In other words, there must be a gain of unfair advantage and/or a relationship that is abused by the one party who is dominating the other, innocent, weaker party. Moreover, the doctrine of duress requires the intentional use of force, or threats by one party in order to coerce the other party to enter into a contract with him. But in undue influence, the use of force, or the threatening of the use of force is not required. The more significant element under the concept of undue influence is that there must be pressure exerted on the other party and/or a well-established relationship between the parties to a contract and that relationship had been abused by one dominating party to force the weaker party to enter into an agreement. Overall, the doctrine of undue influence can only be applied when there is pressure exerted by one party, who has a relationship with the other, weaker party, and has been abusing the said relationship through the said pressure to
It is also not applicable when the contract is admitted expressly, or impliedly by the failure to deny specifically its existence, no further evidence required. In addition, if agreement between parties is not stated in the written contract. It is only applicable to completely executory contracts where in there still no performance made by both parties and not to contracts which are totally executed or partly executory since partial performances furnish reliable evidence of the intention of the parties or existence of the contract. Ratification of contracts infringing the Statute of Frauds may be effected in two ways: 1. By failure to object to the presentation of oral evidences to prove the contract which amounts to a waiver and makes the contract as binding as if it has been reduced to writing.
The first test that the court devised was the Business efficacy test. The authenticity of the test emerged from the landmark case of The Moorcock. Another integral test that has been created by the courts is the officious bystander rule. The officious bystander rule is one that allows the courts to supervise a contract and allows the court to insert a certain term into the contract. The rule is that had an officious bystander been present at the time the contract was made and had suggested that such a term should be included, it must be obvious that both parties would have agreed to it.
When the defendant’s wrong does not fit in any of these pigeon holes he is said to have committed no tort. Hence this theory of Salmond is also known as pigeon hole theory. However the theory of pigeon hole has been criticized by the latter writers as they feel this theory, if accepted, will put an end to the growth and evolution of the new categories of liability in tort and the Courts could be prevented from identifying any new torts based on the violation of the legal rights of a person. Torts are infinitely various and not limited and confined. The novelty of claim may arise and Court may recognize a novel claim.
CERTAINTY: The conditions and terms of contract must be clear enough for both sides if the contract to be able to work upon it. Violation of a Consumer Contract It is an action done by any of the parties such as non performing a part of the agreement or doing his art in a wrong way, if the party did not honor his part of the contract, or it seemed from his performance that he cannot fulfill his part as mentioned in the contract this is considered violation of the contract. If supplier beaks the customer protection laws mentioned in the contract it leads to hard legal actions depending on the kind of violation, the contract may be canceled or partly rewritten or fully changed. Some of the action can lead to immediate termination of the contract without, and some other actions make the contract able to be terminated by court order, and in this case the party who violated the contract is subject to pay or reimburse for all the loss of the other party. Question no.1.b The implied terms in the sale of goods act.
Expectation damage: the general standard of harms is that the casualty of a break of agreement is to be placed in a position he would have been in had the agreement been performed, while interestingly the extraordinary rule of Hadley v. Baxendale leaves the casualty far Shy of the position he would have been in if the agreement had been performed. 2. Rate of Performance: -The motivating forces to make contract relies on the dependability of agreements from this the desire harms is that they put on the breaking party the loss of the other party's share in contrast, if obligation was not in light of desire harms, the estimation of a contracted for execution to one gathering would not go into the other's party absolutely self-intrigued count whether to perform or rupture. 3. The extraordinary standard of Hadley v. Baxendale:-As customarily planned and connected, wanders from both the general guideline of desire harms and the general standards of harms outside the law of contract.
The third criterion is the seller’s right to cure the defect. Unless the buyer has a legitimate interest in immediate avoidance of the contract, the seller has a right to cure a defect. As a consequence, even a serious breach, as a rule, will not be fundamental if the seller offers to cure it in terms of Article 48. The fourth and most disputed criterion is the reasonable-use test. The question is whether the buyer can make some other reasonable use of the non-conforming goods.
58.According to Art. 74 CISG, only when the loss was foreseeable by the other party can the injured party be entitled to demand compensation of profit lost as a consequence of the breach of contract by the other party. [UNCITRAL CISG DIGEST, p. 347]. In this case, however, CLAIMANT’s loss was unforeseeable for RESPONDENT. 1.
An exclusion clause can be contained in the contract by three different methods: Signature when the plaintiff when the plaintiff adds his/her signature to a certification, which has a contractual effect, having inside an exclusion clause, without manual intervention, it will be a part of the contract, and he/she is legally obligated to follow by its conditions. Furthermore, it happens if he/she has not comprehended the certification and in spite of whether he recognizes it or not. Thus, the group in a legal dispute will not be pledged by the exclusion clause if he/she has been verbally portrayed inaccurately as to the outcome of the exclusion
Other that damages and rescission, there’s also excluding or limiting liability for misrepresentations. Section 19(1) of the Contracts Act that provides that agreements caused by coercion, fraud and misrepresentation are voidable contracts. Thus, in the situations provided, the contract is not voidable if the innocent party was able to ascertain the truth of the matter by exercising ordinary diligence. There have been uncertainties whether the word "fraudulent" applies only to silence thus fraud by silence or it applies to misrepresentation as well thus to fraudulent misrepresentation. A contract is rescinded for misrepresentation because it would not have been entered into but for the misrepresentation.