Examiners’ reports 2021 1 Examiners’ reports 2021 LA1040 Contract law – Zone A Introduction The exam was taken remotely and submitted online. Students were required to answer four out of eight questions within a five-hour period. As usual, stronger scripts were characterised by their focus on the question, they were addressing whether this was a problem or an essay-style question. Better answers displayed a deeper and more complete knowledge of the relevant law allowing them to use the most obviously relevant cases. With respect to the essay questions, many answers failed to address the particular area of law identified and so included much irrelevant material that received no credit. Others failed to include enough critical commentary if this was called for by the question. These issues are dealt with in more detail in the comments below and also in the commentary following the sample answers that are reproduced. Comments on specific questions Question 1 Lady Amity, an eccentric old lady, has now decided to sell one of her hotels to pay for a new roof on her house. She places the following advertisement in the Times Newspaper: Exclusive hotel for sale by tender. Terms and envelopes for submission available. All tenders to be received by Midday 1 February. On 30 January Lady Amity receives two tenders in the prescribed form. When she opens the first tender she sees it is from Brash, the current manager of the hotel, whom Lady Amity employs. She immediately throws it away muttering about ‘servants not knowing their place these days’. She is so annoyed that she forgets about the second tender from Clarissa, a well- known chef. On 5 February Lady Amity receives an email from Devi, a local businesswoman, who says she heard that the hotel was for sale and that she ‘might be interested in buying it for around £1 million’ but that she will need to do a profitability survey before committing herself. They later agree that for a fee of £1,000 Lady Amity will not offer the hotel to any other party before 1 March. Devi pays £25,000 to Enterprise Co to do a profitability survey which is very positive. On 18 February Frederik phones Lady Amity while driving his car and offers £11 million for the hotel. Lady Amity says, ‘Yes, that’s a deal’ but Frederik does not hear her because of loud road noise. He decides to ring 2 again when he stops for petrol. Lady Amity immediately rings Devi and tells her the hotel has now been sold. While driving Frederik thinks he has offered too much for the hotel. At the next petrol station, he rings Lady Amity and tells her he wants to buy the hotel for £10 million. Advise Lady Amity. General remarks This question is concerned with agreement. A good general knowledge of the principles of agreement was required with a particular focus upon their application to tenders. Law cases, reports and other references the examiners would expect you to use Cases such as Gibson v Manch Corp on the identification of an invitation to treat, Harvela. and Blackpool & Fylde Aero Club v Blackpool BC on tenders and Entores v Miles Far East on requirements of acceptance. Common errors Communications must be analysed chronologically because the character of a communication from B to A may depend upon the proper characterisation of the previous communication from A to B. For example B’s communication to A cannot be an acceptance unless A has already made an offer to B. Many students did not follow this rule. Also, many answers failed to discuss the Blackpool case and understand its possible application here. A good answer to this question would... demonstrate an awareness of the exceptional circumstance illustrated in Blackpool of when an invitation to tender can constitute a contractual offer and not just an invitation to treat. This might, as in Blackpool , result in a contractual obligation to consider all tenders submitted. Good answers might further speculate whether a duty to consider fairly all conforming tenders could be implied. Poor answers to this question... were over general and did not display sufficient knowledge of the law relating to tenders. Student extract Under these circumstances, the issues of offer and acceptance must be assessed to advise the potential liabilities Lady Amity may be under. To assess whether there was any contract under the first situation between Brash, Clarissa and Lady, the basic elements of offer and acceptance must be observed. An offer is an expression which entails willingness to contract on certain terms proposed upon unqualified acceptance of those terms ( Storer v MCC ; Gibson v MCC ). Here, the advertisement in the newspaper will not satisfy these circumstances and may be considered an invitation to treat which is an expression of willingness or an invitation to make an offer, showing consensus to a contract, it is however not an offer and cannot be accepted. This is because, advertisements for bilateral contracts where obligation is placed on both parties of contract as per Partridge v Crittendon , constitutes as an invitation to treat. Here, where