Glossary

A · B · C · D · E · F · I · L · M · N · O · P · R · S · T · U · W

A

Acceptance (of goods)

Keeping goods and treating them as your own, which ends the right to send them back. Marrowby used the four machines for eight weeks, then had its own engineer repair them: it accepted them and keeps a money claim only. Asking the seller to repair is not acceptance. Research note 2, acceptance (internal) · Chapter 4 · see Right to reject

B

Battle of the forms

Each side sends its own terms and nobody signs, so the court decides which set is in the contract. Frescalva’s quote carried its Conditions, and Marrowby’s order form carried its Purchase Conditions. The last form sent before delivery usually wins. Purchase Conditions, clause 2 · Chapter 3 · see Last shot

Binding precedent

A decision a court must follow because a higher court made it. The County Court, where Frescalva’s claim would start, follows every court above it. The Supreme Court’s decisions, and the House of Lords’ before it, bind every other court. Case note, Willers v Joyce · Chapter 2 · see Overruled, Ratio

Breach of confidence

Misuse of information that someone received knowing it was secret. Dean’s June email used Frescalva’s customer list and discount sheet, so it is one. Selling for a rival, on its own, is not. Case note, Vestergaard v Bestnet · Chapter 8 · see Injunction (interim), Undertaking

C

Cap

A ceiling on what a party pays, however large the loss. Clause 9.3 caps Frescalva’s liability at the price of the goods concerned: £40,000 for the four machines. A cap faces the reasonableness test, and here it likely stands. Conditions of Sale, clause 9.3 · Chapter 6 · see Exclusion clause, Reasonableness test

Case law

The rules judges lay down in their judgments, built up case by case. Judgments from about 2001 are on Find Case Law, and older ones are in the law reports. Tekdata is the case law behind note 1. Case note, Tekdata v Amphenol · Chapter 1 · see Common law, Statute

Common law

The body of rules made by judges over the years, as against statute. A claim for money, such as Marrowby’s, comes from the common law. An order to stop comes from equity. Chapter 1 · see Case law, Equity

Counsel

A barrister. Fallowden’s solicitors run the matter and instruct counsel only on a hard point or for a hearing. Chapter 1

D

Damages

Money that puts the innocent side where it would have been had the contract been kept. Marrowby claims damages for repairs, lost profit and the counter. A loss counts only if it passes one of the two limbs in Hadley. Case note, Hadley v Baxendale · Chapter 5 · see Remoteness, Set-off

Duty of care

The first part of a negligence claim: a duty to take reasonable care not to harm someone. A duty alone is not enough, because the claimant must also show carelessness and damage. Nothing in the papers shows Frescalva was careless. Research note 5, answer (internal) · Chapter 7 · see Negligence

E

Entire agreement clause

A clause saying that the papers it names contain the whole agreement. Clause 13 fixes the terms of Frescalva’s contract, not what Marrowby relied on. So it is not a non-reliance clause, and it does not shut out a misrepresentation claim. Conditions of Sale, clause 13 · Chapter 7 · see Misrepresentation

Equity

The remedies judges added where the common law could only award money, such as an order to stop. A court grants them when that is fair, and it may refuse, so delay and conduct count. Frescalva needs equity against Dean. Senior Courts Act 1981, section 37(1) · Chapter 8 · see Injunction (interim)

Exclusion clause

A clause that limits or shuts out a claim. Clause 9.2 is one: the seller has no liability for loss of profit. Whether it holds turns on its words and the reasonableness test, not on how serious the breach was. Conditions of Sale, clause 9.2 · Chapter 2 · see Cap, Overruled, Reasonableness test

F

Fixed costs

Set sums the rules allow the winner for its lawyers’ work on the intermediate track, whatever the lawyers charged. Here they come to about £30,000 of the £60,000 a side would spend. With the court fees and the engineer’s report on top, the winner gets back about £35,000. Court and time map, row 5 (internal) · Chapter 10 · see Mediation, Track

I

Implied term

A term the law writes into a contract whether the papers mention it or not. The Sale of Goods Act 1979 implies that goods sold in the course of a business are of satisfactory quality, and fit for any purpose the buyer made known. Sale of Goods Act 1979, section 14(2) · Chapter 4 · see Satisfactory quality

Injunction (interim)

A court order that tells someone to do something, or to stop. Interim means now, before any trial, to hold the position until the court can decide. The High Court and the County Court can both grant one, when that is just and convenient. Senior Courts Act 1981, section 37(1) · Chapter 8 · see Equity, Undertaking

L

Last shot

The last set of terms sent before delivery. It usually wins the battle of the forms, because the other side acts on it without objecting. Frescalva’s acknowledgement was the last shot, and Marrowby took delivery after it. The acknowledgement, April 2027 · Chapter 3 · see Battle of the forms

Limitation period

The time a claimant has to start a claim before the court will refuse to hear it. For a claim on an ordinary contract it is six years from the breach: May 2033 for Marrowby’s claim, and July 2033 for Frescalva’s last invoice. Limitation Act 1980, section 5 · Chapter 9

