Subject-Matter Index

Advocates’ retainer. See Terms of business. ADVOCATES (Retainer contract)

Agreements contrary to public policy. See Illegal contracts—agreements contrary to public policy

Assignment

equitable assignment

concept of equitable assignment not recognized in Guernsey law—customary law may evolve in courts in appropriate circumstances but recognition of legal assignment by Law of Property (Miscellaneous Provisions) (Guernsey) Law 1979, s.2 without mention of equitable assignment precludes judicial law-making: Shaham v. Lloyds TSB Offshore Treasury Ltd. (Royal Ct.), 2007–08 GLR 297

assignment of beneficial interest. See TRUSTS (Beneficiaries—transfer of interests in shares)

recognition of legal assignment by Law of Property (Miscellaneous Provisions) (Guernsey) Law 1979, s.2 without mention of equitable assignment precludes evolution of customary law by judicial law-making to recognize equitable assignment: Shaham v. Lloyds TSB Offshore Treasury Ltd. (Royal Ct.), 2007–08 GLR 297

Asymmetric jurisdiction clauses. See CONFLICT OF LAWS (Jurisdiction—asymmetric jurisdiction clauses)

Building contracts

interpretation

builder’s promise to repay whole deposit not binding agreement to cancel parties’ contract which provided that 20% of deposit not refundable—parties’ negotiations concerning possible reduced scope contract not variation of contract because lacked certainty or objet: Evans v. Guernsey Building Renovations Ltd. (Royal Ct.), 2024 GLR 1

clause in contract that if agreement for building works terminated by client “20% of the deposit is not refundable” is forfeiture clause in nature of penalty—court has jurisdiction to moderate its effect if excessive—court declined to interfere where 20% of deposit appeared to be realistic assessment of builder’s likely actual loss: Evans v. Guernsey Building Renovations Ltd. (Royal Ct.), 2024 GLR 1

clause in contract that if agreement for building works terminated by client “20% of the deposit is not refundable” means 80% of deposit is refundable: Evans v. Guernsey Building Renovations Ltd. (Royal Ct.), 2024 GLR 1

Cancellation. See Creation—elements of valid contract

Certainty

terms subject to negotiation

maintenance agreement capable of enforcement after divorce if substantive terms clear and only details of implementation (including financing) remain to be finalized: D v. D (Royal Ct.), 2007–08 GLR 127

Champerty. See Illegal contracts—agreements contrary to public policy

Collateral contracts. See “Entire contract” clauses—effect

Company directors. See Exclusion of liability—company directors

Condition precedent. See Incomplete terms—interpretation

Conflict of laws. See CONFLICT OF LAWS (Contracts)

Contract or tort

jurisdiction clauses

jurisdiction clause in contract also applies to claim in tort arising from same facts, involving same parties and alleged breach of duty of care arises from contract—presumption that clause applies to all disputes connected with contract and arising between parties to it: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

Contractual discretion

control by court

contractual discretion not to be exercised perversely—“perversely” means so perverse that no reasonable body, properly directing itself to the applicable law, could have reached such a decision: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2011–12 GLR N [5]

court only to interfere in party’s exercise of contractual discretion in extremely limited circumstances—to be exercised honestly, on relevant factors, in good faith, for purposes for which conferred—not to be exercised capriciously, arbitrarily or perversely, or before necessary and appropriate enquiries made: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2011–12 GLR N [5]

Creation

elements of valid contract

elements of agreement to cancel or vary contract same as elements of contract, i.e. (a) capacity; (b) consent; (c) cause; and (d) objet—builder’s promise to repay whole deposit not binding agreement to cancel parties’ contract which provided that 20% of deposit not refundable—parties’ negotiations concerning possible reduced scope contract not variation of contract because lacked certainty or objet: Evans v. Guernsey Building Renovations Ltd. (Royal Ct.), 2024 GLR 1

under Guernsey law, elements of valid contract are (a) capacity; (b) consent; (c) cause; and (d) objet: Evans v. Guernsey Building Renovations Ltd. (Royal Ct.), 2024 GLR 1

inequality of bargaining power

pre-nuptial agreement—court may not enforce all terms of agreement, e.g. if drawn up for husband, and wife signs without independent advice, significant disparity in wealth, and finances not disclosed before agreement: E v. E (Royal Ct.), 2003–04 GLR N [22]

Damages

disappointment and distress. See Damages—“stigma” damages

liability of company directors. See Exclusion of liability—company directors

measure of damages

costs recoverable as damages if claimant can show e.g. disruption of business, loss of profit or increased costs in undertaking project as direct result of engaging in litigation: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2011–12 GLR N [6]

remoteness

loss recoverable if person causing it, as reasonable man, could have foreseen at time of contract that likely to result from breach: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2011–12 GLR N [6]

