Civil/contract law Flashcards
what is novus actus interveins?
if there is a novus actus interveins the chain of causation is broken
What are exemption clauses used for?
exemption clause is designed to remove liability for one’s actions under a contract
what is volenti non-fit injuira?
full defence > some activities are inherently risky and if you are injured you have voluntarily assumed the risk of injury (base jumping)
what are torts?
classification of civil actions
what are 3 types of proximity?
casual, circumstantial, physical
what are implied terms of a contract?
a term can be implied into a contract through
- the courts, custom and trade usage, legislation, fair trading act and Australian competition and consumer act
what are the postal rules?
offer made by letter may be accepted by letter unless offer says otherwise, offer is not communicated until received, acceptance happens when it is posted, if offer by post-> revocation must reach offeree before they post acceptance
define forseeability?
a precondition of a finding of negligence, a person cannot be held liable for failing to take precautions against an unforseeable risk
what is consideration?
consideration is gain or benefit that is obtained under a contract, both parties must receive consideration in a contract
can acceptance be revoked by the offeree?
once communicated acceptance cannot be revoked (unless offerer agrees)
what is contributory negligence?
partial defence -> both parties have been negligent so 1 party is not fully responsible for the damages % based amount of blame
what are the rules as to offer?
an offer can be made to a particular person a class of persons or the whole world, offer must be communicated to the person accepting it, all terms of the offer must be communicated, an offer can specify conditions to be followed as part of acceptance, can be revoked (withdrawn) any time before acceptance
rules as to acceptance?
acceptance must be communicated (unless an act requires), unconditional. all terms must be communicated, conditions regarding the manner of acceptance must be followed - ( times, method of acceptance), can only be accepted by the person to whom its made, once communicated acceptance cannot be revoked (unless the offeror agrees), existence to an offer must be made known to the person accepting
what are the rules of consideration?
must exist in every contract, the value of consideration is not important, consideration must not be illegal, consideration must be definite, consideration for past performance is not consideration, consideration must be possible to carry out, must be provided by the person who has made the promise, cannot be something you are already obliged to do, can be a promise not to take legal action
define misrepresentation?
representation that is untrue (statements around the contract that are untrue), this can be both deliberate (fraudulent) and innocent (an accident)
what is duress?
someone forces you to enter a contract-> violence, threats to other people, emotional -> voidable
what is negligence ?
negligence is doing or failing to do something that a reasonable person would do and causes another person damage, injury or loss as a result
what is your neighbour in the topic of negligence?
your neighbour is someone who can reasonably be affected by your act or ommission
what is a contract?
an agreement between 2 (or more) parties that is legally binding – note that nothing in there talks about it being in writing - money is also not mentioned
what is the ‘but for’ test used for
a test to determine if the breach caused the loss
what is an offer?
an offer is a proposal by one party to enter into a legally binding agreement. it can be orally, writing or by your conduct. it must be clear and certain
how can an offer be revoked?
offers can be revoked at any time before acceptance unless they are coupled with an option
what are negligence defences?
contributory negligence - partial defence
Volenti non-fit injuira - full defence
what is bankruptcy?
bankruptcy is a process you undertake when you cannot pay money you owe to people, it is a legal state of being where you cannot enter into contracts
what is vicarious liability?
if you are doing what your employer has instructed you to do, you are not able to be sued (your employer is)
what are the 6 elements of contract law?
Intention to enter a legal binding agreement, offer and acceptance, consideration, genuine consent, capacity, legality of contract
what are the 3 elements that must be proven to claim negligence?
a duty of care must have been owed to the victim, the duty of care must have been breached, the breach must have caused damage or injury as a result
what are ways an offer can lapse?
time period, reasonable time, counter offer, death of either party, loss of contractual capacity
can a contract exist without being in writing?
yes a contract can be orally, writing, or by your conduct
who can accept an offer?
an offer can only be accepted by the offeree
what is capacity?
a question of whether you can enter a contract or not
how does past consideration differ from present consideration?
consideration for past performance is not consideration e.g., cant claim the reward as you already gave the information
rules of lapse?
time period, reasonable time, counter offer, death of either party, loss of contractual capacity
is a deal between siblings a contract?
no, there is no intention to create legal relations
what is the difference between an offer and an invitation to treat?
an offer is proposed by one party to enter a legally binding agreement, and an invitation to treat is an offer for someone else to make an offer to you
if a product is listed at a cheaper price compared when the cashier scans it, does the store have to comply with the listed price?
NO
Is a social or domestic agreement a contract?
no
how does a deed differ from a contract?
a deed is a contract without consideration
