NATIONAL UNIVERSITY OF SINGAPORE

LAW FACULTY

AUGUST - SEPTEMBER 2019

Singapore Common Law of Contract

LC5337

Syllabus

Instructor Assoc Prof Helena Whalen-Bridge

Address Faculty of Law, Eu Tong Sen Building

Mailbox Via Student Counter

Phone 6516 - 3589

E-mail [email protected]

Class Location Seminar Room 3

B Block

Office hours: After class concludes

By Appointment
Welcome to the Singapore Common Law of Contract.

The Singapore legal system comes within the common law family that also includes
the United States, the United Kingdom, Malaysia, Hong Kong and India. This course
introduces lawyers and law graduates from non-common law countries, such as the
People’s Republic of China, the civilian European countries, Japan and many of our
ASEAN neighbours, to:
• The common law legal system of Singapore, and
• Common law methodology, via
• Introductory principles of the Singapore common law of contract.

The course uses contract law to learn about common law because the law of contract
underlies many of the advanced private law courses available to you as a graduate
student at the Law Faculty.

The specific objectives of the course are for you to:

• Become familiar with key aspects of the common law legal system of
Singapore;
• Grasp introductory principles of the common law of contract in Singapore;
• Develop your ability to use the common law method of applying legal rules
derived from cases to resolve new legal problems.

Method of Instruction

This is a 4-credit course taught intensively in the first half of Semester 1. A detailed
class schedule is projected in the pages below.

The class schedule lists the required reading for each class. Background readings
from books and articles, and case reports will be provided to students on IVLE. For
statutes, students need to locate and read the materials on their own, in the library or
on-line. Class 1 will contain a library segment to help you use relevant law resources
and databases.

The method of instruction will be a combination of interactive seminar-style

discussions, and in-class exercises and group activities.

Method of Assessment and Grades

Grades will be calculated as follows:

Class Participation 25%

Test 75%

Test:
The test will be a take home exam and it will be open book. It is currently scheduled
for Week 8, Wednesday 9 October, 3 – 9pm.

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Class Participation:

Class participation is a part of the grade for this course. Class participation allows
students to learn and test their understanding of the material, and the class learns
better as a whole when all students actively participate. Class participation also
benefits students because it is practice for one of the things students will do as
lawyers, communicate legal information.

In order to participate in class, you are expected to read the assigned material. For
most classes, you should skim, or lightly read, the background reading, which is
meant to put the cases and statutes we read into context. In class, we will normally
not discuss this background reading and concentrate instead on the actual cases and
statutes. The exception is the first class, where we will discuss the background
reading to introduce you to the course subject matter and the Singapore legal system.

Class participation means more than reading the material and showing up for class.
All students are expected to explain (“brief”) cases to the class as a required part of
class participation. To excel, students should volunteer to brief cases for class, make
comments, ask questions, and volunteer answers that add to class discussion.

As time allows, we will also do in-class exercises to help you practice common law
analysis using cases as legal authority. Students from some jurisdictions may not be
used to regular exercises that require on the spot application of cases and rules of law.
Keep in mind that LL.M. classes assess students on how they understand and apply
the rules of law to new situations, not merely whether they can repeat rules of law
clearly. To learn the common law of contracts and give students practice in the
common law analysis required on the final exam, students will apply their knowledge
through practice with hypothetical questions. Practice like this is particularly
important for civil law trained students learning common law systems. At first, the
experience may be frustrating, but with practice comes the deeper understanding
required to truly engage with common law systems.

In general, the exercises will focus on hypothetical questions and require you to
sketch out an answer in the form of an essay outline. At the Law Faculty, essays are
normally one of two types: (1) the problem or hypothetical essay, and (2) the
argumentative essay. In the hypothetical essay (1), students are given a set of
hypothetical facts, and students must identify the issue(s), discuss and apply the
applicable law, consider and analyse any counter arguments, and predict the most
likely outcome. In the argumentative essay (2), students are usually directed to an
area of the law, frequently one that is controversial or has been criticised, and told to
take a position of the law and defend it. The hypothetical and argumentative essays
are two rudimentary types of legal reasoning that form the basis of many other types
of more sophisticated legal reasoning that students will be doing during their LL.M.
studies. Given the intensive pace of this course, we will focus on hypothetical
questions.

