LAW

Unit 2
(Study Pointers)
 Law Study Pointer: Module 1 - Law of Tort
1. The Law of Tort
○ Tort is a civil wrong, which causes injury or harm to a person
or property, and the person who commits a tort is liable for
damages. Remedies available in specific torts are damages,
injunctions, and specific performance.
Donoghue v Stevenson (1932) - established the duty of care
owed to others
2. Differences between the Law of Tort and:
○ (i) Law of Contract; Law of Contract deals with breach of
agreements, while the Law of Tort deals with civil wrongs.
Carlill v Carbolic Smoke Ball Co (1893) - established the
formation of a contract
○ (ii) Constitutional Law; Constitutional law deals with the
principles of government and the powers of the state, while the
Law of Tort deals with civil wrongs.
Marbury v. Madison (1803) - established judicial review
○ (iii) Criminal Law; Criminal law deals with offences against
the state, while the Law of Tort deals with civil wrongs.
R v Brown (1993) - established the boundaries of consent in
criminal assault
3. Defamation
○ (i) Defamation is a false statement that harms a person's
reputation. The elements of defamation are that the statement
must be false, communicated to a third party, and harm the
reputation of the plaintiff.
■ (i) Libel
Reynolds v Times Newspapers Ltd (2001) - established
the defense of responsible journalism
 ■ (ii)Slander
Berkoff v Burchill (1996) - established the defence of
fair comment
Libel and slander are two forms of defamation that involve false statements that
harm someone's reputation. However, there are some key differences between
the two.

Definition:

● Libel: A written or published false statement that harms an individual's

reputation or business.
● Slander: A spoken false statement that harms an individual's reputation
or business.

Example:

● A newspaper article that falsely accuses an individual of a crime is an

example of libel.
● Spreading a rumour that a coworker is stealing from the company is an
example of slander.

Remedies:

● The most common remedy for both libel and slander is monetary
damages.
● In some cases, the defendant may be required to retract the statement and
issue a public apology.

Exceptions:

4. In some cases, statements that would otherwise be considered defamatory

may be protected by the First Amendment's guarantee of free speech.
5. Statements made during court proceedings or in certain government
documents are generally protected from libel and slander claims.

○ (ii) Defences to defamation:

■ Justification - a true statement
■ Fair comment - an opinion based on facts
 ■ Absolute privilege - a statement made in court or
legislature
■ Qualified privilege - a statement made in good faith and
without malice
6. Nuisance
○ (i) Public Nuisance is an act that affects the public, while
private nuisance is an act that affects an individual or a small
group of people. Examples of public nuisance include
pollution and noise, while examples of private nuisance
include loud music and barking dogs.
Attorney General v PYA Quarries Ltd (1957) - established that
a public nuisance must affect a class of people
(ii) Private Nuisance
Sturges v Bridgman (1879) - established that a person must be
acting unreasonably to be liable for private nuisance
7. Trespass to the person
○ (i) Assault is an act that causes fear or apprehension of
physical harm, while battery is an act that causes physical
harm.
Assault - Collins v Wilcock (1984) - established the definition
of assault.
R v Ireland
Battery - Fagan v Metropolitan Police Commissioner (1969) -
established the definition of battery
Wilson v Pringle
○ (ii) False imprisonment is an act that unlawfully restricts a
person's freedom of movement, while malicious prosecution is
the wrongful initiation of legal proceedings.
Bird v Jones (1845) - established the definition of false
imprisonment
8. Liability for animals
○ A person who keeps animals is liable for any harm caused by
them. Exceptions to this rule are if the harm was caused by the
plaintiff's own fault, the animal was provoked, or the animal
was used for authorized purposes.
Rylands v Fletcher (1868) - established the liability for harm
caused by animals
9. Vicarious liability
○ An employer is liable for the torts committed by its employees
in the course of their employment. This applies even if the
employer did not authorize the employee's actions.
Lister v Hesley Hall Ltd (2001) - established the liability of
employers for the actions of their employees
10. Occupiers' liability
○ An occupier of land is liable for any harm caused to visitors on
the land. The duty of care owed to visitors depends on the
status of the visitor.
Wheat v E Lacon & Co Ltd (1966) - established the duty of
care owed to visitors on the land
11. Negligence
○ (i) Duty - a person owes a duty of care to others to avoid
causing harm.
Caparo Industries plc v Dickman (1990) - established the
three-part test for duty of care
○ (ii) Breach - the person breached the duty of care.
Bolton v Stone (1951) - established the standard of care for
breach of duty
○ (iii) Damage - the person's breach caused damage to the
plaintiff.
■ (a) Remoteness and foreseeability - the damage must be
a foreseeable consequence of the breach.
■ (b) Negligent misstatements - a person who gives advice
is liable for any harm caused by negligent
misstatements.
Law Study Pointer: Module 2 - Law of Contract

