BCL Notes

Mistake
Common Mistake
- When both parties make the same mistake
- The parties would not have contracted in the first place had they known that
such a fact did not exist
- Mistake may involve:

• The existence of the subject matter of the contract

Chop V Esmail
Facts
- Contracted for 50 bales of gunny bags to be delivered by the ship “Mansang”
due in Singapore from Calcutta
- When ship arrived, no gunny bags found. Both parties weren’t aware at the
time the contract was made
Held
- Since the contract was for the sale of specified goods on a specified ship to
arrive on a specified date and as the goods were not on board, the contract
was void for mistake
- Basic assumption by both parties at the time of contracting that the goods
sold were in existence on the ship, but this was not true

• Quality of a subject matter that is fundamental to the agreement

- The general rule in this type of agreement is that mistake as the quality of
subject matter does not invalidate the contract
- But if the quality is something fundamental to the agreement and this
mistaken quality makes the subject matter of the contract different from what
the parties believed it to be, then the contract is void
Mutual Mistake
- A mutual mistake occurs when both parties are at cross purposes but both
think the other agrees with them but doesn’t realise that there’s a
misunderstanding
Raffles V Wichelhaus
Facts
- Defendant agreed on buying cotton due to arrive on the ship “Peerless” from
Bombay.
- But both parties didn’t realise there are 2 ships named Peerless sailing from
Bombay
- Defendant wants the one in Oct, Plaintiff wants the one in Dec
Held
- The parties were negotiating at cross purposes and the contract was void

Unilateral Mistake
- Unilateral mistake occurs when only one party makes a mistake, and the
other party knows that he is making a mistake
- Two cases of unilateral mistake:

• Mistake as to the identity of the other party

- F2F; There is no mistake of identity

Philips V Brooks
Facts
- Phillips was a jeweller. The fraudster purchased a ring from the jeweller with a
cheque and signed his name “Sir George Bullough” and provided this
person’s address
- The purchaser subsequently turned out not to be ‘Sir George Bullough’
Held
- It was found that whilst the fraudster had indeed fraudulently purchased the
ring there was no mistake as to identity due to the fact this contract was made
face-to-face
- Fraudulent statements were made but the identity of the fraudster could not
be considered ‘mistaken’. Fraudulent contract is voidable.
 - Not F2F; Mistake of identity may operate to avoid a contract in this situation

• Mistake as to signed documents

- The general rule is that a person is bound by the terms of any instrument
which he signs, even though he did not read the documents or did not
understand its contents
- But if a person signs a contract in the mistaken belief that it is a totally
different document, he may plead the defence of NON EST FACTUM
- When a person is blind, illiterate or senile and is tricked by a false statement
made by some other person to sign a written document that is fundamentally
different from the one he thought he was signing
- This defense does not usually apply to persons who are able to read and
understand the document
- Elements of Non Est Factum;
• The signor proves that he or she has not been negligent
• His signature must have been induced by fraud or trick
• He signed the contractual document in the mistaken belief that it is a
totally different document
Awang v Haji
Facts
- The plaintiff sued the defendant for breach of contract
- The 1st defendant, who did not know English, was induced by his brother, the
2nd defendant, to sign a document on the understanding that he was merely
witnessing his brother's signature
- He was actually made a party to the contract as a guarantor
Held
- The defence of Non Est Factum was allowed
- The court held that he was deceived as to the nature of the document he
signed
Mistake in Equity
- Where one person has entered a contract under a misapprehension, and the
contract is good at common law
- Does not necessarily mean that there is no relief for the mistaken party

• Rectification of written documents

- This remedy is sought where, by mistake, the terms of the written document
do not represent accurately what the parties agreed orally

Misrepresentation
Definition
- False statement of fact made in the course of negotiations leading to a
contract which was intended to induce the other party to enter into that
contract
- Representation does not form part of the contract. It should not be confused
with a term of the contract
- For the purpose of inducing persons to make contracts. Where the statement
is untrue, it is a misrepresentation
Features
- The misrepresentation must be a statement of fact and not a statement of law,
intention or opinion
Bisset v Wilkinson
Facts
- Farm seller in NZ said that in his opinion, the land could support 2000 sheep
- Both vendor and buyer knows that’s the land has never been used to rear
sheep
- The land was not able to support the number of sheep stated
Held
- The statement was one of opinion and therefore did not amount to a
representation
 - The statement must have induced the other representee (the party to whom
the representation was made) to enter into the contract

