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Opinion On Liability Contract Notes

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This is an extract of our Opinion On Liability Contract document, which we sell as part of our Opinion Notes collection written by the top tier of City Law School students.

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IN THE PROPOSED CLAIM BETWEEEN:

Mr MARK PEMBERTON Proposed Claimant
-and-

Mr GEOFF SHORT Proposed Defendant

_________________________________________________________________________ OPINION ON LIABILITY _________________________________________________________________________

INTRODUCTION

1. I am instructed to advise Mr Pemberton on the merits of a claim he wishes to pursue against Mr Short arising out of a contractual dispute. I am specifically asked to advise on whether Mr Pemberton will be likely to succeed in his claim for breach of contract and whether he will be liable to pay the amount outstanding on the contract price. This advice is prepared on the basis of my instructions which enclose the evidence here referenced. Further evidence has been requested and, where specified, my advice is given subject to its provision. SUMMARY OF THE FACTS

2. On 2nd March 2015 Mr Pemberton began formal discussions with Mr Short concerning renovation works at his property known as "Prandergast" in Windmill Lane, Ockhurst, Surrey. Mr Pemberton says that he outlined requirements for the doors and windows to be replaced with Georgian-style hardwood units, and described how the sightlines of these units should 'line-through' each elevation of the house. Mr Short required more time to devise a design and so discussions recommenced on 7th April 2015 at Mr

Pemberton's behest. On this date Mr Short produced a design of the units which Mr Pemberton says he approved. He also showed Mr Pemberton hardwood samples out of which Mr Pemberton chose a mahogany hardwood, against Mr Short's recommendation. On 10th April Mr Pemberton agreed to install 'transom windows' above the internal doors following a telephone call from Mr Short. The written quotation was produced and dated 14th April, and provided for 20 hardwood units to be designed, supplied and installed at the property, as well as door fittings previously agreed upon, for a total price of PS80,000 plus VAT. This quotation was accepted on 17 th April over the telephone, and parties agreed to an instalment payment structure so that 50% was paid up front, and 50% to be paid upon completion. Mr Short began work on 6 th July 2015. Mr Pemberton went abroad and returned to the property on 10 th July, to find that works had been completed. However Mr Pemberton says that he found, firstly, visibly misaligned at the property and, secondly, internal doors which were too low for him to gain access. Upon further inspection he says he discovered work to be sub-standard and that the hardwood purchased was not the material found in the units. SUMMARY OF ADVICE

3. At this stage Mr Pemberton appears to have a strong case in breach of contract in relation to reasonable care and skill when installing the windows and doors. On the present evidence, the express term relating to equal sightlines will be disputed as an absolute term of the contract. Further evidence establishing agreement of the term and evidence showing failure by lack of care will be persuasive. The implied term relating to door height is also open to rebuttal by Mr Short on the ground that there was express agreement between parties, though it is advised that this rebuttal looks weak at present. If Mr Pemberton's position on either of these terms is strengthened, establishing repudiation will be more straightforward and it will be unlikely that he will have to pay the outstanding sum owed on the contract. LIABILITY CONTRACT FORMATION

4. There seems to be no dispute between parties that a valid oral contract was formed on 17th April 2015 for renovation work to be carried out in return for a fixed fee of PS80,000, to be paid in two instalments. The quotation provided by those instructing me makes reference to the three previous conversations held on 2nd March, 7th and 10th April 2015 and this is consistent with Mr Pemberton's recollection. The oral contract is evidenced

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