Problem Question - Red Herrings?

Do the question setters ever insert compeklte and utter irrelevant red herrings into problem questions?

As is fast becoming habit - I'm WAY over word limit and haven't covered a fraction of what I wanted to cover in terms of material on the "pertinent" points, let alone the little extras i mentioned in an earlier thread. However, what i have done is omit to even mention a few of the points raised in the question as I blatantly think they are utterly irrelevant.

I've identified the specific parts of the "problem", I've explained the rule and the case for each part and then I've applied the rule from the relevant case to the particular element of the problem. Subsequently - in having done that, certain bits of information in the problem question seem to be totally irrelevant - i.e. an exclusion clause... I believe the exclusion clause to be irrelevant and unworthy of comment (and the waste of words) because the contract was void for uncertainty. That being the case - why would I waste words on the exclusion clause? Is it a red herring or have I missed something and is it there and needs commenting upon?

Additionally - AND I know I touched on this in an earleir thread and Lewis expressly told me NOT to go there - but it feels necessary... The contract that I'm deeming to be void for uncertainty... if it WERE to bevalid, it would not have formed becasue there is no evidence of acceptance... CAN I mention this or should I stick to my guns on the void for uncertainty????

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Reply 1

Fireman John

I ought to add that the lecturer has said that there is NO CORRECT ANSWER to the question... I'm wondering if it has been written in such a manner that you can "resolve" the rpoblem (or find that it cannot be resolved) in a number of ways - and for that reason there may be parts of the question that fit with one persons approach and not with anothers... is that possible? i.e. there may be 2, 3, 4, or even many more "techincally", legally correct answers depending upon how you choose to "attack" the specific parts of the problem.

Reply 2

Kerrigan

Fireman John

Additionally - AND I know I touched on this in an earleir thread and Lewis expressly told me NOT to go there - but it feels necessary... The contract that I'm deeming to be void for uncertainty... if it WERE to bevalid, it would not have formed becasue there is no evidence of acceptance... CAN I mention this or should I stick to my guns on the void for uncertainty????

If it was valid, then your argument as a secondary point is that it was not in fact a contract? :confused:

Doesn't the establishment of offer and acceptance come before thinking about uncertainty?

Reply 3

chalks

You beat me to it.

a) is there a contract?
b) do the terms of that contract, or the way in which it was formed, mean that it may be void for uncertainty?
c) if the answer to (b) is unclear then does the exclusion clause kick-in to exclude or reduce liability?

Reply 4

britishseapower

Fireman John

As is fast becoming habit - I'm WAY over word limit and haven't covered a fraction of what I wanted to cover in terms of material on the "pertinent" points, let alone the little extras i mentioned in an earlier thread.

I wouldn't worry about it, my essays are ALWAYS over the word limit when I'm working on them, you will find a way to get it down eventually. More often than not I will work on an essay, leave it untouched for a couple of days and then return to it with a fresh mind and I can condense a paragraph into about 3 lines because I was pretty much saying the same thing but in different ways or repeating myself throughout the essay e.t.c. You don't tend to notice when your working away at it.

As for red herrings, my lecturers always say that they will never try to catch us out or that there is no trick question so if something seems relevant, I will always at least try to make a reference to it. For example in my Equity coursework, there is reference to reisude of estate and I have looked and looked (even posted a thread on here for assistance) but the only thing I could find was literally 2 lines in a textbook so I just included what that said and left it at that. It didn't want to ignore it completely as it must be there for a reason. Having said that, some lecturers may include red herrings, mine just might be too kind.

Reply 5

Fireman John

Kerrigan & Chalks - Good point... There is NO evidence of acceptance taking place. In terms of uncertainty it is a case of no "consensus ad idem" over the fundamental terms - the actual "thing" they are contracting for.

I see I may have made a huge mistake here... this lack of acceptance and jumping in two fotted to go for uncertainty has put a whole new complexion on the assignment! I may need to do a complete re-write!

Reply 6

Fireman John

Hang on... I've just realised why I've written it like this and concentrated on uncertainty! The question asks us to "anayse" each stage of the transaction and later to "advise"...

So I've identified the elements (or what will be the elements) of the contract and then said (along the lines of....

"although this is an offer capable of acceeptance there are questions as to whether all the terms are actually certain - e.g. X thinks he is contracting for THIS, whereas we subsequently learn that Y believe THIS to actually be THAT. The rule for this situation is found in the case of A v B" - explain the case, quote from the case, explain the rule and then apply the rule to the facts of the problem....

I've then gone on to say - however, on the facts given we see no evidence of an acceptance on the part of Y...

And then - at the end of the assignement where we are asked to give adice on 3 particualr outcomes - I've given advice referring back to the rules. Obiously - my advice here should not (although it currently does) mention the "void for uncertainty"; my advice should be such that there was no contract due to no acceptance.

