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From time to time, you might end up contractually bound to someone you don't like to do something at which you balk. If so, you may be able to get out of it. Here are a few ways.

IMPORTANT DISCLAIMER - I am not a lawyer. Yet. Please don't think anything you read here is any substitute for proper legal advice in your state or country. This writeup also only applies to UK law; while other common law countries may use similar legal principles and thus have similar rules, don't ask me anything legal-related in any civil law countries. I will not know the answer.

Also, this list is by no means exhaustive. There may be other ways to escape the contract in question depending on its contents. I heartily advise consulting your lawyer in all cases, as every contract is different.

1. Claim that the contract never existed.

There's three things that have to exist for there to be a contract - an offer, an acceptance (thus constituting an agreement), and both of these must be backed up by consideration. Consideration is a detriment to oneself or a benefit you confer on another. Thus, you cannot attempt to demand more consideration for an already existing contractual duty. So if a cowboy builder tries to make you pay more than was originally agreed, for example, for replastering your living room, you can tell him to fuck off, and if he then refuses to finish the work, he will be in breach of contract. This is the principle laid down in Stilk v. Myrick and modified in Williams v. Roffey Bros.

A contract also cannot exist if either the offer or acceptance was invalid. Things that may invalidate the acceptance include attempting to construe acceptance in response to silence from the offeree (as per Felthouse v. Bindley.) The first of these could conceivably come up concerning the 30 day free trials often given by pr0n sites, in which although you accept to be served pr0n for the first 30 days, they are construing your silence - or more correctly, you not giving acceptance to be charged, say, $9.95 for each month after that. It's also useful for escaping being railroaded into sticking with your current deadbeat mobile phone provider when they upgraded your phone as per your original contract and then said that unless you rescinded within 14 days, you would be bound for another year, as happened with a person from my halls of residence.

2. Claim that the other party was in breach of a condition or core term of the contract.

Instead of, or in certain cases as well as, being awarded damages for breach of contract, if you can prove that that party was in breach of a condition or a "core term" of the contract, you may be awarded, in court, the right to withdraw. This means that the contract is killed off here and now. A condition or core term is generally something that goes to the centre of the contract and is not merely incidental to the performance of the contract. So, if someone agrees to sell you a Mercedes CL55 AMG for £50,000 but the car delivered turns out to be a C55 AMG, then that is a breach of contract for which you may demand the right to withdraw.

Certain statutes, including the Sale of Goods Act, lay down various implied conditions for when contracts of sale are made. These are that the goods sold should fit their description, that they should be fit for the purpose for which they are intended and be of sufficient quality. All of these are conditions. You know when you see a promotion on the back of a packet of crisps, and it says, "This does not affect your statutory rights" or similar? These are those statutory rights. And more importantly, they are ALL conditions in ALL contracts of sale, and the Act specifically disallows attempts to exclude them as part of athe same contract. How well they should fit their description depends on whether it is a business or a consumer deal, however; while a consumer contract would allow the exercision of these rights in just a slight variation from the description, in business, let us just say that the old case of Arcos v. Ronaasen, in which the buyer demanded the right to withdraw from a contract in which the defendant provided logs to him for barrel-making purposes, one of which was 2cm short of the specification, would be decided the same way today!

Incidentally, this is the method of escaping a contract of sale that you use when your Ikea furniture has parts missing, as usual. Bear in mind, though, that this does NOT mean you can keep the defective goods; that could be construed by the courts as having affirmed the contract. But more on that later.

3. Try to escape the unfavourable contractual terms by claiming they were not properly incorporated.

So maybe it's not the entire contract that provokes such rancour in you so much as one or two terms which you found out about only after you contracted. Well, good news for you, then. The case of Olley v. Marlborough Court Hotel tells us that you cannot attempt to rely on any term of the contract introduced after you have contracted.

!!!! IMPORTANT NOTE !!!! If you sign a contract, you are bound by ALL its terms, and ALL terms incorporated by reference, even if you haven't read them (L'Estrange v. F. Graucob tells us this.) As far as I know, this applies to electronic signature as well, including clicking the "I agree" button on the EULA of your new software. So, to all you people who blindly agreed to become spyware-infested when you installed Kazaa, I'm afraid you have no legal remedies since you should have read it first. Fool. Unless, of course, you can prove duress or undue influence, but more on that later.

4. Launch a legal action for rescission for a misrepresentation on the part of the other party.

In contract law, misrepresentation is a vitiating factor which occurs when a party to a contract misrepresented, either intentionally or negligently something before the formation of the contract.

There are three circumstances which have to be proven before a court can grant any remedy for misrepresentation. Firstly, there has to be a false statement, which is material, and which induced the misrepresentee to enter into a contract. Now a line must be drawn here between contractual terms and representations. This is important because, if in reality it is a term that transpires to be untrue, then that is a breach of contract, but if only a representation, there is an action for misrepresentation. Furthermore, the remedies available at law are different for both. Specifically, for breach of contract, there are damages available either for reliance loss or expectation loss, while for misrepresentation, the remedies given are usually rescission or damages in lieu thereof.