Keep in mind that class discussion does not require perfect knowledge of the subject.
If you prepare diligently and contribute relevant points to the questions being
discussed, your class participation will be good and your understanding of the
material will be significantly improved.

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Assessment of Class Participation:

Familiarity: Frequency of Quality of

quantity of material class participation contributions

Strong Displays familiarity Regularly briefs Offered insights

with all material cases and answer beyond the basics
questions

Acceptable Displays familiarity Sometimes briefs Displays

with majority of cases and answer proficiency and can
material questions explain basic points

Needs Displays familiarity Occasionally/rarely -Can assert/repeat

Improvement with some material briefs cases and points from some
answer questions source but
not able to explain
-Displays error on
basic points

Reading Cases

Case reports constitute part of the law in common law systems, and in this course you
will be reading many case reports, which are reports of judicial decisions. Your
reading list gives the name of the case with a citation. In this course, you will be
provided with soft copies of cases via IVLE. You should read them, and bring your
notes and/or copies to class with you.

When reading case reports, take note of which aspect of contract law is assigned for
study, and read the portion of the case relevant to that.

Reading Excerpted Cases as Opposed to Full Reports:

1. In the first few classes, when you are learning how to read cases, it is acceptable
in this course to read the case in an excerpted or shortened form as presented in a
casebook (see the suggested textbooks above). Casebooks provide excerpted cases
that highlight important points. Casebooks also provide commentary, refer to related
treatises, and ask (sometimes unanswered) questions.

2. After the first few classes, you should move from reading case excerpts to reading
the actual case reports. You can continue to use summaries and excerpts to ensure
that you have focused on the key parts of the report, but to fully understand the cases

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that form the basis of the common law, it is necessary to read the full version of cases
with all their challenges, including multiple opinions, dissents, references to the
arguments of parties, judicial philosophy, etc. Reading the case report is the only
means of practicing how to extract rules, relevant facts, and reasoning from cases – a
key skill that common law lawyers need to develop.

3. Beware websites offering summaries of cases/other sources not your own:

• Websites etc. sometimes contain errors and are often too short to be of use for
class discussion
• Any summary other than your own does not develop your ability to understand
cases.

Recommended Books: for further reading, students may consider –

Contract Casebooks: look at these books for excerpted versions of assigned cases.
The most recent editions noted below can only be checked out of the library for a
limited time, but older editions of the casebooks also have assigned cases and can be
checked out of the library for longer periods of time.
• Ewan McKendrick, Contract Law: Text, Cases, and Materials, 8th ed. (Oxford:
Oxford University Press, 2018)
• H.G. Beale, W.D. Bishop & M.P. Furmston, Contract: Cases & Materials
(Oxford University Press, 5th ed, 2008)

Contract Textbooks: consult these textbooks for detailed discussions of the law.
They all have somewhat different styles and approaches; read a selection and use the
text that works best for you. A simpler textbook may help you understand the law
initially, but be careful to use a book that is sufficiently detailed for this course.

UK and Commonwealth Contract Law:

• Mindy Chen-Wishart, Contract Law, 6th ed. (Oxford: Oxford University Press,
2018)
• Jack Beatson, Andrew Burrows, John Cartwright, Anson’s Law of Contract, 30th
ed. (New York, NY: Oxford University Press, 2016)
• M.P. Furmston, Cheshire, Fifoot and Furmston's Law of Contract, 17th ed.
(Oxford University Press, 2017)
• Ewan McKendrick, Contract Law, 12th ed. (Basingstoke: Palgrave Macmillan,
2017)
• Edwin Peel, The Law of Contract, 14th ed. (Sweet & Maxwell, 2015) (“Treitel”)
(an extensive, detailed treatise, that considers every question of contract law you
will ever ponder)
• Jill Poole, Textbook on Contract Law, 13th ed. (Oxford: Oxford University Press,
2016)

Singapore Contract Law:

