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MODEL ANSWERS FOR YOUR EXAM

CRIMINAL LAW

AND

CONTRACT LAW

CRIMINAL SECTION

ACTUS REUS Question

Actus Reus (AR) is the guilty action. AR can be a voluntary act, a state of affairs
or an omission. In Hill v Baxter it was said that an act would not be voluntary if a driver
was being attacked at the time by a swarm of bees, as he had no control over his actions,
which would be seen as an involuntary act. In R v Whooley the driver of a HGV lorry had
a sneezing fit and crashed into other cars. Because his actions were involuntary it was
held he did not have the actus reus of the offence and was not guilty.
An omission can also form the actus Reus of an offence. The general rule in English
law is that there is no liability for a failure to act, e.g. watching a blind child being run
over crossing a busy road. However, the law sometimes imposes a duty to act. Parliament
said a failure to provide a breath sample under the Road Traffic Act was an offence. The
courts said Pittwood, a railway worker, was guilty of manslaughter for failing to close
level crossing gates, as he was under a contractual duty to protect the health and safety
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of those using the crossing. Also Stone and Dobinson, an elderly couple, was also guilty
of manslaughter for failing to care for an infirm relative who they took responsibility for.
Miller was guilty of arson for failing to take reasonable steps to prevent the spread of a
fire he had started accidentally.
An act can simply be a state of affairs, where the prosecution only have to prove
the D was in the wrong place: in the case of Winzar, the police escorted a drunk out of a
hospital. They then arrested him for being drunk on the highway, as he was both drunk
and on the highway. As this was a state of affairs offence it was irrelevant to proving the
actus reus of the crime that Winzar was in the highway involuntarily.

Explain how omissions can result in a crime being committed Question

The general rule in English law is that an omission or failure to act will not usually result
in criminal liability being imposed, as the actus reus should normally be committed
voluntarily by the D. There is no general ‘Good Samaritan’ law where a D would commit a
crime for not doing what he should of. But there are exceptions where a crime will have
been committed because the defendant failed to act. These are as follows:
(1) Where there is a contractual duty to act — in R v Pittwood, the level-crossing
gatekeeper failed to close the gate to an oncoming train and a person crossing the line
was killed. His contract of employment clearly required him to ensure this could not
happen and to protect the health and safety of crossing users and as he failed in this
duty he was convicted of manslaughter.
(2) Statute can make it an offence in defined circumstances to fail to act. Under the
Road traffic Act the AR is satisfied for failing to wear a seat-belt or crash helmet.
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(3) Someone can be made liable where there is an assumed responsibility for the care of
an aged or infirm person — R v Stone and Dobinson. Here the defendants wanted
Stone’s middle-aged sister to live with them. The D’s were found guilty of manslaughter
as they had failed to call for medical attention after assuming responsibility for the V.
(4) Where the defendant does an act, which creates a dangerous situation there is a duty
to take reasonable steps to eliminate the danger. In the case of Miller He set fire to a
mattress accidentally and then left it. His failure to intervene in the creation of a
dangerous situation and do what was reasonable (such as call the fire brigade) made him
guilty of arson through an omission.
(5) Where an official fails to perform his duty — in Rv Dytham a police officer was found
guilty when he failed to protect a citizen who was being kicked to death for example by
calling for assistance.
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CAUSATION Question

If it is not clear if the D’s act caused the injury the courts must prove factual and
legal causation, in order to prove the actus reus of a crime. We use the ‘But For’ test
for factual. But for the D’s actions would the victim still be ok? In White, he was not the
factual cause of death, his mother died of a heart attack and his act did not contribute
to this.

If factual causation is proved then legal causation must be proved to show that it
is fair to hold the D responsible for the AR of the offence. The D must be proved to be
either a significant cause or a substantial cause of the V’s injuries/death as well as an
operative factor. So in the case to Smith even though the medical treatment was poor, as
the doctor missed a wound in the V’s back, the stab wounds were still an operating and
substantial cause of the V’s death, and therefore Smith was still liable for the AR of
murder. This established a chain of causation and the AR of the offence.

