I post and delete, bought today, so remember!
Thinking of human history, we are changing the world.
Not sure how long we will last and how far we can go.
But one thing we are sure, we are living in a different space!
As if time could be overcome, how can we face the today?
So have we devote our fresh and spirit to it as if no one else or the I comes from future could have not done better than the now!
The choice you have to make!
The way you have to choose, in the life circle
Past, with or out glory, trashed in the numbers
We are different, as we are changing the world!
That one thing we have to remember!
So see you next time.
– 1 june 2010
Force Majeure:
Commonly in commercial contract, a clause allocate the risks of the party in relation to the mischief event such as terrorism, war and ‘Act of God’, this clause could override common law or LR(FC)A 43 by express or unambiguous provision.
Taylor v Caldwell (1863) 3 B&S 826
P: frustration could be a defence (end absolute obligation rule, Paradine v Jane)
F: Taylor contract to use Music Hall from Caldwell. Hall was destroyed by Fire. Taylor seeks performance of contract and damage for wasted expenditure. Held that the contract was discharged. No further obligation. => a rule of implied term, which is rejected by HL case: Davis Contractor v Fareham, and apply to Great Peace v Tsavliris Salvage 2002 on common mistake
Krell v Henry [1903] 2 KB 740
P: the common purpose no longer be achieved, frustration is possible, but rarely succeed. – ESP in partial failure of consideration
F: Henry hired a flat from Krell to see the procession of Edward VII, but VII’s ill so can not do coronation. Henry paid 25 deposit, but refused to pay remains. Krell sued for balance. Held: procession on the day is regarded a foundation of the contract for both party, Frustrated. – it is not enough if it is more difficult or expensive(speculative) to achieve(Davis Contractor v Fareham; Tsakiroglou v Noblee Thorl )
Chandler v Webster
P: same as Krell v Henry, paid can’t recovered, unpaid ceased to be payable. At common law, the total failure of consideration situation, rule is overruled by LR(FC)A43, but still apply in partial failure
F: Chandler hired a room from Webster for a client, but client’s relative died, so 10June Chandler wrote to Webster advise Webster sell the room, if not pay Webster after procession. 19June Chandler paid 100. Held: Chandler could not get 100 back, but the contract is frustrated, so remains is not payable.
Herne Bay Steamboat Co Ltd v Hutton [1903] 2 KB 683
P: where no common purpose, no frustration
F: Hutton contract to hire boat from Herne Bay for the Naval Review on the coronation day and a day’s cruise round the fleet. Herne Bay sued for damage. Held hiring vessel is Hutton’s purpose alone, so the Naval Review was not the foundation of the contract. No frustration.
Cricklewood Property v Leighton’s Investment Trust
P: Lease is more than contract, can not frustrated even building was demolished. But it is not conclusive.
F: HL case, lease of a shop for 99 years, due to WWII, Cricklewood claim for frustration. Held not frustrated, 90 years left.
National Carriers v Panalpina (Northern) Ltd [1981] 1 All ER 161
P: No frustration in lease as it creates interest in land, never vanish; might be frustrated, but rare. – > possible principle
F: Panalpina let from National Carriers for 10 years. After 5 years, road blocked for 20 Month, so not pay rent. National carrier sued for non-payment. Held: not frustration, Panalpina had to pay rent.
BP Exploration Co (Libya) Ltd v Hunt (No2) [1982] 1 All ER 925
P: court could assess the just sum if a valuable benefit gained by the party replies on frustration. S1(3) LR(FC)43applies. 1 party obtained ‘valuable benefit’, prior to a frustrating event, the benefit is recovered.
F: BP fund exploration of oil to Hunt in Liya for the oil as reimbursement. Government interference. Frustration. Goff LJ – 1) step one: identify and value the benefit – oil 2) must be a tangible benefit, (Appleby v Myers, benefit destroyed by fire) 3) benefit received. Goff J the principle purpose of the S1(3) was to prevent the unjust enrichment of one party at another’s expense, it is at courts’ discretion to fix a ‘just’ sum.
Hochster v De La Tour
P: Anticipatory breach case. If contract is repudiated before date of performance, damages may be claimed immediately after breach, even before date of performance
F: DLT employ Hochster for tour. DLT wrote to Hochster who was no long needed. No compensation so Hochster sued. Held by court, damages awarded.
Vitol SA v Norelf ( The Santa Clara) .HL
P: Right of Election after breach gained by the aggrieved party, must give notice
F: N sell goods to Vitol. Goods was loaded one day later, Vitol telex Norelf to repudiate the contract as it can not been shipped on time. Both V and N have done nothing. N sold the goods and suffered loss. N sued Vitol for damages. The appeal was allowed in HL as 1) innocent party’s act conveyed unequivocal acceptance 2) it is not on N to provide certificate before damage.
Howard v Pickford Tool
P: No right of election after affirmation like a writ in water (Asquith LJ)
F: Pickford employed Howard, Pickford repudiated the contract, but Howard affirm it, so Howard lost right to terminate, but to carry on the contract.
Stocznia Gdanska v Latvian Shipping
P: The innocent party is allowed a period of time to decided the election. In periodical instalment contract, affirm is revocable by innocent party where there is continuing or renewed anticipatory breach.
F: Stocznia built 6 ships for Latvian. Latvian did not pay the first, second instalments. Stocznia sued for compensation. Latvian argued S has affirmed, so lost the right to terminate. Held: There is a continuing breach, so innocent party has fresh right of election.
White and Carter v McGregor
P: The innocent party could carry on his duty to perform the contract after the wrongful repudiation.
F: White and Carter council ads for McGregor for 3 years, McGregor’s manager signed for the new contract and repudiate the next day. W.C. carried out the contract for 3 years and sued for debt. Held: Allowed. Affirmation of contract doesn’t require obligation of mitigation (part of remedy).
