1.
The vertical direct effect is related to the relationship between national laws and EU laws, particularly the obligation of the state to ensure its compatibility and observance of EU laws. The effect enables the citizens to put their reliance on the EU laws while they initiate any action against any public body or state. In the case of Foster v. British Gas plc (Case C-188/89) [1990] (ECR I-3313) the court defined Vertical effect as “emanation of the state”.
A horizontal direct effect is related to the relationship between individuals which also includes incorporated companies. If a particular provision in relation to a EU law is Horizontally directly effective, the individuals would be able to put their reliance on such laws in actions which have been brought against each other. Usually directives do not have the capacity of being Horizontally directly effective. However certain sections of legislations and regulations can be enforced directly horizontally.
2. Indirect horizontal effect
According the principles of indirect horizontal effect of EU law, the national courts operating for the Member States of the EU have to give meaning to their national law in the light of the provisions provided by the EU law. There is a difference between the principles of direct and indirect effect of EU laws according to which EU laws can be revoked in certain situations. The indirect effects result out of the situation when the member state imposes a directive and where such directive is not applicable as the par against whom the directive is imposed fails to meet criteria for direct effect or is a private entity. In the case of Von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891 it is the duty of courts to give meanings to provisions in accordance to the directives “in so far as it is given discretion to do so under national law”.
3.
In the given situation both Varden and Nadir have the right rely upon the use of explosive directives which have been passed by the EU. This is because according to the principles of vertical and horizontal direct effect it is the right of any individual to rely on a directive which have been passed by the EU in relation to a claim with the government and any other person which may also be a company respectively. In the given situation the directives states that any person who is below the age of 25 cannot work with explosives unless under direct supervisions. In the case Nadir is the employee of the state as he is working for defense so he can rely on direct vertical effect whereas Varden who is working for a private company can rely on the provisions of direct horizontal effect.
4.
In the given situation both Varden and Nadir have the right rely upon the Training Regulations 2014 which have been passed by the UK government. According the principles of indirect horizontal effect of EU law, the national courts operating for the Member States of the EU have to give meaning to their national law in the light of the provisions provided by the EU law. Therefore in the given situation the government has passed laws which are a little different from the directors of the EU. Thus according to the principles of indirect horizontal effect the regulations have to be interpreted in accordance to the provisions of the directives. Nadir and Varden can therefore claim that direct supervision is mandatorily required under the provisions of the regulations as well. In case the regulations are interpreted in light of the directives than Nadir and Varden would be entitled to make a claim.
Issue
Rule
There are four ways in which a contractual term may be differentiated from a mere representation made by a party
According to the principles of the parole evidence rule when a contract has been documented by the parties any term which have not been incorporated into the written contract but were discussed prior to the documentation would not be considered as a part of a contract. Thus if a statement was not included in the written contract it would be a representation and not a contractual term.
Where the person making the representation has a greater knowledge in relation to the statement made by him or her, statement is more likely to be treated as a contractual term by the court. On the other had where the person to whom the representation was made hade greater knowledge in relation to the statement it would likely be considered as a representation. The concept had been discussed in the case of Oscar Chess v Williams [1957] 1 WLR 370 as well as Dick Bentley v Harold Smith Motors [1965] 1 WLR 623.
In situation where an indication is made by the person to who the representation is made to the representor about the significance and importance of the statement than such statement would be regarded as a term of the contract. in the case of Bannerman v White (1861) 10 CBNS 844 the plaintiff had provided the defendant that he wants to purchase hops which are not treated with Sulphur as he wanted to manufacture beer. An assurance was provided by the defendant that Sulphur has not been used to treat the Hops but in fact it was. The court held that the treatment of hops with Sulphar was a term of the contract and not representation.
Whether a statement made by the representor is a representation or a term of the contract is also derived by the time period which has elapsed between the time when the statement was made and when the contract was entered upon. The concept had been discussed by the case of Routledge v Mckay [1954] 1 WLR 615.
A term of a contract can be classified into conditions and warranties.
A condition is a contractual term which forms the basis on which the contract is entered into. It is treated as the most important terms of the contract. The provisions in relation to a condition had been discussed in the case of Poussard v Spiers (1876) 1 QBD 410. In this case the court ruled that where one party to the contract violates the fundamental condition of the contract the other party would be entitled to a right of recession. This means that the party can rescind the contract and be entitled to any damages incurred by such party.
A warranty is also a term of a contract. However it significance in relation to a contract is less than that of a condition. A warranty is not a fundamental basis of a contract. Thus when a warranty has been violated the party is only entitled to damages and not the right to recession as stated in the matter of Bettini v Gye 1876 QBD 183.
Application
In the given situation in order to find out whether Max’s statement comprises of a representation or a term of the contract the above discussed 4 rules have to be applied. Firstly the parole evidence rule is not applicable in the given situation as there is no written contract between the parties. Secondly Max and Sophia both were site managers and thus are expected to have same level of knowledge in relation to the fence. Therefore where there is no greater knowledge possessed by either parties provisions of relative expertise cannot be applicable. Thirdly, in the given situation Sophia has clearly mentioned Max about the reason why she needs the fence so the importance of the statement has been conveyed to Max. Therefore according to the above discussed provisions the statement made by Max would be considered as a term of the contract. Finally the contract was entered upon only within 3 weeks since the terms were discussed therefore much time has not elapsed and the statement would be considered as a term of the contract.
According to the principles of Poussard v Spiers the term which Max had represented to Sophia would be considered as a condition of the contract because of its significance. Sophia would not have entered upon into the contract if the fence was not durable as it would have been useless for her. Therefore in the given situation as a condition has been violated by Max, Sophia can make a claim for the breach of contract. as the breach is related to a condition the remedy which can be availed by Sophia includes recession or repudiation of the contract along with damages. The damages are provided to restore the position which she would have been in if the contract did not take place.
Conclusion
The statement made by Max was a term of a contract and Sophia is entitled to make a claim for the breach of contract and rescind the contract.
References
Bannerman v White (1861) 10 CBNS 844
Bettini v Gye 1876 QBD 183
Dick Bentley v Harold Smith Motors [1965] 1 WLR 623
Foster v. British Gas plc (Case C-188/89) [1990] (ECR I-3313)
Oscar Chess v Williams [1957] 1 WLR 370
Poussard v Spiers (1876) 1 QBD 410
Routledge v Mckay [1954] 1 WLR 615.
Von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891
Bibliography
Gardbaum, S., 2015. The Indian Constitution and Horizontal Effect.
Knapp, Charles L., Nathan M. Crystal, and Harry G. Prince. Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business, 2016.
Kötz, Hein. European contract law. Oxford University Press, 2017.
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
Timmermans, Christiaan. “Horizontal Direct/Indirect Effect or Direct/Indirect Horizontal Effect: What’s in a Name?.” European Review of Private Law 24, no. 3 (2016): 673-685.
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