• Mindy Chen-Wishart, Alexander Loke, and Burton Ong, ed., Studies in the
Contract Laws of Asia I: Remedies for Breach of Contract (Oxford: Oxford
University Press, 2016)
• Andrew Phang Boon Leong, The Law of Contract in Singapore (Singapore:
Academy Publishing, 2012) (discussion of Singapore contract law cases)

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• Andrew B.L. Phang and Goh Yihan, Contract law in Singapore (The Netherlands:
Kluwer Law International, 2012)
• Cavinder Bull, ed., Law Relating to Specific Contracts in Singapore, 2nd ed.
(Singapore: Sweet & Maxwell Asia/Thomson Reuters, 2016)
• Phang Andrew Boon Leong, Cheshire, Fifoot and Furmston's Law of Contract
2nd Singapore and Malaysian ed. (Singapore: Butterworths Asia, 1998)
(discussion of Singapore contract law cases)

Website:
Singapore Academy of Law, Laws of Singapore, Commercial Law, the Law of
Contract: http://www.singaporelaw.sg/sglaw/laws-of-singapore/commercial-
law/chapter-8

Comparative Law Treatises: discuss comparative rules of law with occasional case
review –
• John Cartwright, Contract Law: An Introduction to the English Law of Contract
for the Civil Lawyer, 2nd ed (Oxford: Hart Publishing, 2013)
• Mindy Chen-Wishart, Alexander Loke, Burton Ong, ed., Studies in the contract
laws of Asia I: remedies for breach of contract (Oxford: Oxford University Press,
2016)
• Raymond Youngs, English, French & German Comparative Law, 3rd ed.
(London: Cavendish Publishing Limited, 2014)
• K. Zweigert and H. Kotz, An Introduction to Comparative Law, 2nd ed. (Oxford:
Clarendon Press, 1992)
• K. Zweigert and H. Kotz, An Introduction to Comparative Law, 3rd ed. (Oxford:
Oxford University Press, 1998)

Encyclopedia:
• Jan M. Smits, ed, Elgar Encyclopedia of Comparative Law, 2nd ed. (Cheltenham,
UK: Edward Elgar Pub., 2012)
• R. David and others, Editorial committee, International Encyclopaedia of
Comparative Law (New York: Oceana, 1973-1985) (Volume VII deals with
contract law)

Equity Treatises:
• For an extremely short, succinct introduction to equity in common law systems,
see John Henry Merryman, The Civil Law Tradition, 2nd ed. (Stanford, CA.:
Stanford University Press, 1985) at 48-55.
• Sarah Worthington, Equity, 2nd ed. (Oxford: Oxford University Press, 2006) (the
most user friendly text) (this edition is on RBR in the law library)
• Jamie Glister and James Lee, Hanbury & Martin Modern Equity, 20th ed.
(London: Sweet & Maxwell/Thomson Reuters, 2015) (the classic treatise)
• John McGhee, general editor, Snell's Equity, 33rd ed. (London: Thomson/Sweet &
Maxwell, 2015) (the practitioner’s text)
• J D Heydon, M J Leeming, P G Turner, Meagher, Gummow & Lehane's Equity:
Doctrines & Remedies, 5th ed. (Australia: LexisNexis Butterworths, 2015)

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Class # 1
Singapore Legal System:
G.F. Bell, “The Singapore Legal System in Context – Whither the Concept of the
National Legal System?” in KYL Tan (ed), The Singapore Legal System, 2nd ed.
(Singapore: Singapore University Press, 1999), 1-25.

KYL Tan, “A Short Legal and Constitutional History of Singapore” in Walter Woon,
ed., The Singapore Legal System (Singapore: Longman Singapore, 1989), 3-33.

Methodology: analyzing cases

• Orin S. Kerr, “How To Read A Legal Opinion: A Guide For New Law Students”
(2007) The Green Bag, Volume 11(1), pp. 51 – 56, 57 – 63

What is the ratio?

