Examiners’ reports 2017

Examiners’ reports 2017

LA1040 Contract law – Zone A

Introduction
The Contract law paper followed the same format as last year with a requirement to
answer four questions out of eight, a mix of problem and essay questions and a free
choice as to which to answer.
Timing remains a problem for a small but significant number of students – too many
answer only three questions or write pages for their first question and only two
paragraphs for their fourth question. This inevitably has a huge impact on the overall
mark. It is always disappointing to mark three good answers at 2:1 standard but only
be able to give minimal marks for the fourth, resulting in a very low 2:2 or worse.
Students must be disciplined enough to move on to the next question every 45
minutes – the first marks in a question are far easier to attain than the last.
Another common fault, as in previous years, is to write a pre-prepared answer to the
essay questions – the correct area of law is usually identified but the specific question
posed is not properly addressed. Students are usually being asked to take a view on
a statement and too often they simply provide a factual summary of the law in that
area as if the question had been: ‘Write all you know about frustration/privity/illegality’,
etc. Good marks can only be achieved by properly applying the law to the question
asked.
Finally, by way of general comment, many answers provide a reasonable analysis of
a problem question but fail to support their assertions with the appropriate case law.

Comments on specific questions

Question 1
Adele and Bella are sisters. On 1st February Adele meets her sister for a drink
and tells her she is looking for a new sports car. Bella replies that she wants
to sell her red Ferrari as there is now a better model available and that she is
happy to sell it to her sister ‘on a business basis’. Bella says she wants
‘about £100,000’ for it. That evening Adele sends an email to Bella saying, ‘I
accept your offer to sell the car for £100,000 and will transfer the money in a
few days.’ On 3rd February Bella sends Adele an email that says: ‘Don't be
stupid I wouldn’t sell the car for that, I want £125,000 for it. To avoid any
further misunderstanding, do not email me again unless you do not want the
car at this price.’ Adele was so annoyed on reading the first sentence of
Bella’s email that she deleted it without reading further and did not reply.
Three weeks later Bella rang Adele and demanded £125,000, offering to
deliver the car.

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Advise Adele.
How, if at all, would your answer differ if, upon reading Bella’s email on 3rd
February, Adele decided to purchase the car for £125,000 and Bella now
refuses to deliver it?
General remarks
This question was answered by most students. It was reasonably well done but many
lacked case law to support their analysis. It required a logical analysis of each of the
communications between A and B to consider at each stage whether it amounted to
an offer or an acceptance, with reference to well-established case law, and ultimately
whether a contract was formed.
Law cases, reports and other references the examiners would expect you to use
As A and B are sisters, consider whether there is an intention to create legal
relations. Balfour, Jones v Padavatti, etc. Rebutted here as there is reference to a
‘business basis’ Merritt.
Then analyse the communications: Feb 1: B to A saying ‘I want about £100,000 for
it’ is an invitation to treat (ITT) Gibson v MCC. Feb 1 evening: A to B email probably
an offer to purchase although phrased as an acceptance. The law looks to the
substance not the form of communications Hyde v Wrench. Discuss status of email
communication. Feb 3: A to B counter offer Hyde v Wrench. Consider effect of
counter offer destroys previous offer. B’s ‘silence’ after Feb 3 is not evidence of
acceptance. Consider Felthouse v Bindley and Rust v Abbey Life. No contract
concluded.
For the alternative scenario, good students will recognise that a contract could
possibly be concluded as there are limits to the so-called rule that silence cannot
constitute acceptance if the offeree agrees.
Common errors
The most common error was not correctly identifying that B’s statement of ‘about
£100,000’ was an ITT rather than an offer as the price lacked certainty. It is
reasonable to discuss whether or not it is an offer, with use of authorities but if
incorrectly assessed as an offer then it makes analysis of the rest of the question
flawed. If logically followed through then misidentifying the initial statement is not
fatal. However, to make the question work many students tried to argue that a
contract had been formed at the outset and then ‘revoked’ – only an offer can be
revoked not a contract itself – which showed very muddled thinking and was a
serious error. Most missed the issue in the alternative scenario about waiving the
right to communication. Easy marks were missed by the many students who failed
to notice the ‘sisters’ point and therefore didn’t discuss intention to create legal
relations.
A good answer to this question would…
use a clear and logical structure to consider each interaction between A and B in turn,
speculate as to the possible status of each and state clearly and with relevant case
law authority to support their argument whether it was an offer or ITT or acceptance,
picking up the cases outlined above and as evidenced in the extract below.
Poor answers to this question…
made the key error identified above in not recognising the first interaction as an ITT,
which created an illogical and muddled overall response. Also, many students wrote
a page or two about general principles of offer and acceptance – talking about
unilateral contracts, auctions, adverts, etc. – often supported with examples and
case law but of absolutely no relevance to the problem question posed. Knowledge
of the law should be demonstrated by a thorough analysis of the question, not a