The Nature of the Law of Contract

● Contractual Obligations: An agreement between two or more
parties that creates a legal obligation to do or not do something.
Carlill v. Carbolic Smoke Ball Co. (1893): The case established that
a unilateral offer made through an advertisement can create a legally
binding contract if the conditions of the offer are met.
● Differences from other types of legal obligations: Contractual
obligations are distinct from tortious liability and criminal liability.
Tortious liability is a legal obligation to compensate someone for
harm caused by one's actions, while criminal liability involves legal
punishment for breaking the law.

The Legal Rules Governing Formation of Contracts

● Offer and Acceptance: A contract is formed when one party makes
an offer and the other party accepts it.
Pharmaceutical Society of Great Britain v. Boots Cash Chemists Ltd
(1953): The case established the concept of a "self-service" shop,
where a customer is making an offer to purchase goods, and the
shopkeeper accepts that offer by allowing the customer to take the
goods to the cashier.
● Intention to Create Legal Relations: For a contract to be
enforceable, both parties must intend to create legal relations. This
includes contracts between husband and wife.
Balfour v. Balfour (1919): A husband agreed to pay his wife some
money each month while he was working out of the country, but
later stopped doing so. The court held that the agreement was not
legally enforceable because it was a domestic arrangement between
husband and wife and there was no intention to create legal relations.
Merritt v. Merritt (1970): A husband and wife separated and agreed
that the wife would pay the mortgage on the house they owned and
the husband would transfer the house to her once the mortgage was
 paid off. The court held that this agreement was legally enforceable
because there was an intention to create legal relations.
● Consideration: Both parties must exchange something of value
(money, goods, services, etc.) for a contract to be valid.
Chappell & Co Ltd v Nestle Co Ltd (1960): The case established
that a small amount of chocolate could be considered as valid
consideration for a contract.
● Capacity: Certain groups, such as minors and insane persons, may
lack the capacity to enter into a contract.
Minors' Contracts Act 1987: This law provides that contracts with
minors (under 18 years old) are voidable at the minor's option,
unless the contract is for necessities or the minor has misrepresented
their age.
Mental Capacity Act 2005: This law provides that people who lack
capacity to make decisions must be protected, and that any decisions
made on their beh+
alf must be in their best interests.

The Doctrine of Privity of Contract

● Definition: The doctrine of privity of contract states that only parties
to a contract can enforce its terms.
● Common Law and Equitable Exceptions: There are several
common law and equitable exceptions to the doctrine of privity of
contract, which allow certain third parties to enforce a contract.
Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915): The
case established the doctrine of privity of contract, meaning that only
the parties involved in a contract can bring legal action related to
that contract.

The Legal Rules Governing Contractual Terms

● Expressed and Implied Terms: Contractual terms can be explicitly
stated or implied through the parties' conduct and circumstances.
 The Moorcock (1889): The case established that an implied term can
be read into a contract if it is necessary to give the contract business
efficacy.
● Conditions, Warranties, Intermediate or Innominate Terms:

Conditions

A condition is a term that is essential to the contract and its fulfilment. If a condition is
not met, the contract can be terminated. An example of a condition in a contract for
the sale of goods would be the delivery date of the goods. If the goods are not
delivered on time, the buyer may terminate the contract.

Warranties

A warranty is a term that is not essential to the contract, but is still an important term.
If a warranty is breached, the party who has suffered loss can claim damages. An
example of a warranty in a contract for the sale of goods would be a statement that the
goods are of merchantable quality.

Intermediate or Innominate Terms

Intermediate or innominate terms are terms that are neither conditions nor warranties.
The effect of a breach of an intermediate term depends on the seriousness of the
breach. If the breach is serious, the party who has suffered loss may terminate the
contract. If the breach is not serious, the party who has suffered loss can claim
damages. An example of an intermediate term in a contract for the sale of goods
would be the requirement for the buyer to pay for the goods within 30 days of
delivery.

Conditions

Case: Bunge Corporation v Tradax Export S.A. (1981)

The contract involved the sale of soybeans to be shipped from the United States to the
United Kingdom. The contract stipulated that the seller would provide a shipping date,
and that if the shipment was delayed beyond a certain date, the buyer would have the
right to cancel the contract. The seller provided a shipping date, but the shipment was
delayed due to weather conditions. The buyer claimed that the contract had been
terminated due to the delay, but the seller argued that the delay was beyond their
control and therefore not a breach of contract.