Clea v Bulk Oil ( The Alaskan Trader)
P: Except to the general rule to affirm(White Carter v McGregor), where there is no legitimate interest(eg adequate damage), mitigation is required after affirmation, no interest for injured party to insist the contract.
F: Bulk Oil high hired ship from Clea, then it is not required. Clea keep the ship, but fully crewed. Held: there’s no legitimate interest to keep fully crewed. Burden of proof is on the breacher to show there is no interest to affirm.
Ocean Marine v Koch (The Dynamic) 2003
P: Except to general rule (right of election except no legitimate interest for third party) in extreme case, where damages are adequate and affirm the contract is unreasonable. – can’t affirm.
F: Ocean owner of a ship, chartered to Koch, Koch arrest it 15 days (14 days extra) for various performance. O claims ship is on hire until release from arrest, and then claim the duty on charter party instead of damages.
The Simona (HL)
P: Repudiating party may escape liability if the innocent party affirm the anticipatory breach; if the innocent party fails to comply the obligation, they will be in breach of contact while the repudiating party can escape the liability
F: charterparty, carry of steel, if ship is not ready to load before July 9, charterer could cancel, owner request an extension to 13 July, Charterer substitute another ship(anticipatory breach), owner did not accept the breach, state ready at 8 July(invalid, not ready to load steel)(owner will breach the contract as he affirmed), charterer tried to cancel the charterparty. Held: injured party affired, that party still has his own obligation, the charterer retained the right to cancel before 9July. HL added, if owner relied on the breach, then could sue for damage. Hence charterer escaped the liability.
Avery v Bowden
P: contract could be frustrated after affirmation (as if no breach)
F: Bowden chartered a ship from Avery, Bowden told Avery, he could not load, sail away ( breach), if Avery accept the breach, could sue for damage. But he ignored advice, and a war broke, frustration tool over, contract discharged.
Hounslow London BC v Twickenham Garden Developments
P: Affirmation condition 2: no need cooperation. (condition 1, legitimate interest, White & Carter v McGregor, The Alaskan Trader)
F: Twickenham works on Hounslow council premises, Hounslow anticipatory breach, Twickenham said I would like to continue, can they affirm? Held Twickenham could not affirm as it requires Hounslow co-operation. This is issue is diminished to White & Carter v McGregor legitimate interest, as at least passive co-operation is required from the other party (Jill)
Appleby v Myers
P: common law, frustration example, benefit provided prior to frustrating event could be claimed.
F: Appleby install machine for Myers, half-completed, machinery was destroyed by fire, Held: Appleby could not claim half-completed work.
Gamerco SA v ICM
P: S1(2) LR(FC)A 1943. Money paid before frustration is recoverable, payable money ceases to be payable. However in expense condition, court has broad discretion, but up to limit of paid/owed
F: Gamerco promote a rock concert in a stadium, for safety the stadium was withdrawn, no other suitable place. Garland J held: Applies S2(2), but court has broad discretion to reduce the expense occurred by ICM.
Morgan v Manser; Robinson v Davidson
P: Impossibility renders frustration, death, illness or unavailability
F: Morgan v Manser: Music hall artist was called to army 1940, contract was frustrated; Robinson v Davidson: pianist booked for concert could not perform on a particular day due to illness.
Condor v The Barron Knights
P: See Robinson v Davidson
F: the drummer was ill and could not perform 3 days instead of 7 days per week. Frustrated.
Bank Line v Arthur Capel;
P: Unavailability in shipping contract.
F: a ship is requisitioned for the remaining period of its charter, frustrated
Jackson v Union Marine Insurance
P: (even) Temporary unavailability could discharge the contract
F: a ship from Liverpool to Newport, then to San Francisco, grounded outside of Liverpool for 8 months. Held: discharged, 8 month is a long delay.
Tamplin v Anglo Mexican Petroleum;
P: whether it is disproportionate to discharge the contract for unavailability?
F: Due to war, a ship was requisitioned, until Dec 1917, discharge? Held: Not, as court was optimistic that the war will end soon. Actually it is wrong.
The Sea Angel (Edwinton v Tsavliris)
P: Another unavailability case: not only consider the time remaining, but other factors
F: A ship is hired for salvage for 20 days, job done, but seized for 3 month, frustrated? Held it is foreseeable of seizure due to pollution, and the contract has been performed, hence not discharged.
Fibrosa v Fairbairn
P: Government supervening and illegality renders the contracted frustrated.
F: war broke, can not trade with enemy, frustrated.
Metropolitan Water Board v Dick Kerr
P: Government Intervention frustrated the contract.
F: Dick Kerr contract to build reservoir for Metropolitan Water Board for 6 years, then a government order stopped the work and sold MWB’s plant. It was held the contract is frustrated, although there is delay clause, which only cover temporary difficulties, government intervention is fundamental issue.
Tsakiroglou v Noblee Thorl
P: limitation to doctrine of frustration, not enough if it is more onerous to do.
F: on sale of peanuts, both parties expected shipment would be made via Suez Canal, but no express stipulation, the Canal was closed. Seller could go via more costly route through Cape of Good Hope. Held: no frustration.
Amalgamated Investment v John Walker
P: No defence of frustration for unexpected event made the one party in disadvantage.
F: John Walker ads for a properties available for redevelopment, prior to purchase Amalgamated Investment did ask if it has historic value. Unknown to both parties, it is included in the protection list, no potential redevelopment, value from 1.5 M less from 1.71M (0.21M only). Held: No common mistake (William v Cambridgeshire) –mistake was after contract, 2) buyer aware( Caveat Emptor)
Joseph Constantine v Imperial Smelting
P: Limitation to frustration 2: Self –induced by one the parties, it is his fault
F: ship of cargo, explosion without clue, it is on the party reply on self-induced to prove is it fault of other party or no fault its own on balance of probability.