- If the representee did not allow the misrepresentation to affect his own
judgement or if he knew the statement to be untrue, then it cannot be said that
he has been induced
- Would not be a legally recognised misrepresentation if the plaintiff:

• Never knew of the existence of the misrepresentation

• Did not allow it to affect his judgment; or
• Was aware of its untruth
Atwood V Small
Facts
- Guy selling mines and iron made certain claims about the undertaking’s
earning capacity
- Buyers employed experience agents to check If it’s true
- Agents confirmed it was true and the sale was completed
- Six months later, buyers realized that the claims were exaggerated and tried
to have the contract rescinded for misrepresentation
Held
- The purchaser had not relied on the seller's answers therefore they could not
claim to have been induced by them
- The action for rescission failed

- Misrepresentation must have been made by a party to the contract

Effects of Misrepresentation
- The effect of a misrepresentation is that it would make the contract voidable
- The contract is valid unless the innocent party on discovering the
misrepresentation elects to rescind it
Discharge
Intro
- The performance of a contract has the effect of discharging a contract
Discharge by Performance
- A contract is performed when all the parties have carried out their respective
promises and acts
- The General Rule: Precise and Exact Performance
Cutter v Powell
Facts
- P agreed to pay C money to act as officer on a ship sailing from point A to B
- ¾ of the way, C died
- Mrs C wants to cue P the agreed money for the work C had done
Held
- P was not liable
- C cannot recover the money as the contract was not fully performed
- Unless the full journey was completed, C cannot recover anything

- Exceptions to general rule

• Substantial Performance

- It provides that when the contract is substantially performed, the injured party
cannot treat himself as discharged from his obligation
- Injured party has to pay although he will not have to pay the full sum because
of the incomplete or defective performance
Facts
- H agreed to decorate I’s flat for 750 pounds. When work was done, I
complained about faulty workmanship and paid 400 pounds
- I then said he was not liable to pay anything
- H sued for the balance of 350 pounds
Held
- H can recover, but can recover 750 pounds minus the sum of 55 pounds
being the cost of remedy for faulty workmanship
 • Prevention of Performance

- It is stated earlier that where there is partial performance in an entire contract,

the injured party is not required to perform his part of the contract
- If the injured party is the one who prevented the performance of the contract,
then the injured party may be sued for breach of contract
- Sue damages on a quantum meruit basis (reasonable amount for work
done)

• Acceptance of Partial Performance

- must however be a willing acceptance and not where the injured party has no
choice in rejecting the partial performance
- Once accepted, the injured party is liable to pay a reasonable amount of
money for the benefit received on a quantum meruit basis
Sumpter v Hedges
Facts
- S agreed to build H a house at a fixed price
- When house was partially complete, S had some economics difficulties and
was unable to complete the work
- S brought an action on a quantum meruit basis for the work which had been
completed under the contract
- Since H finished the house himself, S assumed H accepted his partial
performance as discharge
Held
- S cannot succeed
- The fact that H took it upon himself to complete the building could not be
regarded as an acceptance of the work done as discharging the contract
because H had no choice but to complete the building himself
Discharge by Frustration
- A contract is said to be frustrated when the contract becomes impossible to
perform due to unforeseeable circumstances beyond the control of the parties
Discharge by Agreement
- A contract is discharged by the provisions in the contract itself
- A contract is discharged by another contract
Discharge by Breach
- A breach of contract takes place when a party does not comply with the terms
of a contract
Negligence
Definition
- Negligence can be defined as causing unintentional damage to another by
acting in a way in which a reasonable man would not have done, or omitting
to act in a way in which a reasonable man would have done
Elements
Duty of Care
- Reasonable Foreseeability

• If a defendant can reasonably expect to notice that the plaintiff is

damaged by his action or inaction, the defendant shall have a duty of
care to the plaintiff

- Proximity Relationship

• When the relationship between the plaintiff and the defendant is close
and direct, there is a proximate relationship between the plaintiff and
the defendant

o Road use and other road user

o Doctor and patient
o Manufacturer and consumer
o Driver and passenger
Donoghue v Stevenson
Facts
- D went to a café with a friend
- Friend bought opaque bottle of ginger beer for D
- D found a decomposed snail at the bottom of the bottle
- D found the sight so upsetting that she suffered physical illness
- She sued the manufacturer claiming that they were under a duty to see that
such outside bodies did not get into the beer
Held
- There was a duty on behalf of the manufacturer to take reasonable care

• Neighbour in law would be persons who are so closely and directly

affected by one’s act
 - Policy Consideration

• By reason of justice or public policy, if the court deems it reasonable to

find a duty of care, then a duty of care will be owed
Breach of Duty of Care
- Factors to be considered in establishing the standard of care required are;

