Moot Memorial example

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IN THE HONOURABLE HIGH COURT OF NAYA XILI

AT NAYA XILI

ORIGINAL CIVIL JURISDICTION UNDER SECTION 9 AND 15 OF THE CODE OF CIVIL

PROCEDURE, READ WITH ORDER IV R ULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908

AND R ULE 2 OF THE BOMBAY HIGH COURT R ULES, FRAMED UNDER SECTION 34(1) OF

THE ADVOCATES ACT, 1961

OS NO. XXX OF 2012

I N THE MATTER OF

SGE Ltd. (Represented by the Company Secretary)........................................(Plaintiff)

V.

Actio McSong...............................................................................................(Defendant)

-M EMORIAL ON B EHALF OF THE D EFENDANT -



ii

TABLE OF CONTENTS

Table of Contents ...................................................................................................... ii

Index of Authorities.................................................................................................. iii

Statement of Facts ..................................................................................................... v

Statement of Jurisdiction .......................................................................................... vi

Issues for Consideration ........................................................................................... vi

Summary of Arguments........................................................................................... vii

Arguments Advanced ................................................................................................ 1

I.

The defendant Actio McSong is not liable for the breach of contract and

consequent damages. ............................................................................................. 1

A. The agreement is not a contract within the meaning of the Contract Act,

1872 .................................................................................................................. 1

B.

The contract between the defendant and the plaintiff stands frustrated. ....... 3

II. The defendant Actio McSong is not liable for the tort of negligence and the

consequent damages. ............................................................................................. 6

A.

There exists no duty of care as the duty arose from the contract but the

contractual obligation is voidable. ...................................................................... 6

B. Arguendo - The duty imposed must be fair, just and reasonable.................. 7

C. Arguendo - Actio took reasonable care not to breach the duty .................... 7

D.

The defendant cannot be held liable for causing public humiliation to the

plaintiff. ............................................................................................................. 8

E. The defendant cannot be held liable for the loss of goodwill caused to the

plaintiff. ........................................................................................................... 10

Prayer ...................................................................................................................... 15



iii

INDEX OF AUTHORITIES

Cases

21st Century Systems, Inc. v. Perot Systems Government Services, Inc, Record No.

110114, Virginia Supreme Court ......................................................................... 11

Afsar Sheikh v. Suleman Bibi AIR 1976 SC 163 ....................................................... 1

Amir Chand Tota Ram v. Sucheta Kripalani AIR 1961 Punj 383 ............................... 2

Anheuser-Busch v Budejoicky [1984] FSR 413 CA.................................................. 12

Blyth v. Birmingham Waterworks Co., (1856) 11 Ex. 781 at 784 ............................... 8

C. Czarnikow Ltd. v. Koufos, [1969] 1 A.C. 350 ...................................................... 10

Caparo, [1990] 2 A.C 643 ......................................................................................... 7

Central National Bank ltd v. United Industrial bank AIR 1954 SC 181 ..................... 1

Commissioner of Income Tax, Bangalore v. B. C. Srinivasa Shetty, AIR 1981 SC p.

972 ...................................................................................................................... 11

Delhi Transport Corporation v. D.T.C. Mazdoor Congress 1991 AIR 101 ................ 1

Eacom Controls v. Bailey Controls, AIR1998Delhi365 ............................................. 4

IRC v Muller&Co’sMargerine [1901] AC 217 HL .................................................. 11

Ladli Parshad Jaiswal v. Kamal Distillery AIR 1963 SC 1279 .................................. 1

London and Lancashire Insurance v. Binoy Krishna Mitra AIR 1945 Cal 218 .......... 2

Morgan v. Manser [1948] 2 ALL ER 666 ................................................................. 4

Nutrientwater Pty Ltd v Baco Pty Ltd [2010] FCA 2 ............................................... 12

Re Polemis, [1921] 3 K.B. 560 ................................................................................ 10

Robinson v. Davison (1871) LR 6 Ex 269 .................................................................. 4

Satyabrata Ghose v. Mugneeram Bangur AIR 1954 SC 44 ....................................... 4

Sushila Devi v. Hari SinghAIR 1971 SC 1756 ........................................................... 4

T. V. Venugopal v. Ushodaya Enterprises ltd and other (2011) 2012, 4 SCC 85 ...... 11



iv

Tai Hing Cotton Mill v. Liu Chong Hing Bank [1986] A.C 80 ................................... 6

Tamplin Steamship v. Anglo- Mexican petroleum(1916) AC 397 ............................... 4