Maritime National Fish v Ocean Trawlers
P: Self-induced prevent defence of frustration
F: Martime Fish charger steam trawler from Ocean Trawler, Ocean applied 5 licence, but granted 3, and choose give other 3 ship not include MF’s ship. Held: No defence of frustration, as Ocean Trawler chosen not to give licence.
The Super Servant II
P: self – induced ( still possible from ½ )
F: Contract of drilling rig using either Super Servant I or II, SS II was sank, SS I was on another contract. Held As SS I is available according to the terms of contract, it is defendant’s fault not to use. Self-induced.
Walton Harvey Ltd v Walker & Humfreys Ltd [1931] 1 Ch 274
P: If Foreseeable, no frustration. Limitation 3
F: Walker & Homfrays ads for Walton Harvey in their hotel for 7 years. Local authority demolished the hotel. Walton Harvey sued for damage. Held: no frustration as Walker & Homfrays could foresee the event, so liable for damage.
The Sea Angel
P: Apart from unavailability issue, if foreseeable, no frustration
F: salvage contract, foresee of seizure due to pollution. See above.
Force Majeure
P: limitation 4
A term of contract allocates the contractual relationship between parties in sets of circumstances.
Davis contractor v Fareham
P: More onerous will not discharge the contract.
F: Davis built house for Fareham council, due to short labour took 22 months to complete, Davis argues it is frustrated, so to claim quantum meruit, Held: not frustrated. Short of labour only make the contract more onerous. (Tsakiroglou v Noblee)
Poussard v Spiers
P: Breach of term, which is root of contract (Blackburn J), that’s breach of condition.
F: Poussard was going to play in an opera for Spiers, due to illness she was replaced by Miss Lewis. Held: as she was so ill, she can not perform the first night was a condition to the contract, which entitled the Spiers to repudiate.
Reichman v Beveridge 2006
P: In debt case, no obligation to mitigate
F: Tenant left premises 3/5 years lease, is there a duty for landlord to find a replacement tenant? Held it is debt case, no mitigation. I) not wholly unreasonable to affirm( The Dynamic) ii) damage not be adequate for the future rent, as no authority allow the landlord to get compensation from the expired lease.
Paradine v Jane
P: Absolute obligation rule in contract.
The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
-Judgments – Regina v. Secretary of State For The Home Department, Ex Parte Daly Line 27
Morality 3.8
We know the morality from comparing the moral and immoral. We don’t know that we are living in an immoral world, as everyone behaves immoral, but we still honour we have morality such as human rights. Morality has gone far away, hence we could not recognise it, but it did exist. The immorality, we give a name human right, as it is not moral or immoral, exists as well, but we could assess it, it is sensible. As morality has gone, we have human right, so we could give mercy to those immoral. But sometimes no one care about human rights, as you could not claim from a private body unless public authority involved. The rule governs the private is relationship whether we will be treated by maids mates fairly. As we are not sure about the fairness, we keep others away, that’s called politeness. Politeness is much respected in the world. So we embrace it as it gives us the right to live. So now we can see that morality once guided our way in this world, morality dies, we have human rights, human right dies, we have fairness; fairness left, we have politeness. However we have to understand that politeness, under that we don’t have trust and loyalty, easily the world would be in riot, the bed of terrorism. After terrorism, lesson has been learned, we have rule of anti-terrorism, and however that is the way to the underground. As a human, we appreciate the good, not the bad, we live in clean place, not a luxury house, once we could overcome that, we could get our way back.
Morality 3.9
Before we have a moral duty of equality, under that, the atmosphere was clear with full protection, the earth is calm with less volcano or quake, our spirit so will calm down with air and earth, our plants were growing healthily, so all the animals have their own position, states don’t conquer each other, but all the states have their own position. However the balance doesn’t stay very long, our air is not that clear, earth is not that clam, more earthquake could come, our spirit is nerved, fear of terrorism, morality is crashing, soul is dying, dream is distinguishing; plant could be transgenic, so one day it never blossoms, so the animals have nothing to rely on, and even human could eat pills, dying is nearby. So all the developed states should help the less developed ones to build a balanced world, the riches should help those poor, so most development state should lower their noble status, join the one to one meeting. Although the open talk is going on, the conference is not in a balanced formality, so if you don’t want other knows you are helpful or clever, you’d better keep all the words to yourself and take them to the tomb, but that will complete your journey peacefully.
Morality 4.0
In a degrading society, we are looking for morality, and those unprotected are seeking to get it back, the mortal as we are, all from the ultimate beginning, traced back with nothing, it is amazing nothing created us, but one day, we will go back to nothing, that the ultimate rule of this space.
Morality 4.1
The wise learn the morality, put into daily practice; the normal learn the morality, but only have some shallow opinion, sometimes use, sometimes forget; the abnormal learn the morality, laugh at it, what, shall I behave like that, ridiculous. So nowadays if you behave with morality, you will be laughed at, but that’s truth, even all the laughed are now could be regarded as morality, which is the standard. So I recommend that if you really know what morality is, you shouldn’t behave according to it, like you don’t know about it, if you want to put into practice, you’d better pretend you don’t use it, but claim you use within morality, and according to the normal social rule, behave your action like those normal. So the moral will hide in those immoral, we can not find them, the fairness and noble should behave you are lower class, and dress cowboy rather with suit. When we use morality guide our action in life, we have to be very careful, you should not just read the book and do it according to it, if it is true, we say, maybe that’s right, if you want to lend money or buy drink for some one, you say please return it on time with interest or buy me back next time, learn the knowledge deeply, don’t speak, teach if you haven’t understood, but write in this blog is fine, as no one will know it, one day, you will be the learnt, although maybe very old; the great voice is not loud, but get reflected in everyone’s heart, the biggest pressure you could not identify it, but it sits in your heart without a shape. So our morality is not something I could tell you, but if I don’t tell you, it will be gone with wind after I die, so I just tell what I understand, but you can borrow this idea, and develop on it, don’t forget give it back with interest.
