Comparative Private Law

Question 1

Contract law case law

Answer 1

• Balfour v. Balfour
• Meritt v. Meritt
• Carlill v. Carbolic Smoke Ball Co.
• White v. Jones

Question 2

Tort law cases law

Answer 2

• Winterbottom v. Wright
• Donoghue v. Stevenson
• Escola v. Coca-Cola Bottling Co.

Question 3

Property law case law

Answer 3

• Fairstar Heavy Transport v. Adkins

Question 4

Balfour v. Balfour

Answer 4

• contract law case
• married couple; husband promised his wife 30£ a month while he’ll be woking in Sri Lanka; however they separated and he stopped paying her
• wife sued her husband for the money, claiming they had a contract
• court stated that there was no intention of husband to create a legal relationship when he promised his wife to pay her money for living while he’ll be working away -> therefore there was no contract, only simple domestic agreeement

Question 5

Meritt v. Meritt

Answer 5

• contract law case
• separated couple; husband promised his wife that after she was done paying the mortgage, he would transfer the house to her full ownership; however, after she paid it, he did not do it
• the wife sued him for non-performance; he defending himself that there was no contract
• court distinguished this case from Balfour v. Balfour by pointing out that in this case there was no harmonious relationship and therefore there was the intention to create legal relationship

Question 6

Carlill v. Carbolic Smole Ball Co.

Answer 6

• contract law case
• company advertised that when using their product correctly, the consumer won’t catch influenza; those who will catch it after using it correctly will get money as compensation
• Carlill used the product correctly and she caught influenza so she sued the company for wanting the money they promised
• the company didn’t want to give her the money since they did not mean the advertisement sincerely, it was just a joke
• the court found that the advertisement was the offer, and Carlill, by buying the product, accepted it; therefore, there was a contract, and Carlill has the right to the money

Question 7

White v. Jones

Answer 7

• contract and tort law case (spheres coincide, no clear-cut distinction)
• lawyer was instructed to change a will in favour of daughters, however he delayed and did not manage to change it before the father died; because of that the daughters did not receive anything from the last will
• daughters sued to lawyer and claimed damages
• there was no contractual relationship between the daughters and the lawyer
• the court found that the lawyer had a general duty to do his job, which he did not do, as a result, the daughters suffered damages
• daughters were able to claim damages not under contract, but under tort law
• the court implied a quasi-contractual relationship between the daughters and the lawyer even though in reality, there was no contract in place

Question 8

Winterbottom v. Wright

Answer 8

• tort law case
• Winterbottom was driving post coach for which maintenance Wright was responsible; the coach broke and injured Winterbottom who claimed damages from Wright, because he did not do his job properly
• however the court ruled, that since there was no contractual relationship Winterbottom had no right to claim damages
• this case established the privity of contract meaning that no third parties could claim damages if they were not party of the contract

Question 9

Donoghue v. Stevenson

Answer 9

• tort law case
• established the groundwork for modern negligence law
• established that manufacturers hold general duty of care to consumers of their product, even though there is no direct relationship
• Lord Atkin defined “duty of care” in the “neighbor principle” -> persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question

Question 10

Escola v. Coca-Cola Bottling Co.

Answer 10

• tort law case
• Escola (a waitress) was injured when a bottle of Coca-Cola exploded in her hand
• Escola sued the manufacturer of the bottle claiming damages, even though she had no direct contractual relationship with them
• court ruled that the explosion itself meant negligence
• in concurring opinion, Justice Traynor called for strict liability for defective products, meaning that manufacturers should be liable regardless of their fault

Question 11

Fairstar Heavy Transport v. Adkins

Answer 11

• property law case
• after the departure of formal CEO the company wanted access to his emails, because they contained business-related communication; Adkins refused to hand in his mails
• the court found that emails are not property since they are just information and therefore cannot be owned

Question 12

Common principles on property law

Answer 12

• Numerus Clausus
• Principle of specificity
• Principle of publicity
• Nemo Dat/Nemo Plus
• Prior Tempore

Question 13

Primary property rights

Answer 13

• ownership (Civil law)
• fee simple (Common law; land)
• title (Common law; movables)

Question 14

Secondary property rights

Answer 14

• secondary property rights to use (servitude, usufruct)
  secondary property security rights (pledge, hypothec)

Question 15

Modern challenges to traditional ownership

Answer 15

• data ownership
• subjects of property law (nature, robots)

Question 16

Contractual duty

Answer 16

• voluntary
• based on agreement between parties
• specific and limited by the agreement between parties of the contract

Question 17

Tort duty

Answer 17

• involuntary, imposed by law
• extra-contractual obligations
• everyone holds a general duty toward everyone
• law determines which breach of duty becomes legally relevant
• duty is general and applies to everyone in society equally

Question 18

Contractual life-cycle

Answer 18

1. Pre-contractual phase
2. Formation
3. Performance
4. Post-contractual phase

Question 19

Contract formation in civil law

Answer 19

• the principle of good faith
• parties have to take into consideration the interest of the other party
• party cannot hold negotiations in bad faith (knowing that they will not form a contract)
• pre-contractual liability -> party cannot simply walk out of negations, eventually has to pay damages the other party suffered

Question 20

Contract formation in common law

Answer 20

• generally rejects good faith and any pre-contractual liability
• a party can walk out of negotiation at any time before the contract is concluded
• approach to contract as an economic instrument; parties during negotiations can pursue their interests
• consideration -> there is a paid pro quo; something for something; gratuitous or one-sided contracts are viewed suspiciously