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generic answer describing offer and acceptance. No marks given for irrelevant
material however comprehensive.
Student extract
The courts would ascertain the intentions of contracting parties objectively by
assessing their words used. Following Gibson v MCC and Scammel v
Ouston, it might be submitted that the word ‘about’ might suggest that B’s
statement is just an ITT, given that it was vague in nature and there is still
room for negotiation. So, when A sent an email to B and said that she would
buy the car at £100,000 and transfer the money in a few days it would
amount to an offer, Storer v MCC. That makes A the offeror in this case.
The next step would be whether B accepted the offer made by A. She said
that she wanted £125,000 for the car and this could not be valid acceptance.
Acceptance is defined by Prof Treitel as an unconditional assent to all the
terms of the offer, as a mirror image of the offer (Hyde v Wrench) and the
acceptance must be communicated to the offeror (Powell v Lee) to be valid.
Looking into the facts, the price is different with the proposal by A and
therefore it would be a counter offer (Hyde v Wrench) and the counter offer
would terminate the original offer made by A.
Another problem arises in this question in that B’s counter offer requires
silence acceptance as it stated that ‘do not send me email unless you do not
want the car at this price.’ Following Felthouse v Bindley silence could not
amount to valid acceptance because the offeror could not impose the burden
on the offeree to speak up. On the other hand, in Re Selectmove (obiter)
Gibson LJ stated that if the offeree himself placed the burden on himself to
speak up, he is undertaking himself to speak up if he does not want to
conclude the contract.
In this case, it was the offeror, B, who requested for silence acceptance
following Felthouse. Silence would not amount to valid acceptance.
Comments on extract
This extract is from a much longer answer, which was awarded a first class mark
(And the student scored a first overall on the contract paper.) It demonstrates the
logical analysis required and appropriate use of relevant case law.
Question 2
Discuss TWO of the following statements:
a) Frustration can never be self-induced.
b) To revoke a unilateral offer the offeree must receive actual notice of
the revocation.
c) Damages for breach of contract are never based upon the gain made
by the party in breach.
d) Specific performance is never available when such a remedy would
require the ‘constant supervision’ of the court.
General remarks
Not a very popular question, although for those that attempted it properly there was
an opportunity to achieve good marks. The biggest issue was failing to follow the
instruction to answer two out of the four questions. Some answered all four (in which
case all four parts were marked and students were scored on the best two); this
wasted time and resulted in answers that were too superficial. A pass mark was
difficult to achieve. More seriously, some only answered one question – making it

