This is one of Stu’s Views wonderful law & lawyer cartoons.

Bonus 1: Have a look at the Christmas contract letters (the link is to the first of a funny series), between Bizzles LLP, representing Mr Timothy Taylor (referred to in the agreement as “Little Timmy”), of the one part, and Donner, Blitzen and Rudolf LLP, representing the Santa Claus Group, of the other part, concerning an agreement between for the delivery of Christmas presents.

Bonus 2: The Law & Humanities blog has collected a few other seasonal claims including Santa. Enjoy! And merry Christmas.

The MultiText Project in History is an innovative educational project, undertaken by the History Department, University College Cork, to provide resources for students of Modern Irish History at all levels. The following arresting image is available on their website:

MultiText’s source for the image is the Weekly Freeman for 25 February 1882, and they comment that “the unequal nature of the landlord/tenant relationship was a major cause of the land war” (a period of civil unrest in rural Ireland in the latter half of the nineteenth century, ultimately defused by a series of Land Acts between 1870 and 1903).

The image shows an unhappy tenant seated at a table, unwillingly signing a lease. Under the table can be seen a notice to increase rent and a notice to quit. At the top are two inset images, one of John Bull, the other of a destitute family heading for the workhouse. The tenant is surrounded by three grim-looking men. One has a bill for outstanding rent in his pocket, and he is brandishing an eviction decree. Another brandishes a cudgel of some sort. The third is stabbing his finger at the lease.

The caption along the bottom reads: Freedom of Contract – In Ireland.

The Zong (Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629, [1783] EngR 85 (22 May 1783) (pdf)) is an infamous case. It concerned a claim against an insurer for the value of slaves thrown overboard from The Zong to allow the crew to survive a chronic lack of drinking water. The claim succeeded at first instance, but failed on appeal before Lord Mansfield and Willis and Buller JJ. I have already blogged about Nate Oman’s review of Simon Schama’s Rough Crossings: Britain, Slaves, and the American Revolution (Harper Collins, 2007) which discussed the case, and about an episode of a television drama inspired by the case. Now Kate Sutherland brings news that poet (and recovering lawyer) M. NourbeSe Philip has published an extended poetry cycle about the case: Zong! As told to the author by Setaey Adamu Boateng (Wesleyan University Press | The Mercury Press | Google Books (2008)). The abstract describes the book as “a haunting lifeline between archive and memory, law and poetry” and continues:

In November, 1781, the captain of the slave ship Zong ordered that some 150 Africans be murdered by drowning so that the ship’s owners could collect insurance monies. Relying entirely on the words of the legal decision Gregson vs Gilbert—the only extant public document related to the massacre of these African slaves—Zong! tells the story that cannot be told yet must be told. Equal parts song, moan, shout, oath, ululation, curse, and chant, Zong! excavates the legal text. Memory, history, and law collide and metamorphose into the poetics of the fragment. Through the innovative use of fugal and counterpointed repetition, Zong! becomes an anti-narrative lament that stretches the boundaries of the poetic form, haunting the spaces of forgetting and mourning the forgotten.

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During the property boom, lots of banks made lots of loans to lots of property developers. Then, as the market began to tighten, many of the banks made alternative arrangements with some of their developer clients. Now that the property market has collapsed, banks are seeking to enforce the terms of loans as against developers, and the developers are relying on the alternative arrangements by way of defence. An Cumann Peile Boitheimeach Teorenta v Albion Properties Ltd & Ors [2008] IEHC 447 (07 November 2008) is one such case (see also the legal issues in Helsingor Ltd v Walsh [2010] IEHC 54 (05 March 2010)).

I learn via the very helpful new blog Stare Decisis Hibernia – a blog concerned with recent decisions of the Irish Superior Courts – that another such case has recently been decided by the High Court. ACC Bank plc v Kelly [2011] IEHC 7 (10 January 2011) turned largely on its facts, and Clarke J held that there was no binding agreement in place or clear understanding between the parties that the bank would not call in the loan. The defendants had argued that the alternative arrangement could be relied upon on the basis of an estoppel or enforced as a contract supported by consideration, but, in the course of holding that those claims failed on the facts, Clarke J made some important observations about when forbearance to sue constitutes good consideration (the underlined words are his emphasis):

7.9 So far as the case in promissory estoppel is concerned, I have already indicated that I am not satisfied that any concluded arrangement (even if it be short of a contract) had been come to between the parties such as could have grounded a case in promissory estoppel. The factual basis for promissory estoppel does not, therefore, arise.