• Simon Chesterman and Clare Rhoden, Studying Law at University: Everything
You Need to Know, 2nd ed. (Crows Nest, N.S.W.: Allen & Unwin, 2005, Chapter
6, Reading Case Law, pp. 74-75
• Oxford Reference, Overview: ratio decidendi,
http://www.oxfordreference.com/view/10.1093/oi/authority.20110803100405351
• The Free Dictionary, ratio decidendi,
https://legal-dictionary.thefreedictionary.com/ratio+decidendi

Sample case: (we will also discuss Balfour v. Balfour case in Class # 2)
• Balfour v. Balfour [1919] 2 KB 571 (CA): state the parts of case –

1. Case Name and Citation

2. Facts
3. (Procedural History)
4. Issue
5. Holding or ratio decidendi
6. Reasons for decision, or reasoning: multiple judgments? Obiter
dictum?
7. Rule(s)?
8. (Judgment or result)

Finding Legal Materials Online and in the Law Library:

Special Lecture by the Law Library

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Class # 2
Contract Formation: Intention to Create Legal Relations (did we intend to be
legally bound by our promise?)

Skim: Edwin Peel, The Law of Contract, 14th ed. (London: Sweet & Maxwell, 2015),
Chapter 4, “Contractual Intention”

On different kinds of cases, read: Simon Chesterman and Clare Rhoden, Studying
Law at University: Everything You Need to Know, 2nd ed. (Crows Nest, N.S.W.:
Allen & Unwin, 2005, Chapter 6, Reading Case Law, pp. 69-71

On common law methodology, read: organizing and proving a conclusion of law

• Richard K. Neumann, Legal Reasoning and Legal Writing, 6th ed. (New York:
Aspen, 2009), Chapter 10, “A Paradigm for Organising Proof of a Conclusion of
Law”

Domestic Relationships:
• Balfour v. Balfour [1919] 2 KB 571 (CA)
• Choo Tiong Hin v. Choo Hock Swee [1959] MLJ 67 (CA)
• Merritt v. Merritt [1970] 1 WLR 1211 (CA)

Commercial Relationships:
• Kleinwort Benson v. Malaysian Mining [1989] 1 WLR 379 (CA)
• Baird Textile Holdings Ltd. v. Marks & Spencer plc [2001] EWCA Civ 274,
[2001] 1 All ER (Comm) 737 (CA), paras. 1-31, 41-48, 57-77
• ERDC Group Ltd. v. Brunel University [2006] EWHC 687, [2006] All ER (D)
468, [2006] BLR 255 (Technology and Construction Court), [2007] 109 ConLR
114 TCC, CILL 2348, BLM Vol. 23 No. 6, paras. 1-36.

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Class # 3
Contract Formation: Offer and Acceptance (did we make an agreement?)

Skim: Ewan McKendrick, Contract Law, 12th ed. (Basingstoke: Palgrave Macmillan,
2017), Chapter 2, “Agreement”, and Chapter 3, “Offer and Acceptance”

Bilateral Contracts

Offers and Termination of Offers: Invitation to Treat

• Pharmaceutical Society of Great Britain v. Boots Cash Chemists [1953] 1 QB 401
(CA)
• Dickinson v. Dodds (1876) 2 ChD 463 (CA)

Agreement:
• Via Signature:
o L’Estrange v. F Graucob Ltd. [1934] 2 KB 394 (KBD)
o Davis Contractors Ltd. v. Fareham UDC [1956] 1 AC 696 (CA)
• Using Notice: Chapelton v. Barry UDC [1940] 1 KB 532 (CA)

Unilateral Contracts

Unilateral Offers: displays, advertisements, and rewards

• Carlill v. Carbolic Smoke Ball Company, [1893] 1 QB 256 (1892 CA) (look for
analysis of agreement, not consideration or other issues)
• The Crown v. Clarke [1927] HCA 47, (1927) 40 CLR 227 (Australian HC)
• Ward v. Byham [1956] 2 All ER 318, [1956] 1 WLR 496, 498 (CA)

Termination of unilateral offers:

• Daulia v. Four Millbank Nominees Ltd. [1978] Ch 231, 247-239B, [1978] 2 All
ER 557 (CA)

Acceptance of Unilateral Offers:

• Revise Daulia v. Four Millbank Nominees Ltd., [1978] 2 All ER 557 (CA)

Acceptance must respond to offer: rewards

• Revise The Crown v. Clarke [1927] HCA 47, (1927) 40 CLR 227 (Australian
HC)

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Class # 4

Contract Formation: Consideration

Skim: Mindy Chen-Wishart, Contract Law, 6th ed. (Oxford: Oxford University Press,
2018), Chapter 3, “Enforceability: Consideration, Formalities, Promissory Estoppel” ,
Part 3.1 and 3.3

Consideration (did we both exchange something?)

