Civil Law Flashcards
What is Negligence?
the failure of an individual or entity to exercise reasonable care, caution, or skill, which results in harm or injury to another
What are the 3 elements that must be proven?
Breach of Duty.
Causation.
Damages.
What is a contract?
- An agreement between 2 (or more) parties that is legally binding.
- Note that nothing in their talks about it being in writing. Money is also not mentioned.
What are the 6 elements to contract law?
o Intention to enter a legally binding contract.
o Offer and acceptance.
o Consideration.
o Genuine consent.
o Capacity.
o Legality of a contract.
What is an offer?
a proposal that one person makes to another to create a legally binding agreement.
What are the rules as to offer?
must be clear, specific, and demonstrate the intent to create a legally binding agreement.
What are the rules to acceptance?
acceptance should be communicated to the offeror in a manner specified or implied in the offer.
What are the postal rules?
when a contract is accepted by post, sending the letter creates the contract.
what is consideration?
Consideration is an exchange of something that has legal value in return for a promise.
what are the rules to consideration?
This requires two things. First, that there be some ‘price’ (in the form of a benefit to the promisor or detriment to the promisee) and that this price be given in exchange for the promise (as a ‘quid pro quo’ for the promise to which it relates).
is a social or domestic agreement a contract?
There is a presumption that agreements made in family, social or domestic contexts are not intended to be legally binding.
What is your neighbour in the topic of negligence?
all persons or entities “must take reasonable care to avoid acts or omissions which that can be reasonably foreseen to be likely to injure another person.
what are ways an offer can lapse?
lapsing of time, rejection by the offeree, revocation by the offeror, or failure of a condition.
what must be communicated when accepting offer?
This acceptance should be communicated to the offeror in a manner specified or implied in the offer.
who can accept an offer?
the only person with the legal power to accept an offer and create a contract is the original offeree.
can acceptance be revoked by the offeree?
An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.
can a contract exist without being in writing?
Yes it can be spoken, or even a handshake.
what is the difference between an offer and an invitation to treat?
An invitation to treat is an invitation to a party or parties to make an offer. However, unlike a contractual offer, there is no intention for the invitation to treat to be legally binding.
how does past consideration differ from present consideration?
Past consideration is not good consideration. The consideration must come into existence either at the same time or after the promise.
what is the significane of offers made to the whole world?
An offer can be made to the world at large AND an offer made to the world at large may not require communication of acceptance.
what are the rules concerning the legality of an object in a contract?
The subject matter of the contract must be legal. A contract to engage in illegal activities or contravene public policy will generally be unenforceable under Queensland law.
how does a deed differ from a contract?
deeds do not need consideration where as contract do.
define foreseeability.
such that a person of ordinary prudence would expect to occur or exist under the circumstances
what capacities prevents certain people from entering a contract?
mental disorder, intoxication, bankruptcy, crown, minors.
what is the case that started negligence and duty of care?
Donoghue v Stevenson
what is Volenti Non-fit injuira?
Voluntary assumption of risk
what are torts?
a legal wrong that is committed by one party or entity (the tortfeasor) against another.
what are negligence defences?
obvious risk * inherent risk * voluntary assumption of risk * dangerous recreational activity * exclusion of liability * illegality * inevitable accidents * contributory negligence.
what is contributary negligence?
failure by a person (typically the plaintiff) to take reasonable care for his or her own safety, which contributes to the harm the person suffers.
define misrepresentation.
the giving of false information by one party (or their agent) to the other before the contract is made, which induces them to make the contract.
who can enter into a contracT?
To form a valid contract, all parties involved must have the legal capacity to enter into the agreement.
what are implied terms of a contract?
a term that is not an express term and does not expressly form part of a contract.
what is duress?
a person is not criminally responsible for an act, or omission, carried out because the person was threatened with death or serious harm if they did not carry out the act or omission.
what are exemption clauses used for?
limit someone’s liability in the event of loss or damage.
what is novus actus interviens
breaks the causal chain between the initial wrongdoer’s action and the liability that is imputed to him or her as a result thereof.
what is the ‘but for” used for?
determines whether the harm suffered by a plaintiff was caused by the breach of the defendant’s duty.
what is vicarious liability?
Employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person’s employment.
how can an offer be revoked?
The offer can only be revoked before acceptance.
is a deal between siblings a contract?
No as this is an informal contract.
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, as listed prices are an invitation to treat so the store doesn’t have to accept it.