7.10 Likewise, as I am satisfied that no agreement was reached, the question as to whether any agreement might not have amounted to a contract by virtue of the absence of consideration does not arise. However, I should note that I agree with the submissions made by counsel for ACC that an agreement, whereby the only thing being agreed to on one side is a forbearance to exercise its legal rights without obtaining anything else in return, cannot amount to a contract, although such an arrangement might give rise to a promissory estoppel if the other factual requirements for a promissory estoppel were found to exist. A number of cases (Cooke v Wright (1861) 1 B&S 559, Re Montgomery, a Bankrupt (1876) IR 10 Eq 479, and Fullerton v Provincial Bank of Ireland [1903] AC 309) were referred to by the Kellys in the course of argument as authority for the proposition that forbearance can amount to consideration. That is, of course, the case. However, forbearance is consideration given by the person forbearing, it is not consideration given to that person. In other words, where someone agrees to forebear in return for getting something else, then a binding contract exists, so that if the person does forebear they can insist on getting their side of the bargain and have whatever was promised (for example, extra security) delivered. However, none of those cases are authority for the proposition that someone who gives nothing can enforce a forbearance agreed by the other side.

7.11 For all of those reasons, I am satisfied at the level of principle that ACC was entitled to call in the full principal sum …

This is a clear and straightforward holding that the essence of the doctrine of consideration is an exchange of something for something. If I give something to you, I have effectively paid for your promise to give something to me and can therefore enforce it. But if I have given nothing to you, I have not given anything in exchange for a promise from you to give something to me; your promise is gratuitous, unsupported by consideration, and thus unenforceable. According to Dire Straits, in rock’n'roll, you might get money for nothing, but not according to the doctrine of consideration. The bank had not forborne anything, but if they had, then they would have given good consideration for any reciprocal promise made by the plaintiff; conversely, on the facts, the plaintiff had not given the bank anything, and thus had given no consideration any promise to forbear made by the bank. The classic treatment of forbearance as consideration is Samuel Stoljar “The Consideration of Forbearance” (1965-1967) 5 Melb U L Rev 3; see also Melvin Aron Eisenberg “The Principles of Consideration” 67 Cornell L Rev 640 (1981-82); and it continues to appear with regularity in the case-law (see, eg, Haines v Hill [2008] 2 All ER 901, [2007] EWCA Civ 1284 (05 December 2007), Robinson v Lane [2010] EWCA Civ 384 (03 March 2010); update: see also Mackin v Mc Cann [2011] IEHC 30 (21 January 2011)); but, in the end, it is not a difficult legal issue, even if cases like ACC v Kelly demonstrate that establishing it on the facts can be quite a complicated matter. I expect to see many more of these cases as disputes between banks and developers reach the courts.

Thanks, Stare Decisis Hibernia for bringing this interesting case to my attention. But one minor grumble: could you please put a deep link to the case itself into your note on it? It was a tiny bit annoying having to check BAILII and Courts.ie for it.

After Andrew Croskery comes Tony Chinedu Wogu. According to the Daily Telegraph and The Register, Tony Chinedu Wogu has failed in his bid to sue the University of Bradford for £5m compensation, alleging that a 2:2 and not a First in Computing Science was the result of discrimination and breach of contract. Judge Andrew Collender QC struck out his case, saying academics had a much better understanding of the quality of a student’s work than lawyers did. As Treacy J had done in Croskery, Collender QC pointed out that Mr Wogu he could seek judicial review of the university’s decision to award him a 2:2, but only after he had exhausted his internal appeals. Moreover, he reasserted the principle of judicial deference to matters of purely academic judgment (as opposed to breaches of procedure):

This court has the most limited of powers to interfere in such a decision. This court has not the power or expertise to simply examine or to determine the proper degree grade to which the claimant would have been entitled from the University of Bradford. That is a decision particularly within the scope of an academic institution. It would not be for this court to apply its judgment as to the degree level reached and substitute that for the university’s … and the defendants’ application to strike out is successful.