• Level of skill

- Where a person has held themselves as having a particular skill, they are
required to show the skill normally possessed by persons doing that work

• Likelihood of injury

- Care must be taken in respect of risk that is reasonably foreseeable

Bolton v Stone
Facts
- Plaintiff was injured on highway by a cricket ball hit from the defendants’
ground
- Ball cleared 17ft fence
- In 30 years, only 6 times did this happen
Held
- The defendants were found not to have been negligent, as the risk was so
small that the reasonable man would have been justified in disregarding it

• Seriousness of injury

- Greater care is required when the risk of injury is greater

Paris v Stepney
Facts
- The plaintiff with one good eye, was employed as a mechanic in the
defendant’s garage
- Part of his job involved welding
- It was not normal to supply goggles to men involved in such work
- A piece of metal flew into the plaintiff’s eye with the result that he became
completely blind
Held
- The defendants were held liable, although they would not have been liable to
a person with normal sight
- Greater risk to the plaintiff meant that greater precautions than normal had to
be taken

• Cost of avoiding risk

- It is justifiable to take risks which, in the ordinary course of events, would

constitute a breach of the duty to take care when acting in an emergency\

Damage
- The plaintiff must prove that he suffered loss as a result of the defendant’s
breach of duty of care

Vicarious Liability
Intro
- Vicarious liability is where one person is made liable for the tort of another
person
- Vicarious liability is “strict” in the sense that there need be no fault on the part
of the employer before they can be made liable

Elements
- Necessary for vicarious liability to arise:
• There must be a particular relationship between the employer and the
employee
• The tort must be committed in the course of employment
Who is an Employee
- An employee is someone who gets paid
- An employer is liable for the torts committed by his employee in the course of
employment but not for those of an independent contractor engaged by him
- Criteria:

• The employee agrees that they get paid by doing work provided
• The employee agrees expressly or impliedly to be subject to their
employer’s control
• The other terms of the contract are consistent with there being a
contract of employment
Course of Employment
- The employer will only be liable for torts which the employee commits in the
course of their employment
LLimpus v London
Facts
- The driver of an omnibus had printed instructions from his employers not to
race with or obstruct other omnibuses
- Driver obstructed plaintiff’s omnibus and damaged it
Held
- The driver’s employers were held liable for the damage
- The driver’s actions were merely an unauthorised mode of doing something
he was authorised to do, drive an omnibus

Beard v London
Facts
- A bus conductor turned the bus round when the driver was absent
- While doing so, he injured the plaintiff
Held
- Bus conductor was acting outside the course of his employment
Liability of Independent Contractor
- A person who engages an independent contractor will not be liable for torts
committed by him in the course of his work
- Exceptions:

• Employer authorises or subsequently ratifies the torts of the contractor

Ellis v Sheffield
Fact
- The defendant company who had no statutory power to dig up streets
employed an independent contractor to do so
- The plaintiff fell over a heap of earth and stones made by the contractor in the
course of the digging
Held
- The defendant company were liable on the ground that they had authorised
the wrongful act

• Where the employer himself is negligent

o selecting an incompetent contractor or giving a competent
contractor inadequate instructions or information

• Where strict liability is imposed by law so that the employer cannot

escape liability by delegating the work to an independent contractor

• Where a contractor is employed to carry out operations affecting the

highway

Tarry v Ashton
Facts
- The defendant employed an independent contractor to effect repairs to a lamp
attached to his house which was overhanging the highway
- The lamp was not secured properly by the contractor and it fell, injuring the
plaintiff
Held
- The defendant was held liable as it was his duty to make the lamp safe
- He was in breach of that duty because his contractor had failed to secure the
lamp
 • Contractor is engaged to carry out extra-hazardous operations
Bowater v Peate
Facts
- The parties owned adjoining houses, each having an easement of support
over the other’s property
- defendant employed an independent contractor to pull his house down and
rebuild on the same site
- The plaintiff suffered damage because the contractor negligently withdrew the
support from his house
Held
- The defendant was held liable for the contractor’s act

Strict Liability
Definition
- Strict liability arises when the law imposes on persons absolute liability to
guard against causing harm to other

• It is no defence to say that the defendant has acted reasonably

• It is no defence to maintain that the work if it is operations was
entrusted to a suitable independent contractor
• It is no defence to say that the damage resulted from an inevitable
accident