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impossible to obtain a pass – a student would have to score 80% on the one
subsection they answered to gain a bare pass on question 2 overall. The two sections
carried equal weight so answers needed to be of similar length and content to achieve
a good overall mark.
Law cases, reports and other references the examiners would expect you to use
In each option chosen there should be a balance between description and criticism.
a) Consider Ocean Trawlers and The Super Servant 2 cases.
b) The statement plainly contradicts the good sense of Shuey v US.
c) Consider especially Blake. Good answers will be aware of subsequent
cases as well as perhaps antecedents such as Wrotham Park.
d) Discussion of the exceptional nature of SP as a remedy could precede an
account of this particular bar, which would centre on Co-op v Argyle.
Common errors
a) A popular choice but far too many students failed to focus on the specific
question and wrote generally about the doctrine of frustration. Could not
pass without thorough discussion of the meaning of self-induced frustration
with reference to the specific cases above.
b) Too much time wasted on a description of unilateral offers and the details of
the Carlill case. The focus needed to be on revocation and how that can be
achieved in a unilateral situation.
c) This was a difficult question and very few got close to answering it well,
resorting to general principles of contractual damages. Students seemed
unfamiliar with the principles of restitutionary remedies and the Blake case.
d) Again poorly answered with little more than a cursory discussion of the
nature of SP with little by way of example and case law.
A good answer to this question would…
answer two questions of a reasonably similar length and level of detail identifying
the specific principle and supporting case law. Take a view on the statement and
either agree or disagree with it supported by concise analysis.
Poor answers to this question…
failed to address the question and just provided a generic description of an area of
law.
Question 3
Devi is a self-employed dress designer. Her old computer breaks down just as
she is completing a design sketch to send to a client. She rushes to Office
Supplies to buy a new computer to use in her business. She decides to buy a
new desktop computer for £2,000. She asks Erich, the sales assistant, if it is a
good computer and whether it will run specified software which is used for
clothes design. Erich says that all computers sold are tested in store before
being put on the shelf for sale and that he knows it will run the specified
software. Devi signs an agreement to purchase the new computer which
contains the following terms:

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1. Office Supplies will not in any circumstances be liable for physical

injury caused by its products.
2. Office Supplies will not be liable for any damage to property caused
by its products.
3. Any other liability of Office Supplies resulting from the sale of
defective goods shall be limited to ten times the value of the goods
sold.
As Devi leaves the store she passes and reads a large sign that says:
‘We sell computers at the lowest possible price and so all goods sold in
this shop are sold without any warranty as to quality.’
When she gets back to her office she finds the computer will not run the
specified software. When she returns to the office the next morning she sees
that the computer is overheating. As she approaches, it explodes and burns
her arm and expensive cashmere coat. She also suffers some loss of
business while she locates a replacement computer.
Advise Devi.
General remarks
The question is about express and implied terms and exclusion or limitation
clauses. Students should note at the outset that this is a B2B contract and so UCTA
1977 and not the CRA 2015 will apply. Marks are given for good technique in
answering the question especially those who try to identify what liability would arise
without the relevant clauses, before considering the effect of the different clauses.
Many jumped straight in to how the exclusions work without considering what
claims are possible.
Law cases, reports and other references the examiners would expect you to use
The contract is for the sale of goods so consider SGA 1979 SS 14(2) (satisfactory
quality) in relation to the overheating and ss.13 (description) and 14(3) in relation to
the compatibility with the specified software (also possible liability for breach of an
express assurance). The identifiable losses suffered by D include the physical injury
(burnt arm), damage to property (coat), the amount paid for a useless computer and
some loss of business. Only then consider the effect of the various clauses.
The sign at the exit will have no effect as it is notified too late Interfoto, Olley v
Marlborough Court. The terms are signed so other clauses incorporated
(L’Estrange). Use UCTA, not CRA: damage to Devi’s arm (clause 1) consider
UCTA, s.2(1); damage to Devi’s coat (clause 2) consider UCTA, s.2(2); for
exclusion of other losses consider UCTA, s.3(2); for all losses where recovery is
based upon breach of a statutory implied term consider UCTA, s.6; when
discussing UCTA ss.2(2) and 6, consider the standard of reasonableness in s.11
and Sch.2.
Common errors
Failing to identify that Devi was buying a computer for her business and so was not
a consumer. The whole question was then addressed using the wrong legislation
(CRA rather than UCTA). Also, many wasted time talking about possible
misrepresentation by the shop assistant, Erich, when the key claim would be for
breach of contract not misrepresentation.
A good answer to this question would…
analyse the problem as outlined above in logical and clear steps supported by
relevant case law and statute. Good students will note the significance of clause 3
being a limitation as opposed to an exemption clause and also the developing
approach of allowing commercial contractors of equal bargaining power greater