obligation would entail in the sale of the hotel, it would constitute a bilateral contract. The situation is also a tender case and per Harvela Investments Ltd v Royal Trust Co of Canada Ltd , an invitation or request for tender is merely an invitation to treat and not an offer. Therefore, the tenders submitted by Brash and Clarissa themselves cannot be constituted as acceptances to contract but merely offers and Lady Amity has the powers to accept or reject this. Examiners’ reports 2021 3 However, there may exist a collateral contract to consider all tenders as per Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council . The basic rule here, is that where the tenders submitted were within the time limit, such a collateral contract may. This may be due to a unilateral contract in the circumstances and is due to the newspaper advertisement constituting an offer to consider all tenders posted within the time limit as the position for unilateral offers is an exception to the general rule for newspaper advertisements as constituting invitations to treat as can be observed from Carlill v Carbolic Smoke Ball Company Under the second issue in relation to liability against Devi, Devi’s email must be considered whether it is an offer or merely an invitation to treat. Only offers to contract can be accepted which can lead to contract and no other statements such as that of intention ( Harris v Nickerson ), a supply of information ( Harvey v Facey ) or an invitation to treat can be accepted. Here the email does mention a price which may have constituted an offer but the use of words such as ‘might’ as well the requirement to further production of profitability surveys suggest that this may instead be a supply of information as to interest in buying the hotel. Amity may still have been under a legal obligation to not offer the property to anyone else until 1st March. This is because a collateral contract had been entered into where there was an offer in which Devi would pay £1,000 to Lady Amity in relation to her not offering the property to anyone else before 1st of March. And was also accepted by Lady Amity by accepting the payment. This is also supported by consideration as a valuable consideration is some right or interest provided to one part or some forbearance or detriment to another as per Currie v Misa. Therefore, a valid binding bilateral contract exists here in the circumstances. As per Routledge v Grant an offer cannot be revoked where there is a separate binding collateral contract to keep it open for a time period. Therefore, Lady Amity may be in breach of contract for revoking the offer by calling Devi and telling her that hotel was sold elsewhere on February 18th. In relation to the last circumstance, Frederik had made an offer by the phone call where the specific terms are of buying the hotel for £11 million. The first issue is that whether or not an intention to create legal relations exists where the offer was made in informal or unusual setting (Blue v Ashley (2017) and MacInnes v Gross ( 2017)). If however the general presumption of Esso Petroleum is held, it must be considered whether the acceptance was actually communicated where he did not hear her acceptance to his offer to buy the hotel for £11 million. For there to be a valid contract an offer must be accepted as to all of its terms, this is also known as the ‘mirror image rule’. As per the general rule, acceptance must be communicated to the offeror to constitute a valid contract being formed. In other words, where there has been no communication, where there is silence, this will not constitute valid acceptance ( Felthouse v Bindley ). Furthermore, the offeror must actually be made aware of the acceptance ( Entores v Miles Far East Corporation ). Here, no exceptions to this general rule of acceptance may be found where this was not a unilateral contract ( Carlill ) or by means of post ( Adams v Linsell ) Therefore, Lady Amity cannot enforce an existence of contract as the change in the terms of offer from £11 million to £10 million took place before acceptance ( Payne v Cave ). It is, however, at her discretion to accept or reject Frederik’s offer. 4 Comments on extract This is a strong answer to Q1 that secured an upper second class (i.e. 60+) mark. The good features of the answer are: • It starts with an introduction that confidently identifies the areas of law that the problem raises (this could be expanded by a sentence or two). • The answer is well phrased and all parts are easy to follow. • The answer makes good use of case law including 15 cases. • The answer has a clear structure and deals with each person separately. The claims of each person are then addressed chronologically i.e. the communications are examined from the first to the last. This is an essential feature of any problem involving agreement because the proper characterisation of a communication may crucially depend upon the categorisation of a previous communication. • The discussion of the status of the invitation to tender is especially