“stigma” damages

at common law, no damages for manner of employee’s dismissal, injured feelings, stigma associated with dismissal making harder to obtain new employment—common law rules preserved (and not extended) by Employment Protection (Guernsey) Law 1998, s.30: Good v. Crédit Suisse (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 183

wrongful dismissal. See Damages—“stigma” damages

Death of party. See SUCCESSION (Administration of assets—payment of debts)

“Entire contract” clauses

effect

“entire contract” clauses in written contracts prevent reliance on collateral representations, warranties or contracts—implied terms not precluded, since deemed to form part of contract when created: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2011–12 GLR N [5]

Exclusion of liability

company directors

Companies (Guernsey) Law 1994, s. 67F avoids any contract term purporting to exclude directors’ liability under 1994 Law, including for offences under ss. 67A–67D and damages under s. 106—exclusive jurisdiction clause in favour of foreign jurisdiction circumventing liability under 1994 Law may therefore be void: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

invalidation of exclusion of liability clause by Companies (Guernsey) Law 2008, s.157 not to impose liability retroactively to date when clause valid: Perpetual Media Capital Ltd. v. Enevoldsen (Royal Ct.), 2013 GLR 310

Exclusive jurisdiction clauses. See CONFLICT OF LAWS (Jurisdiction—exclusive jurisdiction clauses)

Exercise of contractual discretion. See Contractual discretion—control by court

Family arrangements. See Intention to create legal relations—family arrangements

Forfeiture clause. See Building contracts—interpretation

Illegal contracts

agreements contrary to public policy

maintenance and champerty

litigation funding agreement between company’s joint administration managers and third party approved as reasonable—no infringement of law of champerty—funder did not have objectionable level of control or undue influence over prospective litigation: In re Providence Inv. Funds PCC Ltd. (Royal Ct.), 2017 GLR 400

maintenance and champerty prohibited as matter of public policy at common law—agreements involving maintenance or champerty unlawful and void—established exceptions to facilitate access to justice—assignment of cause of action for value by liquidator or administration manager, or entering into litigation funding agreement, permissible in principle: In re Providence Inv. Funds PCC Ltd. (Royal Ct.), 2017 GLR 400

Implied terms

company directors

presumption that directors take office on terms of articles even if not expressly stipulated—may be rebutted if has total lack of experience or knowledge: Perpetual Media Capital Ltd. v. Enevoldsen (C.A.), 2014 GLR 57

when prospective directors know terms of articles of association, properly inferred that take office based on them, even if not expressly stipulated—although directors not privy as such to articles of association, articles act as implied terms of contract between company and directors: Perpetual Media Capital Ltd. v. Enevoldsen (Royal Ct.), 2013 GLR 310

employment contracts. See EMPLOYMENT (Duties of employee—faithful service), (Duties of employer—suitable working environment), (Duties of employer—trust and confidence)

principles on which implied

additional term may be implied in written contract if clearly missing from express terms—only implied if (a) necessary to give business efficacy to contract, not merely to advance commercial interests of one party; (b) implication in interests of both parties not one alone; and (c) not contradictory of express term: Musa Holdings Ltd. v. Newmarket Holdings (Guernsey) Ltd. (C.A.), 2014 GLR 41

factors to be considered by court when determining whether to imply term—factors not series of independent tests, but different ways of expressing notion that proposed implied term should have clear purpose or meaning—if proposed term inequitable, unreasonable, contradicts parties’ intentions or incapable of clear expression, court may not imply it: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2011–12 GLR N [5]

implied terms to be (a) reasonable and equitable; (b) necessary to give business efficacy to contract; (c) so obvious that “goes without saying”; (d) capable of clear expression; and (e) not contradictory of express term: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2009–10 GLR 131

term to be implied to give business efficacy—if incomplete date stated for survey in contract of sale of real property but purchaser to make “immediate” arrangements, court may imply reasonable date: F.R. Properties Ltd. v. Skipton (Royal Ct.), 2005–06 GLR 184

relationship with “entire contract” clauses. See “Entire contract” clauses—effect

Incomplete terms

interpretation

if operative date of condition in contract of sale of real property incompletely prescribed, court to interpret as date most in accordance with parties’ presumed intentions: F.R. Properties Ltd. v. Skipton (C.A.), 2005–06 GLR N [20]

Incorporation of jurisdiction clauses. See CONFLICT OF LAWS (Jurisdiction—incorporation of jurisdiction clauses)

informal family agreement under which parents advance funds to children to buy bigger home in which all will live together, likely to be unenforceable family arrangement—especially true if conflict in evidence of intentions and not all contingent issues addressed: Bougourd v. Woodhead (Royal Ct.), 2009–10 GLR 487

Interpretation. See DOCUMENTS (Interpretation)

Jurisdiction clauses. See Contract or tort—jurisdiction clauses

Liability of company directors. See Exclusion of liability—company directors

Limitation of actions. See PRESCRIPTION (Contract actions)

Maintenance and champerty. See Illegal contracts—agreements contrary to public policy