The D can argue the chain of causation has been broken and if successful will not have
the AR of the offence, known as a novus actus interveniens. Firstly, by characteristics of
the victim as in Blaue, in this case the V refused a blood transfusion on religious grounds.
However, you have to take your victim as you find them under the thin skull rule, so the
D’s chain of causation is not broken as the D had to take the V’s religious views as he
found them. Secondly, because of the victim’s own act as in Roberts where he claimed
the girl’s act of jumping out of the car were daft. If the victim’s acts are seen as daft it
will break his chain however, it is very rare that this happens and in Roberts the V’s
actions were seen as reasonable and not daft as she was sexually assaulted. Thirdly, if
there has been an unforeseeable intervention as in Pagett where the police shot and
killed his girlfriend. In this case it was seen as reasonably foreseeable that the police
would instinctively return fire when shot by D, and Pagett was still responsible. Lastly,
that a doctors’ negligence was the real cause of the AR in Jordan. Where treatment
given was ‘palpably wrong’ (allergic to drugs given – twice!) and broke the D’ chain as the
D’s original wounds had almost healed. However in Cheshire the court said that if the
original acts were an insignificant cause of death/injury then any poor treatment would
break the chain. However Cheshire’s shooting of the V were still a significant cause of
death. Because of ‘public policy’ (to protect doctors) it is very rare that poor treatment
will break the chain.
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Alan believed that Bhu, a fellow student, had stolen his mobile phone. Alan saw Bhu at
college, went up to her and said, ‘We sort out thieves like you.’ As Bhu hurried away in a
panic, Alan’s friend Carol, sprayed Bhu with red paint. A small amount of paint went into
Bhu’s eyes. She was taken to hospital where her eyes were treated to remove the paint.
As she went home, and just before her sight was fully recovered, she tripped up a kerb
and fractured her skull.

Outline the rules on causation, and briefly discuss whether Carol caused Bhu’s
fractured skull. (7 marks + 2 marks for A03) – Jan 2011

The defendant (def) must be both the factual and legal cause. To establish whether they
are the factual cause you use the ‘but for’ test, ‘But for the defendant’s actions would
the victim have suffered harm?’ (White). But for his actions – putting poison in his
mother’s drink – she would have died anyway of a heart attack. Carol caused Bhu’s
fractured skull because but for Carol spraying Bhu in the eye with paint, she wouldn’t
have blurred vision and fallen and fractured her skull.

Legal causation – did anything break the chain of causation? As long as it can be said
Carol’s conduct of spraying the paint in Bhu’s eyes is a substantial and operating cause of
Bhu’s fractured skull she will be held legally responsible for this injury (Smith),
establishing a chain of causation. Carol may argue a number of reasons why the chain of
causation may be broken and she is not responsible for Bhu’s fractured skull. 3rd party
interventions break the chain of causation if they are unforeseeable (Pagett). The police
firing at Pagett’s girlfriend was foreseeable after he shot at them. Medical treatment
breaks the chain if it is ‘palpably wrong’ (Jordan), but doesn’t if the injuries were the
substantial and operative cause of death (Smith). You must take you victim as you find
them – the thin skull rule (Blaue). It didn’t matter Blaue’s victim refused a blood
transfusion as she was a Jehovah’s witness and later died because you must take your
victim as you find them. Daft acts by the victim break the chain of causation if they are
unforeseeable (Roberts). It wasn’t unforeseeable that Robert’s victim would jump from
the car.

It was foreseeable that if Carol sprayed paint in Bhu’s eyes she would lose her sight and
that Carol must take her V as she finds her, with poor vision. With Bhu’s poor vision even
after getting medical treatment it is reasonable that she try and go home and
foreseeable that she would trip and fall, causing the fractured skull. There is no mention
of “palpably wrong” medical treatment for Carol’s injury and it is clear Carol’s injuries to
Bhu were still operating and substantial at the time when Carol fell and fractured her
skull. Therefore there is no break in the chain of the causation and carol is said to have
caused Bhu’s fractured skull.
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MENS REA Question

