Contract Law 2
Breach Remedies and Advocacy
Mooting and advocacy
Advocacy is an important skill in the legal profession. It allows you to develop confidence,
presentation skills, the ability to be concise and clear and to think on your feet and answer
questions.
Mooting stimulates a court hearing – usually an appeal against a final decision – in which the
participants analyse a problem, research the relevant law, prepare written submissions and
present an oral argument.
How mooting is done:
The problem - a typical moot problem is concerned solely with a point or points of law. Normally it will take
the form of a case heard on appeal from a lower court with the grounds of appeal clearly stated
The teams - a moot usually consists of four speakers, divided into two teams. One team are the appellants
and the other team are the respondents. There is also a senior and junior counsel for each team
The moot court - The moot court will reflect a courtroom scenario. The moot is presided over by at least one
judge who delivers an argument at the end of the moot on the law and on the result of the moot itself.
It is important to consider what court the moot is set in as there are different rules for each court.
Mooting step-by-step:
Part 1 – Analysing the Q
1. Understand the basic features – before analysing a moot problem question, familiarise yourself with
its various features. These features are:
The court – the court you are advocating in dictates a number of things e.g. the significance of
precedent for example if a case is being heard in the UK Supreme Court, it is important to remember
that this court is not bound by its own precedent. Also, when advocating in the Supreme Court, it is
important to note the types of cases that will be granted appeal – these are cases which are of the
‘greatest public and constitutional importance.’
The appellant - The first name indicates who is appealing to the court. In R v Harper D (as indicated
by his surname) is appealling to the Supreme Court
The respondent - the second name indicates who is responding to the appeal
Incident facts - the first four paragraphs lay out the factual circumstances of the incident that led to
the legal issues presented
Charges - the fifth paragraph sets out the charges levelled against D. Charges are unique to a criminal
law problem question. If the question does not mention what specific source of law (case law, statute
law etc.) defines the crime charged, you should research this as a starting point.
Long procedural history - This tells you what has happened in the case in each court that it has been
heard in. This helps gain a greater understanding of why the current appeal came about.
Immediate procedural history - this passage tells you exactly what happened in the court prior to
the court the moot problem question is in
Ground one of the appeal - this ground belongs to the senior counsel for both the appellant and the
respondent. The appellant will argue for the appeal (for it to be allowed) and the respondent will argue
against (for it to be dismissed.)
Ground two of the appeal - this ground belongs to the junior counsel for both the appellant and the
respondent. The appellant will argue for the appeal whereas the respondent will argue against
2. Create a summary – being able to summarise the case facts and appeal points is crucial. Choose only
facts which are relevant to the appeal, rejecting minor background information. A general rule of thumb
– five points plus appeal points. This will a) show how well you know the facts and ensure you know
them thoroughly but b) this is a routine check for the judge
3. Understand the grounds of appeal – you can only argue within the boundaries of the grounds of
appeal. Construct submissions that build up in support of overall ground of appeal. You need to consider
the precise argument you will make, this is found in the grounds of appeal. If you stray away from your
, grounds of appeal, the judge can say they don’t want to hear your argument.
Part 2 – Research the law
1. Search research terms – to remain focused, take a systematic approach to selecting your research
terms. Select 2 types of research terms: obvious phrases or words from the question and then that they
might derive from their existing legal knowledge, as well as any relevant synonyms
2. Using your research terms – Always find cases or legislation cited first and read them to develop
more research terms and indentify related cases connected to your ground of appeal
Do this by using terms and connectors to find useful resources, including cases, scholarship and commentary
Step 3 – Analyse and apply the law
Applying the law is what you do when you have found a legal authority. The authority is often a case. To
apply the law you need to:
1. Understand the ratio
2. Figure out how it relates to the instance case and the ground of appeal
3. Determine what you want the court ‘to do with it.’
1. Reading and understanding – read the case report for the case relating to your ground of appeal
First consider:
1. What did the court rule (ratio)?
2. How might this case – factually – relate to the instant case?
3. How might this case – legally – relate to the instant case?
2. Relating – how do these determinations relate to your ground of appeal? What points might you
make in relation to this case/statute? What points might the opposing counsel make?
