times, where she ask Would you buy a house someone had been murdered in? I don’t think I would. And if I did, I’d be stuck with it, since the answer to the question in the title to this post is that you can’tget out of the purchase of a house, if you find out later that someone had been murdered in it. Ciara’s column is a diary of her travails trying to purchase a house in Dublin in today’s crazy property market (as she put it on twitter: it’s an effing nightmare). From today’s column:

Every old house has its secrets. Last summer, a gorgeous house came up for sale which we spent weeks deliberating over. But we couldn’t shake a bad feeling we had about the surrounding streets. So when bidding climbed above what we were willing to pay, we were relieved for once. … [Later, my partner found] a decade-old RTÉ news report about a man stabbed to death by a burglar on the stairs. … I don’t think I would be able to shake the image of that poor man’s violent death every time I walked upstairs.

If Ciara had bought the house, and later discovered its gruesome past, she would not have been able to reverse the transaction. (more…)

Two sole traders form a partnership, and then fall out, so that one sues the other for outstanding monies. It is a common enough story now, and was even in the early 1700s. There is normally little of general interest in such case; but, in 1725, the additional facts in Everet v Williams earned it a notoriety that persists to this day, because the plaintiff had sued the defendant for the proceeds of highway robbery, and there had been a classic falling out amongst thieves. Unsurprisingly, the Court declined to lend its aid to the claim, and dismissed the case with costs (see Everet v Williams (1725) reported (1787) 2 European Magazine 360 (pdf) and (1893) 9 Law Quarterly Review 197 (pdf); see also William David Evans (ed) Pothier on Obligations (Strahan, London, 1802, vol 2) 3 (pdf); Nathaniel Lindley A Treatise on the Law of Partnership (1st ed, Johnson & Co, London, 1860) 161 (pdf); Robert Megarry Miscellany-at-Law (Sweet & Maxwell, London, 1955) 76 (pdf); mentalfloss).

The Court’s approach in this case was replicated by Twomey J in English v O’Driscoll [2016] IEHC 584 (25 October 2016), whilst the case itself was cited by Humphreys J in the High Court in KP v The Minister for Justice and Equality [2017] IEHC 95 (20 February 2017). In this short post, I want to mention the outcome in Everet v Williams, note its subsequent judicial citation, and refer briefly to the recent judgments of Humphreys and Twomey JJ.

In Everet v Williams, the Court referred the matter to the wonderfully-titled Deputy Remembrancer of the Court of Exchequer in Equity. His report that the case was a matter of “scandal and impertinence” was confirmed by the Court; the parties solicitors were attached for contempt and fined £50 each for reflecting so disreputably “upon the honour and dignity” of the Court; and the lawyer who drafted the plaintiff’s proceedings was ordered to bear the costs of the action for causing such “indignity to the Court”. But the parties did not learn their lesson; and they continued – separately – to ply their trade, until their luck eventually ran out: John Everet, the plaintiff, was executed at Tyburn in 1730; and Joseph Williams, the defendant, was executed at Maidstone in 1727 – by not hanging together, they were hanged separately, proving Benjamin Franklin’s aphorism half a century before he uttered it!

Moreover, in 1735, the almost equally colourful William Wreathock, the plaintiff’s solicitor, was convicted of conspiracy and robbery, and sentenced to be hanged. However, his sentence was commuted to transportation, though he eventually obtained a Royal Pardon, returned to England, and resumed his practice; nevertheless, he was struck off the roll of attorneys in 1758 (see Malcolm McKenzie Park “William Wreathcock – Imperfect Attorney” (1993) 87 Victorian Bar News 73 (SSRN)).

The case has had a strong pull on the legal imagination down the ages. (more…)

The Hawthorne effect is alive and well, and living in the interstices between private law and privacy law. In particular, I recently saw the following clause in a contract (the names have been changed to protect the innocent, the guilty, bystanders, and anyone else involved ):

WORKPLACE SURVEILLANCE
The employer’s workplaces are subject to overt workplace surveillance. You agree that you consent to this surveillance which is primarily to ensure the safety and security of the employer’s workplaces and the appropriate use of the employer’s resources. The overt surveillance is in the form of computer, internet usage and camera surveillance and is of an ongoing and continuous nature, in accordance with the employer’s relevant policies as amended from time to time.