Mens rea means the guilty mind of the D and is the level of fault or
blameworthiness that needs to be proved to show D was aware of the consequences of his
actions. This can be either intention or recklessness. Intention can be direct as in
Mohan. Direct intent means it is your main aim or desire to bring about the consequence
of the crime e.g. death or GBH. In Mohan the D accelerated his car towards a police
officer causing the V to jump out of the way. It was held that the D’s main aim from the
evidence was to cause the V GBH, really serious harm, through accelerating his car at the
officer who was standing in front of it.
Intention can also be indirect/oblique. This is where the D intended the act itself
but not the criminal consequences. Woollin’s main aim was to throw the baby against the
wall (so he had direct intent for this) but his main aim was not to kill the baby. However,
we can say that if he saw death as a virtual certainty of throwing the baby against
the wall we can say he indirectly intended the baby’s death. As long as the jury also
foresaw death as a virtual certainty the D would have indirect intention to kill the V.(very
important bit!)
Recklessness is where the D doesn’t intend the death or injury of a V but he
recognises he is taking a risk of harming someone and yet still goes ahead. This is
explained in Cunningham. It looks at what was in the D’s mind i.e. subjective
recklessness. So in the case of Cunningham the D must have foreseen that the V might
suffer from the effects of gas poisoning when he tampered with the gas meter, but still
gone on to take the unjustified risk. It must also be proved that D was at least
indifferent to this obvious risk or was aware of the unjustified risk but chose to take it
anyway, i.e. unjustified risk taking. However as Cunningham was believed all the houses
were abandoned he did not foresee the risk of poisoning anyone with gas.
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Explain the meaning of Transferred Malice

Transferred Malice (TM) is where the mens rea directed towards one person is
transferred to the actual V.

The rule operates only where it is the same type of offence the D wishes to commit on
either the person or object. TM can transfer person to person or object to object. For
example in the case of Latimer the D got into an argument with V1 and took his belt off
to strike him. The belt hit V1 but then rebounded and also hit V2, standing next the first
victim. The P only had to prove the Mens rea of the offence on V1, which they
successfully did. This then automatically transferred to V2 through the concept of TM as
it was person to person and the same type of offence.

However, where the D wishes to commit an offence, which is different from the actual
offence committed, the principle of TM does not apply. So TM can’t transfer from person
to object or object to person. For example, in the case of Pembliton the D intended to hit
a person in a crowd by throwing a stone. The D missed the crowd and broke a nearby
window instead. TM did not apply as the breaking of the window (criminal damage) was not
the same type of offence as hitting someone with a stone (battery). Therefore the P
would have to prove the mens rea for criminal damage if D was to be guilty of this
offence.
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COINCIDENCE OF ACTUS REUS AND MENS REA Question

Actus reus and mens rea must occur at the same time (the contemporaneity rule)
or there will be no criminal offence. This is to stop unrelated events being linked
together creating a crime, which a D is clearly innocent of. However the courts have
identified a number of exceptions. In Fagan v MPC the D accidentally stopped his car on
a policeman’s foot (actus reus of battery). When he was asked to remove the car he
refused and told him to wait. Leaving the car on the policeman’s foot was seen as a
continuing actus reus. He formed the mens rea for the offence when he refused to
remove it and as he was still committing the act by still being on the foot, he had
committed the crime, so using this approach AR and MR did coincide and F was found G.
Sometimes the courts view separate incidents as a ‘series of acts’ and get round
the contemporaneity rule that way. In Church he had gone to a van with a woman for sex.
She laughed because he couldn’t do it so he attacked her knocking her out. He panicked,
thought he had killed her and threw her unconscious body into the river, where she
drowned. He said ‘when I did kill (throwing her into river) I didn’t have the mens rea to
kill as I thought she was already dead! The court said he had mens rea when he attacked
her and it didn’t just stop, he still had mens rea when he threw her unconscious body into
the river so he is guilty. This series of actus reus and mens rea actions were held to
form the crime of manslaughter for which D was found guilty, from the initial attack to
the death of the V.
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STRICT LIABILITY Question

What is strict liability? Outline the reasons for having offences of
strict liability. (7 marks)

For some offences, there is no need to prove mens rea for at least one element of
the actus reus. These are known as strict liability offences. They generally deal with
matters of social concern and tend to be regulatory offences, where a fine is the likely
punishment. SL offences may seem unfair but they are easier to prove, take less time and
protect the public in situations where public health is concerned.

