untitled

Guided tour

A Study skills section at the start of the

book highlights the skills you will need

to master for exams, and illustrates

how to apply your practical knowledge

to problem questions.

Study skills

Get organised from the start

When you start your course, decide how much time you can afford to devote to your studyof each subject. Be realistic when doing this. There will be a lot to learn and that is why your

time must be managed as effectively as possible. Listen to your lecturers, who will explainwhat is expected of you. Having made your decision to devote a certain amount of time per

week to a particular subject, stick to what you have decided. If it will help, draw up a weeklychart and tick off each period of study when you complete it. You should attend all your

lectures and tutorials, and should always read the pages of this book which are recom-mended by your lecturer. Steady work throughout the year is the key to success.

Take advantage of what your lecturer tells youMany lecturers set and mark their students’ assessments. Even if the assessment is externally

set and marked, your lecturer is likely to have experience of past assessments and to knowwhat the examiners are looking for. Take advantage of this. If you are told that something

is not in your syllabus, don’t waste time on it. If you are told that something is particularlyimportant, make sure you know it well. If you are told to go away and read something up,

make sure that you do so, and if you are told to read certain pages of this book, make surethat you read them. You may be told to read this book after you have been taught, so as to

reinforce learning. Or you may be told to read it beforehand, so that you can apply whatyou have read in the classroom. Either way, it is essential that you do the reading.

After the lecture/tutorial

It is tempting to file your notes away until revision time, as soon as the class is over. Youprobably understood the ground that was covered and therefore assumed that it would

easily be remembered later. However, it is an excellent idea to go over what was coveredwithin 24 hours. This need not take too long. You should check that all the points were

understood, and if any were not understood you should clear them up with the help of yournotes and this book. Make more notes as you do this. Give these notes a separate heading,

something like ‘Follow up notes’. These additional notes should always indicate whichaspects of the class seemed important. They should also condense your notes, to give you

an overview of the lecture.In many cases your lecturer will be setting your exam or coursework. If a particular area

or topic is flagged up as important, it is more likely to be assessed than one which was not.Even if your assessment is externally set, your lecturer is likely to know which areas are the

most important, and thus most likely to be tested. Fifteen minutes should be plenty to goover a one-hour class. Each 15 minutes spent doing this is likely to be worth far more time

than an extra 15 minutes of later revision just before the exam.

ColourDiagramsand Flowchartsare

used extensively throughout for the first

time to aid your understanding of

complex legal processes.

European Union Law

Figure 1.2The legal effect of Treaty Acticle, Regulations and Decisions

Summariesof important cases

throughout the book highlight the key

cases and legal principles you need to

learn.

Consideration 57

The duty arose under a previous contract with the same personUntil recently it was not possible to create two contracts by giving the same person the same

consideration twice. The following case established this principle.

The facts of deserted. To carry on with half a crew would have been dangerous. It was held that theHartleyv Ponsonby (1857)were very similar, except that half of the crew had

sailors who agreed to continue the voyage were entitled to the extra payment which the

Shadwell vShadwell (1860)

The claimant was engaged to marry Ellen Nicholl. In those days, such an engagementamounted to a contract. If the claimant had breached the contract, by not marrying Ellen

Nicholl, then she could have sued him. The claimant’s uncle was pleased that the marriagewas going to take place, and agreed that after it had he would pay the claimant £150 a year

until the claimant’s income as a barrister amounted to £630 a year. This agreement was tolast for the whole of the uncle’s life. The uncle died 18 years after the marriage had taken

place. He had paid the full allowance for 12 of the 18 years and part of the allowance forone year. The claimant sued for the amounts of the allowance which had not been paid.

Heldmade a contract with Ellen Nicholl that he would marry her. However, he was entitled toThe claimant was entitled to the allowance which had not been paid. He had already

give exactly the same consideration (marrying Ellen Nicholl) in a separate contract with hisuncle.

Commentv A. M. Satterthwaite & Co (1974)A modern example of this principle can be seen in (Privy Council). A business which had agreed with aNew Zealand Shipping Co

shipowner that it would unload a ship (contract 1) could give the same promise to unloadthe ship to the owner of the goods on the ship (contract 2).

Stilk vMyrick (1809)

The claimant signed a contract, agreeing to be a sailor on a ship for wages of £5 a month.The ship had a crew of only eleven men. When two of the crew deserted, the captain prom-

ised the remaining nine that if they continued with the voyage, as they had originally agreedto do, they could have the wages of the two deserters shared amongst them. The claimant

and the other eight remaining crew agreed to this and completed the voyage. However, thecaptain refused to pay any more than the £5 a month originally agreed. The claimant sued

for his share of the extra money which had been promised.HeldThe men were not entitled to the money which they had been promised. At the start

of the voyage they had promised the captain that they would do their duty in return for £5a month. They could not later give the captain the same promise as consideration for a new

contract.

Commenthad originally agreed. However, the court thought that they had agreed to do whatever wasIt might be thought that the nine remaining crew were doing more than they

necessary to complete the voyage. Lord Ellenborough said: ‘They had sold all their servicestill the voyage be completed.’

The Essential Pointssection at the end

of each chapter enables you to identify

and focus on the key points that should

be taken from the chapter.

Essential points

rest of the contact will stand if this is possible without the unfair term (reg. 8).If a term is regarded as unfair, then it is not binding upon the consumer, although the

regarded as unfair. The list is far too long to be reproduced here, but includes:Schedule 2 to the Regulations sets out examples of the types of terms which may be

(i) making the consumer subject to terms which he had no real opportunity to find outabout before the contract was made;

(ii) making a consumer in breach of contract pay too much by way of compensation; and(iii) making the consumer bound by the agreement when the supplier is not.

The Regulations can consider the effect of any term in a contract except a ‘core’ term whichwas written in plain and intelligible language. A ‘core’ term sets out the contract price

or the main subject matter of the contract. The Regulations are not therefore confined todealing with exclusion clauses. Potentially, they could have a very wide effect. In Office of

Fair Tradingallowed for bank charges to be made when customers overdrew their accounts without vAbbey National and others (2009)the Supreme Court held that terms which

permission were core terms, as they set out the price of having a bank account. They couldnot therefore be assessed for fairness under the Regulations. The price of having an account

with the bank was not the same for all customers. Banking services to customers were apackage. Customers who overdrew paid a higher price than those who did not.

allow the Director General of Fair Trading to apply for an injunction to prevent an unfairIn addition to making unfair terms not binding upon consumers, the Regulations also

term from being used in contracts made with consumers.

Essential points

nThe terms of a contract define the obligations which the parties to the contract haveundertaken.

nnA breach of contract occurs whenever a term of the contract is breached.Express terms are agreed in words by the parties to the contract.

nnTerms may be implied into a contract either by the court or by a statute.The Sale of Goods Act 1979 implies five major terms into contracts of sale of goods.

The implied terms are:– that the seller has the right to sell the goods;

• that the goods correspond to any description by which they were sold;– that goods sold in the course of a business are of satisfactory quality;


• that goods sold in the course of a business are fit for the buyer’s purpose;– that, where goods are sold by sample, the bulk of the goods corresponds with the
  nA consumer who buys goods which do not conform to the contract is given a hierarchy ofsample in quality.
  nrights, these rights being additional to any other rights which the consumer might have.Exclusion clauses are clauses which try to exclude or limit one party’s liability for
  nbreach of contract or for liability arising in tort.The Unfair Contract Terms Act 1977 provides that no contract term can exclude
  liability for death or personal injury arising from negligence.

A01_MACI4097_03_SE_FM1.QXD 2/15/11 9:44 AM Page xvi