Essays on offer and acceptance

This is because the very secrecy of the contract is a condition of the contract in order to maintain plausible deniability. If the spy subsequently sues the government on the contract over issues like salary or benefits, then the spy has breached the contract by revealing its existence. There can be four different ways in which contracts can be set aside. A contract may be deemed ' void ', ' voidable ', ' unenforceable ' or 'ineffective'. Voidness implies that a contract never came into existence. Voidability implies that one or both parties may declare a contract ineffective at their wish.

Kill fees are paid by magazine publishers to authors when their articles are submitted on time but are subsequently not used for publication. When this occurs, the magazine cannot claim copyright for the "killed" assignment. Unenforceability implies that neither party may have recourse to a court for a remedy. Ineffectiveness implies that the contract terminates by order of a court where a public body has failed to satisfy public procurement law.

To rescind is to set aside or unmake a contract. In many countries, in order to obtain damages for breach of contract or to obtain specific performance or other equitable relief, the aggrieved injured party may file a civil non-criminal lawsuit in court. In England and Wales , a contract may be enforced by use of a claim , or in urgent cases by applying for an interim injunction to prevent a breach.

Likewise, in the United States, an aggrieved party may apply for injunctive relief to prevent a threatened breach of contract, where such breach would result in irreparable harm that could not be adequately remedied by money damages.


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If the contract contains a valid arbitration clause then, prior to filing a lawsuit, the aggrieved party must submit an arbitration claim in accordance with the procedures set forth in the clause. Many contracts provide that all disputes arising thereunder will be resolved by arbitration, rather than litigated in courts. Arbitration judgments may generally be enforced in the same manner as ordinary court judgments, and are recognized and enforceable internationally under the New York Convention , which has parties.

However, in New York Convention states, arbitral decisions are generally immune unless there is a showing that the arbitrator's decision was irrational or tainted by fraud. Some arbitration clauses are not enforceable, and in other cases arbitration may not be sufficient to resolve a legal dispute. For example, disputes regarding validity of registered IP rights may need to be resolved by a public body within the national registration system. In the United States, thirty-five states notably not including New York [] and the District of Columbia have adopted the Uniform Arbitration Act to facilitate the enforcement of arbitrated judgments.

Customer claims against securities brokers and dealers are almost always resolved pursuant to contractual arbitration clauses, because securities dealers are required under the terms of their membership in self-regulatory organizations such as the Financial Industry Regulatory Authority formerly the NASD or NYSE to arbitrate disputes with their customers. The firms then began including arbitration agreements in their customer agreements, requiring their customers to arbitrate disputes.

When a contract dispute arises between parties that are in different jurisdictions, law that is applicable to a contract is dependent on the conflict of laws analysis by the court where the breach of contract action is filed In the absence of a choice of law clause , the court will normally apply either the law of the forum or the law of the jurisdiction that has the strongest connection to the subject matter of the contract. A choice of law clause allows the parties to agree in advance that their contract will be interpreted under the laws of a specific jurisdiction.

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Within the United States, choice of law clauses are generally enforceable, although exceptions based upon public policy may at times apply. Many contracts contain a forum selection clause setting out where disputes in relation to the contract should be litigated. The clause may be general, requiring that any case arising from the contract be filed within a specific state or country, or it may require that a case be filed in a specific court. For example, a choice of forum clause may require that a case be filed in the U. State of California, or it may require more specifically that the case be filed in the Superior Court for Los Angeles County.

The formation of a contract: [Essay Example], words GradesFixer

A choice of law or venue is not necessarily binding upon a court. Based upon an analysis of the laws, rules of procedure and public policy of the state and court in which the case was filed, a court that is identified by the clause may find that it should not exercise jurisdiction, or a court in a different jurisdiction or venue may find that the litigation may proceed despite the clause. Some jurisdictions will not accept an action that has no connection to the court that was chosen, and others will not enforce a choice of venue clause when they consider themselves to be a more convenient forum for the litigation.

Some contracts are governed by multilateral instruments that require a non-chosen courts to dismiss cases, and require the recognition of judgements made by courts having jurisdiction based on a choice of court clause. For example, the Brussels regime instruments 31 European states and the Hague Choice of Court Agreements Convention European Union, Mexico, Montenegro, Singapore , as well as several instruments related to a specific area of law, may require courts to enforce and recognize choice of law clauses and foreign judgments.

In the United Kingdom, breach of contract is defined in the Unfair Contract Terms Act as: [i] non-performance, [ ii] poor performance, [iii] part-performance, or [iv] performance which is substantially different from what was reasonably expected. Innocent parties may repudiate cancel the contract only for a major breach breach of condition , [] [] but they may always recover compensatory damages, provided that the breach has caused foreseeable loss.

It was not possible to sue the Crown in the UK for breach of contract before However, it was appreciated that contractors might be reluctant to deal on such a basis and claims were entertained under a petition of right that needed to be endorsed by the Home Secretary and Attorney-General. Compensatory damages compensate the plaintiff for actual losses suffered as accurately as possible. They may be "expectation damages", "reliance damages" or " restitutionary damages". Expectation damages are awarded to put the party in as good of a position as the party would have been in had the contract been performed as promised.

