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comm 315 > chapter 4 reading > Flashcards

chapter 4 reading Flashcards

1
Q

contracts

A

business agreements that must be respected

people enter them voluntarily

create obligations

–> building blocks used to construct contracts

bilateral agreement

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2
Q

three basic requirements in order for obligations to exist

A
  1. there must be at least two parties
  2. the must be a prestation that is the object of the obligation
  3. there must be a lawful reason for undertaking the obligation
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3
Q

prestation

A

a payment or performance

the rendering of a service

doing or not doing something

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4
Q

the two way obligations may come into existence

A

they commonly emerge from contacts, agreements that people enter with each other

they can also arise from an act carried out by someone

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5
Q

legal obligation

A

one that is sanctioned by law and enforceable before the courts

–> failure to discharge your obligation gives the person to whom you are obligated the right to demand performance and/or damages

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6
Q

natural obligation

A

one that binds us in conscience only

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7
Q

the most common source of legal obligations in business

A

the contract

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8
Q

contracts which involve very little negotiation

art. 1379 to 1384

A

contracts of adhesion

contracts by mutual agreement

synallagmatic or bilateral contracts

unilateral contracts

onerous contracts

gratuitous contracts

commutative contracts

aleatory contracts

contracts of instantaneous performance

contracts of successive performance

consumer contracts

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9
Q

contracts of adhesion art. 1379

A

the conditions are drawn up only by one of the parties

the only choice available to the other party is to accept these conditions or no to enter into the contract

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10
Q

contracts by mutual agreement art. 1379

A

both parties discuss and agree on all of the conditions of the contract

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11
Q

synallagmatic or bilateral contracts art. 1380

A

both parties have agreed to perform an obligation

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12
Q

unilateral contracts art. 1380

A

one party undertakes to perform an obligation

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13
Q

onerous contracts art. 1381

A

in which each party receives something in return for undertaking an obligation to the other party

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14
Q

gratuitous contracts art. 1381

A

the object of which is for the benefit of the person with whom it is made

one party promises to do something without receiving anything in exchange

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15
Q

commutative contracts art. 1382

A

One in which each of the contracting parties gives and, receives an equivalent

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16
Q

aleatory contracts art. 1382

A

an agreement whereby the parties involved do not have to perform a particular action until a specific, triggering event occurs

Events are those that cannot be controlled by either party, such as natural disasters and death

Aleatory contracts are commonly used in insurance policies

in which the full extent of the obligation is uncertain at the time the contract is entered into

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17
Q

contracts of instantaneous performance art. 1383

A

the obligations of party can be executed or rendered at one single point in time

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18
Q

contracts of successive performance art. 1383

A

a type of contract where the obligations can be executed over a period of time or continuously

ex: rental agreement

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19
Q

consumer contracts art. 1384

A

legally binding agreement between you and the consumer concerning the sale of goods or digital content

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20
Q

consensus in idem

A

two people that have a clear meeting of minds

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21
Q

an offer

A

an expression of readiness to do or give something if desired

a clear, precise, firm proposition containing a genuine intention to enter into a binding contract

will exist when there is a specific merchandise offered for sale

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22
Q

after an offer is made, what creates a contract?

A

acceptance

–> must be the same terms as the offer

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23
Q

where is the contract made?

A

wherever the offerer (person that offers the contract) is

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24
Q

essential elements required for the formation of a valid contract according to article 1385 of the Civil Code

A
  1. an exchange
  2. of consents
  3. between persons
  4. having the capacity to contract
  5. in any form, unless a special form is required
  6. a cause
  7. and object
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25
Q

when is consent expressed?

art. 1398

A

when there is clear indication on the part of a person

can also be tacit

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26
Q

tacit

A

understood or implied without being stated

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27
Q

can an offer be rocked if they gave the offer a certain time period to think about it?

A

nah bruv

28
Q

should silence be considered as an acceptance or refusal of an offer?

A

refusal

29
Q

the defects of consent that render it invalid

art. 1399

A

error

fraud

fear

Lesion

30
Q

error invalidating consent

art. 1400

A

error in which one party did not fully understand or note all the details of a contract

31
Q

fraud invalidating consent

art. 1401

A

closely related to error

–> error induced by fraud

when one person tricks another in making an error or gives untrue information

32
Q

fear invalidating consent

art. 1402, 1403, 1404

A

if a person uses fear to extract someone’s consent, it is not real consent

can also be position of authority over another person

33
Q

lesion invalidating consent

art. 1405, 1406, 1408

A

comes from roman law and the French expression meaning harm

usually used for economic harm on someone that lacks knowledge

–> for this reason, only applied to people who do no have full legal capacities, such as minors under 14

34
Q

legal capacity

A

the authority or right to enter in a contract

35
Q

people that cannot legally enter in a contract

A

minors

persons under protective supervision

36
Q

what does it mean when we say that minors can be emancipated?