We have them because they are easy to prove, quick, therefore less costly and raise
standards. It is SL to protect the environment (Alphacell v Woodward). The actus reus
(AR) was done when a storm caused pollution to enter a river; even though they were
unaware they were guilty of a SL offence, it was more important to encourage high
standards in the quality of water the public drink. It is SL to protect the public health
(Smedleys v Breed). A caterpillar was found in a tin of Smedleys peas. The company was
guilty as they had a duty to protect the public by keeping their production clean and safe.
It was a SL offence to sell food unfit for human consumption. It is SL to protect public
safety (Blake); you cannot broadcast a radio station without a license as the pirate
airwave could interfere with emergency services ability to protect the public and save
lives. It is a SL to protect children (Harrow v Shah) where the defendant sold a lottery
ticket to an underage individual, therefore were proven guilty of a SL offence. It is more
important to protect children from underage gambling than to allow a shopkeeper to
argue they had taken reasonable precautions such as training their staff to avoid this.
Another example is food safety. Butchers will always be found guilty if they sell bad
meat as in the case of Callow v Tilstone, even though the butcher had got a vet to check
it was safe. It is more important to encourage high standards of food safety than to
allow a defence that appropriate checks had been taken.

However, where the offence is likely to result in the D receiving a custodial sentence or
have a big impact on their lives the courts have held it is less likely for an offence to be
classed as strict liability, mens rea must also be proved. Strict Liability is not used in
these ‘truly criminal’ offences: in Sweet v Parsley, the D’s conviction was overturned as
mens rea was needed for the offence of managing premises where drugs were being used.
The D would have lost her job and gone to prison if found guilty and as she had no idea
what was happening in her rented property this was seen as unfair by the courts unless
the P could prove some knowledge of the situation by the D, mens rea.
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Outline the range of sentences available to the court and the factors the court
would consider if Dan was convicted of an offence in respect of Enid’s injuries (7 + 3
marks for A03)

The range of sentence includes custodial, community, fines and discharges

Custodial sentences should only be passed if the offence is so serious that there is no
alternative. Prison sentences can only be passed on anyone aged 21 or over. Normally the
Court are free to choose the length of the sentence, but for murder the judge has to
give a life sentence. For Dan’s offence under S18, the max is life and under S 20 the max
is 5 years. Dan could be given a suspended sentence for up to two years. This means that
he does not have to serve the sentence unless he re-offends within the two years.

Under the Criminal Justice Act 2003, Community sentences include unpaid work in the
community e.g. cleaning graffiti, painting nurseries. The number of hours is from 40 to
300hrs over a period of time. A supervision order can last for 3 years. You are
supervised by the probation service that helps you get a job/house/send you on courses
etc and keep you on the straight and narrow. You could get a curfew with electronic
tagging which can last for up to 12 hours a day or an exclusion order, which can last for
two years. Dan could be given a supervision order and be asked to complete unpaid work
to as this is his first offence.

Fines in the Magistrates Court are unlimited and it is unlimited in the Crown Court.

Discharges can be Conditional or Absolute. Absolute means the D may be technically

guilty but should not be punished with an actual sentence and Conditional is where
conditions are attached e.g. not to reoffend for up to 2 years.

Before deciding on an actual sentence the court would look at the mitigating factors of
Dan and the offence, factors that can lessen Dan’s sentence. If Dan pleads guilty at the
first opportunity the court will reduce his sentence by one third. Dan showed immediate
signs of genuine remorse and had not committed an offence before. If Dan co-operates
with the police and has any particular medical conditions or family responsibilities a pre
sentence report will help the court decide if these should reduce the sentence.
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OUTLINE the aims of sentencing available to the court, and

