F4 Chapter5~10講義

1、Chapter 5Terms of a contractSlide 2Terms 1 & 2A representation is something which induces the formation of a contract but which does not becomea term of the contractSlide 3Terms 1 & 2TermsRepresentationsTypesWarrantiesBettini v Gye InnominateCehave v BremerPoussard v Spiers ConditionsReprese

2、ntationsTypesSlide 4Express and implied terms 3TermsExpressImpliedCustomHutton v Warren CourtsTheMoorcockStatuteImpliedExpressSlide 5Terms As a general rule, the parties to a contract may include in the agreement whatever terms they choose. This is the principle of freedom of contract. Terms clearly

3、 included in the contract are express terms. The law may complement of replace terms by implying terms into a contract.Slide 6Terms Implied termSlide 7Terms Condition is a vital term going to the root of the contract, while a warrant is a term subsidiary to the main purpose of the contract. A condit

4、ion is vital to a contract so that its breach will destroy the basis of the agreement Warranty is a minor term in a contract. If broken, the injured party must continue performance but may claim damages for the loss suffered. Innominate termsSlide 8Exclusion clausesSlide 9Incorporation 53 LayersInco

5、rporationReasonableConstructionBy signature - LEstrange v Graucob By notice:- Olley v Marlborough Court Hotel- Chapelton v Barry UDC - Thornton v Shoe Lane Parking Oral assertions - Curtis v Chemical Cleaning CoCustom - Spurling v Bradshaw IncorporationSlide 10Construction 63 LayersIncorporationReas

6、onableConstructionConstructionContra Proferentum Hollier v RamblerPhoto Productions v Securicor TransportSlide 11Reasonable 73 LayersIncorporationReasonableConstructionUCTA 77Reasonableness per SOGA 79UTCCR 99ReasonableSt Albans Council v International ComputersSlide 12Reasonable 7Chapter 6Breach of

7、 ContractSlide 14Discharge Agreement Frustration Performance BreachSlide 15Lawful excuse not to perform contractual obligations Impossible Rejected Other party made it impossible Frustration By agreement permitted non-performanceSlide 16Repudiatory breach Refusal to perform Failure to perform an ent

8、ire obligation Incapacitation Breach of condition Breach of an innominate termSlide 17Termination for repudiatory breach Not bound by his future or continuing contractual obligation Need not accept nor pay for performance Refuse to pay Reclaim money Not dischargeSlide 18Remoteness of damage 2BreachT

9、ypes of breachMeasure of damagesRemotenessof damageRemotenessof damageFirst and Second RulesHadley v BaxendaleVictoria Laundry v Newham IndustriesSlide 19Remoteness of damage Loss must arise naturally In a manner which the parties may reasonably be supposed to have contemplated Loss outside the natu

10、ral course of events will only be compensated if exceptional circumstances are within the defendants knowledge when he made the contractSlide 20Measure of damages 3 & 4BreachTypes of breachMeasure of damagesRemotenessof damageDoctrine of RestitutionLiquidated damagesDunlop v New GarageMeasure of

11、 damagesSlide 21Measure of damagesSlide 22Liquidated damages A fixed or ascertainable sum agreed by the parties at the time of contracting, payable in the event of a breach.Slide 23Other common law remedies Action for the price Quantum meruitSlide 24Equitable remedies 5RemediesRescissionSpecificperf

12、ormanceInjunctionWarner Bros v NelsonRescissionInjunctionSpecific performanceChapter 7The Law of TortsSlide 26Duty of care 1 & 2DefinitionDuty of care Breach ofduty of careCausationDefencesDuty of care Neighbourhood principleDonoghue v StevensonStringfellow vMcCainSlide 27Types of tort Trespass

13、to land Nuisance Trespass to the person Defamation Deceit, injurious falsehood and passing off NegligenceSlide 28Breach of duty of care 3DefinitionDuty of care Breach ofduty of careCausationDefencesBreach ofduty of careRes Ipsa LoquitorSlide 29Factors to consider Probability of injury Seriousness of

14、 the risk Issues of practicality and cost Common practice Social benefit Professions and skillSlide 30Causation 3DefinitionDuty of care Breach ofduty of careCausationDefencesbut for testBarnett v ChelseaThe Wagon MoundNovus actus interveniensCausationSlide 31Causality and remoteness of damage Damage

