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There Appears In My Eyes

There appears in my eyes, to be a valid contract. An offer is defined by the learned Professor Trietel as:

“expression of willingness to contract on specific terms, made with the intention that it is to become binding as soon as it is accepted”.

It seems rather clear that there was a clear expression for an offer to be made as it was made in writing, and the terms laid down in writing are certain, thus not an invitation to treat as per (Storer v Manchester City Council).

The suggestion of ‘three new bathrooms and modern plumbing” is in fact an invitation to treat as it was not an expression of clear willingness; this is also as seen the landmark case Gibson v Manchester City Council (1979). It makes no mention on whether the written agreement was signed, but the conduct of starting renovations after seem to indicate that in any case there was valid acceptance. Thus, there is no apparent issue on offer and acceptance.

Perhaps a more complicated and exasperating element to establish would be whether there was indeed an intention to create legal relations. It is apparent that the relationship shared between the two parties is one of husband and wife. It is evident that an orthodox view of a husband and wife living together in one household means that there was no intention to be legally bound. This is as seen in Balfour v Balfour, where the agreement at hand was held to not have intention to create legal relations.

Although the esteemed and learned Lord Atkin made his academic opinion in the case that

“ When the types of agreements are made between husband and wife, it is a family matter which the courts really had no place to interfere”.

I respectfully disagree as the age of today is one far different from that of 1919, where divorces and legal proceedings against family members were far less frequent.

The case of Balfour v Balfour should be distinguished from the one at hand due to two reasons. Firstly, the agreement unlike the one made by Mr and Mrs Balfour was made in writing and not a verbal agreement. Perhaps a more relevant case to cite would be Merritt v Merritt. In this case, the agreement was held to be valid because the husband and wife made a written agreement, did not live together anymore, and met for the sole purpose of discussing financial terms. Applying the judgement to the case at hand, the agreement between Lady Mary Crawley and Mr Matthew Crawley was made in writing, and it is quite obvious that the contract was made for the sole purpose of making the agreement legally binding.

The learned Whiggery L.J in his judgement in Merritt v Merritt (1970) said:

“I find it unnecessary to go so far as to say that there is a presumption in favour of the creation of legal relationships when the marriage is breaking up, but certainly there is no presumption against the creation of such legal relations as there is when the parties are living happily together.”

It is unclear to go as far as to say that the marriage is breaking up, however, it is fair to say that the parties are not ‘living happily together’. Thus, there should be a presumption that there was indeed intention to create legal relations.

Lord Denning furthermore added in the same case Merritt v Merritt (1970):

“In all these cases the court does not try to discover the intention by looking into the minds of the parties. It looks at the situation in which they were placed and asks itself: Would reasonable people regard the agreement as intended to be binding?”

In my learned opinion, I would say that ‘reasonable people’, due to the contract made in a written form, would regard this contract as one that is intended to be legally binding. Perhaps the only rebuttal with this is the inherent fact that in Merrit v Merritt(1970) the couple were no longer living together. I would like to distinguish with Marone v Marone(1980); this is the case where a cohabiting couple made an agreement that the man would financially provide for the woman in return for the woman’s help in running the home. The courts in that instance held the agreement to be legally binding. Thus, I believe that there was a clear intention to create legal relations between Mr and Mrs Crawley.

The second problem would lie in the sector of consideration. The question is not whether there is consideration, as that is rather clear (Mr Crawley gets the renovations done whilst Mrs Crawley gets the financial support to finish the said renovations), but instead whether there is fresh consideration established when the wife asked for an extra £500 for more time. The supreme case on additional benefit in order to establish fresh consideration for goods and services would of course be Williams v Roffey(1991). In this case R had a contract to refurbish flats. He subcontracted carpentry to W and agreed £20000. W then had financial problems and failed to finish on the agreed time. R’s agreement with owners of flats contained penalty fine if not finished on time. R approached W, offering £10,300 on top of the already agreed £20000, in return for finishing the work on time. R then refused to pay the additional amount. Court of appeal ruled that there was indeed valuable consideration.

