By Suff, Marnah Suff, Nicholas Bourne
Necessities are written to offer scholars an knowing of the foundations of every topic. There are references to fresh situations, laws and educational articles.
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It has been pointed out that the doctrine of consideration has been used for two totally different purposes: • Evidentiary purposes – ie consideration is thought of as a formality – a ‘badge of enforceability’ in the same way as a deed. In these cases, the adequacy or any economic value is irrelevant. The consideration is a device for making the promise of the other party binding. • The doctrine of consideration has also been used to refuse enforcement of a promise to which objection may be made on ground of policy – without the court having to state the policy implications, eg Collins v Godefroy (above); Stilk v Myrick (above); Foakes v Beer (above); (but see Williams v Roffey and Re Selectmove).
It was held that (a) the first agreement may have been made with the intention of creating legal relations, but was for a reasonable time and would, in any case, have lapsed; and (b) the second agreement was a family arrangement without an intention to create legal relations. It was very vague and uncertain. But intention may be inferred where one party has acted to his detriment on the agreement (Parker v Clarke (1960)) or where a business arrangement is involved (Snelling v Snelling (1973)) or where there is mutuality (Simkins v Pays (1955)).
Instead of saying that the innocent party can, in the case of a condition, always terminate, or in the case of a warranty, never terminate, innominate terms allow the courts to permit termination where the circumstances justify it and the consequences are sufficiently serious. Note The distinction between the different types of contract terms remains of considerable importance. 4 Exemption (exclusion or limitation) clauses You should be familiar with the following areas: • • • • • • identification and purposes of exemption clauses the need for clauses to be incorporated into a contract the interpretation of exemption clauses the requirements of the Unfair Contract Terms Act 1977 the interpretation of ‘reasonableness’ the main provisions of the European Directive on Unfair Terms in Consumer Contracts Definition Exemption clauses purport to exclude, wholly or partly, liability for the happening of certain events.