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

• Explain that the issue with illegality is often whether the contract
  formed was illegal at the outset by its very nature, or illegal in its
  performance.


• Explain that here we have two examples of illegality. The garden plants
  could be delivered in a legal manner; there is nothing illegal about
  buying them or supplying them, it is merely the way in which the
  contract is performed that makes it illegal – Anderson v Daniel.


• With the fireworks, if the company is operating without a licence when
  one is required, then the whole nature of the contract is illegal – Re
  Mahmoud and Ispahani.


• Consider the effect of this illegality on the contract for each of the
  incidents.

Question 2

• Explain that a contract may be illegal when formed or performed – Re
  Mahmoud and Ispahani; Anderson v Daniel, and explain the different
  causes of the illegality; statute – Re Mahmoud and Ispahani; common
  law – Everet v Williams.


• Explain that another division arises over the undesirable nature of
  contracts. They may be: illegal in the criminal sense, as in Everet v
  Williams; not in the interest of society, and therefore unenforceable, as
  in Parkinson v College of Ambulance.


• Explain that a further division arises over the undesirable nature of
  contracts. They may be: illegal in the criminal sense, as in Everet v
  Williams; not in the interest of society, and therefore unenforceable, as
  in Parkinson v College of Ambulance.


• Contracts in restraint of trade also come into this last category, so could
  be considered as time allows.


• Consider the extent to which the law should be controlling what is
  desirable in this way.

Question 3

• Introduce the idea of restraint of trade. A clause in a contract which is
  in restraint of trade is at first sight void, since it is against public policy
  to restrict a person’s freedom to trade or earn a living.


• Explain that the clause may be justified by: protection of a trade secret
  
  
  • Forster v Suggett; protection of a range of clientele – Mason v
    Provident Clothing, Fitch v Dewes; the need to enable business to be
    carried on – Nordenfelt v Maxim Nordenfelt; showing reasonableness in
    exclusive dealing arrangements – Schroeder Music v Macaulay, Esso v
    Harper’s Garage.
  
  
  
  


• Examine the effect of a restraint of trade clause: the clause itself is void,
  or unenforceable, if against public policy and not proved reasonable;

Answers guide 317

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