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latitude in the application of these rules. The best answers may question the
application of this factor to the circumstances of a small business such as Devi’s.
Poor answers to this question…
talked only about the exclusion clauses and not the potential substantive claims for
breach and/or used the CRA rather than UCTA and/or wrote pages about
misrepresentation.
Question 4
Prince Felix wants to improve his palace grounds for his grandchildren. He
decides to build a large swimming pool and a small fairground.
Prince Felix entered into a contract with Greta to build the swimming pool for
£1 million payable on completion. The contract provides for completion of the
swimming pool by 1st March.
Prince Felix entered into a contract with Hans to build the fairground for £9
million payable in three equal instalments: on signing the contract; on the
commencement of work; and on completion. The contract provides for the
completion of the fairground by 1st October.
When work commences on the swimming pool, Greta encounters harder
ground than she anticipated and demands an extra £100,000 to cover her
increased costs. Prince Felix cannot find any other builder with the expertise
to complete the contract on time and so agrees without protest so that the
pool will be completed in time for his granddaughter Elsa’s birthday
celebrations. On completion of the swimming pool on 1st March, Prince Felix
refuses to pay Greta any more than £1 million.
Prince Felix pays Hans the first and second payments as required by the
contract. Prince Felix’s palace then suffers extensive damage in a fire, which
will be costly to repair. Consequently, he tells Hans that he will not be able to
make the final payment and so Hans offers to reduce it by one third to £2
million. Hans then regrets agreeing to reduce the final instalment and
demands the original amount offering Prince Felix an extra three months to
find the money.
Advise Prince Felix as to his possible rights and liabilities.
General remarks
A question requiring a discussion of consideration and related principles. It was
important to identify that this question raises issues of contract modification rather
than formation; time was often wasted discussing offer and acceptance, which is
irrelevant.
Law cases, reports and other references the examiners would expect you to use
Need to analyse each contract separately, as follows.
Contract with Greta
No frustration, Davies v Fareham although this may only be noted by better
answers. Is there consideration for the variation? Consider Stilk and especially
Williams v Roffey – practical benefit in completing in time for birthday party. If there
is consideration, reflect whether there is economic duress. State the requirements
from Pao On and examine especially the relevance of the absence of protest, Atlas
v Kafco and the lack of any other practicable choice, The Atlantic Baron.
Contract with Hans
Is there consideration for the variation? Consider especially the applicability of the
W v R practical benefit test in the light of the CA decision in MWB Business
Exchange Ltd v Rock Advertising Ltd (2016), which recognised an expanded