Revise Dickinson v. Dodds (1876) 2 ChD 463 (CA)
Revise Balfour v. Balfour [1919] 2 KB 571 (CA)

Need not be adequate but must have value as determined by the law:
• Chappell & Co v. Nestle [1960] AC 87 (HL)

Performing an activity not otherwise required:

• Revise Carlill v. Carbolic Smoke Ball Company [1893] 1 QB 256 (1892 CA)
(look for analysis of consideration, not agreement or other issues)

Refraining from legal activity:

• Hamer v Sidway (1891) 124 NY 538, 27 NE 256 (New York Court of Appeals)
(highest court in the state), pp 256-258 (stop at indented paragraph at bottom left
column)

Performance of duty imposed by law:

• Ward v. Byham [1956] 2 All ER 318, [1956] 1 WLR (CA)

Performance of existing contractual duty already owed to the promisor:

• In the beginning: Stilk v. Myrick (1809) 2 Camp 317 (Ct. of Common Pleas), 170
ER 1168 (note the footnote which carries over to p. 1170)
• The rule revised: Williams v. Roffey Bros & Nicholls (Contractors) Ltd. [1991] 1
QB 1 (CA), pp. 1-8, 10-23

Certainty of Terms: interaction of contractual requirements

• Revise Carlill v. Carbolic Smoke Ball Company [1893] 1 QB 256 (CA), pp. 263-
264, 266-268, and 274

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Class # 5
Equity

Skim: John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition:
an introduction to the legal systems of Europe and Latin America, 3rd ed. (Stanford,
CA.: Stanford University Press, 2007), Chapter VIII, “Certainty and Equity”

Skim: Mindy Chen-Wishart, Contract Law, 6th ed. (Oxford: Oxford University Press,
2018), Chapter 3, “Enforceability: Consideration, Formalities, Promissory Estoppel”,
Part 3.2

Promissory Estoppel (I relied on your promise)

• Central London Property Trust Ltd v. High Trees House Ltd. [1947] 1 KB 130,
[1956] 1 All ER 256 (KB)
• Baird Textile Holdings Ltd. v. Marks & Spencer plc [2001] EWCA Civ 274,
[2001] 1 All ER (Comm) 737 (CA) 111(look for analysis of promissory estoppel)
• In re Selectmove Ltd. [1993] EWCA Civ 8, [1995] 2 All ER 531, [1995] 1 WLR
474 (CA), p. 481E-H
• Oriental Investments (SH) Pte Ltd v Catalla Investments Pte Ltd [2012] SGHC
245, [2013] 1 SLR 1182, para. 1-52, 82-95

Consideration & Promissory Estoppel - rule for obligation to pay a debt:

• Foakes v. Beer [1884] UKHL 1, (1884) 9 App Cas 605 (HL), [1881-85] All ER
Rep 106, (1884) 9 App Cas 605; 54 LJQB 130; 51 LT 833; 33 WR 233
• Revise In re Selectmove Ltd. [1993] EWCA Civ 8, [1995] 2 All ER 531, [1995] 1
WLR 474 (CA)
• Collier v. P & M J Wright (Holdings) Ltd. [2008] 1 WLR 643 (CA)

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Class # 6
Terms (what exactly do I have to do?)