The court held that the shipping date was a condition of the contract, and that the
buyer had the right to terminate the contract due to the delay.

Warranties
Case: Bettini v Gye (1876)

The contract involved the employment of an opera singer for a series of performances.
The contract stipulated that the singer would attend rehearsals, but did not specify a
penalty for non-attendance. The singer missed several rehearsals, and the employer
terminated the contract.

The court held that the attendance at rehearsals was a warranty, rather than a
condition, and that the employer did not have the right to terminate the contract due to
the singer's non-attendance.

Intermediate or Innominate Terms

Case: Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (1962)

The contract involved the charter of a ship for a period of two years. The contract
stipulated that the ship would be seaworthy at the time of delivery, and that it would
remain seaworthy for the duration of the charter. The ship was not in good condition
at the time of delivery, and suffered various breakdowns during the charter period.

The court held that the seaworthiness of the ship was an intermediate term, and that
the seriousness of the breach depended on the extent to which the ship was
unseaworthy. The court found that the breaches were serious, and that the charterer
had the right to terminate the contract.

Statutes Remedies

There are statutory remedies available in case of a breach of a condition or warranty.

For example, the Sale of Goods Act provides that if there is a breach of a condition,
the buyer can terminate the contract and claim damages. If there is a breach of a
warranty, the buyer can claim damages, but cannot terminate the contract.

Examples

An example of a condition in a contract for the sale of real estate would be the
requirement for the buyer to obtain financing within a certain timeframe. If the buyer
is unable to obtain financing within the required timeframe, the contract can be
terminated.

An example of a warranty in a contract for the provision of services would be a

statement that the services will be performed in a professional manner. If the services
are not performed in a professional manner, the party who has suffered loss can claim
damages.

An example of an intermediate term in a contract for the sale of goods would be the
requirement for the seller to deliver the goods within a reasonable timeframe. If the
seller delivers the goods a few days late, the buyer can claim damages, but cannot
terminate the contract.
 Exceptions

There are exceptions to the general rule that a breach of a condition allows the
innocent party to terminate the contract. For example, if the innocent party has waived
the right to terminate the contract, or has affirmed the contract after the breach of the
condition, the innocent party cannot terminate the contract.

● Exclusion or Exemption Clauses: refer to clauses in a contract that

limit or exclude a party's liability for certain losses or damages. They
are typically used by parties seeking to reduce their risk exposure.
These clauses must be reasonable and brought to the attention of the
other party before or at the time the contract is made. If the clause is
found to be unfair or unreasonable, it may be deemed unenforceable.
Olley v Marlborough Court Ltd [1949]: This case held that a clause
in a hotel contract excluding liability for stolen property was not
effective because it was not brought to the attention of the guest.
Thornton v Shoe Lane Parking Ltd [1971]: This case held that a
clause on a parking ticket excluding liability for personal injury was
effective because it was brought to the attention of the driver.

Misrepresentation
● Definition: Misrepresentation occurs when one party makes a false
statement that induces the other party to enter into a contract.
● Types of Misrepresentation:
Innocent Misrepresentation

An innocent misrepresentation is a statement that is made without any intention to

deceive. The person making the statement genuinely believes it to be true, but it turns
out to be false. In such cases, the person who made the statement is not liable for any
damages caused by the misrepresentation. However, the innocent party may be
entitled to rescind the contract.

Negligent Misrepresentation
Negligent misrepresentation occurs when a party makes a statement that they believe
to be true, but they have not taken reasonable steps to verify its accuracy. In such
cases, the party making the statement may be liable for any damages caused by the
misrepresentation.

Henderson v Merrett Syndicates Ltd [1995]

Fraudulent Misrepresentation

Fraudulent misrepresentation occurs when a party makes a statement that they know
to be false, or they make a statement recklessly without caring whether it is true or
false. In such cases, the party making the statement may be liable for any damages
caused by the misrepresentation, and the innocent party may be entitled to rescind the
contract.

Derry v Peek (1889) -

Remedies for Misrepresentation

If a misrepresentation has occurred, there are several remedies available to the

innocent party:

● Rescission: The innocent party may be entitled to rescind the contract if the
misrepresentation was material to the contract.
● Damages: The innocent party may be entitled to damages if they have suffered
loss as a result of the misrepresentation.
● Specific Performance: In some cases, the innocent party may be entitled to
specific performance, which requires the party in breach to carry out their
obligations under the contract.