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application of the practical benefit test. The resultant status of Re Selectmove might
also be considered by the very best answers.
If no consideration is found, the application of promissory estoppel should be
examined. Its requirements should be discussed: unequivocal promise, Hughes,
reliance as defined in the Post Chaser and the party setting up the estoppel must
have acted equitably, D and C Builders. If an estoppel is established, consider if it
has suspensory or extinctive effect Tool Metal and the obiter statements in the
MWB Business case above.
Common errors
Knowledge shown of the W v R test and the principles of promissory estoppel but
not applied correctly to the two scenarios. Discussing offer and acceptance and
contract formation rather than modification. Focusing on irrelevant points (such as
the fire and whether it frustrated the contract – no impact on the two key contracts).
A good answer to this question would…
identify the existing contractual relationship in each case, analyse the promise
made and the extent to which any consideration can be found in support by
reference to the above cases and principles.
Poor answers to this question…
demonstrated the errors referred to above and were poorly structured with muddled
thinking.
Question 5
Colin is the Manager of the Barton Bulldogs, a second division football club.
He has three ‘star’ players: Lionel, Pepe and Mario.
In June, Colin calls Romeo, the owner of Neverton, a Premier League football
club. He tells him all three players are for sale. He describes Lionel as being
at ‘the top of his game’ and having ‘the finest ball skills of his generation’, he
says that Pepe is ‘in superb condition’ and that Mario is ‘utterly dependable’.
Romeo immediately offers to buy Lionel for £20 million. Romeo does not
know much about Mario but offers to buy him as Colin ‘only’ wants £5 million
for him. Colin immediately accepts both offers.
Romeo takes a month’s holiday on his yacht where he cuts himself off from
all news. Consequently, he does not hear that Pepe was involved in a car
accident and suffered leg injuries. Romeo’s first act on returning to the UK is
to ring Colin and offer £10 million for Pepe, which Colin quickly accepts.
Romeo soon learns about the car accident and is furious.
When Lionel starts training with Neverton, it becomes clear that he has a
‘balance problem’. This condition was disclosed in a medical questionnaire
which Lionel completed and which was sent to Romeo (but which he never
read) when Romeo had previously enquired about purchasing Lionel. Further,
it is discovered that Mario has a long-standing drink problem and so often
misses training at Neverton as he regularly did when he was at Barton
Bulldogs.
Romeo seeks your advice as to what remedies for misrepresentation he may
be entitled to in respect of the purchase of Lionel, Pepe and Mario. He also
asks what the consequences would be if he were to resolve Mario’s drink
problems over the forthcoming season before taking any action for
misrepresentation.
General remarks
A popular question and generally well answered. But too often it presented as a
standard essay about misrepresentation rather than applying that knowledge to the

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specific facts. The final paragraph of the question specifically requires students to
consider the remedies for misrepresentation so no credit is given for discussing
possible breaches of contract, etc.
Law cases, reports and other references the examiners would expect you to use
An analysis of the possible misrepresentations in respect of each of the three players
is required and it is best to divide the response into three sections.
Purchase of Lionel
Consider the nature of the representations: ‘top of his game’ = puffery but ‘finest ball
skills’ is probably a statement of fact. Further, it is spoken by someone with expert
knowledge of the player, Esso v Mardon, Bisett v Wilkinson meaning, although
ostensibly an opinion, it could be treated as an implied statement of fact. Roman’s
failure to read the medical questionnaire will not affect the availability of a remedy in
misrepresentation according to Redgrave v Hurd. Consider whether any bars to
rescission – probably not. Consider best route for Roman to recover damages –
Misrepresentation Act, s.2(1) would give the benefit of a reverse burden of proof
Howard Marine and the fraud measure Royscott v Rogerson.
Purchase of Pepe
Consider the nature of the representation. The statement as to his condition was
true when spoken but became untrue before the contract was concluded so
consider With v O’Flanaghan and Aprillia v Spice Girls. Consider availability of
rescission and damages. Again, the Misrepresentation Act, s.2(1) damages offer
advantages, as above.
Purchase of Mario
Consider the nature of the representation. There is an untrue statement of fact and
the statement would seem to have been made fraudulently. The required mental
state should be outlined and referred back to Derry v Peek. The Misrepresentation
Act, s.2(2) does not affect fraudulent misrepresentation. If Roman waited before
claiming, consider the possibility of losing the right to rescind through lapse of time,
Leaf v International Galleries, although this will not apply to a fraudulent
misrepresentation. Consider also possible affirmation, Peyman v Lanjani.
Common errors
Spending too long at the start discussing whether these were terms or not when the
question asked for a discussion of misrepresentation. Not distinguishing the three
scenarios and writing a general description of misrepresentation. Omitting any
discussion of remedies – both damages and rescission. Most missed the final
question about the effect of delaying action.
A good answer to this question would…
analyse each of the three examples independently going through in each case the
nature of the statement, whether it was fact or opinion, case law in support of the
particular issue (e.g. knowledge of Colin, failure to check facts, change of
circumstances, etc.) then consider possible remedies under the different heads of
misrepresentation, the measure of damages and any bars to rescission.
Poor answers to this question…
failed to do any of that and instead wrote a pre-prepared answer about
misrepresentation.
Student extract
Firstly regarding the statement made about Pepe, while it might be true that
he was ‘in superb condition’ at the time of the negotiation, the statement
became fraudulent after the circumstances changes – Pepe suffered from leg
injuries in a car accident. The law states that Colin is under a duty to disclose