Skim: Edwin Peel, The Law of Contract, 14th ed. (London: Sweet & Maxwell, 2015),
Chapter 6, “The Contents of a Contract”

Classification of terms: Express and Implied Terms

Terms Implied in Fact:

• The Moorcock (1889) 14 PD 64, [1886-90] All ER 530 (CA)
• Tsakiroglou & Co. Ltd. v. Noblee and Thorl Fmbh [1962] AC 93 (HL) (look for
analysis of implied terms, not frustration)
• BP Refinery (Westernport Pty. Ltd). v. Hastings Shire [1977] UKPCHCA 1,
[1977] HCA 1, (1977) 180 CLR 266 (PC on appeal from the Full Court of the
Supreme Court of Victoria)
• Forefront Medical Technology (Pte) Ltd. v. Modern-Pak Pte.. Ltd. [2006] SGHC
3, [2006] 1 SingLR(R) 927
• RDC Concrete Pte. Ltd. v. Sato Kogyo (S) Pte. Ltd. [2007] SGCA 39, [2007] 4
SingLR(R) 413, paras. 1-13, 25-33

Terms Implied in Law:

• Statute - Sale of Goods Act (Cap. 393, Sing. Rev. Ed. 1999), s. 13
• Common law - Liverpool City Council v. Irwin [1977] AC 236 (HL)
• Revise Forefront Medical Technology Pte. Ltd. v. Modern-Pak Private Ltd.
[2006] SGHC 3, paras. 42-44

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Class # 7

Interpretation of Contracts

Skim: Mindy Chen-Wishart, Contract Law, 6th ed. (Oxford: Oxford University Press,
2018), Chapter 10.4

Interpretation of Contract (what do our terms mean?)

• Revise Carlill v. Carbolic Smoke Ball Company [1893] 1 QB 256 (CA), pp. 261-
262, 263-264, 266-268, and 272-274 (is this interpretation?)
• Investors Compensation Scheme Ltd. v. West Bromwich Building Society [1997]
UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR896
• Chartbrook Ltd v. Persimmon Homes Ltd. [2009] 1 AC 1101
• LTT Global Consultants v. BMC Academy Pte. Ltd. [2011] SGHC 80, [2011] 3
SLR 903
• Xia Zhengyan v. Geng Changqing [2015] SGCA 22, [2015] 3 SingLR 732, para.
1-31, 38-60
• Forefront Medical Technology (Pte) Ltd. v. Modern-Pak Pte.. Ltd. [2006] SGHC
3, [2006] 1 SingLR(R) 927, para. 58 – polite language has what effect?

Parole Evidence Rule

• Evidence Act (Cap 97, 1997 Rev. Ed. Sing.) ss. 93, 94 and 95

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Class # 8
Exclusion Clauses (can you use a contract to get out of a legal responsibility?)

Skim: Ewan McKendrick, Contract Law, 12th ed. (Basingstoke: Palgrave Macmillan,
2017), Chapter 11, “Exclusion Clauses”

Incorporation of exclusion and limitation clauses into contracts: notice or signature?

• Parker v. South Eastern Railway Co. (1877) 2 CPD 416 (CA)
• Chapelton v. Barry UDC [1940] 1 KB 532 (CA)
• Thornton v. Shoe Lane Parking Ltd. [1971] 2 QB 163 (CA) 1971] 2 WLR 585
• Hakko Products Pte. Ltd. v. Danzas (Singapore) Pte. Ltd. [1999] SGHC 59,
[2000] 3 Sing. L.R. 488, paras. 1-24, 45-49
• Press Automation Technology Pte. Ltd. v. Trans-Link Exhibition Forwarding Pte.
Ltd. [2002] SGHC 286, [2003] 1 SingLR 712, particularly paras. 25-41
• [2013] SGHC 281, particularly paras. 204-205, 212-226

Interpretation of Exclusion Clauses – contra proferetem:

• Photo Productions Ltd. v. Securicor Transport Ltd. [1980] UKHL 2, [1980] AC
827 (HL)
• Ailsa Craig Fishing Co. Ltd. v. Malvern Fishing Co. Ltd. [1981] UKHL 12,
[1983] 1 WLR964
• Holland Leedon Pte. Ltd. (in liquidation ) v. C & P Transport Pte. Ltd. [2013]
SGHC 281, particularly paras. 206-211

Validity of Exclusion Clauses:

Unfair Contract Terms Act (Cap. 396, Sing. Rev. Ed. 1994), adopted via Application
of English Law Act (Cap. 7A)
• Phillips Products Ltd v. Hyland [1987] 2 All ER 620, [1987] 1 WLR659 (CA)
• Thompson v. T. Lohan (Plant Hire) Ltd. [1987] 2 All ER 631, [1987] 1 WLR 649
(CA)
• Duty defining clause: Deutsche Bank AG v. Chang Tse Wen [2013] SGCA 49,
[2013] 4 SingLR 886, particularly paras. 60-68
• Press Automation Technology Pte. Ltd. v. Trans-Link Exhibition Forwarding Pte.
Ltd., [2002] SGHC 286, [2003] 1 SingLR(R) 712, particularly paras. 42-79
• Holland Leedon Pte. Ltd. ( in liquidation ) v. C & P Transport Pte. Ltd. [2013]
SGHC 281, particularly paras. 227-239

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Class # 9
Performance and Breach

Skim: M.P. Furmston, Cheshire, Fifoot & Furmston’s Law of Contract, 17th ed.
(Oxford: Oxford University Press, 2017), Chapter 18, “Performance and Breach”

Performance (what can I get if I don’t perform everything?)

Entire contract/obligation:
• Cutter v. Powell (1795) 6 Term Rep 320, 101 ER 573 (KB)

Entire contract compared to divisible contracts:

• Taylor v. Laird (1856) 1 H & N 266, 25 LJ Ex 329, 156 ER 1203 (Exchequer)

Substantial Performance:
• Hoenig v. Isaacs [1952] EWCA Civ 6, [1952] 2 All ER 176 (CA) (defective
bookshelf)
• Bolton v. Mahadeva [1972] EWCA Civ 5, [1972] 1 WLR 1009 (CA) (installation
of central heating system)

Quantum Meruit: an equitable remedy

• Sumpter v. Hedges [1898] 1 QB 673 (CA)
• Revise Cutter v. Powell (1795) 6 Term Rep 320 (KB) – why no quantum meruit
here?
• Revise ERDC Group Ltd. v. Brunel University [2006] EWHC 687, [2006] All ER
(D) 468, [2006] BLR 255 (Technology and Construction Court), [2007] 109
ConLR 114, paras. 37-47
Foo Song Mee v. Ho Kiau Seng, [2011] SGCA 45, paras. 1-20, 26, 29

15
Class # 10
Performance and Breach

Skim: M.P. Furmston, Cheshire, Fifoot & Furmston’s Law of Contract, 17th ed.
(Oxford: Oxford University Press, 2017), Chapter 18, “Performance and Breach”

Breach (you breached and I want to get out of this contract)

Tests for Breach

Condition-Warranty Test –
• Time is of the essence clause – Hartley v. Hymans [1920] 3 KB 475 (KBD)
• L Schuler AG v. Wickman Machine Tools Sales Ltd. [1973] UKHL 2, [1974] AC
235 (HL)

Innominate Term Test

• Hong Kong Fir Shipping v. Kawasaki Kisen Kaisha [1961] EWCA Civ 7, [1962]
2 QB 26 (CA)

Combined Approach
• Chua Chay Lee v. Premier Properties Pte. Ltd. [2000] SGCA 34, [2000] 2
SingLR(R) 464
• Revise RDC Concrete Pte. Ltd. v. Sato Kogyo (S) Pte. Ltd. [2007] SGCA 39,
[2007] 4 SingLR(R) 413, paras. 87-138

Consequences of Breach:

Primary and Secondary Obligations: Revise Photo Productions Ltd. v. Securicor

Transport Ltd. [1980] AC 827 (HL), paras. 848B – 850C.

