Elements of the law of contract

Study pack

2009

LLB 2650040
Diploma in Law 2690040
page 2 University of London External System

The items in this Study pack were selected by the principal author of the Elements of the law
of contract Subject guide:

uu Catharine MacMillan BA (Victoria), LLB (Queen’s, Canada), LLM (Cantab), Lecturer in Law,
School of Law, Queen Mary, University of London

With thanks for location of originals and scanning to Carolyn Malsher, Robert Tarbuck and
the University of London Library.

The items in this Study pack are principally reproduced under licence from the Copyright
Licencing Agency.

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All rights reserved. No part of this work may be reproduced in any form, or by any means,
without permission in writing from the publisher.
Elements of the law of contract Study pack page 3

Contents
Subject
guide
Chapter
3 1 ‘Consideration, practical benefit and the Emperor’s new clothes’
Mindy Chen-Wishart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 2 ‘Keeping contract in its place: Balfour v Balfour and the enforceability of informal agreements’
Stephen Hedley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5 3 ‘The statutory implied terms in favour of the buyer’
Roy Goode . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6 4 ‘Winning the battle against unfair contract terms’
Susan Bright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
5 ‘An unfairly complex law’
Hugh Beale and Tamara Goriely . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
8 6 ‘Common mistake: a theoretical justification and remedial inflexibility’
Adrian Chandler, James Devenney and Jill Poole . . . . . . . . . . . . . . . . . . . . . . . . . . 94
7 ‘New notes on the old oats’
Roger Brownsword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
9 8 ‘Damages and the Misrepresentation Act 1967’
Case comment by Richard Hooley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
10 9 ‘The uncertain boundaries of undue influence’
Andrew Phang and Hans Tjio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
11 10 ‘A birthday present for Lord Denning: The Contracts (Rights of Third Parties) Act 1999’
Catharine MacMillan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
12 11 Extract from Chapter 9: ‘Illegality’ of Anson’s law of contract
Jack Beatson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
12 Extract from from Section 2: ‘Types of illegality’ in Chapter 11 of The law of contract
Gunter H. Treitel and Edwin Peel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
14 13 ‘Retrieving reasons, retrieving rationality? A new look at the right to withdraw for
breach of contract’
Roger Brownsword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
15 14 ‘Force majeure and frustration – their relationship and a comparative assessment’
Ewan McKendrick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
16 15 ‘The common law at work: The Saga of Alfred McAlpine Construction Ltd v Panatown Ltd’
Ewan McKendrick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
16 ‘Breach of contract and the meaning of loss’
Ewan McKendrick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
17 ‘Contract damages, Ruxley and the performance interest’
Brian Coote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
page 4 University of London External System

1 ‘Consideration, practical benefit and the Emperor’s new

clothes’
Mindy Chen-Wishart

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Chapter 5 from Beatson, J. and D. Friedmann, (eds) Good
faith and fault in contract law. (Oxford: Clarendon Press, Scanning authorised by Professor Wayne Morrison
1995) [ISBN 0198265786]. pp.123–139. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 3.
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2 ‘Keeping contract in its place: Balfour v Balfour and the

enforceability of informal agreements’
Stephen Hedley

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
Oxford Journal of Legal Studies 5 (3) (1985) pp.391–415 (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 4.
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3 ‘The statutory implied terms in favour of the buyer’

Roy Goode

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Chapter 11 of Goode, R. Commercial Law. (London:
Penguin Books, 2004) 3rd edition pp.279–295 Scanning authorised by Professor Wayne Morrison
[ISBN 0140289631]. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 5.
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4 ‘Winning the battle against unfair contract terms’

Susan Bright

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
Legal Studies 20(3) [2000] pp.331–352. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 6.
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5 ‘An unfairly complex law’

Hugh Beale and Tamara Goriely

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
New Law Journal 155 [2005] 318. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 6.
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6 ‘Common mistake: a theoretical justification and remedial

inflexibility’
Adrian Chandler, James Devenney and Jill Poole

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
Journal of Business Law 2004, January pp.34–58. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 8.
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7 ‘New notes on the old oats’

Roger Brownsword

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
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Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
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mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
Solicitors’ Journal 131 [1987] pp.384–387 (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 8.
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8 ‘Damages and the Misrepresentation Act 1967’

Case comment by Richard Hooley

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
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This copy has been made under a licence from the
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under the terms of this licence is for use in connection
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copying, storage or distribution (including by email) is
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any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
Law Quarterly Review 107(Oct) 1991 pp.547–551. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 9.
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9 ‘The uncertain boundaries of undue influence’

Andrew Phang and Hans Tjio

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
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This copy has been made under a licence from the
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any other derogatory treatment of it, which would
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author(s).
Reproduced by the University of London External
Programme, 2009.

Lloyd’s Maritime and Commercial Law Quarterly, (2002) Scanning authorised by Professor Wayne Morrison
pp.231–245. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 10.
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10 ‘A birthday present for Lord Denning: The Contracts (Rights of

Third Parties) Act 1999’
Catharine MacMillan

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
Modern Law Review 63 (2000) pp.721–738. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 11.
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11 Extract from Chapter 9: ‘Illegality’ of Anson’s law of contract

Jack Beatson

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
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Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
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The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Section VI: ‘The effect of Illegality’ From Chapter 9 of
Beatson, J. Anson’s Law of Contract, 28th edition (Oxford: Scanning authorised by Professor Wayne Morrison
Oxford University Press, 2002) [ISBN 0198765762] (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 12.
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12 Extract from from Section 2: ‘Types of illegality’ in Chapter 11

of The law of contract
Gunter H. Treitel and Edwin Peel

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Treitel, G.H. and E. Peel The law of contract (London:
Sweet and Maxwell, 2007) twelfth edition [ISBN Scanning authorised by Professor Wayne Morrison
042194840X] Chapter 11, pp.474–498. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 12.
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13 ‘Retrieving reasons, retrieving rationality? A new look at the

right to withdraw for breach of contract’
Roger Brownsword

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
Journal of Contract Law 83 (1992). (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 14.
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14 ‘Force majeure and frustration – their relationship and a

comparative assessment’
Ewan McKendrick

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
McKendrick, E. (ed.) Force majeure and frustration of
contract. (London: LLP Professional Publishing, 1995) Scanning authorised by Professor Wayne Morrison
second edition [ISBN 1850448191], Chapter 3. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 15.
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15 ‘The common law at work: The Saga of Alfred McAlpine

Construction Ltd v Panatown Ltd’
Ewan McKendrick

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.

Oxford University Commonwealth Law Journal Winter Scanning authorised by Professor Wayne Morrison
(2003) pp.145–166. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 16.
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16 ‘Breach of contract and the meaning of loss’

Ewan McKendrick

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further
copying, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.

Freeman, M. (ed.) Current Legal Problems Vol 52. (Oxford: Scanning authorised by Professor Wayne Morrison
Oxford University Press, 1999) pp.37–60. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 16.
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17 ‘Contract damages, Ruxley and the performance interest’

Brian Coote

Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
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Except as provided by copyright law, no further
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The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or
any other derogatory treatment of it, which would
be prejudicial to the honour or reputation of the
author(s).
Reproduced by the University of London External
Programme, 2009.
Scanning authorised by Professor Wayne Morrison
Cambridge Law Journal 56(3) November 1997, pp.537–570. (designated person).
Elements of the law of contract course (LLB, Diploma).
This reading relates to the Elements of the law of
contract subject guide, Chapter 17.
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