Law of Agency – law notes for legal and accounting students from Holland Condon Solicitors Kilkenny

(this Contract Law too)

* Definition = an agent is a person (“agent”) who is “employed” by another (“principal”)  to bring that other person into contractual relations with a third party e.g. estate agent, travel agent. P (principal) enters a contract engaging A (agent) to negotiate contracts with T (third party); which creates a legal contract between P and T.

Law on agency governs relationship between agent and principal and the third party.

The authority given by principal to agent is the most important feature in an agency relationship. The extent of the authority will be a term in the contract between agent and principal. What the agent can and cannot do on behalf of the principal.

Remember, Agent has contract with principal.  Principal has contract with third party.

 

*Classification of an Agent

  • General Agent = can bind a principal in normal course of business e.g. bar manager buying drink, crisps;
  • Special Agent = for specific purpose or time e.g. auctioneer;
  • Universal Agent = bind principal in all/any contracts e.g. an agent appointed by Power of Attorney.

Solicitor as general agent e.g. doing clients legal work in all areas;

Solicitor as special agent e.g. specific area/job – debt collection .

 

*Creation of an Agency Relationship between principal + agent =

  • By Agreement i.e. both parties contract in normal contractual way.

The authority given by principal to agent is the most important feature in an agency relationship. The extent of the authority will be a term in the contract between agent and principal.  What the agent can and cannot do on behalf of the principal.

Express Authority v Implied Authority;   

Watteau v Fenwick; ALSO Hely Hutchinson

 

  • By Ractification – list 6 rules – ratification occurs after contract is entered into by the Agent with the third party;

 

  • By Estoppel – principal allows third party to believe agent has power/authority to act on its behalf. Agent has apparent (also called “ostensible”) authority. The principal is estopped (prevented) from denying that agent had not authority. A court will uphold a contract where there is apparent authority if  4 matters are present.

 

  • By Necessity – agency automatically created without consent of the parties where emergency arises provided 4 elements are there.

 

*Duties of an Agent

  • Perform the tasks required of him;
  • Act with due care and skill and if agent is an expert, then, apply appropriate standard that a reasonable person with that skill would do;
  • Don’t exceed authority;
  • Avoid conflicts of interests and make full disclosure of all material info;
  • Don’t make secret profit;
  • Don’t delegate;
  • Duty to account;
  • Duty of confidentiality;
  • Duty not to disclose/misuse info;

 

*Rights of an Agent

  • Be paid;
  • Be reimbursed expenses;
  • Indemnified by principal in respect of the contract and all losses/liabilities provided the agent acted within his authority;

 

 

*Liability of Agent to Third Parties

Agent is not personally liable for a contract, (the principal is), provided he acted within his authority.

NOTE: – may be liable to Third Party if Third Party was unaware of agency but agent would be entitled to be indemnified by principal.

If Agent acts > authority = personally liable.

 

*Termination of an Agency

 

By Action of Parties e.g. 

 

 

By Operation of Law e.g.

 

 

 

  • Performance;
  • Completion;
  • Mutual Agreement;
  • Revocation by principal;
  • Renunciation by agent;
  • On giving reasonable notice

 

 

  • Death, incapacity, bankruptcy;
  • Expiry of agency agreement;
  • Frustration;
  • Change in Law (illegality).

 

– a firm of lawyers based in Kilkenny, Ireland.

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Business Leases – Contracting out of business equity rights – a note on Irish legal matters

Landlords and Tenants alike must feel their prayers were answered with Section 47 of the Civil law (Miscellaneous Provisions) Act 2008 ( which we will call from now on the “2008 Act”).

Section 4 of the1994 Act was amended by Section 47 of the 2008 Act, which came into being on the 1st July, 2008. The 2008 Act allows all business tenants, regardless of user, who have a tenancy pursuant to Section 13(1) (a) of the 1980 Act, to contract out of their right to renew their tenancy, after five years occupation in the premises.

For this provision to apply the tenant must renounce his or her right to a new tenancy, in writing, and must receive independent legal advice in respect of the implications of the renunciation. There is no requirement that this renunciation should be executed prior to the commencement of the tenancy (as was required under Section 4 of the 1994 Act), which means a tenant can agree to renounce his or her rights during the currency of the lease.

 It is regarded as best practice to do the renunciation before the Tenant commences occupation, or as early in the Lease as possible.

Up to 2008, Landlords were very reluctant to grant any more than a Lease of under 5years as they feared the Tenant would, after the five year period, obtain an entitlement to a long lease of up to 35 years. Tenants who wanted a longer term were, thus, deprived of negotiating for terms in excess of five years.

Thus, Section 47 of the 2008 Act provides greater flexibility and freedom to both landlords and tenants when negotiating the term of the lease. It allows the landlord and tenant the chance to agree on a tenancy term which is in keeping with their requirements and commercial realities without the landlord being statutory obliged to renew the lease. The “contracting out” provisions as set out in the 2008 Act applies not only to a lease for office use but also includes retail, industrial and other business sections.

 – from Kilkenny based solicitors Holland Condon

 

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Employment Law – law notes for legal and accounting students from Holland Condon solicitors

  • Civil side (as opposed to criminal)
  • part of contract law

~ Governs relationship between employers and employees.  The parties have a contract of employment.  Law in this area comes from common law, and, mainly, from statute/ EU law.  Focus is on protecting and giving rights to employees.

~ Contract can be oral or written (statute asks for it in writing but oral still is valid contract).

~ Terms can be expressed or implied by custom; common law; statute and the Constitution.

 

~ 1st question to be asked – Have we an Employee?

 

Employee                   v                      Self-employed

 

    Independent contractor
     
  “Contract of Service” “Contract for Services”
     
  Employment Law applies Employment Law does NOT APPLY
     
  Definition = “an individual who has entered work under a contract of employment” Definition =  no statutory one. e.g. call out gardener v one @ Kilkenny Castle

 

 

~ Employers duties = *pay wages; * provide work; *safety; *holidays.

~ Employee duties = *available for work; *obey lawful orders; *use reasonable care.

 

~ Why is distinction between employee v independent contractor important?