Cases of Strict Liability

- Damage resulting from the escape of dangerous things from the defendant’s
land (Rylands v Fletcher)
- Damage caused by dangerous animals
- Escape of Fire
- Damage resulting from the flight of aircraft under the Civil Aviation Act
- Occupier of premises adjacent to a highway for injury to passers-by resulting
from structural defects
Rule in Ryland v Fletcher
- Nature & Definition
• The rule states that where a person for his own purposes brings and
keeps on land in his occupation, anything likely to cause damage if it
escapes, he must keep it there at his peril, and if he fails to do so he is
liable for all damage flowing naturally from the escape
Rylands v Fletcher
Facts
- The defendant, a mill-owner, employed independent contractors to construct a
reservoir on his land
- During the course of the work, the contractors, who were apparently
competent, discovered some old mine shafts which appeared to be filled in
- The shafts were connected to those in a neighbour’s mines so that when the
reservoir was filled with water the mines were flooded
- The neighbour sued the defendant
Held
- Defendant was held liable because of strict liability

Requirements of Rule
- There must be a non-natural user of the land
- There must be an escape from the defendant’s land

Escape from Land

- “Escape” has been defined as “escape from a place where the defendant has
occupation or control over land to a place which is outside his occupation or
control
Defences to the Rule
- Consent of Plaintiff
• If the plaintiff consents, expressly or impliedly, to the defendant’s non-
natural user, no action will lie if there is an escape causing damage to
the plaintiff
- Common Benefit
• This defence arises where the accumulation of some essentially
dangerous thing was carried out for the common benefit of both plaintiff
and defendant
- Act of God
• This defence can arise only from the cause of nature and must have no
possible human causation
• The consequences of the natural act must be so unexpected as to take
the damage caused beyond the bases of legal liability
Nicholas v Marsland
Facts
- The defendant owned land upon which there were three artificial lakes,
formed by damming up a natural stream
- A thunderstorm, accompanied by torrential rain lasting 10 hours, “greater and
more violent than any within the memory of witnesses” caused the artificial
banks to be swept away
- The escaping water destroyed four bridges on land owned by the plaintiff
Held
- The defendant was not liable under the rule in Rylands v Fletcher as the
flooding was due to an act of God

- Default of Plaintiff
• If the escape was the plaintiff’s fault, he cannot claim that the
defendant is liable under the rule
Pointing v Noakes
Facts
- The plaintiff’s horse reached over the defendant’s boundary and ate some
poisonous leaves
- The horse died and the plaintiff sued under the rule of strict liability
Held
- The plaintiff’s action failed for two reasons
• The horse had intruded onto the defendant’s land
• There had been no escape from the defendant’s land.
 - Act of Stranger
• If the escape and consequential damage is due to the unauthorised act
of a stranger, the defendant will not be liable
• The most obvious example of a stranger is a trespasser on the
defendant’s land, but anyone causing an escape without the
defendant’s authority may be classed as a stranger
Rickards v Lothian
Facts
- A stranger deliberately blocked up a basin in the defendant’s cloakroom
- Caused water to escape and flood the plaintiff’s premises below
Held
- The defendant was held not liable for the damage as the escape had been
caused by the unforeseeable wrongful act of a stranger

- Statutory Authority
• The defendant will not be liable if he acted under statutory authority,
provided he was not negligent

- Not Responsible for bringing in Dangerous Things

• The occupier is not liable, in the absence of actual negligence, for the
escape of things which grow or accumulate naturally upon his land

Trespass
Intro
- Trespass to land may be defined as the direct interference with the
possession of the land of another without lawful justification
- Committed against possession and not ownership of land
- The appropriate plaintiff is the person in possession at the time of the
defendant’s unlawful entry
Forms of Trespass
- Committed by:

• Entry on land

- This form of trespass includes the straightforward situation where X,

intentionally and directly, enters the land in the possession of Y without lawful
justification
o Abuse of right of Entry
Harrison v Duke
Facts
- The plaintiff used a public highway crossing the defendant’s land to disrupt
grouse-shooting upon the defendant’s land
- He complained after he had been forcibly restrained by the defendant’s
servants from doing so
- The defendant justified his actions saying that the plaintiff was a trespasser
upon the highway
Held
- The plaintiff failed as, by using the highway in an unreasonable and unusual
manner, he was a trespasser

• Remaining on land

- A person who lawfully enters the land of another will become a trespasser if
he refuses to leave when permission to remain is withdrawn