briefly discuss how these aims might apply if Carol were
convicted (5) Jan 2011

There are 5 main aims of sentencing under S142 of the Criminal Justice Act 2003:
retribution, rehabilitation, protection of the public, reparation and deterrence.
Retribution is about punishing the offender normally through a prison sentence or heavy
fine; and is proportionate punishment “an eye for an eye”. It is about revenge and it
doesn’t try to reduce crime or change the offender. This aim is best served by harsh
sentences (such as long prison sentences). In Carol’s case if guilty of a Section 20
offence she could be punished by a prison sentence of upto 5 years.
Rehabilitation is about changing the offender so that they don’t re-offend. It is a
forward looking-aim and hopes that the offender will change their ways. This aim is best
served by community sentences such as unpaid work, electronic tagging and curfew or a
supervision order. If Carol has not committed an offence before doing unpaid work to
rehabilitate her may reform her.
Protection of the public is about protecting society from dangerous criminals. For
example, long prison sentences are given for murder and violent sexual offences. This
can also be done through driving bans and curfews.
Deterrence is about putting people off committing crimes. It can be general (preventing
other people from committing the same crime) or Individual (preventing the offender
from re-offending). They are both aimed at reducing crime. This is served best through
harsh sentences and can be unfair. Carol could be given a suspended sentence for upto 2
years to ensure she does not do the offence again.
Reparation is intended to make the offender make some form of compensation for the
harm he has caused either through a fine, unpaid work of between 30-400 hours or
through specific work doen for the victim. Carol could be fined upto £5000 in the
Magistrates court and have potentially an unlimited fine in the Crown court. Carol may be
asked to compensate Bhu for all the injuries she has caused her.
Carol’s final sentence will depend on her plea, guilty or not guilty and her previous criminal
record.
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Contract Section

Jan 2010 – Explain the distinction between an offer and an

invitation to treat (7 Marks)
An offer is defined as a statement of the terms upon which the person making the offer
is willing to enter a contract; it can be written or verbal. For example, the owner of a
vending machine, placing it in a public place, is an offer.
An invitation to treat is defined as an indication of a willingness to start negotiations, for
example, goods in a self service store are an invitation to treat, not an offer.
One case that was classed as an offer is Chapleton v Bury, where there was the act of
taking a deckchair from a pile of deckchairs and sitting on it formed the contract where
a local council hired deckchairs to people on its beach. The placing of the pile of
deckchairs on the beach that could be taken and the clear display of the price was an
offer because there were many more customers than attendants and therefore no way to
negotiate, so therefore not an ITT.
A case that is an invitation to treat was Fisher v Bell where a shopkeeper in Bristol was
prosecuted because he had a flick knife in his shop window with a price label on it. The
shopkeeper was not offering the knife for sale as he has limited stock; therefore it was
merely an invitation to treat. The shopkeeper may wish to choose the person to sell the
goods and in this case the shopkeeper would also have legal restrictions on which he could
sell a knife. Another case which is an invitation to treat was Gibson v MCC where the
councils response when asked by Mr Gibson whether he could buy his council house was
‘the corporation may be prepared to sell the house to you at the purchase price of
£2,725 less per cent’, therefore the uncertainty of the word ‘may’ showed negotiations
were still continuing, not that there was a readiness to make a contract meant there
could be no offer to sell.
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Explain the ways an offer can come to an end (7 marks)

An offer is defined as a statement of the terms upon which the person making the offer
is willing to enter a contract. It can be written or unwritten. An offer must be
communicated to the other party; it cannot be accepted unless the person who is seeking
to accept it knows of its existence. If the other person is not aware of the offer than it
cannot be accepted. However, in Carlill v Carbolic there was an offer exceptionally
through a poster because it was sufficiently clear and communicated to the reader as to
what to in order to accept the offer, i.e. buy and inhale the smoke ball as required by the
poster. Therefore acceptance took place in this case soon as this was done. An offer can
come to an end in one of six ways, these are: acceptance, lapse of time, revocation,
rejection, counter offer and death.
Lapse of time means that some offers are made for a fixed period of time, at the end
of this period, the offer lapses or comes to an end. This is seen in the case of Ramsgate
Hotel v Montefiore, were D offered to buy shares in a hotel on the 8th June. On the
23rd November the company tried to accept the offer but D no longer wanted to buy
shares. This demonstrates a lapse of time because the company only responded five
months later so the D was entitled to assume the company did not want him to invest as
the length of time was unreasonable.
Rejection is where a person doesn’t accept the offer. Once an offer is rejected the
offer comes to an end and there is no second chance. The rejection must be clear and not
just a request for more information. A case example for rejection is Stevenson v Mclean
where the D had enquired if he could receive credit on goods he had been offered. After
receiving no reply he assumed credit was not available and stated he was prepared to pay
cash. This was ruled as not being a rejection because the enquiry was about whether
credit was available so the offer was not rejected at this point and still could have been
rejected.
A counter offer both rejects the original offer and creates a new offer that can then be
accepted or rejected. An example of a counteroffer is Hyde v Wrench. On the 6th June,
Wrench offered to sell his farm to Hyde for £1000, Hyde offered £950. On the 9th
June Wrench rejected the offer. On the 21st June Hyde tried to accept the offer to
sell for £1000, Wrench refused to sell at £1000 as his original offer had ended with
Hyde’s counter offer of £950. This counter offer ends the original offer.
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Jan 2009
3 (b)(i)
Discuss whether there has been an offer and an acceptance in
the dealings between Farah and Gareth.
(7 marks)

