Category: Contract

Stand and deliver, your money or your wife! Of Georgian highwaymen, modern sham marriages, illegal contracts, and abuse of the legal process

| 2 Comments
| Contract, Restitution

Two sole traders form a partnership, and then fall out, so that one sues the other for outstanding monies. It is a common enough story now, and was even in the early 1700s. There is normally little of general interest in such case; but, in 1725, the additional facts in Everet v Williams earned it a notoriety that persists to this day, because the plaintiff had sued the defendant for the proceeds of highway robbery, and there had been a classic falling out amongst thieves. Unsurprisingly, the Court declined to lend its aid to the claim, and dismissed the case with costs (see Everet v Williams (1725) reported (1787) 2 European Magazine 360 (pdf) and (1893) 9 Law Quarterly Review 197 (pdf); see also William David Evans (ed) Pothier on Obligations (Strahan, London, 1802, vol 2) 3 (pdf); Nathaniel Lindley A Treatise on the Law of Partnership (1st ed, Johnson & Co, London, 1860) 161 (pdf); Robert Megarry Miscellany-at-Law (Sweet & Maxwell, London, 1955) 76 (pdf); mentalfloss).

The Court’s approach in this case was replicated by Twomey J in English v O’Driscoll [2016] IEHC 584 (25 October 2016), whilst the case itself was cited by Humphreys J in the High Court in KP v The Minister for Justice and Equality [2017] IEHC 95 (20 February 2017).…

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Workplace surveillance, conditions of employment, and privacy

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| Contract, Privacy

Surveillance widgets, by Chris Slane

The Hawthorne effect is alive and well, and living in the interstices between private law and privacy law. In particular, I recently saw the following clause in a contract (the names have been changed to protect the innocent, the guilty, bystanders, and anyone else involved ):

WORKPLACE SURVEILLANCE
The employer’s workplaces are subject to overt workplace surveillance. You agree that you consent to this surveillance which is primarily to ensure the safety and security of the employer’s workplaces and the appropriate use of the employer’s resources. The overt surveillance is in the form of computer, internet usage and camera surveillance and is of an ongoing and continuous nature, in accordance with the employer’s relevant policies as amended from time to time.

This surveillance is carried out by all means available to the employer, which may include accessing your email account; accessing your files; accessing your computer or other electronic devices and recording internet usage by you including remote access internet usage and accessing those records.

The Citizens Information website has a lot of information on the legitimate scope of surveillance in the workplace, and the Data Protection Commissioner has issued Guidance Notes on the Monitoring of Staff, which emphasises that

monitoring, including employees’ email or internet usage, surveillance by camera, video cameras or location data must comply with the transparency requirements of data protection law.

…

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Valentine’s Mistakes

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| Consumer, Contract, Mistaken offers

Complicated blue valentine; heart via pixabay; complicated via facebookLast month, the Daily Mail website ran a story under the headline: Fury as Tesco offers large bottles of Budweiser for just 14p each on its website – only to cancel orders because the price was a mistake. The offer appeared as a Valentine’s Day special, for beer lovers everywhere. In another example, last Autumn, shoppers on Sears.com noticed that expensive toys (such as kids’ accessories and play sets that cost hundreds of dollars) were available for only $11.95. Nancy Kim on ContractsProf Blog explains many of the contract law consequences of this mistake.

This kind of mistake happens a lot. Sometimes, it’s human error; sometimes, it’s a misfiring algorithm – thus proving the old adage: to err is human, but to really foul things up requires a computer (though, some of these errors could be maliciously caused by hacking). And these errors seem particularly headline-grabbing when they involve really cheap tvs or flights. I’ve looked at the legal issues in these situations several times on this blog: see here, here, here, here, here, here and here. …

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The reform of French Contract Law

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| Comparative Law, Contract

codecivil1804coversmall_2I. INTRODUCTION
At lunchtime today, Alexis Downe, lecturer in Toulouse University 1 Capitole and visiting lecturer here in Trinity, gave a staff seminar on “The reform of French Contract Law: a brief overview”. The fundamentals of French private law in general, and of the Law of Contract in particular, are largely unchanged in the Code civil (first edition cover pictured left) since it was adopted in 1804. Nevertheless, there have been significant social changes, from the nineteenth century’s industrial revolution, to the twentieth century’s two world wars, to the twenty-first century’s information age. In many ways, the current process of reform is intended to allow French contract law to catch up with these and other developments. In this post, I provide some background to the current process of reform of French contract law, and then discuss Alexis’s paper.