Morality 4.2
Morality comes from nothing, like we are, then it develops different principles, first set is with immorality, then develop something in the middle, then we could balance all sorts of probabilities. If we look at trees, we know it grows better facing the sunshine, and it looks robust under at that side. If we look at human, we don’t like those dictator, thinner, immortal, Lords, but still lots of us are working to achieve that class. So we are sure if we don’t like, that could be jealous, if cave a woman, but chop arms off, we called it Venus, if we put the chopped back with glue, it is ugly. We learned knowledge from book and others, so we teach others with those we have. Those who try to distinguish themselves with others, always be kept away by the normal, and I have to put this as my basic rule.
Morality 4.3
Water, soft as it is, it dominate the word, takes at 70% of the space. The air, shapeless, it trespasses to every nano inch in this space. So I know how shall I act and where shall I go. I don’t have to do it with all my energy, even I do, I could not achieve what I wanted, so I look at myself, you are only a part of it, so use it in best way, soft as water, shapeless as air, I teach you, but don’t talk, once you read this blog, you understand it. However it is seldom.
Morality 4.4
Fame and body, which is closer to you? Health and Money, which do you, have more? Gain and loss, which you don’t like? So if you have hobby, you will spend too much money, if you hide your earning, government will put you into jail, even thief will be watching at night. So if you think your earning is ok, that’s fine, if you know when you have to stop, you have unlimited power, so it lasts long.
Morality 4.5
Success, achieve partially, so it never arrives, but never dies. If you have confidence, be sure limit to one part, so you can gain confidence in other area. The shortest rout is not always straight, the cleverest always looks dull, talkative could not make you an great speaker, some one could not pronounce correctly, no one doubt their speech. When at study, calm down, and you can gain more than in a group discussion, if some one treat coldly, doesn’t mean it is a worse than with warm voice. The justice comes from whether you can deal with calmly without bias by a fair mined informed brain.
Morality 4.6
If we have morality, cars will be after cars; if we don’t, tanks will be after tanks. The disaster comes from non-satisfying, the mistake comes from desires. So everyday, if you feel satisfied, then you time has been past meaningful.
Morality 4.7
You don’t have to go out to find what happened there, but you should know it anyway; you have to look around to what happened there. If you go out, maybe you know less. The morality rule could tell you the routine of human life, although it is different in appearance, nothing has changed in essence from beginning of life. If you follow morality, you don’t have to go out or read news to know what happened today, you don’t have to see it know if it is true. The way lines there, so you have know it.
Morality 4.8
Study makes you rich, while morality can not. If we keep morality at heart, everyday we are getting poorer and poorer, until we have nothing left. But we have to remember that we are nothing since created for this, as if we are an objective, moving one, in the sense that, study enrich the internal universe, morality release it to outside. You can win the world if you know the way, but if you don’t follow the word will leave you alone.
Morality 4.9
The best man doesn’t think for himself, but think what others will think. For good, we love them, for bad, we still love them, these are love. For honest, we trust them, dishonest, we still trust them, these are trust. The best man looks at the world respectfully, think of the world without any selfish. The normal only look at their ears and eyes, the best man treat them like children.
Morality 5.0
Born and die. Bone is the result of two cells, die is the choice you have to make. You are borne as your parents are going to die. They are all normal. But who knows why we are chosen to be born? As we so lucky, barely we are going to die from being eaten by lion, killed by gun. Even if we are lucky to meet them, lion will not have teeth, gun will not have bullet. But who knows why? We know it as we are still live.
Morality 5.1
The morality created it, and we are raised up with politeness, we eat and use, so we are we are. Hence we respect the mothership and the birth, recommend the politeness without being told like we know how to get food, so as to emit. We possess the valuable goods, however we do not owe it; we grow up within time, however we do not exist in it, as we are only created by morality, the link between you and the world is hardly clear, so like a skinned water goods.
Morality 5.2
We, the human, have been created from the beginning, so we called it morality. From that, we know our appearance and behaviour. If we know the morality, we will live after death; we don’t have to listen or travel and there is nothing to worry in your lives. But if you don’t know morality, even if you listen to news, travel around the world, you are hopeless. If you are good at finding the law in the trivial thing, you are clever, if you know how to sort out your problem apart from attacking, you are a real warrior. If you have known all of these, you are in a room lighted with sunshine, and you have no regret after death, so on and forth, it should happen generation after generation.
Morality 5.3
As if I was born with morality, I would walk in the big road and be careful on the cars and other pedestrian; however a lot of persons don’t like the big road, but prefer the small way. They get up late, they don’t cook food, they have nothing left in the fridge, but wear fancy clothes, drive Porsche car, drink but not proper food, net numbers in the bank, those are worm of the human society. And it is the opposite example of our morality.
Morality 5.4
Have a deep breath, concentrate your mind into only one point, and don’t move away from it , deeply breath out gently like a child is sleeping. Clean your internal body, to make sure all your blood circulate through your skin without any stop. Love yourself as you love the world, don’t move. Open your third eye on the head, so like female – circulate your qi from the nature to this tunnel, when you connect to the nature, you know everything. When you knowledge is starting to
sprout, water it, so you could harvest fruit later. If you don’t pick the fruit until it begins to be a forest, your morality reaches a new level.