Tarsem Singh v. Sukhminder Singh, AIR 1998 SC 1400 ............................................ 1

The Wagon Mound, [1961] A.C. 388 ....................................................................... 10

McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All. E.R 1623 ...... 9

Weld-Blundell v. Stephens [1920] A.C. 956 ............................................................... 9

Statutes

Section 10 of the Contract Act, 1872 ......................................................................... 1



Section 19A of the Contract Act, 1872 ...................................................................... 7

Section 2(h) of the Contract Act, 1872 ....................................................................... 1

Books & Treatises

BRYAN A. GARNER , BLACK ‟S LAW DICTIONARY,(9th ed 2001)................................ 11

POLLOCK AND MULLA, I NDIAN CONTRACT AND SPECIFIC R ELIEF ACT, Part 1, 306-376

(LexisNexis Butterworth Wadhwa, Nagpur, 13nd ed. 2009). ............................... 2, 3

WINFIELD AND JOLOWICZ, TORT, 313, (Sweet & Maxwell, South Asian Edition, 18 th

ed., 2010) .............................................................................................................. 9

Articles

McCutcheon, Lynn, E., Lang, Renee., Hourst, James., Conceptualization and

Measurement of Celebrity Worship, British Journal of Psychology, 93, Issue 1, pp.

67-87 February 2002 ........................................................................................... 13



v

STATEMENT OF FACTS

Actio McSong is a world famous actor and singer from Xephilia. Spice Galore

Entertainment Co. Ltd. (SGE) is a renowned company in the field of entertainment

and movies. SGE was organizing the entertainment for the inauguration of Xephilia

Premier League, at the capital city Naya Xili on 15 th May for which Mr. Elmo,

representative of the managers of SGE signed a contract with Actio to perform for

half an hour at the inauguration ceremony and paid him an advance. The contract

between them contained certain restrictive clauses. Actio was angered by these

clauses, yet signed the contract. On 12th May, Actio requested Mr. Elmo to allow him

to record the live event for his personal use, which he refused, resulting in Actio

leaving the place in a fit of rage. It was published in a news daily on 13 th Maythat

prawns and lobsters were contaminated due to poor health standards in local

restaurants causing allergic reactions. Actio threw a party for his friends at a seafood

specialty restaurant Coral Reef. Actio had a medical history of being allergic to

prawns but had eaten small quantities of it uneventfully. Actio filled his plate with

dishes including a certain complimentary dish, which contained fine pieces of prawn.

Soon after consumption, he fell sick and threw up. The doctor said that Actio was

suffering an allergic reaction from the contaminated food and requested him to rest.

Mr. Elmo saw a video taken by the security camera and conveyed its contents to Mr.

McGuire, who tweeted regarding the issue against Actio. SGE sent a notice to Actio

stating that Actio can either perform or face legal action, since the incident may not

have been accidental. Both these events led to messages being spread on the Internet

referring to SGE in bad light. SGE replaced Actio with local star Henry. SGE sued

Actio claiming damages for breach of agreement for performance, for loss of

goodwill, humiliation among peers, clientele and community at large.



vi

STATEMENT OF JURISDICTION

The defendant most humbly and respectfully submits that this honourable court has

the requisite jurisdiction to hear and adjudicate the matter under Sections 9 and 15

read with Order IV Rule 1 of the Code of Civil Procedure, 1908 and Rule 2 of the

Bombay High Court Rules, framed under Section 34(1) of the Advocates Act, 1961.

ISSUES FOR CONSIDERATION

I. WHETHER THE DEFENDANT, ACTIO MCSONG, IS LIABLE FOR A BREACH OF

CONTRACT AND CONSEQUENT DAMAGES?



vii

II. WHETHER THE DEFENDANT, ACTIO MCSONG, IS LIABLE FOR THE TORT OF

NEGLIGENCE AND THE CONSEQUENT DAMAGES?

SUMMARY OF ARGUMENTS

I. THE DEFENDANT, ACTIO MCSONG, IS NOT LIABLE FOR THE BREACH OF

CONTRACT AND CONSEQUENT DAMAGES.

The contract is not valid as the defendant‟s consent was taken using undue

influence. The plaintiff was in a position to dominate the will of the defendant



viii

owing to the facts and circumstances. The terms are extremely unreasonable

and unconscionable owing to the fact that the terms are too broad and the

period of the restrictions is 6 months. The plaintiff used its dominating

position to obtain undue influence over the defendant.

