Concepts you should be able to explain

Question 1

Adversarial

Answer 1

• used in common law
• a contest between two opposing parties before a judge who moderates

Question 2

Inquisitorial

Answer 2

• used in civil-law systems
• judges play a limited role in shaping civil law
• judge’s role is to establish the facts and to apply the provisions of the applicable code. Judges are more investigators.

Question 3

Statutes

Answer 3

• Acts of Parliament
• contains primary legislation in the UK.
• has received Royal Assent.

Question 4

Precedent

Answer 4

In a common law system, whenever a judge makes a decision that is to be legally enforced, this decision becomes a precedent: a rule that will guide judges in making subsequent decisions in similar cases.

Question 5

Enactment

Answer 5

To adopt a measure, to codify

Question 6

Case-law

Answer 6

judge-made law.

Question 7

Barristers

Answer 7

• Represent clients in court, they have exclusive right of audience in superior courts.
• Offer specialist legal advice.
• Usually self-employed.

Question 8

Solicitors

Answer 8

• Provide legal advice, draft legal documents, instruct a barrister if necessary.
• They can represent their clients in inferior courts.
• Work in law firms/ as in-house lawyers / government.

Question 9

Notary

Answer 9

• Public officers whose role is to authentique legal instruments executed before them.
• By law, some instruments require the involvement of a notary to record an agreement reached between the parties (= “authentic instruments”)
• Independent holders of public office, but also highly qualified lawyers. They also have legal duty to strict impartiality.

Question 10

Baillifs

Answer 10

• Public legal officials, they cannot refuse to respond to a request to act, unless the law/ code of conduct doesn’t allow it.
• Self-employed practicitioners, they are impartial and independent.
• Do not need a law degree.
• Measures:

1. Out of court: example: recovery of debts.
2. Court: serving of court orders, writs of summons or enactment of court decisions.

Question 11

In-house counsel

Answer 11

employed by a corporation.

Question 12

Express term

Answer 12

⇔ implied terms.

= Contract whose terms are clearly spelled out and that define the contractual relationship.

Question 13

Capacity

Answer 13

• To have legal capacity means to be alble to enter into contracts and that those contracts are binding on them.
• Minors and people who are mentally incompetent lack this legal capacity.

Question 14

Liability

Answer 14

Civil and commercial liability can result if one of the parties breaches its contractual terms or causes damages to the other party.

Question 15

Breach of contract

Answer 15

Failure of one’s contruactual obligation = non-performance (this is used in the Principles of European Contract Law).

Question 16

Termination

Answer 16

A party may terminate the contract if the other partys non performance is fundamental. However the aggrieved party loses its rights to terminate if it fails to give reasonable notice.

Question 17

Recission

Answer 17

if one of the essential requirements for a valid contract is missing, the contract can be declared void.

These essential requirements are:

1. Consent
2. Legal capacity
3. Cause
4. Object

Question 18

Remedies

Answer 18

Various remedies to put the parties in the position they would have occupied if the contract had not been breached.

1. The right to enforce performance (most important legal remedy).
2. Termination
3. Compensatory damages
4. Liquidated damages

Question 19

Specific performance

Answer 19

Legal remedy that compels one party to perform his or her duties specified by the contract or to remedy a defective performance.

Question 20

Compensaotyr damages

Answer 20

• If specific performance is impossibe, the judge will award compensatory damages, monetary compensation that is claimed by a person or awarded by a court in a civil action.
• covers the loss the non-breaching party incurred.

Question 21

Duty of skill

Answer 21

• Duty to exercises their skills to the level of their competence and anticipate the consequences of their actions.

Question 22

Duty of diligence

Answer 22

Care that a responsible person had to avoid damages and be prepared.

Question 23

Duty to avoid conflict

Answer 23

Duty to avoid conflicts of interest = Person becomes unreliable because there’s a clash between personal interest and professional.

Question 24

Tort

Answer 24

A tort is a civil wrong that causes harm, injury to a paerson or damage to a person’s property.

Question 25

Punitive damages

Answer 25

• Rare, meant to punish if someone / company goes above and beyond negligence. It serves to punish the wrongdoer, as well deter others from enganging in similiar conduct.

Question 26

Injunction

Answer 26

Court order requiring a party to stop doing something to prevent further infringement.

Question 27

Plaintiff

Answer 27

The party who initates a lawsuit or action before a court to seek legal remedy. In England/Wales the term “claimant” is used.

Question 28

Defendant

Answer 28

A person, or company against whom a claim or chare is brought in court <–> plaintiff

Question 29

Negligence

Answer 29

Behaviour that poses unreasonable risks ot harm to persons and property. Elements that need to be establised:

• existence of a duty of care between defendant and plaintiff
• Breach of that duty by that defendant
• Injury or loss sufferend by the plaintiff as a direct result.

Question 30

Duty of care

Answer 30

3 factors:

1. Harm was reasonably forseeable.
2. Relationship of proximity between defendant and plaintiff.
3. Just and resonable imposing of liability on the defendant.

Question 31

Liquidation damages

Answer 31

• The parties can include an express provision setting out how much the parties can claim.
• Must be a reasonable estimate of the actual damage, can be declared void if disproportionate.

Question 32

Duty to mitigate

Answer 32

• The non-breaching party is obliged to mitigate or minimize the amount of damages to te reasonable extent.

Question 33

Undue influence

Answer 33

Any act of persuasion that over-comes the free will and judgment of another.

Question 34

Under duress

Answer 34

A person enters an agreement as a result of threats –> a contract will be invalid if the consent was induced by lies or deception.