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according to the principle of changing circumstances – With v O’Flanagan.

Besides Colin might argue that the statements made were merely opinion but
not facts. Following Esso Petroleum v Mardon, opinions made by an expert
could amount to facts.
Colin might argue that there is no reliance on the statement made about
Mario because Romeo did not know much about Mario but was only attracted
by the low price. Following Edgington v Fitzmaurice the law said that partial
reliance would suffice and the misrepresentation need not be the sole reason
to enter into the contract. In light of the above the conclusion is that the
misrepresentation is actionable and the effect is that the contract is voidable.
Romeo will seek to rescind the contract and claim damages for his losses. No
bars to rescission (i.e. affirmation, lapse of time, restoration) applied in this
situation and Romeo can likely rescind the contract. Romeo would also want
to claim damages and damage could be claimed under the Misrepresentation
Act (MA) s.2, tort of deceit or tort of negligent misstatement. Romeo is
advised to reply on MA s.2 because it is less demanding to prove and the
damages are more extensive as under the tort of deceit.
Regarding the contract to buy Mario, the statement might be fraudulent. Tort
of deceit measure is available for fraudulent misrepresentation and Romeo
would bear the burden of proof that Colin made the fraudulent statement
knowingly or at least recklessly – Derry v Peek. The burden of proof is heavy.
Measure of damages under tort of deceit covers all losses directly flowing
from the misrepresentation even if unforeseen – Doyle v Olby. Given the
heavy burden Romeo may not succeed. Therefore s.2(1) MA would be a
more beneficial because it is subject to the reverse burden of proof. Colin
would be liable for damages unless he can prove the statement made
(objective limb) and he indeed believed it when making the statement
(subjective limb).
Comments on extract
A section from a much longer answer that received a high 2:1 mark overall.
Demonstrates clear and methodical analysis with supporting and relevant case law
and a thorough description of remedies and measure of damages.
Question 6
‘It is difficult to state clearly, and harder to defend, the law relating to the
effect upon any agreement of a mistake of identity.’
Discuss.
General remarks
This was a straightforward question, which merely required a description of the
leading cases in this area of law, drawing comparisons, pointing out contradictions
and giving a view. It was not a very popular question but those that answered it
mostly did so well. Easy to get a decent mark but quite difficult to get a stand out
mark.
Law cases, reports and other references the examiners would expect you to use
An outline of the general law required describing the key cases on the two distinct
categories of mistaken identity – face-to-face (Philips v Brooks, Lewis v Averay and
Ingram v Little) and in writing (Cundy v Lindsay, King’s Norton Metal and Shogun
Finance Ltd v Hudson).