The contract is frustrated as the defendant is physically incapable of

performing the contract. The incapacity cannot be imputed to the default of the

defendant, as there was an actual contamination of seafood beyond his control.

The event of him falling ill was unforeseeable as Coral Reef was a specialty

restaurant, not a local one.The fine pieces of prawn were present in the

complimentary dish, and knowledge of this fact by the defendant cannot be

assumed.

II. THE DEFENDANT ACTIO MCSONG IS NOT LIABLE FOR THE TORT OF NEGLIGENCE

AND THE CONSEQUENT DAMAGES.

The duty of care arose solely from the contractual obligation and the

contractual obligation has been declared void, therefore it is not an

independent liability. Since there is no duty of care, there can be no alleged

breach of such duty. Assuming but not conceding that a duty of care exists,

such a duty must be fair, just and reasonable. The duty imposed is extremely

wide, arbitrary and unconscionable. The defendant took reasonable care not to

breach the duty. He acted as a reasonable man would.

The defendant cannot be held liable for the damage of public humiliation. The

causal link between his act and the consequent damage is broken, as the

plaintiff‟s own act interfered in the chain of events. The plaintiff had other

reasonable options rather than sending a threatening notice to the sick

defendant. The plaintiff‟s own default in disclosing the content of a security



ix

tape to a third party and serving a threatening legal notice resulted in the

consequent criticisms and public humiliation. The damage is too remote as the

defendant could not have anticipated the chain of events that would occur.

The defendant cannot be held liable for loss of goodwill to the plaintiff. Since

goodwill is about the client attracting capability of the firm, this one singular

event cannot be responsible for changing the perception of competence of the

plaintiff in the media entertainment world. The entire event, which occurred,

had no effect on the clientele of the company. The negative perception of the

plaintiff by one niche fan community is inconsequential to the plaintiff‟s

goodwill. Further, the event did not result in any actual economic loss to the

plaintiff, as the ticket amount was non-refundable.



1

ARGUMENTS ADVANCED

I. THE DEFENDANT ACTIO MCSONG IS NOT LIABLE FOR THE BREACH OF

CONTRACT AND CONSEQUENT DAMAGES.

The defendant is not liable for the beach of the contract because [A] The agreement is

not a contract within the meaning of The Contract Act, 1872, assuming but not

conceding that the consent is valid, [B] The contract stands frustrated.

A. The agreement is not a contract within the meaning of the Contract Act,

1872

The agreement between the defendant and the plaintiff is not a contract within the

meaning of the Contract Act, 1872 (hereafter referred to as „the Act‟), as the

defendant‟s consent has been caused by undue influence.

A contract is an agreement enforceable by law.1 For an agreement to be enforceable

by law, consent between the parties must be free.2 Consent is not free when it has

been actuated by undue influence.3 A contract is induced by undue influence when [i]

one of the parties is in a position to dominate the will of another, [ii] when the other

party uses that position to obtain an unfair advantage over the other.4

The person

1 Section 2(h) of the Contract Act, 1872; Delhi Transport Corporation v. D.T.C. Mazdoor Congress

1991 AIR 101; Tarsem Singh v. Sukhminder Singh, AIR 1998 SC 1400

2 Section 13 of the Act; Central National Bank ltd v. United Industrial bank AIR 1954 SC 181

3 Section 14 of the Act

4 Section 16 of the Act; LadliParshadJaiswal v. Kamal Distillery AIR 1963 SC 1279; Afsar Sheikh v.

SulemanBibiAIR 1976 SC 163



2

influenced is constrained to do against his will that, which, but for the influence, he

would have refused to do if left to exercise his own judgment.5

i .

The plainti ff was in a position to dominate the wil l of the defendant

According to Section 16(3) of the Act, a presumption of undue influence arises when

two factors are proved; firstly that the person was in a position to dominate the will of

another, and that the transaction appears to be unconscionable on the face of it or by

evidence adduced.A dominating position can arise as a result of the circumstances in

which the contract was entered into.6

The plaintiff is one of the most sought after event organizer, and had been tasked with

organizing the opening ceremony of Xephilia premier league. The agreement between

the defendant and the plaintiff is unconscionable on the face of it. Clause 5.1 of the

agreement is unconscionable, not engaging in any sport activities, non-consumption

of alcohol, and the term stating not to engage in any activity, which would risk the

performer or affect performance. These terms are extremely unreasonable and

unconscionable when viewed in light of the fact that, the term of the contract extends

to a period of more than 6 months from the date of the agreement. The opening

ceremony was a gala event, where many stars performed and even the president of

Xephilia was going to attend the ceremony. The defendant himself was taken by the

enormity of the event. These circumstances empowered the plaintiff to a position such

as to dominate the will of the defendant. Both these factors are satisfied in the present

matter. Hence, a presumption of undue influence is adduced7.