  • Statutory protection is given only to employees;
  • Employer is legally responsible for actions of employee in the law of tort (=“vicarious liable”) and not for actions of self-employed;
  • Employer legally responsible for actions of employee in contract law (law of agency);
  • In liquidations, employees are preferential creditors and contractors are not;
  • Employees paid under PAYE basis and not obliged to account to tax man.

 

~      4 Tests to determine is she/he employee ====== 

1. Control Test = has the employer control over Employee ?

re/ Sunday Tribune

            Tierney v An Post

2. Integration Test= how integrated is employee into workplace ?

Re/ Sunday Tribune  compared to Kelly v Irish Press

 3. Enterprise Test = who bears the financial risk ?

Tierney v An Post

4. “Economic Reality” Test = hybrid of all tests & more

The courts have recognised that no one test can be decisive in determining employee status.  They apply an economic reality test, a hybrid test, which contains elements of all other tests.  In Market Investigations v Minister for Social Security (1969) (UK case) Justice Cooke outlined the factors that may be of some importance in determining the status of a worker: (1) the provision of own equipment or whether they supply their own transport; (2) the hiring of helpers; (3) the degree of financial risk; (4) the degree of responsibility for investment and management; (5) whether there is an opportunity of profiting from the sound management in the performance of his tasks; (6) whether they were paid by commission or salary; and (7) whether they identified themselves as self-employed for tax purposes.

Above UK case followed here in Henry Denny case.

There is no definitive test, however, and the determination in each case depends on the nature of the work itself and the relationship between the parties.  McAuliffe v Minister for Social Welfare (1994) Mr. McAuliffe, a wholesale distributor of newspapers, contracted with two persons to deliver newspapers on his behalf to retail shops and other outlets.  An issue arose as to whether these persons were employed pursuant to a contract of service or under contract for services.

The High Court in deciding that the contracts were for services was influenced by the following facts: –

  • The persons provided and maintained their own transport;
  • They were remunerated on the basis of a sum per run and were paid monthly against invoices submitted by them to Mr. McAuliffe;
  • They were free to carry goods for other persons except they could not carry newspapers for another supplier when engaged on delivery runs for Mr. McAuliffe;
  • They were responsible for any damage, destruction or loss of goods carried and for any loss occasioned by delay.

The Court went on to say that had the contracts been one of service then one would expect the employee to be paid a weekly wage and overtime and the vehicle to be provided by the employer and the employer to discharge all overheads relating to the vehicle, the employee to be prohibited from using the vehicle for carrying on a delivery business of his own.

There is no real single test that can be used as was reiterated in the very recent Irish case of Min. For Agric. V Barry.

 

****SEE  ———-  SUMMARY OF FACTORS TAKEN INTO ACCOUNT TO DETERMINE WHO IS EMPLOYEE

 

 PROTECTIVE LEGISLATION

Legislation has been enacted to protect the interests of both the employer and the employee, covering various aspects of employment.  Such legislation is contained in the following Acts: –

  •  The minimum Notice & Terms of Employment Acts, 1973 to 1994;
  • The Unfair Dismissals Acts, 1977-2007;
  • The Employment Equality Act, 1977;
  • The Anti-Discrimination (Pay) Act, 1974;
  • The Redundancy Payments Acts, 1967 to 2007;
  • The Protection of Young Persons (Employment) Act, 1977;
  • The Worker Protection (Regular Part-Time Employees) Act, 1991;
  • Payment of Wages Act, 1991;
  • The Safety Health & Welfare at Work Act, 1989;
  • Maternity Protection Act, 1994;
  • Protection of Employees (Temporary Agency Work) Act, 2012.

 

It is important to note that the above Acts only give protection to employees who work under a “contract of service”.  An independent contractor works under a “contract for services” and is not an employee.

 

AGENCY WORKERS = Consider the position of people who work as “agency workers” i.e. people employed by an employment agency who work for third parties. Do not confuse this with the separate area of AGENCY ( see anon). Discuss agency workers.

 

Termination of Employment Contract

(1) Effluxion of time;

(2) Performance of contract;

(3) By Agreement;

(4) Death or incapacity of parties;

(5) Breach of Terms of contract;

(6) Frustrating event e.g. permanent illness of employee (incapacity); Insolvency or bankruptcy of employer;

(8) By notice given to other party. Common law says notice must be reasonable. Statute has set out minimum notice periods for employers. Contract can have express terms dealing with notice but must be at least statutory minimum. Employer must give notice but notice alone can’t bring an employment contract to an end because of employee protection legislation. Thus, notice given to employer by employee is ok.

(9) By redundancy;

(10) By dismissal if employer has substantive grounds for the dismissal; uses fair procedures and gives notice of dismissal.In some cases, summary dismissal is justified.

 

*Dismissal without just cause = employee has claim either in common law – “wrongful dismissal” OR in statute law – “unfair dismissal”.

Breach by employer = that’s what we are dealing with.

 

UNFAIR DISMISSALS

  • NB aspect of employment law; Unfair Dismissals Act, 1977 – 2007   ( UDA )

 

  •  Criteria for making a claim =

Pre-conditions =

(1) Employee = contract of service;

(2) Greater than or equal to 1 years service to employer;

(3) Not excluded by Act e.g. Garda;Army;Public Servants.

(4) Dismissal generally must occur within 6 months of making a claim.Can be extended to 12 in rare cases eg claimant had depression.

 

Step One = Employee must have been dismissed

  • Dismissal defined as (a) termination of contract by employer or (b) termination by employee because of employer’s actions to the employee (constructive dismissal); or (c) end of a fixed term contract without renewal.

** Not always easy to say dismissal e.g. f*** off”.

Once employee shows dismissal then it is presumed to be unfair and the onus is on employer to show it was fair.

 

Step Two = What is the reason for the Dismissal ? UDA sets out 2 categories of reasons for dismissal –  one where reasons are automatically unfair and cannot be made fair; and the second, is where the reasons might be deemed fair.

  • Automatically unfair reasons = membership of trade union, race, colour, sexual orientation, political opinion, age, pregnancy of employee, suing employer for other reason.
  • Possibly fair reasons = potentially fair reasons for the dismissal i.e.