Morality 5.5
We use spokes in the wheels of bikes, we need lots of space to make the bike light and durable; our kettle is empty inside, since there is space, we use it to fill water; in every house we have windows, since there is empty, we could use it. Every time, we think about the substance, please don’t forget those empty, we need both to build our reasoning mind. If you are the substance, don’t forget those empty, without them, you are useless. In a team, please be modest, even if you know a lot, empty need you and you need empty to make it work.
Morality 5.6
Various colors will attract your eye and make it shiny, hunting in the forest will excite your heart, rare goods will encourage you to buy, delicious food will add your saliva, pretty music will deaf your eye. If you would like to stick to the morality, please don’t concentrate on those once you have tried. Get rid of those habits, and stick to what you are and what you would like to do and what you would like to eat.
-200 American lawyers lead by Mr Becnel are to plot action against BP.
-BA price fixing trial of 4 executives postponed in Southwark Crown Court (Andrew, Martin, Iain and Alan)
- Insider trading: Calvert was found guilty to instruct his friend to buy 3 shares of the company he knew were about to be taken over. He got 1/3 of 100K profit, but sentenced 21Month+50K+483K or 21Month+3.5year+50K…sad news.
-Frodl v Austria 2005, it is unlawful to sentence everyone more than one year, also suggest, a deny of vote should only be taken by Judge, otherwise they could vote. -suggest in every judgement add deny of vote for …months …years
1. Information is not intelligence until it has been refined in the crucibles of intellect, experience and common-sense. -P119 TFS
Trillions of information available in the cyber space will not make your a wizard until you could fully master the rule of it, not mention to every piece of it.
2. What is WU? Wednesbury unreasonableness. A standard of unreasonableness used in assessing applications for judicial reviews of decisions of public authorities under English law. A decision or reasoning is Wednesbury unreasonable if it is so unreasonable that no reasonable person acting reasonably could have made it. It is possible for a decision to fail a proportionality test without being Wednesbury unreasonable.
Ignition of the fire came from ancient, long long ago, no one could trace and imagine now, think as longest as we can. History can tell nothing but some books carved some knowledge or thinking in those times, from those we could see, we could establish some principle to think our origin and the future. The way, we have and the way we could develop. We have started up some fire, here and there, small, but it will spread quickly under the wind with enough material, such as grass, trees, houses. Suddenly we are borne, and soon we will leave this world. If 100, you could have 4 times, but maybe we only have half of the chance now. So treat yourself in the right way, live in a healthy life, do some sports, don’t eat too much, do some sports but not too much, find an aim, a big aim to live for, and to write some books, to helps others, keep on study every day, think 3 times morning, noon and before sleep everyday, write a diary, talk to some wise people if not read the wise in the book, you have to be very selective on who wrote the book, and decide if it is worthy to read or just waste of time, read news to update your daily knowledge about the world – to live, is to know more, in order to know more, you have to have a good body, so keep a digestive stomach, taste all the elements you could have, not eat one thing too much, but don’t waste time on cooking, as it is your aim in this word to know more, new brain is to be developed by daily NEWs, once you lost the interest to know the daily new thing, then you have lost the will to live longer. And if you has last, easily you will be older and older, then like the river washed the bank away, and flood came out, which will be hardly stopped, so as to the illness to kill you easy while you could enhance your bank easily and 100 times more to cure the illness, hence we have to have a healthy life. To know news, you could set up a goal every day, read news from http://news.google.co.uk/, and to read a book every day, to recite some vocabulary, or poem, a philosophy, some joke to laugh, and some technique for example ipad which will change your life and rearrange your style in the world. So we don’t know what and where we are going. The world is changing so quickly, so far we could only following the rhythm if generated, as the ignition has started, we are only one piece of wooden to be burned, and never know how long the fire will last, but do the right thing everything, set a goal, and will be find the future, which is waiting only a mile ahead, the question is, do you have time or energy to see?
Wind flows over the hair, the sunshine sees through the blue sky and white cloud, grass immersed in green this morning, I went to breath some fresh air, and absorb some O2. Another day, I live, and if without any accident, the life circle should last another 80 years, so there will be another thousands of day out and fresh air. Are there any difference if you go out earlier and later under the condition that you will get the same atmosphere even whether or not you are there.
To win or to lose depends how well you could master your skill and how many exercises you have practised. Some talented, some dull. Those talented could easily catch the fish without being taught, those dull has to learn hardly, and improve day by day. Am I one of those, and one of them? Maybe. But I hope I could be one of the talented, and could learn everything easily without hard work, and remember whatever you have seen the first time and forever, never forget what you have seem once. But I have only heard of that, and definitely I am not that clever, although I thought I could be that wise and talented fictitiously, and hint myself. Day by day, I realised it depends on what have seem and what you have dreamed. In the dream, I have been through lifes and lifes, again and again, tired, story is going on and on, but you never know what you are until you are borne and lived in this society.
As if our life is one line, and our brain is a basin, time is water, it accumulate it by seconds, I feel I am getting full, and on top of that, one in and two out, we could not calculate the whole space as our capacity, however if we can, then that’s different. But so far, I think we could not see the space and use the space outside.
