Civil Law

Question 1

Criminal Law vs. Civil Law

Answer 1

Criminal law punishes criminals, regulates behavior, and protects society; civil law protects individuals’ rights and resolves disputes.

Question 2

Standard of Proof

Answer 2

In civil law, the standard is on the balance of probabilities; in criminal law, it is beyond reasonable doubt.

Question 3

Who does the Onus of Proof land on?

Answer 3

In civil law, the onus is on the plaintiff; in criminal law, it is on the prosecution.

Question 4

Sources of Civil Law

Answer 4

Common law and statute law.

Question 5

What does an Ombudsman do?

Answer 5

Investigates complaints about government departments at state and federal levels, providing a dispute resolution service.

Question 6

Steps to Resolving a Civil Dispute

Answer 6

Discussion, letter of demand, court action, or alternative dispute resolution (ADR).

Question 7

ADR methods

Answer 7

Mediation, arbitration, case appraisal, conciliation, and settlement.

Question 8

Advantages of ADR

Answer 8

Cheaper, faster, less formal, and easier to access.

Question 9

Disadvantages of ADR

Answer 9

Less enforceable, not always legally binding, ineffective in situations like abuse cases or custody disputes.

Question 10

What is a class action?

Answer 10

Lawsuit by one person on behalf of a group seeking financial compensation for wrongdoing.

Question 11

Elements of a Contract

Answer 11

Offer, acceptance, consideration, capacity, and formalities.

Question 12

Offer vs. Invitation to Treat

Answer 12

Invitation to treat invites offers, while an offer requires agreement.

Question 13

Key Elements of an Offer

Answer 13

Invitation to treat, intention, counter-offer, reasonable period for acceptance.

Question 14

Significant Common Law Cases

Answer 14

Carlill v Smoke Ball, Donoghue v Stevenson

Question 15

Acceptance in Contracts

Answer 15

Occurs when the offeree accepts; criteria for acceptance may vary.

Question 16

Capacity in Contracts

Answer 16

Limits on who can enter contracts to safeguard disadvantaged groups.

Question 17

Terms in Contracts

Answer 17

Express terms (conditions and warranties) and implied terms.

Question 18

Conditions vs. Warranty

Answer 18

Condition is fundamental; breach can void contract. Warranty is significant but breach does not void contract.

Question 19

Defences for Breach of Contract

Answer 19

Misrepresentation, fraudulent, innocent, negligent, mistake of law, mistake of fact, undue influence, duress, incapacity unconscionable conduct, lack of good faith.

Question 20

Misrepresentation Types

Answer 20

Innocent, negligent, fraudulent.

Question 21

What are mandatory industry codes? Who regulates these codes?

Answer 21

Mandatory industry codes provide a minimum standard of protection to the consumers of particular industries.
The ACCC regulates these codes.

Question 22

Examples of Mandatory industry codes

Answer 22

Dairy Code of Conduct,
Franchising Code of Conduct,
Electricity Retail Code,
Gas Market Code,
Horticulture Code of Conduct,
Oil Code of Conduct,
Sugar Code of Conduct,
Unit Pricing Code

Question 23

Why would a business benefit from following mandatory industry codes?

Answer 23

Industry codes can provide the necessary regulatory support for industry. They can guard against misconduct and opportunistic behavior, and they cover the relationship between industry participants and their customers.

Question 24

How are we as consumers protected by the ACL?

Answer 24

ACL provides automatic guarantees to consumers that apply regardless of the warranties you give or sell to consumers.

Question 25

What does caveat emptor mean and why is it significant?

Answer 25

The principle that the buyer alone is responsible for checking the quality and suitability of goods before a purchase is made. Significance: places the responsibility on buyers to recognise the risks associated with a purchase and understand that they buy at their own risk, particularly when buying from private individuals.

Question 26

What are the elements to negligence?

Answer 26

Duty, breach, cause in fact, proximate cause, and harm

Question 27

Define duty of care

Answer 27

the legal obligation or responsibility to take all reasonable steps to avoid causing foreseeable harm to another person or their property

Question 28

Key terms related to negligence

Answer 28

neighbour principle, foreseeability, proximity, eggshell skull rule

Question 29

Neighbor principle

Answer 29

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

Question 30

Forseeability

Answer 30

Foreseeability is a precondition of a finding of negligence: a person cannot be liable for failing to take precautions against an unforeseeable risk.

Question 31

Proximity

Answer 31

There must be a sufficient relationship of closeness (sometimes referred to as 'proximity') between the two people in order for a duty of care to exist

Question 32

Eggshell Skull Rule

Answer 32

a defendant must 'take their victim as they find them' (a victim's weakness cannot mitigate the seriousness of the crime)

Question 33

What are different categories of duty of care?

Answer 33

Doctor to patient, teacher to student, road user to road user, employer to employee

Question 34

Defences to negligence

Answer 34

obvious risk * inherent risk * voluntary assumption of risk * dangerous recreational activity * exclusion of liability * illegality * inevitable accidents * contributory negligence.