**Capability (employee becomes mentally or physically incapable of doing work e.g. Showerings case); OR Competence (employee intellectually not up to the mark; need for help/training and supervision with review of performance & warnings if the dismissal is to be fair) OR Qualifications of employee (employee does not have the necessary qualifications e.g. Doctor P v Mid West Health Board);

**Conduct of employee inside workplace and outside; can lead to reason for dismissal where it amounts to “gross misconduct” e.g. serious conviction, fraud, assault at work, fraud at work. In conduct cases, the process of investigation of the conduct and the method/process of dismissal must both be fair. Fair procedures and natural justice must be applied no matter how bad the conduct of the employee is eg. robbing employer but dismiss procedure unfair = unfair dismissal. also see Noone v Dunnes and Preston v Standard Piping Ltd; repeated bad conduct can result in dismissal being fair – Seale -v- Foreman Cameras

**Redundancy provided employer follows fair redundancy procedure. A dismissal dressed up as a Redundancy will be an unfair dismissal case.

**Statutory illegality e.g. Brennan v Blue Gas.

 

Procedure Step = over-riding principle in dismissal cases even if the reason for dismissal is deemed fair and reasonable, is that the procedure leading to dismissal must also be fair i.e.

  • Properly investigate conduct/problem
  • tell employee allegations and give copy evidence to them;
  • allow them to respond and be represented;
  • allow them time to prepare and put forward representation to an adjudicating body (by themselves or by a rep.);
  • natural justice applied in the hearing of the representations;
  • upon conclusion give written reasons for dismissal.

 

Third Step = Tribunal assesses whether the reason is fair by asking whether a reasonable employer would have terminated the contract for the reason provided by the employer. Remember this does not apply in “automatically unfair dismissals”.

 

Constructive Dismissal

~ Actions of employer drive employee to terminate or resign;

~ The conduct of employer must be serious enough e.g. Byrne v RHM Foods;

~ Onus on employee to show constructive dismissal

~ Examples of employer actions that could lead to constructive dismissal. List them please.

~ Relief and remedies for employee = same as unfair dismissal as contructive dismissal is unfair dismissal

 

Remedies for Unfair Dismissal

  • 6 (maybe 12 if grave reason) months to make a claim
  • Go to Rights Commissioner first or go to
  • Employment Appeals Tribunal;
  • Appeal within 42 days to Circuit Court
  1.  Re-instatement; same employer same contract OR
  2. Re-engagement; same employer different contract (eg.job)
  3. Compensation = 104 weeks max.

SO remedy could be either  1, or 2, or 3, or 1+3, or 2+3.

 

Unfair and Wrongful Dismissal

  • Employee unfairly dismissed has 2 legal remedy routes
  • Must choose only one i.e. Unfair Dismissal Act, claim to rights commr./E.A.T

OR

  • Common Law action in the Courts for “wrongful dismissal” and employee must prove dismissal (a) without notice and (b) loss suffered. Damages awarded are limited to what the employee would have earned had they worked the notice. Generally used where the employee has a mixed bag of employment contract eg director and chief executive role and where Statutory notice doesnt apply.

Why bring claim in the Courts?

  • Pre-conditions don’t apply e.g. 1 years service;
  • No limit on amount of damages;
  • Claim can be made for up to 6 years after dismissal;
  • Generally used where large salary or large financial losses involved.

 

You should track down a comparison Table between

Unfair  /  Constructive  /  Wrongful dismissals

 

 

REDUNDANCY

*Definition = job ceases to exist because of financial position of the firm; not enough work; firm closing down; re-organisation of work practices or work structure.

*Who has a Right to Redundancy ? if you are working greater than or equal to 2 years and over 16 years and not family and not live with employer;

*Right to Notice before your job terminates (before redundancy)= minimum of 2 weeks notice of redundancy or more if employee has long service (e.g. 15 years = 8 weeks notice under Minimum Notice Acts) or pay in lieu.

*Right to time off to seek new work

*Statutory Redundancy Payment =>  employee has a right to be paid this minimum sum (can pay more than minimum) =  [(2 weeks gross wage to max of €1,200) x no. of years in work] + 1 week gross wage;

*Selection Procedure = in selecting various or one employee for redundancy, the employer must be fair and objective in its selection; see Williams v Compair and list what needs to be done. Selection criteria that will be used are = you should list some.

*Duty to Consult = employees body/trade union where greater than 10% workforce involved in redundancy and to notify the Minister in advance of the redundancies.

 

If redundancy not genuine or unfair selection or one of automatic unfair reasons can be shown to be used in the redundancy selection process, then it’s an Unfair Dismissal case. Employers can’t use “redundancy” as a mask for unfair dismissal.

– from a firm of Solicitors based in Kilkenny

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The impact of the Irish Legal Profession on Ireland and its economy – a note on law related matters from Kilkenny Solicitor firm

The Irish Law Society, recently commissioned an independent survey by leading Irish economic consultancy firm Fitzpatrick Associates, analysing both the impact of the downturn on the solicitors’ profession and the sector’s contribution to the wider Irish economy.

The report details the profession’s immensely valuable contribution to the wider economy, showing the enormous and very positive impact we make. Among the key findings:

  • The legal services sector, of which solicitors make up around 70% of professional practitioners, had 18,000 persons engaged in 2014 and is expected to contribute €1.46bn in gross value added (GVA) to the Irish economy this year.
  • The sector is second only to telecommunications in terms of overall direct contribution to economic output among key service sectors examined.
  • More people are engaged in legal services than the engineering or telecommunications sectors.

As for the legal profession itself, the figures are stark:

  • Gross incomes for self-employed solicitors fell by 43% over the period 2007 to 2012. The greatest declines were outside Dublin; the Border, Midlands and Western region saw incomes fall by as much as 53%.
  • Between 2008 and 2012 employee numbers engaged in the legal sector fell by 21%.
  • Personnel costs, wages and salaries fell by 20% between 2008 and 2012.
  • There was a five-fold increase in the number of legal professionals receiving unemployment benefit or assistance between 2006 and 2009, while the 2014 numbers remain three times higher than they were in 2006.

– Holland Condon solicitors from Kilkenny Ireland

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Consumer Law – law notes for legal and accounting students from Holland Condon solicitors

  • An area of Contract Law

Designed to protect consumers from misleading advertisements, faulty products and services, and to provide injured parties in a “Consumer” contract with remedies.

