Category: Contract

Contract Law Teaching, US-style

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| Contract

I can’t let this pass. From a post by Nate Oman on Concurring Opinions:

Apparently Ben Davis of the University of Toledo law school really gets into the facts of Hadley v. Baxendale, acting out the various parts for his students. (Who, of course, have taped his performance and posted it to Google Videos.) For the non-contracts geeks in the audience, Hadley is a famous case on the recoverability of consequential damages for breach of contract. The facts had to do with late delivery of a replacement mill shaft, and the mill owner’s claim for lost profits. Here is professor Davis, complete with mill shaft…

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The Treatment of Suretyships in the EU: Unhappy Families?

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| Conferences, Lectures, Papers and Workshops, Contract, Restitution

mel-kenny-at-dlw.JPG

All families are happy in the same fashion,
and each family is unhappy in its own way.

Count Leo Tolstoy (1828-1910)
in Anna Karenina (1875-1877)

Banks lend money; but they are averse to the risks of this lending, so they usually require security for the money they lend. One form of security is to get another, creditworthy, person to agree to pay the loan if the borrower fails to do so. This arrangement is called a suretyship, and the person who undertakes to pay if the borrower does not is called a surety.

Do sureties need protection from the borrowers or lenders? For example, if a husband and wife have interests in the family home, and the wife agrees to secure a loan to her husband against her interest in the family home, does a vulnerable wife need protection either from an overbearing husband or an unscrupulous bank here? …

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Refunding unincurred airport taxes and charges

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| Airline charges, Consumer, Contract, Restitution

Small palm tree, via Steve Hedley's restitution siteA payment made on a basis which fails can be recovered. So, if I pay for cigarettes, and the price includes an amount for a tax which is subsequently found unconstitutional, the basis for that excess amount has failed, and I can recover the tax amount that wasn’t due (see Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68 (6 December 2001)). It follows that if I book to travel with an airline, and pay their fee plus taxes and charges, but if I then don’t travel, so that the charges are not incurred and the taxes are not due, the basis for those taxes and charges has failed, and I ought to be able to recover them. If the contract between me and the airline contains clauses making them irrecoverable, (or, what amounts to the same thing, imposing disproportionately high administration fees) such clauses are almost certainly unenforceable (on foot of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (S.I. No. 27 of 1995), the English equivalent of which have recently been applied by the Office of Fair Trading (OFT) against an airline’s terms and conditions).

These musings are prompted by the following story in the Price Watch column in today’s Irish Times (sub req’d):

No guaranteed refund if you don’t take your Ryanair flight

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Consumers’ Days

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| Contract, Irish Law, Irish Society

National Consumer Agency logo, via the NCA websiteIn the week that the EU Commission adopts a Consumer Policy Strategy for 2007-2013 (largely welcomed (pdf) by the European Consumers’ Organisation (BEUC)), and the Consumer Protection Bill, 2007 (noted here) wends its way through Committee stage in the Dáil (just in time for enactment before the general election, one hopes), it seems that today (15 March 2007 – the Ides of March, methinks) is World Consumer Rights Day (noted here by the NZ Free Speech blog Section 14; for more background see days that matter and also here), and tomorrow (16 March 2007) is the 9th European Consumer Day.

In Ireland, the National Consumer Agency (NCA, which will incorporate the Office of the Director of Consumer Affairs (ODCA) later this year, is the state body established (according to its website) “to be a powerful advocate on behalf of consumers” and it will “also have a leading role in consumer information, research, education and awareness”; whilst the Consumers’ Association of Ireland (CAI) is (according to its website) “an independent, non-profit organisation working on behalf of Irish consumers”. …

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For your consideration

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| Contract

Open University logoOver on Lex Ferenda, Daithí has an alarming-sounding post: Postgraduate diploma in Aisle Seven. But this is neither another of the many online fake degrees, nor yet Tesco moving into the education business, selling qualifications next to the chopped tomatoes and pasta. Rather, it is the news that points earned through Tesco’s Clubcard loyalty scheme can now be applied to fees at the Open University. Leaving aside questions about the privacy implications of loyalty card schemes, the power of supermarkets in our society, or even the ubiquity of Tesco, there is a very interesting issue here from the perspective of the Law of Contract.

For there to be a contract, there must be a serious agreement about a price. …

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Pre-nuptial agreements: time for clarity?

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| Contract, Irish Law, Irish Society

The Minister for Justice has announced the membership of Pre-nuptial Study Group, whose terms of reference will be

to study and report on the operation of the law since the introduction of divorce in 1996 with respect to pre-nuptial agreements taking into account constitutional requirements.

Quite frankly, the law in this area is seriously in need of reform. …

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