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About Landmark Cases in the Law of Restitution

If you belong to such an institution, please login or read more about How to Order. Landmark Cases in the Law of Contract offers twelve original essays by leading contract scholars. As with the essays in the companion volume, Landmark Cases in the Law of Restitution Hart, each essay takes as its focus a particular leading case, and analyses that case in its historical or theoretical context. The cases range from the early eighteenth- to the late twentieth-centuries, and deal with an array of contractual doctrines. Some of the essays call for their case to be stripped of its landmark status, whilst others argue that it has more to offer than we have previously appreciated.

The particular historical context of these landmark cases, as revealed by the authors, often shows that our current assumptions about the case and what it stands for are either mistaken, or require radical modification.

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The book also explores several common themes which are fundamental to the development of the law of contract: for instance, the influence of commercial expectations, appeals to 'reason' and the significance of particular judicial ideologies and techniques. Landmark Cases in the Law of Restitution. Landmark Cases in the Law of Tort.


Landmark Cases in Equity. Charles Mitchell and William Swadling eds.

However, such consensual preclusion may not easily be assumed. Under Swiss domestic law, the purchaser has in principle two options when the delivered goods are defective or do not meet the requirements which were specified in the agreement or which the purchaser could reasonably have expected the goods to meet: He may pursue the warranty claims provided in art. The purchaser decided to pursue the latter option and succeeded in the first instance proceedings. However, the court of appeal and the Federal Supreme Court disagreed and ruled that the purchaser may not invoke a fundamental error that relates to characteristics and qualities of the purchased goods if the Convention applies.

Article 4 a of the Convention provides that the Convention does not deal with the validity of the contract or any contractual provision except as otherwise expressly provided in the Convention.

Landmark decision of the Court of Appeal on fraudulent misrepresentation and transferred loss

Under Swiss domestic law, a fundamental error would result in the contract being challengeable and void, respectively. The Federal Supreme Court clarified that the recourse to domestic law in relation to the validity of a contract is precluded if the Convention provides a conclusive set of rules for a specific problem.

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In particular, the Convention only provides for the cancellation of an agreement as a last resort. That is because the consequences of a cancellation, in particular the triggered return shipment, is particularly harmful in international trade relationships that often include long-distance transports of goods. The balancing of interests underlying the specific rules in the Convention would be distorted if the purchaser was allowed to invoke a fundamental error based on domestic law in order to rescind an agreement.

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As the purchaser had only based its claims on fundamental error and had not substantiated the facts necessary to establish a claim for breach of contract, its claims were dismissed in their entirety. Should you have any questions to the above or need legal advice, please do not hesitate to contact our advisers. Robin Moser, attorney at law, is a local partner in our Zurich office. That said, if the approach to be taken is to conduct a detailed analysis of the factual matrix behind an insolvency to determine whether that insolvency does or does not give rise to an anticipatory breach, then any arrests to enforce such a suspected breach will carry some degree of inherent risk, not least because the arresting party will almost certainly not be in possession of all of the facts.

Bunker suppliers in these circumstances may also need to consider whether the very recent English Supreme Court decision in The Res Cogitans [] UKSC 23 affects their particular situation which partner Roger Heward considers here. Suffice to say, that a close examination of the terms of a Retention of Title clause would be required before deciding which avenue to proceed along in seeking a remedy.

Our aim is to help our clients understand the potential opportunities and challenges that COP25 may have on their business. IMO is almost upon us.

Landmark Cases in the Law of Restitution(Landmark Cases): Charles Mitchell: Hart Publishing

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5 Important Cases of Indian Contract Act 1872 - Part 1

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Table of contents

Introduction The facts of the case in brief History of the proceedings The issues on appeal What does this mean for ship owners and suppliers of goods and services? Transocean then appealed to the Court of Appeal. The key questions for the Court of Appeal to determine were as follows: Does the doctrine of anticipatory breach apply to both executory and executed contracts? Can insolvency be the basis for invoking the doctrine of anticipatory breach?