Gareth’s advertisement in the local paper is an invitation to treat (Partridge v

Crittenden) as it is merely an indication of a willingness to enter into negotiations. It is
not an offer because it is not clear that Gareth wants to be bound by the advertisement,
particularly because the logs are advertised at a cheap price. This is a logical decision as
it enables Gareth to choose who he sells the logs to; this is especially important as he will
only have a finite number of logs and the price is cheap.

Farah then makes an offer to Gareth when she leaves a message on Gareth’s answer
phone asking ‘for a load of logs to be delivered the following Saturday.’ This is an offer
because it is a clear statement of the terms upon which the person making the offer is
willing to enter a contract (Thornton v Shoe Lane Parking); Farer implies she wants to
be bound by the offer as she states a delivery date and is particularly pleased by the
price. An offer can be verbal and it must be communicated; Farer’s offer was
communicated on Gareth’s answer machine. However it is only finally communicated to
Gareth when he accesses the message which from the scenario is at the latest Tuesday
(Carlill v Carbolic). We know this because otherwise Gareth would not have then left a
further message telling Farer the date and time of delivery of the logs.

Gareth then accepts Farer’s offer when he leaves a positive and unqualified message on
Farer’s answer machine ‘saying that the logs would be delivered between 10am and 12
noon on Saturday, as requested.’ The acceptance is communicated when Farer clearly
hears and understands the answering message. It can be assumed that the acceptance
was communicated to Farer correctly due to Gareth’s next phone call in the scenario
(Entore’s v Miles Far East). Phone calls are treated for acceptance in the same way as a
face to face conversation.

Therefore in the scenario, there does appear to be a valid offer and acceptance in the
dealings between Farah and Gareth.
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Explain the meaning of ‘intention to create legal relations’ (7)

Intention to create legal relations is when the parties of a contract must intend the
agreement to be legally binding.

Contract law presumes that there are no legal relations in domestic agreements between
friends and family, for example, it is not expected that a child takes a parent to court if
they are late in paying their pocket money. However, the intention to create legal
relations can be challenged, for example, an agreement based on social arrangements to
share winnings in a lottery syndicate, these agreements are usually in writing and signed.
An example where no legal relations were created is in the case of Balfour v Balfour,
there was no rebuttal of an ITLR for this domestic agreement because B’s agreement to
pay his wife £30 maintenance per month whilst she stayed in England due to health
reasons was made before the marriage broke down and wasn’t in writing. Mrs Balfour
could not take legal action as the arrangement was not intended to be legally binding.
However, in Merritt v Merritt, the presumption of a domestic agreement was rebutted
because, Mr Merritt legally separated from his wife and then agreed in writing to pay her
£540 per month, He signed this agreement but later refused to transfer the house.
These were legal relations as a more formal arrangement after a marital split can be
legally binding.

Contract law presumes in commercial agreements that there is a willingness to create

legal relations, for example if purchased goods turned out to be defective. However,
there are no legal intentions in the sale of a house subject to contract, where an
agreement has been reached between the owner of a house and a prospective buyer, but
the written contract has not yet been completed. One example where the intention to
create legal relations in a commercial situation and where rebutted is Jones v Vernon’s
Pools, where claims were made by people who believed they had the winning coupon.
However, the ticket clearly stated the phrase ‘binding in honour only’ which was
interpreted to mean there was no intention to create legal relations, and the claimants
had signed the agreement.
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Explain the meaning of the terms ‘consideration’ and ‘past

consideration’ (7 Marks)
Consideration is defined as each party to a contract must give something to someone of
some value. This is because the law is concerned with bargains and not gifts.