Due core. CPU could have more than one core – brain. Then why we could not? We could still think or under the help of computer, parallel the brain and a CPU together, as if I am writing these lines. Thinking is over, life is continuing, it is difficult, it is not easy, you read and you think, you could operate your brain, as it is not a real basin, and enlarge it if you would like to, and find a method to remember what you love to learn and carve on the surface of it. The thinking inside brains is not wholly material, but electrical, so the more you have static electric, the more you could have thinking power. But power itself is trivial or meaningless if you do not know how to use it. For example, if you are using an ipad now, but 50 years ago, all the function could need 10 bedrooms space of the machinery and consume 1 million times of energy . So using the right method to do the right thing is the key to be a brain power, if you could build up machinery inside, and restructured in a proper way, then you could have computer inside it. For example, you could use multiplication table to count the large number within a limited output memory, then you could build up similar table in your mind, for another example the sentence of language, organise them and speak out. You can sit down, and do some research by yourself, or make a cup of coffee, and read what others have done, what are thinking apart from your brain, the more you practise, the better your brain will be organised. the sharp thinking comes from organised cells, the confidence come from the profit you have conquered
Misrepresentation Leading Cases
Dimmock v Hallett (1866) LR 2 Ch App
Principle: mere puff, no legal effect
Half – truth: misleading – mis-rep
Facts: In land sale, seller ads stated rent out without disclosure notice to quit from tenant, held it is misleading
McInerny v Lloyd’s Bank Ltd [1974] 1 Lloyd’s Rep
Principle: unambiguous. if it is reasonable conclusion from defendant’s actions, it is unambiguous, if ambiguous, it is not actionable.
Facts: T(third party) try to purchase M’s company, L telex to M explaining the arrange being made, M read it as L has accepted T’s instruction re guaranteeing the promissory notes. Held: it is unreasonable interpretation.
Pankhania v Hackney LBC [2002]
Principle: statement of law can give rise to mis-rep
Facts: H told P that the car park was let out to a tenant on a contractual licence, but actually on a protected tenancy. The legal status of tenancy has been misrepresented.
Gordon v Selico (1986)
P: Conduct alone can constitute a fraudulent misrepresentation.
F: Sale of a flat, seller’s contractor concealed a crack, there is a clause stated sale as it stands. Held: concealment of dry rot was intended to deceive purchasers, so it is mis-rep
Spice Girls Ltd v Aprilia
P: Conduct can be statement of fact.
Horsfall v Thomas (1862) 1 H&C 90
P: Silence is not mis-rep ( G rule) or no inducement if be ignorant on time of contract
F: sale of gun, the defect was discoverable, but buyer did not inspect it, but for buyer no inspection, there is no misrepresentation.
Smith v Land and House Property Corporation (1884) 28 ChD 7 (CA)
P: A statement of opinion is not a statement of fact, unless a reasonable man will not believe that
Fact: S sells hotel, Land bought it. On ads, Smith said Mr F is a most desirable tenant, but actually he did not pay rent. So Land want to stop the transaction. S sued for specific performance. Held: S knew Mr F did not pay rent, so he should not be a most desirable tenant. Mis-rep
Esso Petroleum v Mardon 1976 CA
P: if opinion is made by a person with greater skill and expertise in relation to the subject matter, a reasonable care and skill is required.
Facts: Lord Denning case. A forcast made by Esso on measurement of a filling station. They knew all the info. They were in a much better position than Mardon. In such case, Esso would know that the forecast will be relied on by Mardon. It is different from the New Zealand case (Bisset v Wilkinson) where both parties knew nothing about the sheep farming but pre-estimate the sheep quantities in the farm.
Bissett v Wilkinson [1927] AC 177
P: Statement of opinion is not statement of fact
F: Owner of farm told the prospective purchaser that he believed it would support 2,000 sheep. Held: owner was not in a better position. He never used as a sheep farm before. And the buyer was aware of that.
Beattie v Ebury (1872) LR 7 Ch App 777
P: statement of future intention is not statement of fact
F: Mellish LJ “Of course, a representation that something will be done in the future cannot either be true or false at the moment it is made, and although you may call it a representation, if it is anything, it is a contract or promise.”
Wales v Wadham 1977
P: a promise regarding to future intention is not statement of fact (G rule)
F: a husband left his wife and live with another woman. At divorce, wife asserted that she would not remarry after divorce. So she got more benefit. Prior to conclusion, wife agreed to marry but not disclose. Husband tried to rescind the agreement. Held: husband failed, as wife made the true statement in that time. And silence ( none-disclosure) is not mis-rep (Horsefall v Thomas) Distinguish With v O’Flanagan 36, continuing misrepresentation, at beginning it is true, but during course of negotiation becomes untrue, the person who knows untrue is under an obligation to disclose, difference is that With v O’Flanagan is based a fact that his practice is at some level, not like Wales v Wadham based an intention: not to marry. So the prerequisite is uncertain. Tudor Evans J held that uberrima fides doctrine not applied, no affidavit, both helped by their respective solicitor and as to unilateral mistake, H had had in mind the possibility that W might remarry after the settlement.
Edgington v Fitzmaurice (1885) 29 Ch D 459
P: If represnetor make a promise but he knows he could not keep it, that is mis-rep, as he never intended to keep.
F: F raised money stated for purchase horses and vans, but actually try to pay off debt. Held: it is mis-rep, as there’s no ground to have that statement. If he has good grounds(Smith v Land and House, Esso v Mardon )
Keates v The Earl of Cadogan (1851) 10 CB 591
P: Silent will not give rise to an action for misrepresentation
F: (not important) K let house from Cadogan, C knew K need immediate rent but did not disclose uninhabitable issue. Held: C was under no implied duty to disclose ( Horsefall v Thomas), but 3 excpetions: half truths(Dimmock v Hallet), continuing representations(With v O’Flanagan) and contracts uberrimae fidei
With v O’Flanagan [1936] Ch 575
P: Exception to silence, continuing representation. At beginning it is true, but prior to contract, it becomes false. But he did not reveal the fact.
F: Dr sells his practice stated the practice is at certain level, but became ill, so the practice has no income, he did not reveal the fact. Held: remaining silent made a continuing representation, there is a duty to disclose.