M

Mediation

A meeting with a neutral mediator who helps the two sides reach a deal, and nothing binds until both sign. It is quicker and far cheaper than a trial, and the result is private. Frescalva and Marrowby settled there, at £10,000. Court and time map, the note (internal) · Chapter 10 · see Fixed costs

Misrepresentation

A false statement of fact that led the other side into the contract. The maker pays damages unless it proves reasonable grounds for believing the statement. Marrowby ordered on the data sheet, not the brochure, so it will struggle to show reliance. Misrepresentation Act 1967, section 2(1) · Chapter 7 · see Entire agreement clause

N

Negligence

A claim in tort that someone owed a duty of care, broke it by being careless, and caused damage. A seller is not careless because a machine it sold failed. So the word adds nothing to Marrowby’s claim. Research note 5, answer (internal) · Chapter 7 · see Duty of care, Pure economic loss

Neutral citation

The label a court gives a modern judgment, the same wherever it is read: the year, the court and the number. [2009] EWCA Civ 1209 is Tekdata: 2009, the Court of Appeal in a civil case, judgment 1209. Cases from before about 2001 carry the law report’s citation instead. Case note, Tekdata v Amphenol · Chapter 2 · see Case law

O

Obiter

The part of a judgment said by the way, such as how a different case might come out. It can persuade a later court, but it does not bind it. Short for obiter dicta. Case note, Photo Production v Securicor · Chapter 2 · see Ratio

Overruled

What happens to an older case when a higher court decides it was wrong: it no longer states the law, though it still sits in the reports. Photo Production overruled Harbutt’s Plasticine in 1980. That is why Naomi struck the first line of note 4. Research note 4, the struck line (internal) · Chapter 2 · see Binding precedent

P

Pure economic loss

Money lost with no damage to property or person behind it, such as lost profit. Negligence usually does not pay for it. So Marrowby’s lost profit is no better in tort than in contract. Research note 5, answer (internal) · Chapter 7 · see Negligence

R

Ratio

The reason a court needed to decide the case: the one part of a judgment that binds later courts. The ratio of Photo Production is that the question is whether the clause’s words cover what happened. Short for ratio decidendi. Case note, Photo Production v Securicor · Chapter 2 · see Binding precedent, Obiter

Reasonableness test

The test in section 11 of the Unfair Contract Terms Act 1977: was the term a fair and reasonable one to include, judged by what both sides knew when the contract was made? The seller proves it. Each part of clause 9 takes the test on its own. Unfair Contract Terms Act 1977, section 11(1) · Chapter 6 · see Cap, Exclusion clause, Written standard terms

Remoteness

The question whether a loss sits too far from the breach to be paid for. A loss counts if it follows naturally from the breach, or if both sides could have had it in mind when they contracted. The festival contract passes neither limb. Case note, Hadley v Baxendale · Chapter 5 · see Damages

Research note

Fallowden’s five-row form for every answer in the matter: the question, the source, where found, the answer and the date checked. Each ends with one plain line, “What we tell Duarte”. Note 1 answers whose terms apply. Research note 1, question (internal) · Chapter 2

Right to reject

A buyer’s right to send back goods that break the section 14 terms, instead of keeping them. It is lost by acceptance. Marrowby kept and repaired the four machines, so it claims money only. Research note 2, acceptance (internal) · Chapter 4 · see Acceptance (of goods)

S

Satisfactory quality

The standard a reasonable person would expect of the goods, given the description, the price and everything else around the sale. It includes durability. The Sale of Goods Act 1979 implies it into every business sale, and four compressors failing after eight weeks likely fall short. Sale of Goods Act 1979, section 14(2) · Chapter 4 · see Implied term

Set-off

A buyer’s right to set its damages against the price it still owes, so that the claim and the invoice net to one figure. On Frescalva’s terms Marrowby’s £25,000 comes off the last invoice, leaving £15,000 owed to Frescalva. Research note 3, answer (internal) · Chapter 5 · see Damages

Statute

An Act of Parliament. Every Act is on legislation.gov.uk with its later changes built in, so read the “Latest available (Revised)” text before you cite a section. The Advice File keeps its Act extracts in Tab 5. Statute extracts, Tab 5 · Chapter 1 · see Case law, Common law

T

Track

The path a case follows once the claim is in: a timetable, and rules on the costs the winner gets back. The court chooses it by the value of the claim and how hard the case is. Frescalva’s claim would go on the intermediate track, for claims up to £100,000. Court and time map, row 2 (internal) · Chapter 9 · see Fixed costs

U

Undertaking

A written promise to do, or not to do, a thing. Dean’s undertakings give Frescalva the three things the letter asked for, and he admits nothing. If he breaks them, Frescalva may apply to the court. Dean’s undertakings, October 2027 · Chapter 8 · see Injunction (interim)

W

Written standard terms

The terms a business uses for every customer, such as Frescalva’s Conditions. When the other side deals on them, section 3 of the Unfair Contract Terms Act 1977 puts any clause that limits a claim through the reasonableness test. Unfair Contract Terms Act 1977, section 3 · Chapter 6 · see Reasonableness test