Consideration can be executed which is defined as when a person has completed their
part of the contract it can be said to have been fulfilled, or the term used to describe
the status of a person’s promise in a contract where that part of the bargain had been
performed. Consideration can be executory which is defined as when a person has not yet
completed their part of the contract.

Consideration must have some value as the law is concerned with bargains and not gifts;
the consideration must have some value but does not have to be of equal value. The whole
point of business is to get more for your goods than you pay for them so it is not equal
values. An example is Chappell v Nestle, where the chocolate bar wrappers were enough
to be regarded as some value and consideration even though it was less than one pence
value.

Consideration must move from the promise, this means that the person making the
promise must provide the consideration. However, the basic rule has been altered by the
Contracts (Rights of Third Parties) Act 1999, so that a person who is not party to a
contract can enforce the contract if he or she is named in the contract or he gains
benefit from it; for example, a gift for someone which is delivered to their house.
Past consideration is defined as, is not valid consideration. Something already done by A
at the time the agreement is made by him with B. An example of past consideration is not
valid consideration is Re McArdle where a promise to pay for work done voluntarily after
the work has been done is not consideration but past consideration. The court held that
the promise of payment did not create a contract as the alterations were over and done
with by the time the promise of payment was made. There is an exception to this which is
defined in the case of Lampleigh v Braithwaite, where an act is done at someone’s
request and the parties understood that payment would be made, this is valid
consideration not past consideration. The court decided that although Lampleigh’s
consideration was past, Braithwaite’s promise to pay could be linked to his earlier request
and treated as one agreement. Therefore it could be implied at the time of the request
that Lampleigh would be paid and so was valid consideration.
Page 17 of 21

Jan 2010 - Explain the meaning of the terms ‘actual breach’

and ‘anticipatory breach’.
(7 marks)

A breach occurs when one party to the contract fails or states that he will to perform
part or all of his side of the contract. An actual breach occurs either through poor
performance of the contract or by non performance – where the goods/services /money
are not provided at all. An actual breach (or anticipatory breach) can be a condition or a
warranty. A condition is a major term of the contract that, if not performed, will go to
the heart of the contract. If a condition is breached the Claimant (C) can terminate the
contract and claim damages. A case involving a breach of a condition is Poussard v Spiers
& Pond where an opera singer not attending the first six performances she was
contracted to sing was an actual breach of contract due to a condition. Her singing in the
performances was a condition of the contract as it was a major part of the contract,
without her there could not be a performance. Therefore the singer’s contract could be
terminated immediately and damages claimed by C.

A warranty is a minor term of the contract that, if not performed, will cause loss but
does not go to the heart of the contract. If a warranty is breached, C can’t terminate
the contract but can claim damages for any loss. In Bettini v Gye, a warranty was
breached when an opera singer was required to attend six rehearsals before
performances but failed to attend the first two. This was considered a warranty as it was
only part of the rehearsals and not the performances that the singer missed and
therefore not a major part of the contract. The C could sue for damages but not
terminate the contract.

An anticipatory breach occurs where one party to the contract states or indicates that
there will not be a performance of the contract in the future. For example, in Hochster v
De La Tour, a tour guide being told his services would not be required 2 months before
his contract was due to end, was an anticipatory breach as his contract had not yet
ended. As this was an anticipatory breach of a condition C could terminate the contract
immediately and claim damages or wait to see if his services would be needed.
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3 b (ii) Jan 2010Assuming there was a contract between

Richard and ‘The Bike Shed’, discuss who is in breach of that
contract and when that breach occurred. (7 marks)

A breach would occur where the Bike shed fails to deliver the Challenge 6 Bike. This is an
anticipatory breach as The Bike Shed contact with Richard after he has agreed the
contract for the Challenge 6 and tell him it is no longer available (Hochster v De La
Tour) Clearly this is a breach of contract as Richard and The Bike Shed had agreed on
the exact model to be paid for. The anticipatory breach takes place when The Bike Shed
leave Richard a message stating the bike isn’t available and they are going to charge him
an extra £50 for a model he didn’t order (the Challenge 7).