Romer L.J. said, at pp. 182-183:

"In my view where the original subcontract price is too low, and the parties subsequently agree that additional moneys shall be paid to the subcontractor, this agreement is in the interests of both parties. This is what happened in the present case, and in my opinion the agreement of 9 April 1986 does not fail for lack of consideration.”

The statements made by Romer L.J represented the overall conclusions of the case. It is clear that Mrs Crawley was unable to finish the job on time, and henceforth asked for additional money in order to complete the job. This provided a clear benefit to Mrs Crawley. Mr Crawley subsequently agreed to the extra payment of £500 so that he did not have to undertake the work himself (due to him rather wanting to play polo instead). Therefore, in my strong opinion, applying Williams v Roffey(1991), there is indeed fresh valuable consideration established as both parties would benefit from it.

The written agreement made by Mr and Mrs Crawley spells out that hiring Miss Elizabeth Fritzcrawley was a condition. It is clear that after the case of Hong Kong Fir Shipping v Kawasaki Kisen Kaisha (1962) that courts have shown willingness to deem a term innominate even if the parties described it as a condition. Lord Nueberger in Marley v Rawlings (2014) decided to take a more ‘objective’ approach in determining whether a term is a condition or an innominate term by looking at the purpose of the contract. With that in mind, it is clear that the essential purpose of the contract is the renovation of the house, it is of trivial matter whether it is done by Miss Elizabeth Fitzcrawley or by some other body. Therefore Mr Crawley is not entitled to any repudiation of the contract, and if anything only damages.

There may be a rebuttal argument that a more literal meaning should be approached, as per the latest decision by the Supreme Court in Arnold v Britton (2015). I do acknowledge this,however, in my opinion, a distinction should be made, as if the hiring of Miss Elizabeth was to be a condition, it would make the contract non-sensible, as the reason the contract was drawn was not to hire Miss Elizabeth but rather to complete the renovations. This would give rise to a floodgate of problems, and destroy years of established law on the absurdity of certain conditions such as can be seen in Schuler v Wickman (1973).

However this is not to say Arnold v Britton (2015) cannot be applied at all. It is more relevant to apply this case to the potential second breach of term; this is that two bathrooms were build instead of three. In the contract, it makes no mention on specifying three bathrooms be built instead of three, just that there would be reimbursement for all the renovation done. It makes no mention that the said renovation needed to include three bathrooms. Thus, a more literal approach should be used, in that because only renovation was mentioned, it need not have included three bathrooms. It is really of no importance whether Mr Crawley suggested to Mrs Crawley or not, fact remains is that it was not expressly mentioned in the contract, and following Arnold v Britton (2015), it is not a condition nor a warranty, in fact it is isn’t even a term.

In conclusion, there seems to be no significant problems with the contract to allow either party to repudiate the contract. There are no problems with offer or acceptance. Fresh consideration is clearly established for the £500, in accordance to the long standing landmark precedent of Williams v Roffey(1991). Nor is there any issues in my eyes with intention to create legal relations, in accordance to the distinguishments made with Balfour v Balfour, Meritt v Meritt(1970), and the american case Marone v Marone(1980). The bigger problem is evident to reside in the classification of certain terms. It is clear that the term to hire Miss Elizabeth Fritzcrawley is indeed an innominate term with trivial consequences. Mrs Crawley clearly broke this, this damages is to be awarded to the injured party, which in this case would be Mr Crawley. The problems of two bathrooms instead of three, as established earlier is not a term, thus Mr Crawley is entitled to nothing in this aspect. Therefore, because there is no significant breaches in the contract, or problems residing in any of the elements in the contract, a specific performance should be ordered to carry out the contract in full and Mr Crawley is to reimburse Mrs Crawley in full, inclusive of the extra £1500 (inclusive of the fresh consideration), and two horses.

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