JEB fasteners v Mark Bloom 83
Materiality is one of the reason to make the representee to the contract, not a sole inducement (Edgtington v Fitzmaurice)
Smith v Chadwick
P: if material, then that is a matter of fact, inducement presumed, leave representor to rebut the presumption.
Pan Atlantic Co. Ltd v Pine Top Insurance Co. Ltd [1995] 1 AC 501)
P: Materiality, the test is an objective one, would the statement influence a reasonable man?
Fact: a case about in what circumstance the House of Lords would allow insurer to avoid liability on grounds of non-disclosure. On materiality issue: minority found non-disclosure to be material only if it has a decisive influence, but majority found material if it would have some effect on the mind of a prudent underwriter
Both agreed that Material is only half the test, Rescission would be available only if representee was did in fact induced to the contract, the burden to rebut is on the representor.
Museprime Properties Ltd. V Adhill Properties Ltd. (1991) 61 P. & C.R. 111
P: if it not material, then they can not be inferred as a matter of fact, unless representee could prove he is actually induced – Subjective test
F: Adhill sold property to Museprime, there was inaccurate statement in the particulars. Adhill claims it is not material as no reasonable man will be induced. Held by Scott J, as long as the Museprime was actually induced, materiality doesn’t matter. But the less reasonable the inducement, the more difficult would be for claimant to prove the inducement.
Redgrave v Hurd (1881) 20 Ch D 1
P: representee is under no duty of check a statement – also no inducement if ee knows it is untrue
F: Redgrave tried to sell his solicitor house to Hurd, stated worth 300 but actually found only 200, although Hurd did not check the accounts. Held that 300 is material, it is open for Redgrave to prove Hurd knew it is untrue or not relied on.
Attwood v Small
P: No inducement if not rely on statement, but on their own investigation. Has ee checked and reply? If so, no inducement. But if partial reliance, as one reason rule Edgington v Fitzmaurice apply.
Smith v Eric S Bush
P: Court deem reasonable for ee to check, although Redgrave v Hurd, no duty to check.
S Pearson v Dublin Corporation
No G rule to check if it is fraud.
Derry v Peek (1889) 14 App Cas
P: definition of fraudulent misrepresentation by Lord Herschell, first need proof of fraud, if fraud is proved, then it has to be shown that the false statement has been made knowingly, without belief in its truth, or recklessly, careless whether it be true or false. Thirdly, if above are proved, motive is immaterial.
F: Derry bought the shares relying on the Peek’s statement as director of the company that it could use steam power. But in fact not, so it wound up. Held: Peek had honest belief that statement made was true.
Thomas Witter Ltd v TBP Industries Ltd [1996] 2 All ER 573
P: Define recklessness. Distinction between recklessness and negligence. Reckless, the statement maker would need to be in a position he does not know whether the statement is true or false, and takes risk to asserts it is true. Negligence, reprensentor honestly believes it is ture, even if he ought to have known it is was false and carelessly not check first.
F: TBP tried to sell its carpet business to Thomas Witter. On shows of accounts, TBP mistakenly disclose a material fact that 120,000 one-off expense on a different basis and not disclose a deferred pattern book expenditure. Held: not fraudulent, but negligent. Recklessness requires dishonest, but no evidence shows.
Easter v Maurer
P: Loss of profit is recoverable if is fraudulent mis-rep
Hedley Byrne v Heller & Partners [1964] AC 465
P: Negligent misrepresentation at common law, a statement made honestly, but without reasonable grounds to the belief. A duty exist where there is a ‘special relationship’. 1) reasonable foreseeable (The Wagon Mound) ( rely on) 2) proximity 3) just and reasonable. Caparo v Dickman
Esso v Mardon is a case Esso owes a duty to Mardon
Burden of proof is on misrepresentee. But it is easier to rely on S2(1) of Misrepresentation Act 1967, burden of proof is at misrepresentor. However is the misrepresentor is not the parties to the contract, then mis-ee has to reply on common law.
Car & Universal Finance Co v Caldwell [1965] 1 QB 525 at p 540,
P: representee could show intention to rescind by some act which is reasonable, communication of rescind the contact is waive if he repossessed the goods.
F: Caldwell sold car to a rogue(Faudulent misrepresentation), and Rogue sold his car to Car & Universal. Held Caldwell is the legal owner, as he took action before Rogue sold the car to Car&Universal, but due to difficulity, he could not communicate to the Rogue, but the Police.
Long v Lloyd [1958] 1 WLR 753
P: Bar to rescission once a contract is affirmed.
F: Lloyd ads a lorry for sale stated an exceptional condition. But broken two days after, Lloyd offered repair, Long accepted. Held. Affirmed, No rescission
Leaf v International Galleries [1950] 2 KB 86 (CA)
P: Lapse of time, non-fraudulent misrepresentation, time run from contract, fraudulent mis-rep, time run discovery
F: IG sold a paint to Leaf, after 5 years he found it is fake. Lord Denning said it is breach of condition, but he lost right once accepted, as 5 year is too long, only award is damage, but damage is not claimed.
Whittington v Seale Hayne (1900) 82 LT 49
P: Indemnity and damage
F: Seale-Hayne let farm to Whittington stated water is healthy, but not. Whittington was asked pay renew the drains, then medical care, rent, rates and others. Held that rates, rent is ‘indemnity’, but the expenses from normal operating of a poultry farm is not ‘indemnity’, as there is not obligation in contract to run the farm.
W: if damage is awarded no indemnity, however if innocent misrepresentation, no damage will be awarded, then indemnity will more likely be awarded.
Doyle v Olby (Ironmongers) [1969] 2 QB 158
P: Damage. All damage from fraudulent misrepresentation which was not rendered too remote by claimant’s own conduct, foresee ability is not an issue.