A

they can enter contracts alone

37
Q

persons under protective supervision

A

have no legal capacity

over the age of 18 and cannot look for their financial affairs due to physical and/or mental incapacity or disability

38
Q

when are contract subjects or objects restricted?

A

when they’re illegal

39
Q

why are certain contract forms required by law?

A

to preserve the validity of the contract

40
Q

when can a contract be declared null?

A

when they do not meet the conditions of formation discussed

41
Q

the two degrees of nullity

A

absolute nullity

relative nullity

42
Q

absolute nullity

A

a contract is absolutely null when it contradicts or violates provisions of law deemed of public order and therefore does not meet the conditions of formation

a contract that puts at risk protections of the general public

may not be confirmed or maintained by any party

court can invoke this nullity

43
Q

relative nullity

A

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made

may be confirmed or maintained by the parties

no other party can invoke this nullity

–> must be clearly expressed that they wanna maintain contract

44
Q

what happens when a co tract is deemed null?

A

this contract is considered to have never existed

45
Q

what can the creditor do when we fail to do an obligation of a contract?

A
  1. force performance through expense of debtor or by means such of injunction
  2. have contract annulled by resolution of resiliation
  3. reduce the scope of his share of related obligations
  4. refuse to perform his share of the obligations
  5. hold on to debtor’s property until he is paid for work related to the property
46
Q

resolution

A

each party must restore to each other all prestations

the contract is deemed to have never existed

47
Q

resiliation

A

the contract ceases to exist for the future with no restoration of prestations

48
Q

injunction

A

a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act

49
Q

Interlocutory injunction

A

a court order to compel or prevent a party from doing certain acts pending the final determination of the case

It is an order made at an interim stage during the trial, and is usually issued to maintain the status quo until judgment can be made

50
Q

when is an interlocutory injunction granted?

A

if the plaintiff demonstrates interest and seriousness of the issue

if it is necessary to avoid irreparable injury before the final judgment

  1. if the plaintiff will suffer significantly more than the defendant on the balance of convenience
51
Q

provisional injunction

A

a provisional equitable remedy by which a court orders a litigant to perform, or refrain from performing, a particular act before the entry of final judgment

in the case of urgency, the plaintiff can request that an injunction be issued before the defendants has received notice of an interlocutory hearing

can last no more than 10 days

52
Q

prior to taking action against the debtor, the civil code requires to be placed in default

what were the ways this has to be achieved?

A

by the contract itself

by extrajudicial demand

by operation of law

53
Q

placed on default by the contract itself

A

when the debtor fails to perform an obligation by a stipulated deadline

54
Q

placed on default by extrajudicial demand

A

the creditor sends the debtor a letter requesting performance within a certain period of time

55
Q

placed on default by operation of law

A

the debtor fails to perform an obligation within a useful time, or failed to perform immediately in case of urgency, or where performance becomes impossible due to debtor’s fault

56
Q

what happens if creditor files legal action against debtor without placing him in default first?

A

the debtor maintains the right to perform the obligation within a reasonable time

57
Q

types of damages

A

present damages Article 1607 to 1611

future damages art. 1611 to 1615

punitive damages art. 1621

penal damages art. 1622 to 1623

58
Q

present damages

A

failure on the part of the debtor to fulfill his obligations may result in bodily, moral, or material damages

these damages have to be directly attributed to the fault of the debtor and assessable in their present value

59
Q

future damages

A

possible to seek future damages as long as they are certain to take place and are assessable

ex: employee fired for unjustifiable reasons

60
Q

punitive damages

A

legal recompense that a defendant found guilty of committing a wrong or offense is ordered to pay on top of compensatory damages

They are awarded by a court of law not to compensate injured plaintiffs but to punish defendants whose conduct is considered grossly negligent or intentional

amount wired cannot surpass purposes of teaching debtor a lessons

61
Q

penal damages

A

contractual stipulation that is used as a means of motivating a contracting party to perform obligations

–> failure to perform obligations allows the creditor to claim from the debtor the stipulated amount o damages for default

creditor may not exercise penal clause and require performance from debtor

–> can only do it if the clause is for the purpose of punishing the debtor for Time delays

can be used without having to prove that any actual damages were suffered, unlike other types of damages

62
Q

classification of contracts

A

contract of adhesion

63
Q

an offer to contract art. 1388

A

a proposal which contains all essential elements of the proposed contract

the offeror signifies his willingness to be bound if it is accepted

64
Q

art 1390.

an offer to contract may be made to both a determinate or an indeterminate person

true or false

A

true

65
Q

art 1390.

an offer to contract may be made to both a determinate or an indeterminate person

true or false

A

true

66
Q

art. 1390

a term of acceptance may or may not be attached to an offer to contract

true or false

A

true

67
Q

when does an offer lapse?

art. 1392

A

if no acceptance is received by the offeror before the expiry of the specified term

when no term is specified before the expiry or a reasonable time

death or bankruptcy of the offeror

comm 315 (12 decks)

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