Would I be attacking theproblme on the right lines here...?

As for the exclusion clause - I can only see one reason where it might be relevant and that would be to discuss its legality with reference to the distance selling regs which require 7 days "cooling-off", however that provision doesnt apply to holidays insofar as I can establish. It looks like a pure red herring...

Reply 7

dragon_1706

In contract law on the CPE we were encouraged to think of every possible argument and mention everything in an answer, even if just a couple of lines dismissing a possibility. So you wouldn't decide the offer was never accepted and stop there - you need to carry on and discuss things like the effect of the exclusion clauses if the contract was in fact valid.

Reply 8

Lewisy-boy

Agreed, the question will be drafted so tha tit is not clear... that's the point. Even if you conclude that there was, in fact, no contract you should mention the other possibilities.

IN terms of red herrings: our lecturers always say "we are not trying to take marks away from you, we want to give you marks and aren't trying to catch you out". However, there will often be superfluous "background info" which can contain info which can be somtimes a bit annoying! Either way I would go with your instincts even though I would do exactly as was mentioned above - take a couple of lines to dismiss or agree with side arguments based on the question, but concentrate the majority on the clearly important issues.

Reply 9

Fireman John

Many thanks all... I think I'll have to do a major re-draft... I think I'm on the right lines but I think I've considered the cases too heavily - included too many quotes from the judgements. If I whittle them down a bit I'll have room to do a 2-sentence dismissal of the seemingly irrelevancies.

I am haviong problems witht he exclusion clause though... Apparently in distance selling contracts a seller MUST give 7 days cooling-off except in certain circumstances. Holidays is one of those... On top of that- the contract that ISN'T is actually "made" (even though it clearly isn't - although the company try to claim it is) with less than 7 days until performance. The exclusion clause demands 2 weeks notice of cancellation or full payment is required... It'd be so much easier if it were simply a red-herring!!!!

Reply 10

Lewisy-boy

I don't know anything about "distance selling" contracts, what does something have to be to fall into that definition?

Reply 11

Fireman John

There are a number fo definitions ithin the regs - but essentially, if I recall correctly from my very brief look at it (in order to establish whether it might be applaicable to the question), it's most contracts not concluded in face to face dealings - i.e. by telephone, mail order, internet etc... however, internet also covered by Electronic Commerce Regs.

One of the regs in the distance selling regs (Reg 6 - I think?), lists the types of contracts that are not afforded full coverage by the distance sellign regs - one of them being Holidays - the requirement to give information and the cooling off period...

Actually... I've probably identified what the question wants from me there!!!It probably wants me to say that the condition is a valid term because it isnt covered by the provisions of the Distance Selling regs (if my recall is correct... obviously I'll have to have another look before I add it to my answer - but I figure that's probably what they want from me!?)

Reply 12

Lewisy-boy

Yeah, they probably deliberately made it a holiday so that those regs weren't involved.

Reply 13

Fireman John

Absolutely agree, but I think they want me to say as much? I have to keep reminding myself it says "analyse" each step of the transaction as opposed to simply "advise X"... the advice is regarding the rights and liabilites to 3 specific points that are given at the very end of the question.

Although I'm on the right track with my answer I clearly haven't done it in a logical enough manner - what I have to do is take each indicvidual action, each term, each condition and comment upon it IN TURN... It's quite difficult to stay focussed on that; I'm finding myself drawn to the last part of the question becuase undoubtedly there is a requirement to refer to that last part (the speciifc problems) in the analysis of each stage...

Reply 14

Lewisy-boy

It will only take you minimal space to say they don't apply, so if you have a small amount of room say it. But, if they are not on the syllabus at all I doubt saying that would gain you any credit tbh.

Reply 15

chalks

I took a Distance Selling Regs matter to the ECJ once.

Not that that helps with your assignment.

Reply 16

Lewisy-boy

Was it interesting, and more importantly... did you win€?

No
Yes

I "think" I solved the red herring situation... and I'm rather pleased with myself... I think it was a case of "not being able to see the woods for the trees"...

I'm actually really, really pleased with the piece - which probably means I'll scrape 40%! I used practically my FULL entitlement of words (2746 - the limit being 2500 +/- 10%) but I am confident that I addressed every single element in the question - crossed every "t" and dotted every "i".

It was a frustrating question to get to grips with but had plenty to get the teeth into... Much happier with my contract c/w than my constitutional - looking forward to seeing how well (or indeed poorly) I've done! I think I've earned a short break now up until just after Christmas then I'll get stuck into cathcing up on the reading na dnote-taking that I let slip whilst battling with the Coursework before settling down to the Comparative law "open book", "take home test" on 9th January!

I've really enjoyed my first semester! Happy Christmas all and thnaks everybody for all the support, encouragement and advice I've received over the last few months!