strong. It recognises that generally an invitation to submit tenders will only constitute an invitation to treat. For this proposition a general authority – Partridge v Crittenden as well as one in the same context as the problem the Harvela case was used. However, it further recognises, as few answers did, that on the authority of the Blackpool case a collateral contract could be established whereby the offeror comes under an obligation to consider all conforming tenders. • The contract with Devi is noted that was missed in many answers. It could have been identified as a so called ‘lock out’ agreement and Pitt v PHH Asset Management mentioned, which would have resulted in a higher mark. • The conversation with Frederik and the requirement of a communicated acceptance is well noted and explained by reference to Entores Question 2 Mia is planning to hold a party at her house to launch her new interior design business. She speaks to her neighbour, Goldeep, to warn her about potential noise on the evening of the party. Goldeep promises that she will not complain about the noise if Mia agrees not to insist on full repayment of the £200 that Goldeep owes Mia. Mia agrees that Goldeep need only pay her £100. Mia contacts Andrew, the owner of Party People, a local business that supplies catering services. Mia asks Andrew if his company can provide buffet food and cocktails on the night of her party. Andrew’s business has been going through a slump and he is in serious financial difficulties. The party offers Andrew the opportunity to attract new clients for his business and so he undertakes to provide the service at a reduced price of £1,000. A week before the party, Andrew realises that it will be impossible to provide both food and cocktails for the price agreed. Andrew telephones Mia in a panic, shouting, ‘There’s no way I can do this for the price promised. Unless you pay me double, I will not be doing the job!’ Realising that she would need to pay £2,000 for the same services elsewhere, Mia agrees to pay Andrew the additional money. The day after the party, Mia changes her mind about paying the extra £1,000 to Andrew. She also regrets her decision to forego the £100 that Goldeep owes her. Examiners’ reports 2021 5 Advise Mia. General remarks This question is about the doctrine of consideration. However, it includes a discussion of consideration in relation to the formation of contractual obligations as well as their modification. Separating these elements and applying the different doctrines involved in a clear structure resulted in a good mark. Law cases, reports and other references the examiners would expect you to use White v Bluett ; Foakes v Beer ; Williams v Roffey ; MWB v Rock especially the CA ; High Trees ; Pao On ; Atlas v Kafco Common errors Many answers were not well structured and lacked a detailed knowledge of the principles they sought to apply. A good answer to this question would... separate discussion of whether G’s promise not to complain could constitute consideration before discussing whether a promise to accept part payment is binding. The concept of ‘practical benefit’ introduced in Williams v Roffey and applied in this context by the CA in MWB v Rock needs to be discussed. If consideration can be found, the possibility of limited enforcement of the promise to forgo part of the debt through the doctrine of promissory estoppel is raised. With respect to the promise to pay A more, both consideration and economic duress needed to be considered in a good answer. Poor answers to this question... failed to structure their answers well so as to demonstrate a knowledge of economic duress and promissory estoppel as well as consideration. Many weaker answers displayed a poor understanding of the concept of ‘practical benefit’ and omitted or cursorily examined the requirements of economic duress. Question 3 ‘The law concerning the effect of a mistake as to the identity of a contracting party is clear and justifiable when parties are contracting at a distance; it is unclear and unjustifiable when parties seek to contract in each other’s presence.’ Discuss. General remarks All essay-type questions call for a discussion that comprises a description and then a critique or analysis of an area of law. The precise question will guide you as to the emphasis between the two parts. There is often a tendency to include more description and less critique or analysis than is called for. Law cases, reports and other references the examiners would expect you to use Shogun Finance ; Kings Norton ; Cundy v Lindsey ; Phillips v Brooks; Lewis v Avery ; Ingram v Little Common errors This question calls for a discussion of the law relating to mistaken identity; discussion of all other categories of mistake, other than perhaps in an introduction or conclusion, would not gain credit. Many answers did not clearly state and act on the fact that cases on mistaken identity are a subset of the larger category of unilateral mistake. A good answer to this question would... start with a single paragraph introduction