5 Amir Chand Tota Ram v. SuchetaKripalani AIR 1961 Punj 383

6 London and Lancashire Insurance v. Binoy Krishna Mitra AIR 1945 Cal 218; POLLOCK AND MULLA,I NDIAN CONTRACT AND SPECIFIC R ELIEF ACT, Part 1, 476 (LexisNexis Butterworth Wadhwa, Nagpur,

13nd

ed. 2009).

7 Id.





4

words impracticable by some cause for which neither was responsible”, was later

affirmed by the Delhi High Court10 Apex Court11.

The defendant had fallen sick after being served contaminated food and had been

admitted to a star county hospital and in the press conference held by doctors was

asked to rest for the entire week. 12 Also, it was stated and there was huge news

coverage of the fact that the defendant because of his illness would be disabled from

performing in the event.

This is further substantiated with two reasons. [i] The incapacity was without the

default of the defendant. [ii] The event was not foreseeable.

i . The incapacity was without default of the defendant

The incapacity cannot be imputed to the defendant, there was no default from his side,

which can link to the illness which led to incapacity, and this has to be construed from

the entire situation and variables at play.

The defendant fell sick and was be hospitalized because of the contamination of the

food that he was served, the contamination, if, attributed to poor hygiene standards of

the restaurant, leads to the inference that the defendant had no control over this

possibility.

The defendant served himself the dish „Dry Seafood Special‟ which was

complementary, and it was one among other dishes that he served to himself, one of

the ingredients was fine pieces of prawns, which brings into question, whether

knowledge about the pawns can be imputed to the defendant. Also, what exactly did

10 Eacom Controls v. Bailey Controls, AIR1998Delhi365

11SatyabrataGhose v. MugneeramBangur AIR 1954 SC 44, Sushila Devi v. HariSinghAIR 1971 SC

1756

12 Proposition, para 10



5

the defendant consume is not known. The knowledge of the presence of prawns to the

defendant cannot be presumed.

i i .

The event was not f oreseeable

The event of contamination was not foreseeable, and it would be unreasonable to

impute knowledge of the same to the defendant. An analysis of the facts proves this

point. The article about the contamination due to poor hygiene standards was posted

in the magazine by „Morning Espresso‟ and not the news daily, though the magazine

was placed in every room, there were other newspapers and magazines present, it

cannot reasonably be presumed that the defendant read all of the material kept in his

room. A reasonable standard would be to read the important news, in the news dailies,

and not all the articles in all the magazines present in his room. Assuming but not

conceding to the fact, that he had read the article, still a reasonable assumption of

poor hygiene standards would not arise, the article refers to local restaurants, while

„Coral reef‟ was a seafood specialty restaurant, one frequented by stars of showbiz.13

A comparison cannot be drawn between both restaurants, the article in any sense

cannot be constructed to mean and include „Coral Reef‟ within the meaning of the

article. Poor hygiene standards cannot be expected from Coral Reef. Hence, the

happening of the event was not foreseeable. Thus the contract stands frustrated.

13 Proposition, Para 7



6

II. THE DEFENDANT ACTIO MCSONG IS NOT LIABLE FOR THE TORT OF

NEGLIGENCE AND THE CONSEQUENT DAMAGES.

The defendant Actio McSong is not liable for the tort of negligence and the

consequent damages as: [A] There exists no duty of care as the duty arose from the

contract but the contractual obligation is voidable. [B] Arguendo – The duty imposed

must be fair, just and reasonable. [C] Arguendo – The defendant took reasonable care

not to breach this duty. [D] The defendant cannot be held liable for causing public

humiliation to the plaintiff. [E] The defendant cannot be held liable for loss of

goodwill to the plaintiff.

A. There exists no duty of care as the duty arose from the contract but the

contractual obligation is voidable.

Actio is not liable for the tort of negligence because the duty of care whose breach has

been alleged by SGE Ltd. arises from the contract and is not an independent

liability.14

When the consent to the contract had been induced by undue influence, it

would be highly unreasonable and unjust to impose a liability in tort which arises

from contractual terms of which Actio seeks to not be bound by.

