Equitable set-off Equitable set-off, also known as transaction set-off, arises where the parties have cross-claims that are inseparably connected with each other, such that allowing the claimant to succeed without taking into account the defendant’s own claim would be inequitable. Equitable set-off is a substantive defence to the claim and can be asserted by the defendant in the absence of judicial proceedings, eg by way of response to a demand for payment by the claimant. There is no need for the two claims to be for liquidated damages: the defendant’s own claim can be for an unliquidated sum to be assessed by the court. Cross-claims usually, but do not have to, arise out of the same contract. If the two claims are inseparably connected

If the collateral warranty between A and C amounts to an enforceable contract between the two of them (ie it meets all of the usual requirements thereof), the settlement agreement between A and B should, prima facie, have no effect on C’s entitlement to pursue A for breach of the collateral warranty contract. The doctrine of privity of contract will preclude the imposition

A Tomlin order is often used to settle a dispute between two parties, (say) A and C. A Tomlin order is made up of two parts: • a consent order—that stays proceedings on agreed terms with liberty for a party to go back to the court to enforce the agreement in the event that one of the parties does not comply with the order. This will be approved by the court and it is enforceable as a court order. In practice, the order is kept short • a schedule—the terms of the settlement agreed by the parties are not set out in the consent order but in a separate schedule to the order. The schedule is a contract between the parties as to what they have agreed to do. As a consequence, the terms of the schedule

This Q&A has assumed that B was the sole executor appointed by A, with substitute (ie replacement) executor C having been appointed to act only in the event that B was unwilling or unable to take the grant. Subject to the precise circumstances of the matter and provided the chain of representation remains unbroken following B's death, it seems that B's executor would, on proving B's Will, automatically become executor of A's unadministered estate. See Practice Note: The chain of representation, in particular, the section titled 'Where a sole or sole surviving executor

We assume that the caveator’s appearance to the warning stated their contrary interest or a cause against the sealing of the grant. If the caveator had not entered an appearance, and did not issue a prior summons for directions, then the caveat could be withdrawn at any time and ceases to have effect (rule 44(11)) of the Non-Contentious Probate Rules 1987 (NCPR 1987), SI 1987/2024 (SI 1987/2024, r 44(11)). An

We have assumed that the estate is larger than the statutory legacy. There is no chain of representation while there is a surviving executor or surviving administrator who has obtained a grant of representation. This means that C will continue as the sole surviving administrator of A's estate. No new grant is required. For more detail as to when a chain would and would not apply, see Practice Note: The chain of representation. However, where there is an ongoing trust for a minor beneficiary, eg a statutory trust for D, then the court

Breach of injunctions It is a matter of fact in any case as to whether a party has breached an injunction. Where an injunction refers to a defendant’s servants or agents, the injunction may be open to objection on the grounds that the third parties are not parties to the original claim and therefore not before the court (see Marengo v Daily Sketch and Sunday Graphic Ltd). However, the general principle is that such an injunction does not impose a direct injunction on the third parties, unless they have knowledge of the injunction of the terms and assist the original defendant in breaking the injunction. In addition, the defendant is enjoined from encouraging the third party to act in breach of the judgment. Committal Where a party

In this Q&A we have limited our research to cover specific performance. We refer to specific performance where time for performance has passed. In conducting our research we have focussed on when a party can seek an order for specific performance of contractual obligations. This Q&A considers the effect of one party’s breach on that party’s entitlement that the other party perform its obligations, and particularly whether the remedy of specific performance is available. It is limited to the generally applicable principles and does not consider any rules specific to particular kinds of contract. Consequences of breach It is not the case that any breach at all of a contract by one party entitles the other party to decide not to perform its own obligations. There must be a sufficient reason, according to contractual principles, not to perform. If

Where an innocent party has a contractual right to terminate but also a common law right to terminate for the other’s repudiatory breach, it is vital that the innocent party carefully identify the grounds on which it terminates the contract. The implications of this were seen in the recent Phones 4 U decision. Here the innocent party had and exercised a contractual right to terminate, it then sought to characterise this as an acceptance of the defendant’s alleged repudiatory breach. In so doing, the innocent party sought to elevate its claim for damages from the contractually agreed damages to loss of bargain damages. However,

It is often the case that the owner of a property may wish to provide the right to another person to occupy that property for the remainder of their life, but for the property to revert to the owner or to some other nominated person after the death of the occupant. This may be because the owner does not wish for the occupant to obtain a beneficial interest in the property, or due to concerns over divorce or the acquisition of a financial interest in the property by a third party. There are a number of mechanisms by which the right to occupy rent free can be given. Depending on the mechanism used, there may be consequences in respect of inheritance and other tax, and it is therefore important to take independent taxation advice when considering

This Q&A assumes that A will remain the sole legal owner and that no consideration is being paid for the beneficial interest. The following materials will be of interest: • Practice Note: Residential property—transfers of equity and dealings with equitable interests in residential conveyancing, in particular section Specific scenarios which contains

Bailment Bailment is the legal term where one person knowingly has possession of the goods of another. The legal relationship of bailor and bailee can exist independently of any contract, and is created by the voluntary taking into custody of goods which are the property of another, as in cases of sub-bailment or of bailment by finding. The element common to all types of bailment is the imposition of an obligation, because the taking of possession in the circumstances involves an assumption of responsibility for the safe keeping of the goods. A claim against a bailee can be regarded as a claim on its own, sui generis, arising out of the possession had by the bailee of the goods. The bailee has certain obligations