This surveillance is carried out by all means available to the employer, which may include accessing your email account; accessing your files; accessing your computer or other electronic devices and recording internet usage by you including remote access internet usage and accessing those records.

The Citizens Information website has a lot of information on the legitimate scope of surveillance in the workplace, and the Data Protection Commissioner has issued Guidance Notes on the Monitoring of Staff, which emphasises that

monitoring, including employees’ email or internet usage, surveillance by camera, video cameras or location data must comply with the transparency requirements of data protection law. Staff must be informed of the existence of the surveillance, and also the purposes for which personal data are to be processed. If CCTV cameras are in operation, and public access is allowed, a notice to that effect should be displayed. Any monitoring must be carried out in the least intrusive way possible. Only in exceptional circumstances associated with a criminal investigation, and in consultation with the Gardai, should resort be made to covert surveillance.

The leading case is probably Barbulescu v Romania 61496/08 [2016] ECHR 61 (12 January 2016), in which the European Court of Human Rights held that there had been no violation of Article 8 when the applicant had been dismissed by his employer, a private company, for having used the company’s internet facilities for personal purposes during working hours in breach of internal regulations. The employer had monitored the applicant’s Yahoo Messenger communications, so the Court held that the applicant’s Article 8 rights relating to his “private life” and “correspondence” had been engaged, but that they had not been infringed:

56. The Court notes that the applicant was able to raise his arguments related to the alleged breach of his private life and correspondence by his employer before the domestic courts. It further notes that they duly examined his arguments and found that the employer had acted in the context of the disciplinary powers provided for by the Labour Code … The domestic courts also found that the applicant had used Yahoo Messenger on the company’s computer and that he had done so during working hours; his disciplinary breach was thus established …

57. In this context, the Court notes that both the County Court and the Court of Appeal attached particular importance to the fact that the employer had accessed the applicant’s Yahoo Messenger account in the belief that it had contained professional messages, since the latter had initially claimed that he had used it in order to advise clients …

59. While it is true that it had not been claimed that the applicant had caused actual damage to his employer … the Court finds that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.

60. In addition, the Court notes that it appears that the communications on his Yahoo Messenger account were examined, but not the other data and documents that were stored on his computer. It therefore finds that the employer’s monitoring was limited in scope and proportionate …

Update (8 June 2016): Colin Foote, writing on Irish Legal News, reminds employers that covert surveillance will breach employees’ right to privacy if there is a reasonable expectation of privacy, and that employers must also comply with laws relating to data protection:

The Employment Practices Data Protection Code issued by the Information Commissioner [available here] provides guidance on monitoring employees and states that action should only be carried out if there are grounds to suspect criminal activity or serious malpractice. It also states that an employer would not be justified in carrying out monitoring where workers have a genuine and reasonable expectation of privacy, such as in workplace changing rooms or lavatories or at home. The code recommends that covert monitoring should only happen in extreme cases, for clearly targeted purposes, and only for a limited period of time. …

It is also advisable to have a clear policy on monitoring and employees should be made aware of its contents. A policy should set out why monitoring may take place, the nature of the monitoring, when information about employees is likely to be obtained, how it will be used and who will have access to it.

Last month, the Daily Mail website ran a story under the headline: Fury as Tesco offers large bottles of Budweiser for just 14p each on its website – only to cancel orders because the price was a mistake. The offer appeared as a Valentine’s Day special, for beer lovers everywhere. In another example, last Autumn, shoppers on Sears.com noticed that expensive toys (such as kids’ accessories and play sets that cost hundreds of dollars) were available for only $11.95. Nancy Kim on ContractsProf Blog explains many of the contract law consequences of this mistake.

