CHAR_A01.PDF, page 1-18 @ Normalize ( CHAR_A01.QXD )

Question 5

The question uses the same material as Question 3, but takes a particular view,

rather than asking you to just ‘critically examine’. Remember that you do not

have to necessarily agree with the view, but you must sustain an argument.

• Use the material from Question 3 to show how undue influence
  operates, and how the banking cases developed. Until Barclays v
  O’Brien it would have been very difficult to disagree with the opinion
  voiced, as apart from the initial shock caused by Lloyds Bank v Bundy
  banks had plenty of warning of the need to advise in a general way.
  O’Brien imposed a stricter duty, placing the bank ‘on enquiry’ and
  introducing the link with misrepresentation. This was particularly harsh
  on banks finally at House of Lords level (the Court of Appeal only
  intended to set aside part of the loan), so if you read a report make sure
  that it is at the right level.


• Examine cases which follow O’Brien, for example Banco Exterior v
  Mann, Midland Bank v Massey, TSB v Camfield, Royal Bank of
  Scotland v Etridge, Bank of Scotland v Bennett, especially regarding
  the extent of the duty to ensure that independent advice is given. Watch
  for further developments, such as further appeal regarding Etridge and
  any other relevant cases.

Question 6

• Introduce the doctrines of duress and undue influence as vitiating
  factors, explain the common law origin of duress and define it –
  Cumming v Ince, Kaufman v Gerson.


• Explain the original position regarding property – Skeate v Beale and
  the relaxation of that position in The Siboen and the Sibotre.


• Explain the development of economic duress as a justified limitation to
  the parties’ freedom to contract – The Atlantic Baron, Pao On v Lau Yiu
  Long, The Universel Sentinel, Williams v Roffey, Atlas Express v Kafco,
  DSND Subsea v Petroleum Geo, Carillion Construction v Felix.


• Examine cases where economic duress was found and those where it
  was not – consider how ready the courts are to allow such claims,
  responding to the question.

Chapter 11: Misrepresentation

Question 1

• Identify misrepresentation as a vitiating factor, since Ben is induced
  into the contract by it, and the statements are made some time before
  the contract of sale is formed.

310 Contract law

CHAR_Z01.QXD 14/9/07 10:01 Page 310