F: Doyle bought business from Olby stated revenue was ‘all over the counter’, but actually half from travelling sales man. Held by Lord Denning: if loses from contract are limited to what may reasonably be supposed to have been in the contemplation of the parties. In fraud, they are not so limited. All damage directly from fraud, and there is no mitigation.
Smith New Court v Scrimgeour Vickers 1997
P: confirm Doyle v Olby
F: bought share induced by fraud, awarded damaged from price paid in contract and price in the market at time of court action. No need to be foreseeable. Lord Steyn: damage for fraudulent misrepresentation include all loss from induced transaction, damages for negligent misrepresentation include all loss from particular misrepresentation in question.
Standard Chartered Bank v Pakistan National Shipping
P: No Contri.Neg. if fraudulent Mis-Rep
F: English co ship cargo to Vietnamese buyer (L/c issued by Vietnamese bank, confirmed by SCB. L/C- shipment to be 25/Oct, doc present before 10-Nov. Cargo not shipped, 8-Nov give false shipping date to SCB, SCB aware of the date, but released payment to seller. Issuing bank refused to pay SCB, so SCB sued shipper for money. Held: no defence of Contrib.Neg for fraudulent Mis-rep
Royscot Trust v Rogerson [1991] 2 QB 297
P: Negligent misrepresentation is fictitious fraudulent one, no contri.Neg. – no need foreseeable for damage at negligent mis-rep
F: Rogue – 7600 from Rogerson. Paid 1200 deposit, and financed 6400. Rogerson said Rogue paid 20%(rule) of 8000(fake) =1600(not 1200, so to get 6400 from Royscot) . Rogue paid 2775 later and then sold the car 7200 to innocent T.
Royscot Got 1600 from Rogerson, then 6400-1600=4400, – 2775 = 1625. So the maximum R could get is 1600+1625=3225. But the court awarded extra 400, as Rogerson said it is 8000 instead of 7600. Their loss is 3225, did mis-rep caused 400 loss?
Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560
P: Contrib. Neg. – maybe yes
F: Gran Gelato got 10 year lease from Richcliff, there is a clause for head lessor to exercise redevelopment break, and Richcliff’s solicitor said no such a right. So Gran Gelato bought two claims: 1. Negligent misstatement under common law and S2(1) of Misrepresentation Act 1967. Held: since concurrent claims, apportionment under S1 1945 Act applied to both claims.
Government of Zanzibar v British Aerospace (Lancaster House) Ltd [2000] 1 WLR 2333
P: S2(2) Misrepresentation Act 1967 is to compensate if court did not award rescind to ee, but if right of rescind has lost, no damage will be awarded.
Avon Insurance Plc v Swire Fraser Ltd [2000]
P: Representation must be substantially false
Commercial Banking Co of Sydney v RH Brown & Co [1972]
P: misrepresentation must be addressed to the party misled, either by the misrepresentor or third party.
F: Seller(S, RH Brown) – Wool – B(Buyer), S asked SB(Seller’ bank) to check buyer through BB(buyer bank, Commercial Banking), BB said credit is fine, then no payment. Held. Mis-rep. This case could help both addressed by misrepresentor and third party.
Phillips v Brooks
P: right to rescind is lost if past the title to innocent third party. Effect of mis-rep is to make contract voidable, title not pass if communicated (Car Universal v Caldwell)
Clarke v Dickson
P: right of rescind is lost if it is impossible such as subject destroyed or changed
F: ee bought share, but then the company turned to be a limited liability company
Today I read the snowball, a book about Warren Buffet. I am going to write, as it wastes time, money. Concentrate on how to make money only, as long as you can, you can make money. It is an art to make money itself, though there are many others. But in order to make money, play with it is much easier. I don’t have any cash in my wallet, and I never know what is money. So I am going to get some cash from ATM tomorrow, and may change to coins, to know what is money, and learn how to play with it. Tomorrow is to be decided by my today’s behaviour, not my thinking. To avoid money is not a good thing, as I am poisoned by the old sin theory, money itself is not a sin, but how to make it.
By stock is an easy way to make money. In 1942, make money is to buy stock, at 1992, to make money is to build a website, at 2010, make money is to create some content, such as IPAD, it is nothing just a big book, luckily without noise, comparing the lenovo thinkpad I am using, perfect at typing, but noisy, can I get a quite thinkpad, don’t think so, but to get an IPAD to concentrate on what you are reading, and get an keyboard to tying is the best choice you could make in the near future. Time changes, the responsibility, and the job we could do is to change, we never can follow the trace, although may know, even to trivial. But be youself is the so far the best choice, as we are the chosen one from the billions’ of sperm at least, it is lucky enough to be borne, but we listen to others, not ourselves, never can you find yourself through other’s eye or sense, which is totally different from what you could be, or what you will be, as if I believe the memory could be encapsulated into the DNA, then it has carried all the info since the first development of the universe or the origin of species.
Not to write here, but think. You only could do one thing correctly at a time. If you do more, you are no better than anyone else, but most of people do more than they could do, so they become normal. We are abnormal if we could only do one thing. Can we concentrate on one thing? It is easy. You have to find yourselves. Talk to yourself, as to you, find out what you like, what’s your destiny in this world, are you going to be abnormal or normal, are you eager to be successful or not, is it a mistake to be given to birth, what’s the next object or quest in the RPG game, and who could give you that task, and can you resolve that puzzle you have accepted since the first second in this world, or immersed in the mountains, can could not find the outline of it, or you just stand outside of the hills, but never know how many delicious fruit are grown in the mountains and beautiful fairy are playing there, but carve the lines of hill into the paint of history? We never know, and we could never find out, as we are easting those fruits, we don’t know how to paint; if we can paint we will never taste the delicious.
So what’s your aim and plan for your tomorrow?