This kind of mistake happens a lot. Sometimes, it’s human error; sometimes, it’s a misfiring algorithm – thus proving the old adage: to err is human, but to really foul things up requires a computer (though, some of these errors could be maliciously caused by hacking). And these errors seem particularly headline-grabbing when they involve really cheap tvs or flights. I’ve looked at the legal issues in these situations several times on this blog: see here, here, here, here, here, here and here. (more…)

I. INTRODUCTION
At lunchtime today, Alexis Downe, lecturer in Toulouse University 1 Capitole and visiting lecturer here in Trinity, gave a staff seminar on “The reform of French Contract Law: a brief overview”. The fundamentals of French private law in general, and of the Law of Contract in particular, are largely unchanged in the Code civil (first edition cover pictured left) since it was adopted in 1804. Nevertheless, there have been significant social changes, from the nineteenth century’s industrial revolution, to the twentieth century’s two world wars, to the twenty-first century’s information age. In many ways, the current process of reform is intended to allow French contract law to catch up with these and other developments. In this post, I provide some background to the current process of reform of French contract law, and then discuss Alexis’s paper.

II. BACKGROUND
Earlier this year, I wrote a post on this blog about French reform of Contract Law in comparative context, constructed around Bénédicte Fauvarque-Cosson‘s article on “The French Contract Law Reform in a European Context” (2014) ELTE Law Journal 59. To the story told in that post should be added the English translation (pdf) (by John Cartwright and Simon Whittaker) of the Catala Avant-projet (pdf) and academic discussions of those drafts in England and France. I have these links courtesy of a post from the Oxford Law Faculty news feed, which picks up the story from the point at which my earlier post leaves off:

The Transformation of French Contract Law by Government Decree – and Translated into English

After considerable debate … the Government was granted the authority to proceed. The draft law (in the form of an Ordonnance) concerning contract and obligations in general was published in February of 2015 so as to allow a brief period of consultation: the draft text can be seen here, and further information is available here. ….

John Cartwright and Simon Whittaker, together with Bénédicte Fauvarque-Cosson … were asked by the French Ministry of Justice to provide an official translation into English: this has now been published and is available on the Ministry website. …

The text of the draft Ordonnance, revised by the Ministry of Justice after the consultation was closed, has gone to the Conseil d’Etat for scrutiny and then, subject to its views, it will be published and enacted in its final form … before the end of the first semester (2016). …

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I recently came across a special issue of the ELTE Law Journal to celebrate the tenth anniversary of Hungary’s accession to the EU. The journal is published by the Faculty of Law and Political Sciences in Hungary’s oldest university, Eötvös Loránd University (ELTE) in Budapest, and one article in the issue particularly caught my eye (with added links):

Bénédicte Fauvarque-Cosson “The French Contract Law Reform in a European Context” (2014) ELTE Law Journal 59

I Introductory Remarks on the Development of the Law in Europe
… The civil and commercial law of each Member State is built upon three pillars, the national legal systems, EU law and the ECHR. While our national experiences influence one another, the law of the EU is built upon these reciprocal influences. In turn, our national legal systems are influenced by EU law. …

As European scholars, our role is primarily to train students to think comparatively, in order to build a common legal culture all over Europe … As European lawyers in the 21st century, our mission goes beyond comparative teaching. … Legal scholarship has played its role as a guide to the European legislator. … The same phenomenon may be observed in those of our countries where the recodification of important parts of the law is envisaged. This notably occurs in France as regard contract law, a key subject for comparatists and European scholars.

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The image on the left is based on screen grabs taken by @jimboireland and @WayneDoyle___ (click through for a bigger size). It shows a ‘samsung 51″ series 4 3D plasma tv’ for sale on a retail website for “€6.49 plus VAT” (I’ve zoomed in on the price, just to make the point). This offer looked like it was too good to be true; and that’s exactly what it was – too good to be true. The €6.49 was a typo for €649. I have blogged about similar mistakes on the part of United Airlines, Aer Lingus, Dell, Best Buy, Arnotts, and Round Hall. This time, it was VikingDirect.ie – and, as the Irish Times and The Daily Edge are reporting, they have apologised to their customers, but are not going to honour the sale of the televisions at 1% of its retail price.