that explained what a mistake as to identity was and placed it in the context of the wider category of mistake. The 6 answer should then discuss the difference between the law’s approach to, respectively, face to face and written contracts (including the difficulty of clearly distinguishing these categories as illustrated by the facts of Shogun ) and then go on to consider criticisms of the law e.g. can the different approach in Ingram v Little be justified? Very good answers might also discuss the suggestion of ‘loss sharing’ made by Devlin LJ in Ingram v Little Poor answers to this question... consisted of a broad and descriptive account of the complete topic of mistake including common and mutual mistake as well as unilateral mistakes that did not involve mistakes as to the identity of the contracting parties, irrelevant material does not get any credit so that in such answers only a few paragraphs secure credit. Student extract In the question I will discuss the law relating to the mistake as to identity, to succeed in a claim of mistake as to identity, the original seller must show that there is no contract between himself and the rogue that any apparent agreement was negative by the mistake as to identity induced by the fraud of the rogue. If this can be shown there will be no contract between the seller and the rogue. The title i.e. ownership, to the goods will not pass to the rogue and therefore any bona fide purchaser for value does not acquire title from the rogue in any subsequent sale. On the other hand, the innocent purchaser buying from the rogue will argue that there was a valid contract between the original seller and the rogue, which was merely voidable for fraud (and not void for mistake). If this view is accepted, then the rogue has a voidable title to the goods, and if the contract has not been avoided (set aside) at the time when the innocent purchaser buys from the rogue, the innocent purchaser will acquire the property. Prima facie presumption that contract valid. Burden of rebutting presumption upon party pleading mistake. Generally it was set out that mistake renders a contract void. There are two types of mistake, unilateral mistake which occurs when one party is at mistake and the other party is innocent and bilateral mistake where both the parties are at mistake. Bilateral mistake is further divided into common law mistake and cross purpose mistake. Cross purpose mistake is when both parties are mistaken but the mistake is of different nature for example there is a maker one party thinks it’s a blue marker and other party thinks it a black and in fact it is a red marker so both are mistaken and the nature is different. Whereas common law mistake is when both parties are mistaken and the mistake is of same nature, for example both parties think that the marker is black but it turns out to be blue so the nature of mistake is same. However our focus would be more on the common law mistake. As we speak of common law mistakes, the law has further divided common law into categories which are: Res sua , this is known to be mistake of ownership this means that a person buys something which already belongs to him this was held in the case of Cooper v Phibbs where Mr Cooper was the nephew of the owner of a salmon fishery, after uncle’s death Cooper and the aunt thought the ownership will belong to the aunt who further sold it to nephew but when the will turns up it was stated that the fishery belongs to the nephew Mr Cooper. So Mr Cooper bought something this was already his. Res extincta , this is where the mistake is regarding the existence of the subject. For example a car was destroyed before the contract was made and Examiners’ reports 2021 7 none of the party knew that the car was destroyed this is a mistake of existence of subject ( Scott v Coulson ). It was stated in the case of Courtier v Hastie under section 6 of the Sales of Goods Act that in such cases contract becomes void. Mistake of law, when mistake happens due to the provision of law for example in the case of Kleinwort Benson , Kleinwort made payments under swap agreement but later on courts made swap agreements unlawful and agreement become useless so both parties were mistaken but under the provision of law. Mistake as to possibility of performance, It happens when the parties mistakenly believe that the contract can be performed in the given time period but actually it cannot. The major focus is on mistake as to quality, in the case of Bell v Lever Bros it was held by the courts that the contract will be considered void if the quality is such that it makes the performance ‘essentially different’, this phrase was later on modified in Japanese associate bank case as ‘essentially and radically different’. However the law was narrowed down in the grant peace shipping case where it was held that mistake should be such that the basic purpose is achieved. In Leaf v International Gallery case fake painting was detected and the case was filed so the courts stated that ‘You wanted a painting, you got a