Cases and Statutes

There are several cases and statutes that deal with misrepresentation, including:

● The Misrepresentation Act 1967: This Act provides a statutory remedy for
innocent misrepresentation.
● Derry v Peek (1889): This case established the test for fraudulent
misrepresentation.
● Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964): This case established
the test for negligent misrepresentation.

Exceptions

There are several exceptions to the rule that misrepresentation will render a contract
voidable, including:

● Where the misrepresentation was not material to the contract.

● Where the innocent party had knowledge of the misrepresentation.
● Where the innocent party waived their right to rescind the contract.
● Where the innocent party affirmed the contract after becoming aware of the
misrepresentation.
Discharge
● Definition: Discharge refers to the termination of a contract.
● Types of Discharge: A contract can be discharged by agreement,
performance, breach, or frustration.
Cutter v. Powell (1795): The case established that a contract can
only be discharged by performance or agreement.
The different types of discharge are:
● Discharge by agreement: when both parties agree to end the
contract.
Stilk v Myrick (1809): This case held that sailors were not entitled to
extra pay for work they were already contracted to do, even if the
work became more difficult.
The Eurymedon [1975]: This case held that a contract can be
discharged by agreement to accept a lesser performance than was
originally required.
● Discharge by performance: when both parties have fulfilled their
obligations under the contract.
Carlill v Carbolic Smoke Ball Co [1893]: This case held that a
contract can be formed by an offer made to the world at large, such
as an advertisement.
Sumpter v Hedges [1898]: This case held that performance of a
contract can be accepted by conduct, such as payment for goods.
● Discharge by breach: when one party fails to fulfill their
obligations under the contract, which allows the other party to
terminate the contract.
Hadley v. Baxendale (1854): This case established the concept of
foreseeability of damages in contract law, which means that
damages can only be recovered for losses that were foreseeable at
the time the contract was made.
The Heron II [1969]: This case held that the innocent party to a
contract can recover damages for losses arising from a breach of
 contract even if those losses are caused by a combination of the
breach and other factors.
● Discharge by frustration: when an unforeseen event, such as a
natural disaster, makes it impossible to fulfill the contract. In such
cases, the contract may be terminated without liability to either
party.
Taylor v Caldwell (1863): This case held that a contract can be
discharged by frustration if the subject matter of the contract is
destroyed before performance.
The Super Servant Two [1990]: This case established the concept of
common purpose, which can be used to enforce a contract where the
subject matter of the contract is not destroyed but becomes radically
different from what was originally contemplated.

Effects of Illegality on a Contract

● Examples of Illegal Contracts: Certain contracts, such as those
involving the commission of a crime, are illegal and unenforceable.
(a) Uphill v. Wright; Pearce v. Brooks;
(b) Re Mahmoud v. Ispahani.
Law Study Pointer: Module 3 - Real Property
Real Property
Real property refers to land and any permanent structures or fixtures
attached to it. Real property is also commonly referred to as real estate.
Differences between Realty and Personality
Realty refers to real property, while personality refers to personal property,
which includes movable assets such as vehicles, furniture, and other
personal belongings.
Differences between Corporeal and Incorporeal Property
Corporeal property refers to tangible assets, such as buildings, land, and
vehicles, while incorporeal property refers to intangible assets, such as
patents, copyrights, and trademarks.
Differences between Movable and Immovable Property
Movable property refers to personal property that can be moved or
transported, such as vehicles and furniture. Immovable property refers to
real property, which cannot be moved or transported.
Fixtures and Chattels
Fixtures are items that are attached to real property and are considered to
be a permanent part of it. Chattels, on the other hand, are movable
personal property that are not attached to real property.
Elitestone v Morris (1997): This case involved a dispute over whether a
particular structure was a fixture (a permanent part of the property) or a
chattel (a moveable object). The court ultimately determined that the
structure was a chattel and therefore could be removed by the tenant when
they vacated the property.

