Showing papers by "Sue Arrowsmith published in 1989"
TL;DR: A contract which is believed to be legally binding sometimes turns out to be unenforceable by one or both parties because of some defect at the time it was made as mentioned in this paper.
Abstract: A contract which is believed to be legally binding sometimes turns out to be unenforceable by one or both parties because of some defect at the time it was made. An agreement may be affected, for example, by mistake; by uncertainty; or by the incapacity of one of the parties. Often preparation or performance has already begun, and the question then arises as to how the relationship – which was thought to be governed by the agreement – is to be adjusted. Where one party has received what he was promised under the agreement there exists the possibility of a claim against him in restitution. A difficulty in many cases of this kind is that the same factors which render the contract unenforceable also provide an argument against allowing a restitutionary claim. However, this is not always the case; and even where it is, there may be some justification for permitting recovery in restitution whilst refusing an action in con tract.
2 citations
TL;DR: In this paper, a general framework of rules for analysing problems of restitution which arise from ineffective transactions is proposed, which is based on the principle that a benefit to the recipient of goods and services will usually be shown by the fact that in making the agreement he requested the performance problems may arise, however, when the factor which renders the contract unenforceable also provides an argument against allowing a claim in restitution.
Abstract: In a previous article in Legal Studies I suggested a general framework of rules for analysing problems of restitution which arise from ineffective transactions. It was explained that normally a claim should be available to a party who has performed his part, usually based on mistake or failure or consideration, or on ‘policy’ grounds. A benefit to the recipient of goods and services will usually be shown by the fact that in making the agreement he requested the performance Problems may arise, however, when the factor which renders the contract unenforceable also provides an argument against allowing a claim in restitution. One problem which arises frequently with goods and services is that the factor which vitiates the contract makes it difficult to show a benefit. For example, when the defendant mistakes the nature of the goods which he is purchasing, it may be impossible to say that he requested them for the purpose of showing they are of benefit to him.
1 citations