Chapter 10: Obligations And Terms Flashcards
What is a moral obligation
Not legal obligation
No legal significance
What is a civil obligation
Legal obligation enforceable by a right of action
Not fulfilled….sue for breach if contract
What is a natural obligation
Cannot be enforced in court of law BUT not without legal significance
E.g. Minor in contract
What is an alternative obligation
Someone can choose performance from list of performances(must be specific)
Creditor can claim whichever performance
What is a generic obligation
Party can choose performance from a specific genus
What is facultative obligation
Specifies performance by Debtor but debtor can make different specified performance
Creditor can only claim for specified performance
Requirements for determining if a performance is divisible?
- Depends on nature
2. did parties intend it to be divisible?
Can entire contract be divisible, requirement?
Yes! Each part of contract must satisfy validity requirements
AND party can cancel one part of contract
What are terms?
- Stipulations that PARTIES include in contract
2. PRovisions that are includes BY operation of law
What are essentialia
Identifies contract as one recognised by our law (sale)
Makes contract what it is
What is naturalia
Terms included because they belong to one of the classes specified by law (sale= seller liable for latent defects)
Parties may exclude them if they want
What are incidentalia
A term that is not naturalia or incidentalia
Additional terms added by PARTIES
What are express terms
Terms specifically agreed on by parties
Oral or written down
What does the caveat subscriptor rule say
“Signatories beware” -party bound whether read or not
Escape liability–? Through iustus error
What are standard form contracts
Used by large corporations and public entities
Generic, complex and non negotiable
What are unsigned documents
Terms found in separate document which is not signed
What are ticket cases
Terms recorded elsewhere and person purchasing ticket knows or ought to know that a) there is writing on it b)refers to contractual terms to be found on other document
What are Notices
Exemption/owner risk clause
Exempts a service provider from liability for negligence BUT not fraud
Which terms are prohibited by law
- term that is immoral or contrary to public policy
- terms that conflicts with statutory provision= may be invalid
What are tacit contracts? Test for tacit contracts?
Contracts inferred from conduct of parties
Test1= show that by balance of PROBABILITIES no other reasonable interpretation other than that parties intended to contract
Test2= show that through inference, most probable conclusion is that contract came into being
What are implied terms
Terms not expressly agreed upon by parties but still form part of contract
What are terms implied ex lege
Terms automatically included in contract because of law UNLESS parties exclude it
Derives from either a) common law or b) statute
What is a tacit term
A term that the parties did not specifically agree upon,but which both expected to form part of their agreement (has same legal effect as express term)
How is it determined whether a tacit term is to be imported into contract
Officious bystander test
- Tacit term must not be in conflict with express term
- Term must be capable of clear and exact formulation
What are conditions
A term which qualifies contractual obligations- makes its operation and consequences dependent on whether some uncertain furure event will occur or not
(No rights or duties attached to it)
What is a positive condition
Depends on happening of uncertain future event
What is a negative condition
Depends on a future uncertain event not happening
What is a suspensive condition
Contract not enforceable until a condition(which must relate to uncertain future event) has been fulfilled
What is a resolutive condition
Obligations operate in full BUT comes to an end if an uncertain future event does or does not happen
What is a causal condition
Parties agree that fulfillment of condition depends on something beyond their control
What is a mixed condition
Fulfillment depends partly on a) creditors actions and b) event beyond control of parties
What is a time clause
Term that makes existence of obligation dependent on event or time in future
What is a resolutive time clause
Obligations terminate at a certain date or on happening of certain event
What is the difference between a supposition and a condition
Condition=uncertain future event
Supposition= past or present state of affairs
All contractual obligations give rise to…..
Personal rights and duties