~ most rights are “implied terms” into contracts as laid down by custom, EU Law, legislation and Courts;

~ small consumer v wealthy large corporations (imbalance);

 

Who is a Consumer?

Generally speaking a consumer is defined in Irish law as a natural person who buys goods or a service for personal use or consumption from someone whose business it is to sell goods or provide services.  By law, you are not a consumer if you: –

  • receive goods as a gift;
  • buy goods for commercial purposes (i.e. you will be using the goods for commercial and not private use);
  • buy goods for private use that are normally used for business purposes;
  • buy goods from an individual who is not in business (i.e. you buy a car from an individual whose normal business is not selling cars);

 

~ Consumer Law main areas

  • Sale of Goods Act, 1893, as amended by
  • Sale of Goods & the Supply of Services Act, 1980
  • Consumer Protection Act, 2007
  • EU Law is very active in this area of consumer contract regulations. Take note of Unfair Terms in Consumer Contracts Regulations, 1995.On 14th June 2014,the European Union (Consumer Information, Cancellation + Other Rights) Regulations 2013 came into operation and give effect to EU Directive 2011/83/EU.

 

~ Sale of Goods & Supply of Services Act, 1980

Defines a contract for the sale of goods as one where seller agrees to transfer ownership of goods to a buyer “for a money consideration” called a price.

  1. Sale contract not mortgage or loan;
  2. Transfer of goods not land or shares;
  3. Price – there must be one. So cashing in “loyalty tokens/points” for a product is not a sale;

The Act implies a list of “terms” to sales contracts in the course of business as opposed to “private sales” (2 consumers selling to each other) –versus-  business/trader selling to private consumer (buyer).   Most of these implied terms only apply to consumer contract, though some apply to private sales.

 

Following terms implied in Consumer Contracts: –

  • Seller has “title” to goods = Vendor owns them & no loan or HP on them;
  • Goods sold correspond to “description” used e.g. “cashmere” see Beale v Taylor; applies to private sales & consumer sales;
  • Goods of “merchantable quality” seen as what a reasonable person would accept as reasonably suitable taking account of price, description, durability, conditions. Even if they are not merchantable quality, buyer will not succeed if defect brought to his attention or defect was noticeable.

Merchantable quality also means item(s) is safe to use.  Grant case.

  • “Fit for purpose required” ~ if buyer expresses the purposes for why they are buying the goods, then duty to provide goods that fit Baldry case;
  • “Goods sold by sample”, must correspond with sample and buyer must have opportunity to compare the sample.

 

Supply of Services – extends rights to services and also goods supplied with the service are subject to the “implied terms”.  As regard the service (e.g. car service) in contracts where supplier is acting in course of his business, then: –

  • He must have necessary skill;
  • Supply service with care;
  • Use sound materials;
  • Supply the service within reasonable time & price, if they are not specified.

 

Remedies for Breach of Act

  • Consumer can cancel/repudiate contract +====> gets refund;
  • Repair;
  • Replacement

 

~ Consumer Protection Act, 2007 (CPA 2007)

= implements EU directive on unfair commercial practices.  It introduces a general duty on all business to trade fairly and applies to all contracts between traders and consumers.

  • Prohibited Practices = unfair commercial practices and lists over 30 practices considered unfair e.g. “closing down sale”; putting adverts in papers that look like editorials and not adverts; failing to run the competition that promoted the sale of the goods;
  • Misleading Practices are deemed offences i.e. price, Country of origin, method of manufacture, quality of product, quantity, specification.  Tesco prosecution;
  • Aggressive Practices = harassment, coercion or undue influence e.g. time share sales people;

Act creates criminal offences.  Also civil offences where consumer or NCA can sue for damages.

                                              

N.C.A. – National Consumer Agency

  • Established in 2007 and given statutory footing by CPA 2007;
  • Now merged with Competition Authority under Department of Enterprise, Trade & Innovation;
  • Functions
  • To promote & protect the interests & welfare of consumers;
  • To enforce the relevant statutory provisions including by summary prosecution;
  • To encourage compliance;
  • To investigate suspected offences; and
  • To refer relevant cases to the Director of Public Prosecutions.
    • List method of enforcement – Prosecution, Complaince Notice, Undertakings, Prohibition Orders, Fixed Notices.

 

Consumer Rights 2015

In late 2014, the Irish Government published a consultation paper on proposed legislation to consolidate the law on consumer rights. You have 1893 Act and 1980 Act, 2007 Act and Consumer Credit Act 1995 with host of Regulations. Department of Justice have been seeking views from interested parties and the public on what needs to be added/amended with a view to introducing a Consumer Rights Act.

 

– HOLLAND CONDON SOLICITORS KILKENNY

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Discharge of Contract – law notes for legal and accounting students from Holland Condon solicitors

Discharge of Contract = Contract is at an end; rights & obligations of parties terminated/cancelled/discharged 6 ways.

  1.  Discharge by Performance = if parties do exactly & precisely their terms = contract extinguished e.g. Cutter v Powell. If a party does not, then, offender may be sued for breach (see below).
  2. Discharge by Notice = Contract can be terminated by 6 weeks notice eg lease, agency .
  3. Discharge by Agreement = 4 examples
  • Waiver of Contract; where neither party has done anything & both agree to cancel ( known as “bilateral discharge”);
  • Release of non-performing side by other party who had done all or part of their obligations (“unilateral discharge” & here non-performer must give consideration for cancellation);
  • Novation = old contract not performed at all & parties substitute it with new one.
  • Conditional Contract = the contract has a condition allowing cancellation e.g. buy site subject to getting planning = if no planning got =sdeal off

4.   Discharge by Breach of Contract

*Repudiatory Breach = an actual breach of a condition not a warranty gives rise to right of injured party to decide to terminate the contract (repudiate) or continue; and/or sue for damages ; so it’s serious/fundamental breach e.g. Dundalk Shopping Centre v Roof Spray Ltd  ;  Robb v James non payment for fabric within the 24hour agreed time frame entitled owner to repudiate & sell to 3rd Party;

*Anticipatory breach – offending party says in advance that it won’t perform its obligations e.g. Hochster v De La Tour: Plaintiff due to work for Defendant as courier from 1st On 11th May Defendant says contract now being cancelled.  On 22nd May Plaintiff sues but Defendant says case not actionable until 1st June.  Held: Plaintiff was entitled to sue when “anticipatory breach” happened on 11th May.