II. BACKGROUND
Earlier this year, I wrote a post on this blog about French reform of Contract Law in comparative context, constructed around Bénédicte Fauvarque-Cosson‘s article on “The French Contract Law Reform in a European Context” (2014) ELTE Law Journal 59. To the story told in that post should be added the English translation (pdf) (by John Cartwright and Simon Whittaker) of the Catala Avant-projet (pdf) and academic discussions of those drafts in England and France.…

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French reform of Contract Law in comparative context

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| Comparative Law, Contract

I recently came across a special issue of the ELTE Law Journal to celebrate the tenth anniversary of Hungary’s accession to the EU. The journal is published by the Faculty of Law and Political Sciences in Hungary’s oldest university, Eötvös Loránd University (ELTE) in Budapest, and one article in the issue particularly caught my eye (with added links):

Bénédicte Fauvarque-Cosson “The French Contract Law Reform in a European Context” (2014) ELTE Law Journal 59

I Introductory Remarks on the Development of the Law in Europe
… The civil and commercial law of each Member State is built upon three pillars, the national legal systems, EU law and the ECHR. While our national experiences influence one another, the law of the EU is built upon these reciprocal influences. In turn, our national legal systems are influenced by EU law. …

As European scholars, our role is primarily to train students to think comparatively, in order to build a common legal culture all over Europe … As European lawyers in the 21st century, our mission goes beyond comparative teaching. … Legal scholarship has played its role as a guide to the European legislator. … The same phenomenon may be observed in those of our countries where the recodification of important parts of the law is envisaged.

…

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If an offer looks too good to be true, it probably is

| 2 Comments
| Consumer, Contract, Mistaken offers

VikingDirectThe image on the left is based on screen grabs taken by @jimboireland and @WayneDoyle___ (click through for a bigger size). It shows a ‘samsung 51″ series 4 3D plasma tv’ for sale on a retail website for “€6.49 plus VAT” (I’ve zoomed in on the price, just to make the point). This offer looked like it was too good to be true; and that’s exactly what it was – too good to be true. The €6.49 was a typo for €649. I have blogged about similar mistakes on the part of United Airlines, Aer Lingus, Dell, Best Buy, Arnotts, and Round Hall. This time, it was VikingDirect.ie – and, as the Irish Times and The Daily Edge are reporting, they have apologised to their customers, but are not going to honour the sale of the televisions at 1% of its retail price.

The customers will probably argue that they had contracts with the retailer, which the retailer must honour by selling the tvs at the knock-down prices. However, these contracts are subject to the website terms and conditions, section 5 of which details how the relevant contract is made: the customer’s order is an offer to purchase the goods on Viking’s conditions; and the offer is accepted, and the contract is made, when Viking send the customer an e-mail acknowledging the order.…

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The Contract in The Hobbit

| 3 Comments
| Cinema, television and theatre, Contract

Bilbo Baggins Contract, via AmazonFollowing on from my posts about the contract law issues in Shrek Forever After and The Muppets, another major movie brings us interesting contract law issues: The Hobbit – An Unexpected Journey (blog | facebook | imdb | official site | twitter | wikipedia).

Warning: plot spoilers Bilbo Baggins is a typical hobbit, enjoying his quiet life in the Shire, when he is manoeuvred by the wizard Gandalf the Grey into hosting dinner for a company of dwarves. They tell him the story of how they lost their kingdom of Erebor and its great treasure to the terrifying dragon Smaug, and how they are now on a quest to reclaim their kingdom and treasure under the leadership of the legendary warrior, Thorin Oakenshield. Moreover, since a company of thirteen (twelve dwarves, and Gandalf) invites bad luck, they tell him that Gandalf had proposed him as a fourteenth member, as a burglar. Bilbo and the dwarves are unconvinced, but Gandalf re-assures them that Bilbo will prove more than up to the task when the time comes (“Hobbits can pass unseen by most if they chose which gives us a distinct advantage” in sneaking past Smaug), so the dwarves present Bilbo with a contract to join the company (script | video clip, via blog and YouTube):

Thorin: Give him the contract.

…

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Indentured servitude and a power akin to undue influence – contract reasoning in Pringle (ESM) and Sebelius (Obamacare)

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| Contract, Irish Supreme Court, US Supreme Court

Bill of Sale for 100 Pounds for 'One Boy Named Limrick' (sic) from Mark Guthry to John Nealson in Charleston, SC March 1742Occasionally, Contract Law principles infiltrate into constitutional discourse. Two recent Supreme Court decisions illustrate the point, one from Ireland, the other from the US. Each relates to an issue of major political controversy and constitutional contention; and, in each, contractual reasoning is at the heart of a significant aspect of the judgments.

In the Irish case of Pringle v Government of Ireland [2012] IESC 47 (19 October 2012) (noted here), the Supreme Court upheld the High Court’s decision to refer to the Court of Justice of the European Union various questions of EU law relating to the Treaty establishing the European Stability Mechanism (the ESM Treaty). In considering whether the ESM Treaty abrogated Irish sovereignty (in Articles 5, 6 and 28 of the Constitution) sufficiently to require an amendment to Article 29 of the Constitution to permit its ratification, Clarke J picked up on Hederman J’s dictum in Crotty v An Taoiseach [1987] IR 713, [1987] IESC 4 (9 April 1987):

The State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution.

As a consequence, he analysed the sovereignty issue in contractual language:

8.3 … in international relations, as in very many other areas of public and private life, freedom to act will often, as a matter of practicality, involve freedom to make commitments which will, to a greater or lesser extent, limit ones freedom of action in the future.

…

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