The transaction on the face of it seems unconscionable and clause 5.1 has been

especially claimed as to be highly unreasonable, then it would not be fair just and

reasonable to import a duty of care in this regard as to impose a tortuous duty which

would have the same effect as though enforcing terms of the contract when the

14Tai Hing Cotton Mill v. Liu Chong Hing Bank [1986] A.C 80



7

contract should be voidable for consent is caused by undue influence 15. Since there is

no duty of care owed by Actio with regard to his conduct, he can commit no breach of

it. Therefore, the Act of Actio does not fall within the meaning of Negligence.

B. Arguendo - The duty imposed must be fair, just and reasonable.

Assuming but not conceding that a duty exists, the duty imposed should be fair just

and reasonable. Even if there is the requisite degree of proximity, a duty may be

denied if in the court‟s view imposition of liability is not fair, just and reasonable.16

If we look at the duty of the plaintiff to the defendant, it is clear that such a duty is not

fair just and reasonable. To expect the plaintiff to not eat out at any place for a period

of 6 months, except at the place of stay provided by the defendant is extremely unjust,

unfair and unreasonable. The duty imposed is highly arbitrary and is biased in favour

of the defendant.

C. Arguendo - Actio took reasonable care not to breach the duty

Assuming but conceding that Actio owed SGE Ltd. a duty of care, it is enough to

prove that there was no breach of duty if the plaintiff took reasonable care to avoid

any damage.17 The term reasonable care is derived from what a reasonable man would

or would not do.

In the present case, Actio took reasonable care not to cause the damage of public

humiliation and loss of goodwill to SGE Ltd. In the restaurant, though it was a

seafood specialty restaurant, it is not mentioned specifically that Actio ordered a dish,

which contained prawn, which he was allergic to. The dish, which contained fine

15 Section 19A of the Act

16Caparo, [1990] 2 A.C 643

17 Blyth v. Birmingham Waterworks Co., (1856) 11 Ex. 781 at 784



8

pieces of prawn, was a complimentary dish served by the restaurant. 18 It is also

mentioned that Actio piled his plate with dishes and it is not clear what exact caused

the reaction. In such a circumstance of ambiguity, it is unreasonable and impossible to

assume that Actio did not take the care of a reasonable man.

Secondly, it was stated in the news daily that the seafood in local restaurants was

prone to contamination. Even if Actio did come across this article, it didn‟t refer to

specialty restaurants such as Coral Reef, but local restaurants. In this way, Actio still

took reasonable care against seafood contamination by going to a specialty restaurant

and not any local restaurant.

The other ingredients for the tort of negligence have been elaborated upon

individually within the explanation of damages.

D. The defendant cannot be held liable for causing public humiliation to the

plaintiff.

The defendant cannot be held liable for causing public humiliation as: [i] Public

humiliation was not caused by Actio‟s alleged negligence. [ii] The damage is too

remote.

i . Public humiliation was not caused by Actio’s alleged negligence.

The tortious damage alleged is that of public humiliation and this damage cannot be

attributed to Actio‟s negligent act. There can exist multiple causes for a particular

damage.19

The but-for test cannot be simply applied here. The causal link between the

negligent action and the damage is broken, as there exists a nova


19WINFIELD AND JOLOWICZ, TORT, 313, (Sweet & Maxwell, South Asian Edition, 18

th ed., 2010)



9

causainterveniens.20It was held by the House of Lords that the plaintiff‟s action can

be attributed to nova causaintervenienseven if it was foreseeable, but unreasonable.21

If he had no reasonable alternative to acting as he did, it would not have broken the

chain of causation.22 The damage caused was due to SGE Ltd.‟s own acts, therefore,

there was an intervening act of the claimant.

Mr. Elmo disclosed the details of the security camera tape to Mr. McGuire who in

turn posted it on a social networking site. There was widespread commenting for and

against this issue based on Mr. McGuire‟s initial post.23 SGE Ltd. sent Actio a notice

stating that non-performance would provoke legal action, especially as they doubted

that the incident might not have been accidental.24

Fans criticized SGE Ltd. on the

basis of the notice sent to Actio by SGE Ltd Itself.25

The legal notice served by SGE is an independent act. If not for the notice, there

would have been no resultant public humiliation. SGE was unreasonable. There were

more reasonable options that SGE could have resorted to, such as not threatening

Actio with legal action and claiming his act was not accidental, as it was clear that

Actio was genuinely ill and through no fault of his own.

It is evident that there were many events between the negligent act and the damage.

The negligent act did not directly cause the damage of public humiliation. Acts of

SGE Ltd. intervened and caused the damage. Therefore, Actio cannot be held for the

damage allegedly caused by him.