  1. Discharge by Operation of Law e.g. mental illness/insanity ;minor ; insolvency; bankruptcy.
  1. Discharge by Frustration = something beyond the parties control & foresight that renders it impossible to perform the contract by one or both sides. The event or action occurs after the contract and must involve: -
  • unforeseeable event;
  • causes radical change in obligations;
  • completing contract made impossible;
  • not caused by either party

Remember – element of outside parties control & unforeseen; see Ocean Trawlers case & Mulligan v Browne

Examples: –

  • Destruction of subject matter (impossibility) e.g. Taylor v Caldwell
  • Contract now made illegal by Law e.g. Ross v Shaw
  • Sickness, death or incapacity e.g. Robinson v Davison
  • Non-occurrence of a condition e.g. Krell v Henry

— Consequences of Frustration

Contract automatically comes to an end! Old rules “the loss lies where it falls” so from the date of frustration any payments beforehand could not be recovered and money owed after the date no longer is owed   =>  unfair results ————-> so money paid beforehand (before frustration) can be recovered if nothing given for it e.g. Fibrosa case.

There is NO frustration: –

  • If event provided for in contract (e.g. sickness of singer);
  • foreseen;
  • event only amounts to an inconvenience;
  • there is an alternative means of performing contract

_____________________________________________

 

Remedies for Breach of Contract

At Common Law: – actual right of Plaintiff to Remedy

  • Damages
  • Specific sum in Contract
  • Quantum Meruit

At Equity: – Courts discretion to give remedy & only used where common law remedies not adequate.  Not automatic right to these remedies.

  • Specific performance
  • Injunctions
  • Rectification of Contract
  • Recission

 

Damages = put Plaintiff in position as if contract performed (compensation)

* Liquidated Damages – Specific sum detailed in contract

* Unliquidated Damages – Court decides

2 Stages involved in deciding on damages

  • Damages which are remote will not be recovered = foreseen losses will be compensated e.g. Rowan case;
  • How much = “reliance loss” or “expectation loss”

Rider =  Plaintiff must mitigate their loss (minimise your loss) e.g. BIM v Scallon

Quantum Meruit = “as much as has been deserved or merited”.  You could claim damages or ask Court to assess amount you deserve. This is an alternative to damages

Recission = one party seeks to have contract set aside by court and everyone put in the position they were in BEFORE the contract was performed.

  • Can claim recission & not damages
  • May not also award damages
  • Equitable

Specific Performance = wrongdoer to complete deal

  • Equitable remedy
  • Rules/maxims of equity apply
  • Court never grants specific performance in 5 situations?
  • May also award damages
  • Equitable

Injunction = order a party to do or not to do something so as to rectify their breach

  • Mandatory
  • Prohibitory e.g. Wagner
  • Starts as as Interlocutory Injunction – to keep status quo temporary, AND later it may become Permanent
  • Equitable remedy
  • Maxims of equity apply
  • No injunction if damages are an adequate remedy
  • Equitable

Rectification = where dispute arises and upon investigation the Court can clearly see an error in the contract, it may rectify it e.g. $ used in contract when it should have been €.

 

1st Question (in all claims for legal remedies/ legal problems addressed to you, whether its contract or what area of the law is involved ) = Is the claim statute barred generally 6 yearsfrom time of wrongdoing/breach  (if Deed( =a special  legal document) is involved then 12 years limit);

 

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Law of Contract – law notes for legal and accounting students from Holland Condon solicitors

This is the civil side of our law.

Main Sources = Common law, Statute & EU law

Definition =

  • Legally binding agreement
  • Freely entered by 2 people
  • Giving rights and obligation on both sides
    • Breach allows injured person to sue

Types:

  • Bilateral – 2 parties exchange promise & bound from beginning
  • Unilateral – initially 1 person bound from the beginning e.g.

Carlill -v- Carbolic Smoke Ball Co

The Case on Contract Law.  Offer & acceptance & elements of Contract discussed.If sniff smoke ball 3 times daily for 2 weeks & still caught flu.  £1000 lodged in Regent Street Bank “as token of our sincerity”.£100 reward each person.

 

Essentials for a Contract: All must be present to be legally enforceable = 

 

Essential elementsOf a Contract
  1. Agreement between the parties. (Not all agreements are contracts);
  2. Terms of Contract expressed with a degree of certainty;
  3. Parties must possess the intention to create legal relations;
  4. Exchange of consideration;
  5. Contract must be legal & capable of being carried out.

 

 

  1. Agreement element =

OFFER: -

  • Is a clear and unambiguous statement of the terms on which a party is prepared to be bound contractually;
  • In writing or verbal or implied by conduct;
  • Made to one person or to the world at large.

Invitation to Treat = invitation to make an offer.  You might think its an offer but its not! Examples:

1. Advertisements               Partridge case                                                                                               Carbolic Smoke Ball                                                                                    Grainger

  1. Display of Goods for Sale                                                                                                              Boots Pharmaceutical case – criminal case involving offence of offering for sale.
  1. Auction Sales
  2. Catalogues/brochures and quotations and tenders

Boyers case – quote for 3,000 yards canvass (1905); Plaintiff had asked for quote & Defendant gave below cost price.

ACCEPTANCE: –

  • Accepting the offer = agreement;
  • Can be in writing or verbal or implied by conduct
  1. Acceptance must be unqualified e.g. Neale v Merrett;
  2. Acceptance must be communicated (e.g. Russell case), except can be implied by conduct e.g. Carlill v Carbolic Smoke Balle. unilateral contracts

Offer, Acceptance & Postal Rule: –  If ordinary post is used: –

  • Offer made when letter received by offeree;
  • Offer is accepted (= agreement) when offeree posts the acceptance not when offeror gets it!
  • Offer revoked when offeree received letter, provided offeree has not already accepted it

*Largely its historical as communication is mainly electronic these days.