Rights of “Innocent” Party

• White and Carter (Councils) Ltd. v. McGregor [1961] UKHL 5, [1962] AC 413,
[1962] 2 WLR17 (HL)
• Hounslow LBC v. Twickenham Garden Developments Ltd. [1971] Ch. 253 (1970
Chancery Division)
• Clea Shipping Corp v. Bulk Oil International Ltd (The Alaskan Trader) [1984] 1
All ER 129, [1983] 2 Lloyd's Rep 645 (QB)

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Class # 11
Remedies (you breached and need to make it up to me)

Skim:
• Mindy Chen-Wishart, Contract Law, 6th ed. (Oxford: Oxford University Press,
2018), Chapter 13, “Damages”
• Jill Poole, Textbook on Contract Law, 13th ed. (Oxford: Oxford University Press,
2016), Chapter 10, “Remedies providing for specific relief and restitutionary
remedies”

Damages:
Measuring damages: Expectation Losses
• Ruxley Electronics v. Forsyth [1996] AC 344 (HL)

Reliance losses:
• McRae v. Commonwealth Disposals Commission (1950) 84 CLR 377 (HC)
• C & P Haulage Co. Ltd. v. Middleton [1983] All ER 94, 1 WLR 1461 (CA)

Factors Limiting Damages:

• Hadley v. Baxendale (1854) 9 Ex 314, 156 ER 146 (Court of Exchequer)
• Victoria Laundry (Windsor) v. Newman Industries [1949] 2 KB 528 (CA)

Mitigation - Alvin Nicholas Nathan v Raffles Assets (Singapore) Pte Ltd [2016]
SGCA 18, paras. 1-20, 22 - 30

Action for Contract Price:

Revise White and Carter (Councils) Ltd. v. McGregor [1961] UKHL 5, [1962] 2
WLR 17

Liquidated damages or unacceptable penalty?

• Dunlop Pneumatic Tyre Co Ltd. v. New Garage and Motor Co. Ltd. [1915] AC 79
(HL)
• CLAAS Medical Centre Pte. Ltd. (formerly known as Aesthetics Associates Pte.
Ltd.) v. Ng Boon Ching [2010] SGCA 3, [2010] 2 SingLR 386, facts plus paras.
62-67
• Xia Zhengyan v. Geng Changqing [2015] SGCA 22, [2015] 3 SingLR 732
• Cavendish Square Holdings v. El-Makdessi and ParkingEye Limited v. Beavis
[2015] UKSC 67, [2015] 3 WLR 1373

Equitable Remedies:
• Revise Beswick v. Beswick [1976] 3 WLR932 (HL)
• Co-operative Insurance Society v. Argyll Stores (Holdings) Ltd. [1998] AC 1,
[1997] 2 WLR 989 (1997 HL)

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Class # 12
Sample Contract Defenses:

Frustration (I should not be bound as things turned out)

Skim: Jill Poole, Textbook on Contract Law, 13th ed. (Oxford: Oxford University
Press, 2016), Chapter 12, “Discharge by Frustration: subsequent impossibility”

Destruction of Subject Matter:

• Taylor v. Caldwell (1863) 3 B & S 826 (KB)

Frustration of Purpose or Adventure:

• Krell v. Henry [1903] 2 KB 740 (CA)
• Herne Bay Steam Boat Co. v. Hutton [1903] 2 KB 683 (CA)

Radically different from the parties’ contemplation:

• Davis Contractors Ltd. v. Fareham UDC [1956] 1 AC 696 (CA)

Different method of performance - Tsakiroglou & Co. Ltd. v Noblee and Thorl Fmbh
[1962] AC 93 (HL)

Contract wide enough to apply to the new situation: Lim Kim Som v. Sheriffa Taibah
bte Abdul Rahman [1994] SGCA 15, [1994] 1 SingLR(R) 233

Contractual provisions:
• Revise RDC Concrete Pte. Ltd. v. Sato Kogyo (S) Pte. Ltd. [2007] SGCA 39,
[2007] 4 SingLR(R) 413, paras. 34-81

Effects of Frustration: Statutory Reform

• Frustrated Contracts Act (Cap. 115, 2014 Rev. Ed. Sing.)

Mistakes in offer and acceptance (I was mistaken when I made the promise so I
shouldn’t be bound)

• Smith v. Hughes [1871] 6 QB 597 (QB)

• Chwee Kin Keong v. Digilandmall.com Pte. Ltd. [2004] SGHC 71, [2004] 2
SingLR 594 (HC)

Take Home Test Wed 10 Oct Submit via IVLE NLT Wed 10 Oct 9 p.m.
3 p.m. – 9 p.m.

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