3. Create a summary – this is to track and consolidate your understanding. There are templates in the
lecture slides
Construction – skeleton argument, legal submission and courtroom etiquette
Skeleton argument
Introduction – what do you want the court to know? Who are you? What role are you? Must
address the court appropriately e.g. My Lord, I am Morgan Brown and I am representing... (in
the formative it is the C of A in my scenario), what is the ground of appeal?
Ground of appeal
Primary sources of law only – these are found in the case itself
When using cases explain their importance
Must be clear, concise and use language which is straight to the point
No more than 3 submissions – use cases within these submissions but remember legal bib.
With cases, include their legal citation. The cases used should support my ground of appeal
Number each submission and start with the strongest point first the 2nd submission is the
case that is the strongest and the 3rd submission is disregarding what the other side may say (this
is before they have brought forward their argument therefore I will have to research cases and
law that they might provide.)
Following submissions conclude the submissions e.g. therefore my Lord, I ask that you
consider my submissions
Most of the word count should go on submissions
For summative the word count = 1000
If the law is not on your side, you need to find a precedent which changes that
Terminology - you address parties using their actual names (their title not their personal
name e.g. Senior respondent, junior appellant), how do you address the court
Formative is a skeleton argument of no more than 300 words – Due 12 noon 25th March
Distinguishing terms and representations - it is important to know the difference between terms and
representations because it determines the cause of action and the remedies available to the
innocent party
Terms - if breached, contract law provides a remedy (the innocent party brings an action for a breach of
, contract)
Representations - if false, contract law provides a remedy (the innocent party brings an action
for misrepresentation)
Puffs - if false, contract law provides no remedy
Terms - these are those statements Representations - these are those statements that induce a party to
which contain the obligations expected enter into a contract but which do not form part of the contract
of each party to a contract. Only
statements that are terms form part of
a contract
Courts aim to determine what the parties intention was, in order to do this an objective test is used.
A range of cases show factors that the court consider in objectively assessing a statement to
determine if it is a term:
Does the maker have Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd (1965) - during
specialist skill or negotiations for the purchase of a Bentley, the seller said it had only done 20,000
knowledge? miles since fitted with a replacement engine and gearbox however this was wrong,
it had done near 100,000 as the seller could have discovered by asking the
manufacturer. On a claim for damages for breach of warranty as to mileage, held
that it was a warranty, not a mere innocent misrepresentation and the action
succeeded.
Oscar Chess v Williams [1957] - the following principles apply in considering
whether a representation is a condition, a warranty or an innocent
misrepresentation:
1. Where an assumption is fundamental to a contract, that does not prove
that it is a term of the contract. If the assumption is wrong, the result will be
that there was a mistake of fundamental importance by both parties to the
contract. This mistake doesn’t make the contract a nullity from the beginning,
but it does in some circumstances enable the contract to be set aside in equity
2. A warranty denotes a binding promise. The word is also used to denote a
subsidiary term in a contract as distinct from a vital term which is called a
condition
3. A warranty as a statement which is a term of the contract must be
distinguished from an innocent misrepresentation.
4. The question whether a warranty was intended depends upon the conduct
of the parties, on their words and behaviour, rather than their thoughts. When
the facts are not in dispute, this is a question of law
5. When the seller states a fact which is or should be within his own
knowledge and of which the buyer is ignorant, intending that the buyer should
act on it and he does so, it is easy to infer a warranty. So also, if the seller
makes a promise about something which is or should be within his own control.
If, however, the seller, when he states a fact, makes it clear that he has no
knowledge of his own but has got his information elsewhere and is merely
passing it on, it is not so easy to imply a warranty
6. If an oral representation is afterwards recorded in writing, it is good
evidence that is intended as a warranty. If it is not put into writing, it is
evidence against a warranty being intended, but it is by no means decisive.
In this case, D sold a car to C and according to the registration book it was first
registered in 1948 for GBP 290. C’s discovered the car was made in 1939. If they
had known this, they would have given only GBP 175 for it. D honestly believed it
was a 1948 model. C claimed in damages for breach of contract. Held that, D in
offering a 1948 Morris and producing the registration book, did not intend to bind
himself to warrant that it was a 1948 model and the C’s claim failed.