Termination of an Offer: -

  1. Rejection;
  2. Counter offer made by offeree e.g. Hyde v Wrench;
  3. Unreasonable lapse of time between offer and acceptance e.g. Victoria Hotel Co;
  4. Withdrawal (revocation) of the offer before it is accepted by the offeree e.g. Routledge case;
  5. By Law = death of one of the parties, bankruptcy, lunacy/incapacity of one party;
  6. Before performance in unilateral contracts e.g. Shuey case.

 

  1. Terms of the Contract must be expressed with degree of certainty.

 Parties must possess the intention to create legal relations

Domestic/Social Agreements ~ Courts presume parties do not intend to enter legal binding contract e.g.

1. Contracts between spouses = Balfour v Balfour

  1. Parent and child = Jones v Padavatton

Irish High Court have said presumption only applies to close family.

 

Commercial Agreements ~ strong presumption that parties intend to enter contract where business agreement e.g. Rose v Crompton

O’Rourke v Talbot: Irish company entered agreement not to make 4 men redundant; gave “guarantee” protection; made men redundant.  Held although company did not intend it to be legally binding, they did not communicate this so they were bound by it.

  • Express terms: “not legally binding” or “Subject to Contract” = no intention

 

“Possess” => Capacity i.e. capable of entering an agreement

  • Minors = you only have capacity if you are 18plus or married, but minors are bound for

(A) Necessities (Sale of Goods = actual requirements) e.g. Nash v Inman

(B) If contract is of benefit to the minor e.g. training contract

For Minors, following agreements/contracts always void =

Repayment of money lent; 2. Goods not necessaries;3. Money owing.

  • Person of unsound mind (all about lacking mental competence) then contract is invalid if  (1) Person was unable to understand contract AND (2) Other person knew or ought to know this.
  • Drunkard = same as above;
  • Convicts = couldn’t enter contracts = Forfeiture Act 1870 except this has been changed by Criminal Law Act, 1997;
  • Companies acting “ultra vires” their objects;
  • Other important aspects that affect capacity to enter contracts by not having the ability to give genuine consent =

~ Duress e.g. forcing someone        ~ Undue influence e.g.influencing old person

~ Parties mistake or misrepresentation      ~ Companies acting ultra vires

 

  1. Consideration = what each party gives

quid pro quo = ‘something for something’ e.g. buying bar chocolate: “A” gets chocolate and “B” gets money for it

= you do something for me and I’ll do something for you.

 

~ Executed Consideration = a promise for an act e.g.  I’ll give you €1000, if you give me your car ;

~ Executory Consideration = a promise for a promise – both sides promise to exchange consideration in the future e.g. I promise to give you €10 when I get the flowers and you promise to deliver the flowers to me tomorrow.

 

Rules of Consideration: –

  1. Consideration must be sufficient but need not be adequate Thomas v Thomas ;
  2. Consideration must be present and not past e.g. Re McArdle
  3. Consideration must be more than what party has to do Collins v Godfrey;

 

If No consideration given, then probably no contractUNLESS it’s either a document under seal in a deed OR by virtue of Principle of Promissory Estoppel = where a person makes a promise & no consideration passing (e.g. to waive a debt or obligation) and where promisee acts on the promise, equity can say the promissor is estopped (prevented/stopped) from retracting the promise.

 

  1. Contract must be legal & capable of being performed.

NOW WE HAVE A LEGAL CONTRACT  !!!

****************  We have a contract, so what’s in it?

Contents of Contract

Terms of Contract = what each party is obligated to do.  They can be

  • Express terms = actually there (best if written)
  • Implied terms = although not specifically agreed the Law says they are there i.e.

Terms implied by Custom;   By Legislation; By the Courts; By the Constitution; By E.U. Law;

Terms of Contract divide into three categories: –

1. Conditions

  • Vital terms
  • If breached other party can repudiate contract & sue for damages e.g. Arcos v Ronassen

2.Warranties

  • Not as vital but important
  • If breached other party can only sue for damages e.g. Bettini

3.Innominate Terms

  • Where Court cant determine if its condition or warranty
  • Breach MAY entitle repudiate if substantial benefit lost (+/or get damages) e.g. Hong Kong Fir Shipping case, Irish Telephone Rentals case

Exemption Clauses = Terms of Contracts attempting to exclude or limit liability of a party for a breach = Also known as exclusion clauses or limitation clauses.

Defined as a clause in a contract which attempts to limit, exempt or exclude liability of one party where loss or injury occurs to the other party to the contract.

Courts disapprove of them and have put in place strict rules governing validity. Rules =

  • Written contract with exemption clause signed by parties; parties generally bound by it e.g. L’estrange v Graucob;
  • Oral contract with exemption clause – parties bound if brought to their attention in advance e.g. Thornton v Shoe Lane Parking;
  • Deemed incorporated through course of dealings – exemption clause not notified but parties had a few previous transactions e.g. Spurling v Bradshaw;

 

If Court says exemption clause is validly incorporated then it must interpret it.  Courts have “leaned against them” & use strict & narrow interpretation =

  • Contra Proferentum Rule – if its unclear, then Court takes the meaning that’s least favourable to party wanting to enforce e.g. Houghton v Trafalgar;
  • Main Purpose Rule – clause cannot be used except for the main purpose of the contract e.g. Sze Hai Tong Bank v Rambler;
  • Fundamental Breach – party cannot use the clause where that party is in fundamental breach of contract Clayton Love case

 

Exemption Clauses in Consumer Contracts

  • Consumer Law including Acts, has restricted  their use in consumer contracts, that is a contract betwee a business and a consumer e.g.  Sale of Goods and Supply of Services Act, 1980 prohibits their use in certain situations i.e.exempting liability relating to merchantable quality for example.
  • Exemption clauses can be used in contracts between two businesses as long as the clause is “fair and reasonable”.    Finney Lock seed case
  • European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 were implented here as a result of EU directive. Apply to consumer contracts and exclusion/limitation clauses will be deemed unfair if they cause a”significant imbalance in the parties’ rights and obligations”. By the way, under this Regulation, the High Court issued an order setting out 10 types of clauses that would be unfair if used in contracts to buy a new house in a housing estate.
  • If a clause is found unfair then the clause is removed from the contract but the rest of the contract still stands/applies.
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The Irish Legal System – law notes for legal and accounting students from Holland Condon solicitors

SOURCES OF IRISH LAW = 

  • Irish Constitution 1937;
  • Legislation (Primary & Secondary Legislation);
  • E.U. Law;
  • Case Law (known as judicial precedent);

 

~ Irish Constitution 1937

  • Bunreacht na hEireann; 50 Articles in it;
  • Primary source of Law in Ireland;
  • Higher status than any other domestic law;
  • All Laws must comply with the standards set out in the Constitution = all domestic laws must not conflict as otherwise they are unconstitutional;
  • Establishes Organs of the State and describes how they are to run = 3 Organs =
  • President & Oireachtas (Parliament) = power to enact legislation. Dail Eireann & Seanad Eireann & President;
  • The Government = Executive Power of State is held by it. The power to implement the Legislation;
  • The Courts = judicial power to interpret and apply the Law.