Intention, Degree, Mode, and Purpose of Annexation

The intention, degree, mode, and purpose of annexation are factors that are
used to determine whether an item is a fixture or a chattel. For example, if
an item is attached to real property with the intention of making it a
permanent part of the property, it is likely to be considered a fixture.
● Intention refers to whether the item was intended to be permanently
affixed to the property.
● Degree refers to the degree of annexation, or how firmly the item is
attached to the property.
● Purpose refers to the purpose of annexation, or whether the item was
attached to enhance the use or enjoyment of the property.
Custom and Usage
Custom and usage can also be used to determine whether an item is a
fixture or a chattel. If it is customary to attach a particular item to real
property, it is likely to be considered a fixture.
Tenure and Estate
Tenure refers to the legal right to hold property. Estate refers to the nature
and extent of an owner's interest in property. The different types of estates
include:
● Fee simple or freehold estate - grants the owner full and permanent
ownership of the property with no limitations or conditions.
● Leasehold estate - grants the tenant the right to occupy the property
for a specified period of time under the terms of a lease agreement.
● Life estate - grants the owner the right to use and enjoy the property
for the duration of their lifetime
● Legal and equitable interests - refer to ownership rights that are
recognized by law or by equity, respectively.

Distinction between Legal and Equitable Interests

Legal interests are those recognized by law and are enforceable in a court
of law. Equitable interests are those recognized by equity and are
enforceable in a court of equity.

Concurrent Interests or Co-Ownership

Concurrent interests refer to the ownership of property by two or more
persons. The two types of concurrent interests are:
● Joint tenancy - grants each owner an equal share of the property and
includes the right of survivorship, which means that if one owner
dies, their share is automatically transferred to the surviving owners.
● Tenancy-in-common - grants each owner a share of the property, but
with no right of survivorship. Each owner is free to sell or transfer
their share of the property without the consent of the other owners.
Stack v Dowden (2007): This case involved a dispute between two
former partners who jointly owned a property. The court was asked
to determine the extent of each party's interest in the property. The
court ultimately ruled that the ownership was split equally between
the parties.
Licenses and Leases
Licenses and leases are legal agreements that grant the right to use
property for a specified period of time. The main differences between a
lease and a license are that a lease is a formal agreement that grants
exclusive possession of property, while a license is a less formal
arrangement that grants only a limited right to use the property.
Landlord and Tenant
Street v Mountford (1985): This case involved a dispute over whether a
particular agreement between a landlord and tenant constituted a lease or a
license. The court ultimately determined that the agreement was a lease,
which granted the tenant exclusive possession of the property.
The landlord (lessor) is the owner of the property who grants the right to
use or occupy the property to the tenant (lessee). The different types of
tenancies include:
● Periodic tenancy - grants the tenant the right to occupy the property
for recurring periods of time, such as month-to-month or year-to-
year.
● Fixed-term tenancy - grants the tenant the right to occupy the
property for a specified period of time, such as a year or a few
months.
 ● Tenancy-at-will - grants the tenant the right to occupy the property
for an indefinite period of time, but either the landlord or the tenant
can terminate the tenancy at any time.

The implied covenants of the landlord and tenant refer to the obligations
that each party has to fulfill under the terms of the lease or tenancy
agreement. The consequences of a breach of covenant by either party
could include eviction, fines, or legal action.
Easements
An easement is a legal right to use another person's property for a specific
purpose. The characteristics of an easement include:
● It is a non-possessory interest in land;
● It is a right that runs with the land, meaning that it is attached to the
property and not to the owner;
● It is a limited right of use, meaning that it does not grant ownership
or possession of the property.
Easements can be acquired through various methods, including:
● Statute - some easements are created by law, such as the right of a
utility company to run power lines over private property.
● Prescription - an easement can be acquired through prolonged use of
someone else's property without objection from the owner.
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
(1994): In this case, the court was asked to determine whether a right
of way had been granted to the defendant as part of a lease
agreement. The court ultimately ruled that the defendant had not
been granted a right of way.
Mortgages
A mortgage is a legal agreement between a borrower (mortgagor) and a
lender (mortgagee) that allows the borrower to use the lender's money to
purchase or refinance a property. The mortgage is secured by the property
itself, meaning that if the borrower fails to repay the loan, the lender can
take possession of the property and sell it to recover their money.
National Westminster Bank plc v Morgan (1985): This case involved a
dispute between a bank and a borrower over a mortgage. The borrower had
defaulted on the loan, and the bank sought to repossess the property. The
court ultimately ruled in favor of the bank, allowing them to repossess the
property.
The terms related to mortgages include:
● Mortgagor - the borrower who pledges the property as security for
the loan.
● Mortgagee - the lender who provides the money for the loan.
● Equitable right to redeem - the right of the mortgagor to repay the
loan and regain full ownership of the property.
● Equity of redemption - the right of the mortgagor to redeem the
property even after defaulting on the loan.
● Power of sale - the right of the mortgagee to sell the property to
recover their money if the mortgagor defaults on the loan.