20Weld-Blundell v. Stephens [1920] A.C. 956

21 McKew v. Holland &Hannen&Cubitts (Scotland) Ltd. [1969] 3 All. E.R 1623

22WINFIELD AND JOLOWICZ, TORT, 361, (Sweet & Maxwell, South Asian Edition, 18

th ed., 2010)

23Proposition, Para 13.





10

i i . The damage is too remote

Earlier, in the case of Re Polemis,26 it was held that a person is liable for the all the

direct consequences of his act. This was overruled in the Wagon Mound,where it was

stated that the defendant could be held liable for only those damages that a reasonable

man can foresee to arise from his actions. 27 The defendant should be able to

reasonably foresee the chain of actions which can occur and the consequent damage,

if he cannot, then he cannot be held be liable for the damage.28

In the present argument, we have assumed but not conceded that Actio disabled

himself from performance. The events, which occurred,were not foreseeable, since

SGE itself served a notice, which was an intervening act, and criticisms against it

went viral on the internet. There is no causal relationship between the negligent act

and the consequent damage. The acts of SGE Ltd. and the resultant reaction of a third

party cannot be imputed to Actio and he cannot be held liable for public humiliation

allegedly caused to SGE Ltd.

E. The defendant cannot be held liable for the loss of goodwill caused to the

plaintiff.

Goodwill has been defined as “A business's reputation, patronage, and other

intangible assets that are considered when appraising the business, esp. for purchase;

the ability to earn income in excess of the income that would be expected from the

business viewed as a mere collection ofassets.”29 Thus Goodwill is the additional

value accruing to the business functions of a business based on its reputation among

26 Re Polemis, [1921] 3 K.B. 560

27The Wagon Mound, [1961] A.C. 388

28C. Czarnikow Ltd. v. Koufos, [1969] 1 A.C. 350

29 BRYAN A. GARNER , BLACK ‟S LAW DICTIONARY, 763 (9

th ed. 2001)





12

i . The actions of the defendant were incapable of causing harm to the business

reputation of the company

In the present case, the actions of the defendant were incapable of causing harm to the

business reputation. When considering the goodwill of the firm, it is important to note

that it is not merely the reputation of the business, but rather the effective client

attracting capability of the firm35

. Business reputation of a firm is characteristically

identical to the reputation of a person as an entity36

. However it alone doesn‟t

substantially decide the business generating capability. In this case, the entire episode

of events did nothing to affect the perception of competence of the plaintiffs in the

media entertainment world.

i i . The action had no eff ect on the clientele of the business.

The actions of the defendant had no effect on the clientele of the business. The entire

sequence of events, which took place didn‟t decrease the professional competence of

the company, SGE Ltd. The unfortunate health complication affecting the defendant

was out in the open for public perusal. It, in no way attributed any specific attribution

of performance to SGE Ltd in a way as to diminish the credibility of the plaintiffs.

Rather, the entire episode actually reaffirmed the professional competency of the

plaintiffs by demonstrating their capability to respond to unforeseen contingencies of

vast magnitude. So there were no negative attributions of any sort attributed to the

company except some very expressive fans of Actio. The only negative evaluation of

the defendant arising from the entire sequence of events is limited to the niche group

within the fan base of Actio who are active users of his fan website. So, the

proportion of people having a negative perception of SGE is a minority within a

35 Anheuser-Busch v Budejoicky [1984] FSR 413 CA

36Ibid





14

only at the behaviour of the company with Actio and had nothing to do with the

competence of the company to ensure opportunities for stars in the entertainment

business.38

So the economic loss was not a factor. Tickets for the ceremony were

booked prior to the events surrounding the frustration of the contract. Thus, the

presence or absence of the defendant as a performer during the actual date of the

performance did little to affect the revenues. This is reaffirmed in the clause defined

by the plaintiffs for the ticket buyers, which expressly rejected any refund claims.39

38Proposition Point No. 15

39Clause 20 of the Terms and Conditions of the Tickets.



PRAYER

Wherefore in light of the facts stated, issues raised, arguments advanced and

authorities cited it is most humbly prayed before this Honorable Court that it may be

pleased to: -

Dismiss the suit with costs.

And pass any such order which the Honorable Court may deem fit in the eyes of

equity, justice and good conscience.

All of which is most humbly and respectfully, submitted.

Date: 15th May 2012 S/d:

Place: Naya Xili (Counsel for the Defendant)

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Moot Memorial example