It should also be noted that the definition of "false statement" with regard to a misrepresentation is not that one should look at the statement technically; rather, according to the case of With v. O'Flanagan, one should examine the statement to see if it is "substantially true." Also, it doesn't have to be something said either, a misrepresentation can be an action as well as a word (Nodding when asked if the lemon of a car sold as part of the object of the contract is roadworthy, for instance.)

An opinion by the alleged misrepresentor cannot be a misrepresentation, since, according to Smith v. Land & House Property Corporation, it should instead "put the purchaser on inquiry." If, however, the purchaser cannot check it out for himself, it can in those circumstances, be a misrepresentation (Dimmock v. Hallett).

Rescission for misrepresentation is NOT the same as the right to withdraw for a breach. Rescission puts the contractual parties into the position they were in before the contract was formed; withdrawal or repudiation of a contract simply kills it off. You cannot also claim rescission unless a court grants it. This is due to various bars to rescission of a contract:

  • Affirmation. This happens when you, the misrepresentee, make an indication that you want to keep the contract alive. Holding onto the object of a contract when you are suing for a misrepresentation that induced you to buy it is an affirmation, for example.
  • Lapse of time. You can't turn round years later and suddenly launch a legal action for misrepresentation in a contract formed ages ago. There's no real guidelines on how long is exactly too long, but the case of Leaf v. International Galleries tells us that five years is definitely too long.
  • This is probably the most complex way to escape a contract, and one that cannot be done without litigation. Also, rescission is an equitable remedy and as such, is rather unclear as to exactly for what it can be granted. That, and the policy against opinion as misrepresentation, makes it difficult to succeed in this sort of action.

    5. Seek to have the contract voided for duress or undue influence.

    I managed to thoroughly irritate the shit out of the various people in my halls of residence who were watching Desperate Housewives by shouting, "Barton v. Armstrong!" repeatedly when one of the characters was made to sign a post-nuptial agreement while her husband was in the process of strangling her. The reason for this is because duress, including such physical duress, is a vitiating factor and thus she could have had the postnup annulled, and Barton v. Armstrong is the case that specifically tells us that a threat of physical violence can be duress. So, if faced with a choice between your signature or your brains on that paper, go with the signature. Then immediately run all the way to your solicitor's office and instruct them to get it annulled.

    Duress can also be economic duress - CTN Cash & Carry Ltd. v. Gallagher, Atlas v. KAFCO. Economic duress, in this instance, means threats to withhold business, disrupt other contracts held by the victim of the economic duress (as per the dissenting judgement in Williams v. Roffey Bros mentioned above.)

    Undue influence is similar. To get your contract voided for this, you need to show that the other party had a special pre-existing duty towards you and he abused that position in order to get you to enter into a contract which was unfavourable to you. These duties include, but are not limited to parent/child relationships, doctors/lawyers/other professional persons to their clients, anyone who has assumed a duty of care and the person to whom they assumed that duty - for example, a person caring for an elderly and senile relative, or their professional carer. So if your accountant persuaded you to sell him your house for just half its usual value, claiming that there was a property price crash imminent, this would be undue influence (and quite possibly a misrepresentation as well.)

    These methods of escaping a contract are quite specific.

    6. Refuse to carry out the contract on grounds that it is illegal.

    A contract is illegal and thus unenforceable if performing the duties you have promised would constitute a criminal offence or a recognisable tort. Thus, a contractual promise to buy 50,000 shares in your friend's company for just £1 "on the quiet," so to speak, to force up his stock price is unenforceable as it can be construed as a conspiracy. This also includes the indemnification of another party against unlawful acts, as per Cointat v. Myham & Sons, and also any promise to pay for another person to commit an offence. So assassination contracts are unenforceable.

    If the contract would involve committing an act contrary to public policy the contract can also be held to be illegal and thus unenforceable. This type of illegality in contract law includes, but is not limited to:

  • Meretricious promises including monetary support for a woman to become a man's mistress (and vice versa) thus constituting concubinage, and anything which could aid in the commission of a sexually immoral act, as in Pearce v. Brooks, where hiring out a brougham to a prostitute to facilitate her work in the world's second oldest profession was deemed illegal.
  • Obstruction of justice. A contract which attempts to procure a person to obstruct the course of justice in any way is illegal.
  • Any contract which attempts to oust or usurp the jurisdiction of the courts. You cannot agree to have a third party make decisions and hand out punishments and remedies unless they confine themselves to judge on the facts alone, and not the law.
  • Repudiation of parental duty including attempting to farm out your children to third parties through the use of a contract. (As an aside, I wonder how the folks at WWASPS get around this one?)
  • Now, as I have said at the top of this writeup, I am not a lawyer, and nothing in this writeup should be considered a substitute for proper, independent legal advice. But I hope it gives you some idea of what to do, though I cannot stress enough how important it is that you consult your lawyer before launching ANY legal actions.


    Sources -

    The Law of Contract, G. H. Treitel, 8th Edition
    Contract Law, E. McKendrick, 5th Edition
    Casebook on Contract Law, J. Poole, 6th Edition
    My various Contract Law lecture notes.

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