15、 or loss The but for test Multiple causes Novus actus intervieniens Remoteness of damageSlide 32Defences 4DefinitionDuty of care Breach ofduty of careCausationDefencesDefencesSlide 33Defences to negligence Contributory negligence Volenti non fit injuriaChapter 8Professional negligenceSlide 35Profess

16、ional negligence 1 & 2ProfessionalnegligenceAccountantsand auditorsNegligentmisstatementsHedley Byrne v HellerCaparo v DickmanChapter 9Contract of employmentSlide 37Employment status 1Contract ofemploymentEmploymentstatusContractualdutiesContractformationEmploymentstatusDifferencesThree testsWal

17、ker v Crystal PalaceCassidy v Ministry of HealthRMC v Ministry of PensionsSlide 38Employee status Contract of service Contract for serviceDifferenceControl testIntegration testEconomic reality testSlide 39Test Control test Whether the employer has control over the way in which the employee performs

18、his duties.Slide 40Tests Integration test If the employee is so skilled that he cannot be controlled in the performance of his duties, whether he is integrated into the employers organisation.Slide 41Tests The multiple (economic reality) test Whether the employee was working on his own accountSlide

19、42Agency workers Length of service Over six years Control over the worker Whether the client of the agency has sufficient controlSlide 43Why does it matter Significance of the distinction between employed and self-employed Social security Taxation Employment protection Tortious acts Implied terms Va

20、t Bankruptcy Health and safetySlide 44Contract formation 2Contract ofemploymentEmploymentstatusContractualdutiesContractformationCommon lawContractformationCustomStatuteSlide 45Employment contract Implied terms Requirement for written paricularsSlide 46Common law duties Employees duties Fundamental

21、duty of faithful service implied duties reasonable competence obedience duty to account for all money and property reasonable care and skill personal serviceSlide 47Common law duties Employers duties Mutual trust and confidence Pay remuneration Indemnify the employee Health and safety Provide workSl

22、ide 48Statutory duties Employer Pay Time off work Maternity rights and the work-life balance Health and safety Working timeSlide 49Maternity rights and the work-life balance Ante-natal care Maternity leave Maternity pay Paternity leave Adoptive parents Flexible working Parental leaveSlide 50Contract

23、ual duties 3Contract ofemploymentEmploymentstatusContractualdutiesContractformationEmployersEmployeesContractualdutiesChapter 10Dismissal and redundancySlide 52Termination by notice Termination by notice is not a “breach of contract” Minimum period of notice (P221)Slide 53Types of dismissal Summary

24、dismissal (立即撤職） Constructive dismissal（法律構(gòu)定解雇） Wrongful dismissal (非法解雇） Unfair dismissal （不公正的解雇）Slide 54 Termination of employment by breach of contract Summary dismissal Constructive dismissal Employers inability to continue employment Repudiation of the contract by the employeeSlide 55Construct

25、ive dismissal An employee must show that Employer has committed a serious breach of contract He left because of the breach He has not waived the breachSlide 56Constructive dismissal Examples of breaches of contract Reduction in pay Complete change in the nature of the job Failure to follow the presc

26、ribed disciplinary procedure Failure to implement a proper procedureSlide 57Types of dismissal 1Dismissal andredundancyTypes of dismissalRemediesRedundancyWrongfulUnfairConstructiveTypes of dismissalSlide 58Wrongful dismissal Justification of dismissal Wilful disobedience Misconduct Dishonesty Incom

27、petence or neglect Gross negligence Immorality DrunkennessSlide 59Remedies 3Dismissal andredundancyTypes of dismissalRemediesRedundancyRemediesConstructiveUnfairWrongfulSlide 60Remedies for wrongful dismissal Claim for damages based on the loss of earnings The measure of damages is usually the sum t

28、hat would have been earned if proper notice had been given.Slide 61Unfair dismissal Excluded from the statutory unfair dismissal Persons outside Great Britain Taking unofficial strike Other categoriesSlide 62Unfair dismissal Criteria for the obtain of compensation Continuously employed for one year Dismissed Unfairly dismissedSlide 63Unfair dismissal Making a claim Step1 Apply to a tribunal within three months of dismissal Step2 He is a qualifying employee Step3 Employer Step4 Tribunal must decideSlide 64Unfair dismissal Reasonableness of employer Correct procedure Take all circumstance