• By placing objects on land

- It is trespass to place things on land without authorisation

o Leaving a dead pigeon in a neighbour’s yard

Scope of Trespass
- Trespass involves direct interference with the possession of land
- Land refers to not only the land itself but also buildings and rooms in buildings
Kelsen v Imperial
Facts
- The plaintiff had a tobacconist’s shop in Islington, which had a flat roof
- The defendants, who were wholesale tobacconists and owners of the
adjoining building, erected a large “Players Please” sign which projected into
the airspace a distance of approximately 8 inches above the plaintiff’s shop
Held
- This amounted to trespass and the plaintiff was entitled to a mandatory
injunction requiring the defendants to remove such portion of the sign as
projected over his premises

Defences
- Defences to trespass to land:

• Legal right to Enter

• Permission or License of the Occupier
• Necessity
Remedies
- Damages
- Injunctions
- Ejectments
- Mesne Profits
- Self-help
- Re-entry and Ejection
- Distress damage pheasant

Nuisance
Public Nuisance
- A public nuisance is a criminal offence, which consists of an act or omission
which materially “affects the reasonable comfort and convenience of life of a
class of Her Majesty’s Subjects”

• Examples of public nuisance are the obstruction of a highway, the keeping

of dangerous premises near a highway, and keeping a disorderly inn

- In order to sue in public nuisance, the claimant must prove that they suffered
special damage i.e. damage over and above that suffered by the class of
persons affected
Private Nuisance
- Private nuisance is an unlawful interference with a person’s use or enjoyment
of land, or some right over, or in connection with it
- It involves drawing a balance between the right of one person to use their land
in whatever way they wish and the right of their neighbour not to be interfered
with
- A nuisance which consists of an interference with a right in land comes under
real estate law

Essentials of Private Nuisance

- Indirect Interference

• The concept of indirect interference serves as a useful guide in

distinguishing circumstances appropriate to nuisance on the one hand,
and trespass to land on the other
• Nuisance is concerned with indirect interference with a person’s enjoyment
of land, whereas trespass to land concerns direct interference with the
possession of land

- Actual Damage

• Where the plaintiff can show actual damage to his property, it is

arguable that he is not required to do more in order to establish a claim
in nuisance
• Certainly the locality of the alleged nuisance is irrelevant

- Interference Must be Unlawful

• Locality
• Peculiar Sensitivity
• Consent cannot be implied from the fact that the plaintiff comes to the
nuisance
• Public interest is irrelevant to the question of private rights and is
normally not regarded as a defence
• Unreasonable
• Malice or bad motive is not an essential ingredient of the tort of
nuisance
• Must be continuous
Parties who may Sue
- The appropriate plaintiff is the person in possession of the land
- A landlord may sue if the nuisance is causing permanent damage to the land,
which will reduce the value of his future reversionary interest

Parties who may be Sued

- Creators

• The creator of the nuisance may always be sued even though they are
no longer in occupation of the land from which the nuisance originates

- Occupiers

• He may be liable not only for his own unlawful actions, but also for
those of his servants or licensees

- Landlords

• He may be liable either where he creates the nuisance and then leases
the property, or where he expressly or impliedly authorises the tenant
to create or continue the nuisance, or knew or ought to have known of
the nuisance before he let the property

Defences
- Violenti Non Fit Injuria

• The defendant may in some circumstances seek to show that the injury
to the plaintiff’s land was caused by the plaintiff’s own conduct

- Statutory Authority

• Where a statute order something to be done, there will be no liability in

nuisance for doing this and for any inevitable consequences
• An inevitable consequence is one which cannot be avoided by the use
of due skill and care

- Act of Stranger
- Person committing the so-called nuisance
Miller v Jackson
Facts
- For over seventy years cricket had been played on a certain cricket pitch, and
occasionally balls had been hit into a neighbouring field
- Houses had been built in recent years on the adjoining land and sometimes
cricket balls broke windows or landed in the gardens
- Club committee constructed a high fence but even so a ball was sometimes
hit into the gardens
- Occupier sought injunction against the club
Held
- The Court of Appeal refused to grant an injunction, holding that the cricket
club’s prior rights prevailed over the later rights of the plaintiff

Remedies
- Abatement

• This remedy of abatement is a form of self-help and consists of the

claimant taking steps to stop the nuisance
o By cutting off the branches of overhanging trees or unblocking
drains

- Injunctions

• Preventing the defendant from continuing the nuisance

• An injunction will be granted provided that the nuisance is of a
continuing nature and that damages would be an inadequate remedy

- Damages

• An award of damages is to provide compensation for the harm suffered

by the plaintiff as a result of the nuisance.
• The plaintiff must show that the infringement of which he complains
was a direct, foreseeable consequence of the defendant’s act

-Sekian-