Category: Contract

Estoppel and consideration – money for nothing?

| 2 Comments
| Contract

ACC bank logo, via RaboBank websiteDuring 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.

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Is a lost First worth £5m?

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| Academic Freedom, Academic judgment, Andrew Croskery, Contract, Grading and Marking, Litigation, Universities

University of Bradford Faculty of Engineering and Informatics buildingAfter 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 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.

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MCD pursues Prince for €2.2m through US court – The Irish Times – Mon, Feb 14, 2011

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| Contract, General

MCD PROMOTER Denis Desmond is pursuing Prince through the American courts to recover €2.2 million in damages which have not been paid.

Documents filed in the Central District of the Los Angeles Superior Court are seeking recognition of the High Court judgment given last year against Prince.

If judgment is granted, Mr Desmond will be able to target Prince’s assets, including his home, if he does not pay.

via irishtimes.com

I’ve discussed the background to this claim here.

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The Volokh Conspiracy » True Grit and the Law

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| Contract, General, Law and movies

True Grit and the Law

Ilya Somin • January 14, 2011 10:30 am

Various legal bloggers have commented on the surprising number of legal issues addressed in the recent Coen Brothers’ movie True Grit. There are contract issues, evidence issues, and federalism problems, among others. The protagonist, Mattie Ross, succeeds in large part because of her extensive legal knowledge. As a property professor, I was happy to see that she knows what a writ of replevin is, and uses the threat of getting one to good advantage.

True Grit also includes some interesting law and economics concepts about incentives.

via volokh.com
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Bad bank has four remedies for ‘clawback’ – Irish, Business – Independent.ie

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| Contract, General

By Dearbhail McDonald Legal Editor

Friday January 14 2011

THE National Asset Management Agency has four legal ways to overturn property transfers — including transfers by developers to spouses, children and other third parties — that it believes were aimed at defrauding current or future creditors. …

If a developer is bankrupt, transfers in the two years leading up to the bankruptcy can be set aside. Transfers in the previous five years can also be set aside in a bankruptcy unless a developer can prove that he was solvent at the time he transferred or gifted the asset.

If property was transferred before 2009, NAMA can use the 1634 Conveyancing Act Ireland which allows property conveyances and other transactions to be declared void if they are made for the purpose of delaying, hindering or defrauding creditors. If property was transferred after December 1, 2009, the 2009 Land and Conveyancing Reform Act allows for transfers to be set aside if there was an intention to defraud a creditor.

Finally, the NAMA Act itself contains a miscellaneous provision that gives the toxic loans agency powers to void transfers effected by debtors and those who provided loan guarantees, including personal guarantees.

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via independent.ie
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Marital property agreements (pre-nuptial and post-nuptial agreements): Law Commission of England and Wales

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| Contract, General

Marital property agreements (pre-nuptial and post-nuptial agreements)

Consultation paper

On 11 January 2011 we published a consultation paper.  This reviews the current law of marital property agreements, discusses options for reform and puts forward questions for consultees.  The consultation closes on 11 April 2011.

Other documents

We have prepared a summary of the consultation paper and a press release.

via lawcom.gov.uk

For the position in Ireland, compare the Report of the Study Group on Pre-nuptial Agreements (2007). Unless and until these reports are implemented, the leading case in the UK is Radmacher v Granatino[2010] UKSC 42 (20 October 2010); the most recent case in Ireland is S v S [2009] IEHC 579 (27 July 2009); and the leading case is still MacMahon v MacMahon [1913] IR 428, in which the Court of Appeal (Palles CB, Holmes and Cherry LJJ) held that pre-nuptial agreements were invalid, unless made between married but separated parties to achieve a re-union (though many of the authorities relied on in that case were less persuasive in Radmacher).

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Koncision » Indemnification: A Misunderstood Concept

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| Contract, General

Indemnification: A Misunderstood Concept

Posted on January 6, 2011 by Kenneth A. Adams

In this recent blog post I explained why I’m not a fan of imposing on a contract party an obligation that it doesn’t have control over. Rather than engage in that sort of indirect and counterintuitive risk allocation, I’d rather make my risk allocation explicit. One way to do that is by providing for indemnification.

via koncision.com
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Is a newsletter deal to sell a €395 book for €136 too good to be true?

| 4 Comments
| Contract, Mistaken offers

Round Hall logo, via their siteBy 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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