Reliance losses cover expense suffered in reliance to the promise.

Examples where reliance damages have been awarded because profits are too speculative include the Australian case of McRae v Commonwealth Disposals Commission [97] which concerned a contract for the rights to salvage a ship. In Anglia Television Ltd v. Reed [] the English Court of Appeal awarded the plaintiff expenditures incurred prior to the contract in preparation of performance. After a breach has occurred, the innocent party has a duty to mitigate loss by taking any reasonable steps.

Failure to mitigate means that damages may be reduced or even denied altogether. Damages may be general or consequential. General damages are those damages which naturally flow from a breach of contract. Consequential damages are those damages which, although not naturally flowing from a breach, are naturally supposed by both parties at the time of contract formation.

An example would be when someone rents a car to get to a business meeting, but when that person arrives to pick up the car, it is not there. General damages would be the cost of renting a different car. Consequential damages would be the lost business if that person was unable to get to the meeting, if both parties knew the reason the party was renting the car. However, there is still a duty to mitigate the losses.

The fact that the car was not there does not give the party a right to not attempt to rent another car. To recover damages, a claimant must show that the breach of contract caused foreseeable loss. In other words, is it foreseeable to the objective bystander, or to the contracting parties, who may have special knowledge?

On the facts of this case, where a miller lost production because a carrier delayed taking broken mill parts for repair, the court held that no damages were payable since the loss was foreseeable neither by the "reasonable man" nor by the carrier, both of whom would have expected the miller to have a spare part in store. There may be circumstances in which it would be unjust to permit the defaulting party simply to buy out the injured party with damages.

For example, where an art collector purchases a rare painting and the vendor refuses to deliver, the collector's damages would be equal to the sum paid. The court may make an order of what is called "specific performance", requiring that the contract be performed.

In some circumstances a court will order a party to perform his or her promise an order of " specific performance " or issue an order, known as an "injunction", that a party refrain from doing something that would breach the contract. A specific performance is obtainable for the breach of a contract to sell land or real estate on such grounds that the property has a unique value.


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In the United States by way of the 13th Amendment to the United States Constitution , specific performance in personal service contracts is only legal " as punishment for a crime whereof the criminal shall be dully convicted. Both an order for specific performance and an injunction are discretionary remedies, originating for the most part in equity. Neither is available as of right and in most jurisdictions and most circumstances a court will not normally order specific performance. A contract for the sale of real property is a notable exception.

In most jurisdictions, the sale of real property is enforceable by specific performance. Even in this case the defenses to an action in equity such as laches , the bona fide purchaser rule, or unclean hands may act as a bar to specific performance. Related to orders for specific performance, an injunction may be requested when the contract prohibits a certain action.

Action for injunction would prohibit the person from performing the act specified in the contract. Whilst early rules of trade and barter have existed since ancient times, modern laws of contract in the West are traceable from the industrial revolution onwards , when increasing numbers worked in factories for a cash wage. In particular, the growing strength of the British economy and the adaptability and flexibility of the English common law led to a swift development of English [] contract law, while the more rigid civil law in Europe lagged behind.

Civil law countries especially Germany later developed their own brand of contract law. In the 20th century, the growth of export trade led to countries adopting international conventions, such as the Hague-Visby Rules and the UN Convention on Contracts for the International Sale of Goods , [] to promote uniform regulations.

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The formation of a contract

Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda , "agreements must be kept". Jurisdictions vary in their principles of freedom of contract. In common law jurisdictions such as England and the United States, a high degree of freedom is the norm. For example, in American law , it was determined in the case of Hurley v. Eddingfield that a physician was permitted to deny treatment to a patient despite the lack of other available medical assistance and the patient's subsequent death.

Other legal systems such as Islamic law, socialist legal systems, and customary law have their own variations. However, in both the European union and the United States, the need to prevent discrimination has eroded the full extent of freedom of contract. Legislation governing equality, equal pay, racial discrimination, disability discrimination and so on, has imposed limits of the full freedom of contract. Constitution contains a Contract Clause , but this has been interpreted as only restricting the retroactive impairment of contracts. Contracts are widely used in commercial law , and form the legal foundation for transactions across the world.

Common examples include contracts for the sale of services and goods both wholesale and retail , construction contracts , contracts of carriage , software licenses , employment contracts , insurance policies , sale or lease of land, and various other uses. Although the European Union is fundamentally an economic community with a range of trade rules, there is no overarching "EU Law of Contract". In , Harvey McGregor , a British barrister and academic, produced a "Contract Code" under the auspices of the English and Scottish Law Commissions , which was a proposal to both unify and codify the contract laws of England and Scotland.

This document was offered as a possible "Contract Code for Europe", but tensions between English and German jurists meant that this proposal has so far come to naught. Contract theory is the body of legal theory that addresses normative and conceptual questions in contract law. One of the most important questions asked in contract theory is why contracts are enforced. One prominent answer to this question focuses on the economic benefits of enforcing bargains. Another approach, associated with Charles Fried , maintains that the purpose of contract law is to enforce promises.

This theory is developed in Fried's book, Contract as Promise.