The customers will probably argue that they had contracts with the retailer, which the retailer must honour by selling the tvs at the knock-down prices. However, these contracts are subject to the website terms and conditions, section 5 of which details how the relevant contract is made: the customer’s order is an offer to purchase the goods on Viking’s conditions; and the offer is accepted, and the contract is made, when Viking send the customer an e-mail acknowledging the order. This means that the advertisement on the website is not part of the contract at all (in the jargon, it is simply an “invitation to treat”, an invitation by Viking to customers to make offers to purchase). Furthermore, section 15 of those terms and conditions provides for a “right to cancel or vary” on the part of Viking, as follows:

If … our web site and/or ordering web pages contained any error, including in relation to the description or price of any of the goods … we shall be entitled to cancel the contract as a whole or in respect of those goods, in which case we will offer you a full refund, …

As the Viking statement on the issue (and I’m relying here on the media reports, as I can’t find the statement on the VIking website) referred to this clause, and continued

We are in the process of contacting those customers who placed an order for the wrongly priced television to advise them of the misprice and their impending refund. We would like to apologise to our customers for any inconvenience this has caused.

Aggrieved customers might argue that section 15 is an unfair term, for the purposes of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (SI No 27 of 1995), but I don’t think that’s a particularly strong point. In the end, therefore, the fact that Viking Direct can avoid having to sell samsung 51″ series 4 3D plasma tvs for the advertised price of €6.49 plus VAT is a pretty straightforward piece of contract law; and the moral is twofold:

• terms and conditions will apply (so vendors should ensure that the terms and conditions of their websites cover such eventualities; and consumers should be aware of such terms and conditions); and
• if the offer is too good to be true, it probably is.

Nevertheless, if I were one of the customers, I think I’d rather have the television than the apology.

Following on from my posts about the contract law issues in Shrek Forever After and The Muppets, another major movie brings us interesting contract law issues: The Hobbit – An Unexpected Journey (blog | facebook | imdb | official site | twitter | wikipedia).

Warning: plot spoilers Bilbo Baggins is a typical hobbit, enjoying his quiet life in the Shire, when he is manoeuvred by the wizard Gandalf the Grey into hosting dinner for a company of dwarves. They tell him the story of how they lost their kingdom of Erebor and its great treasure to the terrifying dragon Smaug, and how they are now on a quest to reclaim their kingdom and treasure under the leadership of the legendary warrior, Thorin Oakenshield. Moreover, since a company of thirteen (twelve dwarves, and Gandalf) invites bad luck, they tell him that Gandalf had proposed him as a fourteenth member, as a burglar. Bilbo and the dwarves are unconvinced, but Gandalf re-assures them that Bilbo will prove more than up to the task when the time comes (“Hobbits can pass unseen by most if they chose which gives us a distinct advantage” in sneaking past Smaug), so the dwarves present Bilbo with a contract to join the company (script | video clip, via blog and YouTube):

Thorin: Give him the contract.
Bofur: Alright.
[Background commotion]
Bilbo: [pleading for order] Please.
Bofur: We’re off.
Balin: It’s just the usual; summary of out of pocket expenses … time required … remuneration … funeral arrangements … so forth.
Bilbo: Funeral arrangements?
[Bilbo reads the contract, muttering to himself as he goes]
Bilbo: Oh … “up to but not exceeding one fourteenth of total profit if any”. Seems fair. … Ah … “Present company shall not be liable for injuries inflicted by or sustained as a consequence thereof, including but not limited to lacerations, evisceration … incineration”?
Bofur: Oh, aye. He’ll melt the flesh off your bones in the blink of an eye.
[Bilbo groans gently]
Balin: You alright, laddie?
Bilbo: Yeah, I’ll be. … Feel a bit faint.
Bofur: Think furnace, with wings.
Bilbo: Yeah, I-I-I need air.
Bofur: Flash of light, searing pain, then poof, you’re nothing more than a pile of ash.
Bilbo: Hmm … [long pause] … No.
[Bilbo faints]

The montage image above shows Bilbo reading the contract (replicas are available via weta, noble, and Amazon (here (US) and here (UK))). Bilbo eventually signs the contract, and goes on the unexpected journey (and adventure!) of the sub-title. There are many suggestions as to what the contract actually says, from the short version in the book (eg here, here and here) through attempting the decipher the considerably longer text in the movie (eg here, here, here and here) to working with the text in the replicas (eg here; pdf; updates here and here).

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