As the model and price of the original contract are major terms of the contract this goes
to the heart of the contract between Richard and the Bike shed and therefore it
appears the anticipatory breach was that of a condition. This means Richard is correct in
stating that he refuses to pay for the new bike, when Sam telephone’s him from the Bike
Shed. As a breach of condition Richard is legally allowed to terminate the contract early,
when he heard the phone message, and also sue for damages for the extra £50 he has
had to pay to buy the same bike from another supplier (Poussard v Spiers &
Pond).Alternatively Richard could have continued with the contract and simply sued for
any losses, in this case The Bike shed should have given him either a Challenge 6 bike or
the Challenge 7 bike for the same price (Avery v Bowden 1855)
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Explain the meaning of the term consideration and identify the

consideration in the contract between Juan and AB (7)
Consideration means that each party to a contract must give something of some value.
This is because the law is concerned with bargains and not gifts. A gift is not
consideration and therefore a contract cannot be formed. Consideration is not concerned
with whether or not each person receives something of equal value.

Consideration can be looked at in two ways. Executory consideration is when a person has
not yet completed their part of the bargain/contract, and executed consideration is when
a person has completed their part of the contract. Consideration must be for some value
to be used to bargain with (Chappell v Nestle). In this case chocolate bar wrappers were
enough to be regarded as some value and consideration even though the value was very
little. Consideration must move from the promise. This means that each side must
promise to give or do something for each other. This means there must be at least two
promises. The promise can benefit another person other than the ones making the
contract. Contracts (Rights of Third Parties) Act 1999. This act has altered the rules
about each side having to promise to give or do something for the other. Past
consideration is not valid consideration. It is something already done by A at the time the
agreement is made with B (Re McArdle). A promise to pay for work done voluntarily after
the work has been done. There is an exception to this which is defined in the case of
Lampleigh v Braithwaite, where an act is done at someone’s request and the parties
understood that payment would be made, this is valid consideration not past
consideration. The court decided that although Lampleigh’s consideration was past,
Braithwaite’s promise to pay could be linked to his earlier request and treated as one
agreement. Therefore it could be implied at the time of the request that Lampleigh would
be paid and so was valid consideration.

There is consideration from both Juan and AB. Juan bought the computer from AB and
gave him £345 (Chappell v Nestle). Juan has executed consideration and it is clearly not
a gift and of some value, being cash for the computer. AB also has executed
consideration because we assume that he has given the computer to Juan as two weeks
after the installation the computer breaks down. Again this is not a gift as AB are clearly
in business to sell computers and contract law accepts that consideration may be of
unequal value, AB clearly are in business to make a profit by selling computers to Juan at
a profit.
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Jun 2010: If Juan were successful in his claim against AB,

outline how the court would calculate an award of damages
(5 marks)

You must correctly identify and explain the damages in the case and how they will be classified and dealt with.

Damages normally take the form of money paid to the winning party. In contract damages
are compensatory. The purpose of damages is only Compensatory, to put the claimant in
the position he would have been in had the contract been properly performed. Juan’s
damages would be calculated taking into account his ability to mitigate his loss; he must
do his best to keep the losses he has suffered to a minimum. Juan’s claim may be for
£395 for the new computer but he must mitigate his loss so may only end up getting the
difference between the cost of his computer from AB and the £50 extra paid for his
new computer. AB will need to give him back any losses he suffers but expenses that
were not related directly to a loss of profit cannot be claimed (Wiseman v Virgin
Atlantic Airways).

Juan can also claim consequential losses but the extent of the losses that can be claimed
depends on whether the consequence is too remote to be recovered or not. The basic
principle is that if the loss is foreseeable to a reasonable person then compensation can
be claimed. For example it is reasonably foreseeable that Juan would have telephone and
travel costs to replace the AB computer and other incidental costs. Hadley v Baxendale
develops the rule further by saying damages for breach of contract will cover naturally
occurring consequences of the breach and those that are in the contemplation of the
parties to the contract. Direct or normal losses are losses of a type that would usually
arise from a breach of contract, such as Juan having to pay the extra £50 for his
computer. This is assumed to have been in the ‘reasonable contemplation' of the parties
at the time they made the contract. Indirect or abnormal losses are losses of a type that
are out of the ordinary, for example Juan having to spend more money on a computer as
the AB model is no longer available. This is recoverable if, at the time of making the
contract, AB knew it could happen in the event of breach. The defendant must also have
accepted responsibility for that risk. Acceptance of risk is often implied from knowledge
that the defendant has in relation to the situation.
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