By way of update on this morning’s post, here is an extract from an email I received today from the Irish publishers Round Hall (the local imprint of Thomson Reuters) which raises very similar issues:

Oops! Correction of Offer Price for The Criminal Process

Correction

Our E-newsletter distributed on 30 November 2010 contained a mistake in relation to the 20% savings advertised for The Criminal Process by Thomas O’Malley.

The correct offer price, valid until the 15 December 2010, is in fact €316, and not €136 as advertised in our latest e-newsletter. The list price is €395. I’m sure that you will agree that this is still an excellent offer for this particular title!

Our sincere apologies for any confusion caused. (Our marketing department is doing suitable penance at the moment, and is also paying a little visit to the optician…)

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An item in the Readers’ Queries feature on the Consumer page in last week’s Irish Times caught my eye, not least because it raised very interesting issues about ordering goods online:

Online TV deal too good to be true

A reader was on the Arnotts website recently pricing televisions when he found a 42” model for €1,498. According to the site it had a discount of €1,400. “A TV for €98? Where could I go wrong? So I put in my Laser card details, expecting to be told the order could not be processed due to a pricing error but no, it went through. I got a confirmation e-mail a few minutes later with an order number,” he writes.

He “kept checking the tracking of the order on their web page and it said the order was processed and waiting for a delivery date. Later that evening I got an e-mail saying they had made an error in pricing and my order was cancelled.”

The incident has left him curious. “Since Arnotts never took any money from my account but did issue the order number, do they have to honour the order or are they completely within their rights to cancel it? I’ve mentioned this to a couple of my friends and no-one has any idea where they stand if they see something for one price and then are told the price is a mistake.”

The answer is short and simple. Arnotts was not under any obligation to process the order because money had not changed hands – in a virtual sense – so there was no contract in place. Stores, both online and off, do not have to honour a price displayed because in law, it is an invitation to treat rather than a price fixed in stone. If a price is wrong, consumers cannot expect to profit from the genuine mistakes of a retailer.

This is another example of a fairly common problem of mis-stated prices on websites (which I’ve discussed here, here and here), but I’m not sure I agree with this short and simple analysis of why Arnotts did not have to honor their discount of €1,400 and sell the tv for €98. Don’t get me wrong; I agree that Arnotts did not have to sell the tv for €98; I just don’t agree with the explanation in the extract above. Read the rest of this entry »

Yes, you can. If you book to travel with an airline, and pay their fee plus government taxes and airport charges, but if you then don’t travel, so that the taxes are not due and the charges are not incurred, you are entitled to recover those taxes and charges from the airline. If the contract between you and the airline contains a clause either making them irrecoverable or imposing disproportionately high administration fees to recover them, that clause is unenforceable (on foot of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (SI No 27 of 1995). I have already discussed this matter here, here, and here. Those posts discuss the ongoing campaign by the National Consumer Agency against airlines which refuse to refund such taxes and charges, or which impose disproportionately high administration fees when non-travelling passengers seek to recover them. In the Irish Times recently, Ciarán Hancock reported on the next stage of that campaign:

Airlines retain €28m in taxes and charges on unfilled flight seats

The National Consumer Agency (NCA) is seeking to clip the wings of Irish airlines who pocket taxes and airport charges paid by passengers who do not travel on flights they have booked. About €28 million a year in these taxes and charges is retained by the airlines in Ireland. The agency says it believes this practice to be “unfair” and is considering seeking a “determination” from the High Court. At present, Ryanair, Aer Lingus, Aer Arann and other carriers apply administration fees for the refund of Government taxes and airport charges. …

In September, Air Tax Back Ltd was formed in Dublin to administer claims with airlines for consumers in Ireland and abroad. It is currently handling 50 claims regarding Ryanair and Aer Lingus, according to co-founder Brian Whelan. …