Misrepresentation and non-disclosure

failure to highlight contract term

no duty on party to highlight term if not particularly onerous—advocates not obliged to highlight to businessman clause in terms of business reducing time for bringing action for negligence or breach of contract to 3 years from date of work or termination of legal services: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

negligent misrepresentation

contract for purchase of land not invalidated by oral negligent misrepresentation if contract terms state no oral representation relied upon—may still bring action for damages for negligent misstatement: Long Port Properties Ltd. v. Trinity Inv. Ltd. (Royal Ct.), 2000–02 GLR 319

Mistake

Non-cumul. See Tort or contract—cause of action

Penalty clause. See Building contracts—interpretation

Pre-nuptial agreements. See Creation—inequality of bargaining power

Presumption of undue influence. See Undue influence—presumption of undue influence

Privity

company directors. See Implied terms—company directors

Public policy. See Illegal contracts—agreements contrary to public policy

Quasi-contract

proper law of restitution. See CONFLICT OF LAWS (Restitution—unjust enrichment from breakdown of contract)

restitution. See Restitution

Remedies for breach of contract. See COMPANIES (Directors—breaches of duty)

Restitution

proper law of restitution. See CONFLICT OF LAWS (Restitution—unjust enrichment from breakdown of contract)

unjust enrichment

knowing recipients and dishonest assisters liable to account as constructive trustees, but not trustees for purposes of Trusts (Guernsey) Law 2007, s.76 and subject to ordinary limitation period: Jefcoate v. Spread Trustee Co. Ltd. (Royal Ct.), 2013 GLR 220

objective test applied for dishonesty in dishonest assistance—defendant’s knowledge must render his participation contrary to normal standards of honesty, whether or not he knew what those standards were: Jefcoate v. Spread Trustee Co. Ltd. (Royal Ct.), 2013 GLR 220

Sale of land. See Misrepresentation and non-disclosure—negligent misrepresentation. LAND LAW (Contract of sale)

Terms of business

term reducing time for bringing action for negligence or breach of contract

clause in advocates’ terms of business reducing time for bringing action for negligence or breach of contract to 3 years from date of work or termination of legal services not particularly onerous or unfair: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

empêchement d’agir suspends prescription in favour of plaintiff suffering impediment making it practically impossible to commence or continue action—inapplicable to contractual provision reducing time for bringing action for negligence or breach of contract: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

erreur—plaintiff businessman instructed advocates in 2011—advocates’ terms of business, signed by plaintiff, included clause reducing time for bringing action for negligence or breach of contract to 3 years from date of work or termination of legal services—plaintiff unable to set aside contract for erreur: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

la convention fait les lois des parties—plaintiff businessman instructed advocates in 2011—advocates’ terms of business, signed by plaintiff, included clause reducing time for bringing action for negligence or breach of contract to 3 years from date of work or termination of legal services—legal services terminated in 2012—proceedings commenced in 2018 time barred: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

Tort or contract

cause of action

availability in Guernsey of action in either contract or tort for professional negligence, based on proximate relationship between parties, precludes reliance on French doctrine of non-cumul to bar action in tort arising out of contractual relationship: Yaddehige v. Credit Suisse Trust Ltd. (Royal Ct.), 2007–08 GLR N [4]

Undue influence

actual undue influence

contract invalid if one party unduly influenced by other to enter contract—burden of proof on those claiming through influenced person to show actual undue influence, i.e. overt acts or threats by dominant party: Hitchins v. Hill (Royal Ct.), 2011–12 GLR 336

burden of proof

overall burden on person alleging undue influence to establish persuasion of other party invades his free volition—to prove actual undue influence, to demonstrate influence by use of overt acts or threats—to show presumed undue influence, persons claiming through influenced party to establish circumstances leading to presumption (e.g. placing trust and confidence in dominant party, that party’s ascendancy over influenced party and justification for transaction questionable)—burden on dominant party to show presumption rebutted: Hitchins v. Hill (Royal Ct.), 2011–12 GLR 336

presumption of undue influence

if insufficient evidence to establish actual undue influence, may still be presumed—persons claiming through influenced party to show, e.g. that placed trust and confidence in dominant party regarding contractual subject-matter, dominant party has ascendancy over person influenced and justification for transaction questionable—burden of proof on dominant party to rebut presumption: Hitchins v. Hill (Royal Ct.), 2011–12 GLR 336

presumption of undue influence if one person has ascendancy over other, and questioned transaction inexplicable by ordinary motives and no evidence to show influenced party acted of own free volition (e.g. if acted urgently without professional advice): Hitchins v. Hill (Royal Ct.), 2011–12 GLR 336

Unfair contract terms

English law principles

Guernsey legislation equivalent to Unfair Contract Terms Act 1977 to be prepared—court to await enactment of legislation and not to fill gap in meantime: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

Waiver

burden of proof

burden of proving affirmative assertion lies on party making it—party relying on contract and breach has burden of proving on balance of probabilities—other party relying on waiver of obligations has similar burden: Daniel v. Gover (Royal Ct.), 2007–08 GLR N [27]

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