 

  • Democracy require this “Separation of Powers” so each acts as a check on the other. “Power tends to corrupt, and absolute power corrupts absolutely” = Lord Acton.
  • Lists Fundamental Rights & Freedoms e.g. equality before the Law, right to education; to life, to travel, to personal liberty, to property;
  • Change Constitution by Referendum.

~ Legislation

  • Houses of the Oireachtas have sole power of making Laws (Article 15 Bunreacht);
  • Must comply with Constitution;
  • Legislature = Oireachtas = Parliament (i.e. same meanings);
  • Primary Legislation: -
    • Enacted by Oireachtas;
    • Draft Legislation = Bill e.g. Finance Bill goes through 5 stages in Oireachtas;
    • When passed, signed by President and becomes an Act e.g. Finance Act; or President refers to Supreme Court if concerned with Constitutionality;
    • Dail à Seanad à President;
    • (1) Public Acts + (2) Private Acts.   (1) = General and (2) = Specific;
    • Acts can introduce new law; amend laws or consolidate Law where lots of Acts over years;
    • Act = Legislation = Statute (i.e. same meanings).
  • Secondary Legislation: -
  • Subordinate or Delegated Legislation to Minister, Local Authorities etc.;
  • Forms it takes = *Orders ( =directions); *Rules (=guidelines); *Statutory Instruments (=give effect to statutory provisions); *Regulations (=explaining Acts); *Bye-Laws (=regulate particular area); *Schemes (=rules for fees)
  • Doesn’t come before the Dail;
  • Advantage = allows for speed;
  • Disadvantage = too much Law made in this way and no publicity about it;
  • Rules governing delegated legislation = (a) must be Constitutional, and (b) Body who has the Power (e.g. Minister) must use it intra vires and not ultra vires.

 

~ Case Law (Judicial Precedent)

  • Ireland is Common Law System = a legal system that recognises case law as capable of establishing Laws;
  • Decisions made by Judges = case law = Judge made law but only if no legislation enacted covering the area;
  • History = Brehon Law was overtaken after 1014 and 1066; Normans had unwritten customs; then came the British established unified Laws around empire “Common laws everywhere” (16th century); apply by Judges; become too rigid = unfair, so Law of Equity developed culminating in Judicature Act which merged equity and Common Law;
  • Cases establish a principle of law which is followed in subsequent cases = Precedent. Must be followed by Lower Courts.  This is known as Doctrine of “Stare Decisis”=Stand by your decision.
  • A Court decision is divided into “Ratio Decidendi” (reason for deciding) and “Obiter Dictum”=(something by the way). Former is binding and latter is of great influence;
  • Advantages of Precedent as source of law = consistency; certainty and efficiency. Disadvantages = vast numbers of cases; inflexible at times; can result in unfairness.

 

~ European Law

  • Takes precedence/superior over national law and the Constitution (see intro in your manual);
  • Our Constitution allows for EU Law;
  • Sources of EU Law: -
  • Primary Legislation – the Treaties; List them please
  • Sets out broad objectives of EU – gives and establishes EU Institutions and their powers;
  • Secondary Legislation – which are
  • Regulations = immediate Law and binding on all and directly applies in each State. Give example;
  • Directives = EU cant interfere in every area of Domestic Law (e.g. minimum wage) so these are instructions to member States to enact Law to meet an EU objective. Time limit to enact and if not, be fined and a directive can have direct effect.
  • Decisions – Bind those who are addressed;
  • Recommendations & Opinions

 

~ EU Institutions

  • Original Objective of E.E.C. = Free movement of goods, people and capital with a common external barrier;
  • Democracy require Separation of Powers so EU has number of Institutions

 

The European Commission
  • Executive; Civil Service
  • Drives the EU
  • Commissioner – 5 years
  • President of EU Commission

 

 

The Council of MinistersSupreme Legislative Body
  • Minister from each Government meet e.g. Agriculture
  • Represent their Country (Member State)
  • Legislative Body & Policy decider
  • Voting (Agreement mainly) Q.M.V.

 

 

The European Council
  • Meeting of Heads of State
  • Free of Institutional formalities
  • Political impetus

 

European Parliament
  • Elected by citizens of Member States
  • Legislation sometimes & advisory & supervisory

 

 

European Court of Justice
  • ECJ
  • Court interprets EU Law
  • National Courts can consult it
  • 27 Judges being 1 from each Member State
  • Function to enforce EU Law and ensure consistent interpretation of EU Law around the EU
  • Member States, individuals, Courts in Member States, EU Institutions can bring cases
  • ECJ can also impose fines & penalties
  • Final Court in EU

 

 

Court of First Instance
  • Known as General Court (or EGC)
  • Lower Court with 27 Judges
  • Decisions can only be appealed on a point of law to the ECJ

 

 

Court of Auditors
  • Auditing & Finance

 

 

 

Structure & Jurisdiction of our Courts

  • Justice is to be administered by the Courts = Constitution
  • Courts structure is hierarchial = starts with low Court going upwards
  • Two separate Court structures = (1) Civil & (2) Criminal
  • Each Court has been given certain Jurisdiction = it’s authority (or no authority) to hear a particular case. Jurisdiction depends on location (of parties, the crime, the wrongful act); amounts of money at issue; seriousness of the case/crime; and the nature of the law involved.  Minor matters dealt with in the District Court and as they get more serious, the cases go up to another Court level
  • “Court of First Instance” = cases can start in this Court
  • “Court of Appellate Jurisdiction” = has power to hear appeals
  • “Summary Offence” = minor crime that can be dealt with by a Judge alone
  • “Indictable Offence” = serious offence that can be dealt with by Judge and/or Jury
  • “Arraignment” = accused asked to say if they are guilty or not guilty
  • “Bring an Action” = civil; “Bring a prosecution” = criminal
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” A day in the life of an a student ” – law notes for legal and accounting students from Holland Condon solicitors

LAW    AFFECTS    YOU    EVERY DAY                                                                                                  September 2014

 

 

 – A day in the life of You !