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Common errors
Just describing facts of cases without drawing out any principles. Not contrasting
critically the different approaches. Discussing other types of mistake that are
irrelevant.
A good answer to this question would…
engage in constructive criticism of the contrasting cases, explain the dilemma when
faced with disappointing one innocent victim of a rogue’s false identity, Discuss the
different treatment of written contracts when compared to face-to-face contracts and
the reasons for that – who should the risk lie with.
Poor answers to this question…
fell into the trap of a rambling descriptive piece with poor structure and lacking any
critical analysis.
Question 7
Sarki is a generous and wealthy art collector. Advise him in all the following
alternative circumstances:
a) After his favourite picture, ‘Van Gogh’s Missing Ear’, is stolen Sarki
offers a reward for its return. Inspector Maigret, a policeman
working on the theft, locates the picture and claims the reward.
b) After the theft of ‘Painting of a Sunflower’, Poirot, a private
investigator, is employed by the insurer of the picture to recover the
picture. Poirot locates the picture and claims the reward.
c) After reading in a newspaper about Rose a 19-year-old genius, who
has just completed her PhD, Sarki writes to her and promises her
£1,000 for working so hard over the past year.
d) As (c) except that Sarki had also contacted Rose when she was 18
urging her to work hard.
e) Sarki tells Jane, the butler, that she can use his car for a rent of £1
per month.
General remarks
This is a question about consideration in its various forms, with each subsection
raising a different rule to explain and apply to the factual scenario. All subsections
had to be answered to obtain a good mark and each had equal weight. Disciplined
timing and exam technique was therefore needed to ensure the best mark and, once
again, too many students let themselves down by spending too long on one or two
sections and giving very short (or no) response to other sections.
Law cases, reports and other references the examiners would expect you to use
a) Consider whether the promise to perform a duty already owed under the
general law is good consideration, Glasbrook and the football cases, Harris
and now Leeds United v Chief Constable of West Yorkshire.
b) Consider whether the promise to perform a pre-existing contractual duty
owed to a third party (the insurance company) is good consideration. Here
the Eurymedon rather than Pao On is a better analogy as Sarki has made a
unilateral offer.
c) Consider past consideration, Eastwood v Kenyon.
d) Past consideration again but this time the act, like that in Lampleigh v
Braithwaite was done at the prior request of the promisor. Although, it was

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not performed in the reasonable expectation of payment as required by Re

Casey’s Patents and Pao On.
e) Discuss the rule that the law does not enquire into the adequacy of
consideration, Thomas v Thomas being most obviously relevant.
Common errors
Parts (a), (c) and (e) were the better answered with most spotting the key issues as
above. Many failed to spot the third-party issue in (b) and there was confusion in (d)
as to whether Rose was a minor at 18. Answers were often not methodical in
analysing the nature of the promise and then identifying whether consideration in
some form was present.
A good answer to this question would…
describe in each case the nature of the promise, whether it was supported by
consideration and the relevant case law as above.
Poor answers to this question…
had little structure, missed the key points and discussed offer and acceptance rather
than consideration.
Question 8
‘The Contracts (Rights of Third Parties) Act 1999 made a fundamental change
to English Contract Law.’ (E McKendrick)
Discuss to what extent the above statement is true and whether any change
made has improved the law.
General remarks
The question calls for a description of the changes made by the Act especially the
third party right of action introduced by the Act. Better answers distinguished
themselves by the sophistication of their assessment as to whether the law has
been improved.
Law cases, reports and other references the examiners would expect you to use
An analysis of the doctrine of privity prior to the Act, focusing particularly on the
unjust outcomes where third parties could not sue under a contract even where it
had been created for their benefit – e.g. Beswick v Beswick, Tweddle v Atkinson,
Dunlop v Selfridge. An explanation of the purpose of the Act and the effect of
s.1(1)(a) and (b), which permit a third party to sue and the difficulties in
interpretation. Evaluate the difficulties of the common law and the Act co existing,
with reference to some post-Act cases, e.g. Nisshin, Prudential and Cavanagh.
Common errors
A general description of the law of privity with little discussion of the Act. Simply
copying out large sections of the Act without any explanation or commentary. No
critical evaluation of the effect of the Act.
A good answer to this question would…
demonstrate a good understanding in a clear and logical structure of the concerns
about the privity doctrine, the wrongs the Act was intended to address, how it
sought to do that and whether it has been effective in light of recent case law.
Poor answers to this question…
wrote a general pre-prepared essay about all aspects of privity with minimal
description of Act and its consequences.

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