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Difference between revisions of "Clinician Guide for Consumer Transactions (11:X)"
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Clinician Guide for Consumer Transactions (11:X) (view source)
Revision as of 18:24, 14 August 2020
, 18:24, 14 August 2020→D. Determine Whether Any Common Law Remedies are Available
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== D. Determine Whether Any Common Law Remedies are Available == | == D. Determine Whether Any Common Law Remedies are Available == | ||
Where the statutes do not apply, there may still be a common law defence available. | Where the statutes do not apply, there may still be a common-law defence available. | ||
=== 1. No Obligation === | === 1. No Obligation === | ||
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*A '''common mistake''' exists when both parties make the same mistake. For example, the subject matter of the contract may not exist or was destroyed prior to the agreement. | *A '''common mistake''' exists when both parties make the same mistake. For example, the subject matter of the contract may not exist or was destroyed prior to the agreement. | ||
*A '''mutual mistake''' exists when the parties make a different mistake, e.g. a purchaser wanted type A widgets and the vendor thought he or she ordered B widgets, so there is disagreement as to a term of the contract. This is usually an offer and acceptance issue, for both parties have to come to agreement for there to be a contract in the first place. | *A '''mutual mistake''' exists when the parties make a different mistake, e.g. a purchaser wanted type A widgets and the vendor thought he or she ordered B widgets, so there is disagreement as to a term of the contract. This is usually an offer and acceptance issue, for both parties have to come to agreement for there to be a contract in the first place. | ||
*A '''unilateral mistake''' exists when one party is mistaken about the obligations that | *A '''unilateral mistake''' exists when one party is mistaken about the obligations that they have assumed. This is a difficult defence because a court is unlikely to excuse the party from obligations on account of their unilateral mistake, unless the other party was aware of the mistake. | ||
=== 5. Laches or Acquiescence, Waiver, and Estoppel === | === 5. Laches or Acquiescence, Waiver, and Estoppel === | ||
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The doctrine of laches becomes relevant if one party unreasonably delays pursuing a claim, and the other party is thereby prejudiced. | The doctrine of laches becomes relevant if one party unreasonably delays pursuing a claim, and the other party is thereby prejudiced. | ||
Promissory estoppel occurs when one party promises not to enforce | Promissory estoppel occurs when one party promises not to enforce their rights under the contract. In such a case, and where the other party has relied on the promise, it may be inequitable to allow the first party to later enforce the right. For an example of how promissory estoppel can be raised, see ''Central London Property v High Tress House'', [1947] 1 KB 130, [1956] 1 All ER 256. | ||
In some circumstances, a party to a contract can waive rights within the contract. It may be possible to retract the waiver with reasonable notice. | In some circumstances, a party to a contract can waive rights within the contract. It may be possible to retract the waiver with reasonable notice. | ||