  1. You are awaken by your radio alarm clock at 7a.m. On the news, you hear that Musgrave/Supervalu is attempting to take over Superquinn but that the Minister may refer the bid under the Competition Act to the Competition Authority.
  2. The next story on the news is that a particular person has been charged with murder in the District Court and has been remanded in custody to appear again before the court some day next week.
  3. At about 9.30 on your way to work, the driver of a stationary car knocks you off your bicycle when he opens his driver’s door just as you are overtaking. You are shaken but tell him that you are okay.  The bicycle frame might be a bit out of place.  The driver says he will take care of the damage to the bike.  You take his name and address.  He asks if you are alright and you say you are fine.  You go on your way.
  4. Talking with friends during lunch, somebody mentions that Ireland will have to leave the EU and/or a new treaty will be drawn up because of our debt and that a new referendum is likely. Someone talks about the water charges and water meter installation a breach of property rights being unconstitutional.
  5. You arrive back to work 5 minutes late as there was a hot discussion on Europe. Your boss is furious and says that she is letting you go and anyway there is not enough work so she is making you redundant.
  6. To add to your frustrations, on your return home a neighbour has tipped rubbish in your garden.
  7. To relax after the strain of the day you listen to the radio and you decide to record it onto a CD.
  8. Your mother tells you that the washing machine she bought last week is broken and she had been looking for the receipt but cant find it. She says the shop wont replace it without a receipt.
  9. As if you hadn’t had enough excitement for one day, you find it difficult to get to sleep because you have a nagging pain in the back of your neck. Could you have got it when you were knocked off the bicycle?

QUESTIONS

  1. What is a takeover? Who really is Superquinn and what is Musgrave? Why do they want a takeover?  Who wants to sell?What has the Minister got to do with matters? What’s this about the Competition Act and Competition Authority?

2. (a) Why is there so little information about the person who is being charged?

(b) Why is the District Court hearing a murder case as you thought it only heard small cases?

(c) What does remanded in custody mean?

3 & 9.      (a) Is there a Law against the driver for what he did?

(b) Who is going to pay for the damage to the bike?

(c) If you have an injury how are you going to be able to get compensation as you said you were okay but it appears you are not?

4. (a) What is the European Union?

(b) What is a Treaty?

(c) What is the Constitution?

(d) What is a referendum?

 

  1. You feel your boss has been unfair but you don’t have a written employment agreement. Can you do anything?

 

  1. What do you do with the neighbour?

 

  1. (a) Is there a problem with copying music?

(b) If it is against the Law, why can we readily buy machines that record?

 

  1. (a) Who is responsible for the washing machine?

(b) Who do you go after?

(c) What about the receipt?

LAW = are the rules that regulate the conduct and relationships of citizens with each other and the State with its citizens so as to maintain order and to ensure justice prevails in society.

Law divides into Civil Law and Criminal Law e.g. dangerous driving causing an injury to someone.

Law can also be divided into Public Law and Private Law: –

** PRIVATE LAW: Regulates relationships at a micro level i.e. between private individuals and parties/organizations;

** PUBLIC LAW: Regulates at macro level i.e. individuals generally and them with Government.

Criminal Law = Public Law                                                                   Civil Law = Private Law

 

  • Law, which divides into Civil Law and Criminal Law
Criminal Law (Comparison) Civil Law 
~ mainly its to uphold morality and public order   ~ to regulate relationships and disputes
~ Public wrong (Definitions) ~ Private wrong
~ State Prosecutes (Gardai/DPP) (Claimant) ~ Generally not state = individuals
~ DPP -v- Defendant (Parties) ~ Plaintiff -v- Defendant
~ “Beyond all reasonable doubt” (Tests to establish Liability) ~ On “balance of probabilities”
~ Criminal Law (Sub-divisions) ~ Tort, Contract, Land, Equity
~ DPP issues Summons/Indictment (wordings, commencement) ~ Plaintiff issues a writ
~ Guilty/Not Guilty (findings) ~ Liable/Not Liable
~ Punish & rehabilitate (Purpose of Court Order) ~ Put victim in position as if wrong not committed
~ Prosecute (Objectives of the Law) ~ Sue
~ Fines, Prison, Community Service (Remedies) ~ Damages, Injunction, Recission
~ Murder, Fraudulent trading (Examples) ~ Negligence, Contract Breach

 

  • We see signs outside private property saying “Trespassers will be prosecuted” – really is this the right language?
  • The Distinction between the two            =          the difference is based on the legal consequences NOT the wrongful act.  So, the wrongful act can involve the 2 divisions e.g. a road traffic accident causing an injury; Omagh Bombers; OJ Simpson.

Administrators of Law =

* By the Courts – Conduct hearings (cases) – Make Orders – Adversarial System  * Personnel in Administration of Justice = Judges (come from Legal Profession of 12 years standing); Solicitors (who advice the public); Barristers (advocates); Director of Public Prosecutions (DPP) (Crime); Attorney General (A.G.) (Government Legal Advisor); Courts Service (operate the Courts); Probation Service ( assess offenders for court punishment)

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Transfer of sites to children and relations – stamp duty relief ends this year – an update on Irish legal matters from Kilkenny based solicitors

If you are thinking of transferring a site or land to a son or daughter, remember, if you do it before 31st December 2014,  your child can avail of consanguinity relief to the tune of reducing the stamp duty bill by 50%.

The savings might be enough for them to buy a new kitchen !!

– Holland Condon – solicitors based in Kilkenny

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