painting’ no matter what the quality the basic purpose needs to be achieved. As injustice rose in void as well as not void cases so to prevent injustice the concept of Equity mistake was introduced in the case of Solle v Butcher , it was a matter of lease judges took different approach and it was suggested that lease was valid at law but voidable in equity. It was concluded that equity mistake can render contract voidable. The case Solle v Butcher was overruled by Great Peace Shipping where Tsavliris was a professional salvor, who uses to render aid to ships in difficulty. He got into agreement with the owners of LOF teams who were in need of help, Tsavliris was told that there is a ship great peace about 35 miles of distance but in fact it was 410 miles away, Tsavliris terminated the contract with Great Peace Ltd who in return sued Tsavliris for breach of contract, as defence Tsavliris raised common law mistake . The clash occurred between common law mistake and equity mistake. Both laws were contradicting so courts had to choose one so they chose common law mistake over equity mistake and abolish equity mistake because common law is defined whereas equity mistake is not. As stated above we have clearly set out and established the fact that common law is narrow, equity mistake does not exist in present law and it is only common law mistake that renders contract void. Comments on extract This was unfortunately a fail answer. At first glance you might think it is of reasonable length, discusses a number of mistake cases and so be surprised at the mark. However, there is almost no attempt to address the question posed. Further there is not a single reference to a case of mistaken identity. The first paragraph states that the answer will examine the law relating to mistaken identity and the next paragraph describes the factual circumstances when such a problem typically arises. Thereafter, there is no further discussion of the law relating to mistaken identity. Rather, what follows is a general overview of the law of mistake, mentioning briefly all aspects except the law of mistaken identity. 8 The most basic point to remember when answering any question is that credit is only ever given for relevant knowledge; there are no ‘charity’ marks. Writing about any matter that is not relevant to the question does not gain credit, no matter how accurate or well expressed. In this particular question, the subject matter is identified expressly and so there is no ‘excuse’ for not directing the discussion to this particular part of the law. Question 4 ‘It is difficult to justify the many limitations that might prevent a party from rescinding a contract for misrepresentation.’ Discuss. General remarks This question expressly directs you to discuss limitations ‘that might prevent a party from rescinding a contract for misrepresentation’. The emphasis here on rescission means that the main focus of the answer is upon the four ‘bars’ to rescission. Law cases, reports and other references the examiners would expect you to use Car & Universal v Caldwell ; Leaf v International Galleries ; Salt v Stratstone ; Long v Lloyd ; Peyman v Lanjani ; Erlanger v New Sombrero Phosphate ; Lewis v Avery (or any other case illustrating the intervention of innocent third-party rights); s.2(2) Misrepresentation Act 1967. Common errors Two common errors emerged. First, many answers gave a complete account of the law of misrepresentation instead of focusing on the limitations it imposes upon the availability of rescission. Second, many answers did not include a sufficient critique of the law as the question called for ‘It is difficult to justify...’. A good answer to this question would... start with an introduction that described the remedy of rescission for misrepresentation perhaps using the Caldwell case. It would then examine each of the bars to rescission by reference to perhaps two cases for each bar. After this, the answer should address what possible justifications exist for this limit on the victim’s ability to rescind. Section 2(2) of the Misrepresentation Act should be examined in the same way. Poor answers to this question... were over general and failed to focus specifically on limitation on the availability of rescission. Many answers did not show a sufficiently detailed knowledge of the operation of the so-called ‘bars’ perhaps missing the ‘double intention’ test described in Peyman in relation to affirmation or that lapse of time and s.2(2) did not apply to cases of fraudulent misrepresentation. Question 5 Veronica wants to arrange for her dog, Felix, to be professionally photographed as a birthday present for her husband. She visits the website of a company called ‘Pawtraits’. There is a box on its homepage which asks her to tick ‘I agree’ to confirm that she has read their terms and conditions. She ticks the box without reading the text and arranges for Pawtraits’ photographer, Angela, to come to her house to shoot the photo. During the phot shoot, Angela’s tripod tips over, smashing Veronica’s glass table, worth £500, to pieces. Felix gets glass in his paw and needs veterinary treatment costing £400. Veronica later receives an invoice demanding £200 more than the amount she had originally agreed for the photography service. Examiners’ reports 2021 9 Pawtraits inform Veronica that this is due to a rise in the price of photographic materials. When Veronica looks at the terms and conditions of her contract with Pawtraits she notices the following terms: a) Pawtraits limit their liability for any damage whatsoever and howsoever caused to £150; b) Pawtraits may increase the cost of the service if a rise in market prices make this necessary. Advise Veronica. General remarks This is a question that includes a discussion of exclusion and limitation clauses. Good technique is important for a clear answer. The first stage should always be to consider what liability would arise in the absence of any exclusion or limitation clause before moving on to assess the impact of the clause upon that liability. Law cases, reports and other references the examiners would expect you to use Standard cases on incorporation such as: Olley v Marlborough ; Chappleton v Barry UDC ; Parker v SE Railway ; Spurling v Bradshaw and especially Interfoto v Stiletto Cases on interpretation such as Photo Production v Securicor ; Canada Steamship Consumer Rights Act 2015, especially s.64(4) test of unfairness. Common errors Poor technique especially a failure to address issues sequentially. Also, a lack of detailed knowledge of the relevant provisions of the CRA 2015. A good answer to this question would... identify the major points to be discussed i.e. the effect of the terms reproduced in the question. The first step must always be to assess what liability or liabilities would arise in the absence of these clauses. Only then can the impact of the clauses be considered. The first issue is to examine whether the clauses have been incorporated into the contract at all. This requires the application of the classic cases on incorporation in the digital context. The next task is to interpret those clauses. Here the doctrine of contra proferentem and the particular rules regarding liability for negligence require discussion. Finally, the effect of relevant sections of the CRA 2015 need to be discussed. Good answers will distinguish themselves by the level of detailed knowledge they have of the 2015 Act and especially the s.64(4) test of unfairness. Poor answers to this question... displayed poor technique and an insufficient grasp of statutory detail. Question 6 ‘There are two principal views [of the law of undue influence]. The first is that the focus... is upon the position of the claimant and that the basis upon which the court gives relief is the impairment of the claimant’s decision-making process caused by his excessive reliance or dependence upon the defendant. The second view looks rather to the position of the defendant and requires some ‘wrongful’ conduct...’ (McKendrick.) Critically evaluate the law of undue influence in the light of the statement above. General remarks The law of undue influence has been developed over the years. It is important that your knowledge is up to date as this is one of those questions that will expose if it is not. 10 Law cases, reports and other references the examiners would expect you to use Allcard v Skinner ; Lloyds Bank v Bundy ; CIBC v Pitt ; especially RBS v Etridge; Curtis v Curtis ; Pesticcio v Hunt ; R v AG for England & Wales ; National Commercial Bank (Jamaica) Ltd v Hew Common errors Many answers did not include sufficient critical commentary and instead included too much descriptive comment i.e. they outlined only what the current law is. A good answer to this question would... adapt the knowledge presented to the quotation. In particular, cases should be analysed in terms of the two approaches described in the quotation from the recommended textbook. Cases which focus on the position of the claimant include: Pesticcio v Hunt , Allcard v Skinner ; cases that emphasise the conduct of the defendant include: RBS v Etridge , R v AG for England & Wales , National Commercial Bank (Jamaica) Ltd v Hew Poor answers to this question... insufficiently addressed themselves to the quotation from McKendrick and the two distinct approaches to this area of law that he identifies. Question 7 ‘In Patel v Mirza (2016) the Supreme Court opined that the law related to illegality has ‘caused a good deal of uncertainty, complexity and sometimes inconsistency’.’ Do you agree with this statement? Explain your reasons. General remarks It is important to note that the question is about the law of illegality that is required to be examined as to whether it is uncertain, complex and inconsistent’; the question is not only about what was decided in Patel v Mirza, although of course this could be a small part of an answer. Law cases, reports and other references the examiners would expect you to use Any of the following might be used: Pearce v B rooks ; Grantatino v Radmacher ; St John Shipping v Joseph Rank ; Archbolds v Spanglett ; Ashmore, Benson, Pease & Co v Dawson ; Re Mahmoud & Ispahani, Bigos v Boustead ; s. 335(2) Gambling Act 2005; Patel v Mirza ; Strongman v Sincock ; Kirini v Dewani ; Bowmakers v Barnett Common errors Some answers focused only on Patel v Mirza , which was not what the question required, others did not sufficiently answer the direct question whether you agree or disagree with the quotation and what your reasons are for that opinion. A good answer to this question would... direct itself to the quotation. It would analyse the law of illegality and give examples of uncertainty, complexity and inconsistency. The approach to illegality at common law might be said to be uncertain. The distinction between contracts that are illegal as formed as opposed to illegal as performed could be used as an example of complexity. The divergence of views in the Supreme Court in Patel v Mirza might be used to illustrate inconsistency. Poor answers to this question... failed to present an account of the law of illegality in the light of the quotation. In particular, they did not focus on and refer expressly to uncertainty, complexity and inconsistency. Examiners’ reports 2021 11 Question 8 Marika and Nigel are planning to get married. The celebrations are to take place on 1 June, at a house that is being built for them. They are planning to spend their honeymoon in South America. Nigel is organising the house construction and Marika the celebration and honeymoon. Nigel enters a contract with Jerry, a builder, which specifies that the house, together with a 10 x 3 metre swimming pool, will be completed by 1 May. Marika enters two contracts: one with Olga, a photographer to take pictures of the celebration on 1 June; and another with Paolo to drive Marika and Nigel to the airport at 10pm on the same day. The house and pool are completed on time and the celebrations are held on 1 June. Everyone enjoys using the pool. Olga uses a new camera to take pictures but has not worked out how to use it properly and so none of the images is captured. At 9pm, for the first time, Nigel unrolls a cover he has had made for the pool and realises that the pool is in fact only 9 metres long (rendering the 10-metre cover useless). Paolo forgets about his 10pm collection and only arrives at 11.30pm which causes Marika and Nigel to miss their flight. At 10.15pm a guest with an old car had offered to drive them to the airport but Marika refused saying that she was not being driven to her honeymoon in an old car. There is not another flight for three days so they ‘lose’ the first three days of their honeymoon. Marika is especially annoyed with Paolo as she explained to him that there were not many flights to their honeymoon destination and agreed to pay him twice his normal fee. Advise Marika and Nigel as to any claims to damages for breach of contract they may have arising from these events. General remarks This is a question about the availability of damages. This is ‘given away’ in the final instruction which directs you only to discuss the availability of damages. Discussion of any other issues or remedies would not get credit. Law cases, reports and other references the examiners would expect you to use Ruxley v Forsyth ; Farley v Skinner ; Hadley v Baxendale ; Victoria Laundries v Newman ; Heron II ; Achilleas ; Jackson v Horizon Holidays ; British Westinghouse Electric v Underground Electric Railway Common errors Many answers failed to identify the mitigation point – was the failure to accept a lift from a guest an unreasonable failure to mitigate loss? Very few answers commented on the fact that the building contract was entered by Nigel and the contracts with Olga and Paolo by Marika. The latter two contracts fall into the category of informal contracts identified by Lord Denning in Jackson v Horizon where it is usual for a family member to contract on behalf of others and that the contracting party can recover damages in respect of the losses of all parties i.e. there is a privity – third parties point in the problem. A good answer to this question would... be structured around the three different contracts. For each a two-stage process should be followed: first, what is the appropriate measure of damages and how is it calculated and, second, do any of the limiting factors apply? Within this structure there should be a discussion of whether damages for the pool would be awarded on the basis of reinstatement or diminution in value. Damages for wasted expenditure re the pool cover could also be discussed. The contract with Olga raises issues about the availability of damages for non-pecuniary loss. The contract with Paulo requires an extended discussion of remoteness, which would form a substantial part 12 of the answer in view of the number of cases (see above) that need discussing. Issues of mitigation and the recovery of third-party losses (see above) would also be discussed in a complete answer. Poor answers to this question... lacked detail in relation to the assessment of damages for breach of contract.