Contract Law Flashcards
What is a contract?
A contract is a verbal or written agreement between two or more consenting parties that both have the legal capacity to conclude the agreement. (Legally enforceable). The agreement must be legal.
List the 5 requirements for a valid contract
Consensus
Capacity
Formalities
Legality
Physically Executable
List the characterisitcs of contracts (9)
Warranty
Bonae fidei
Consensual
Reciprocity
There must be at least two parties to an agreement
Promises of undertakings
Consideration
Freedom of Contract
Performance
In a valid contract, briefly explain the following:
Consensus
The minds of the parties must meet on all material aspects of their agreement
In a valid contract, briefly explain the following:
Capacity
The parties must have the the necessary capacity to contract
In a valid contract, briefly explain the following:
Formalities
Where the agreement is required, unusally, to be in a certain form, these formaties must be observed
In a valid contract, briefly explain the following:
Legality
The agreement must be lawful, that is mot prohibited by statue or common law
In a valid contract, briefly explain the following:
Physically Executable
The obligations undertaken must be i) determinable and ii) capable of performance when the agreement is entered into
What is a void contract
Contacts where one or more of the requirements for a valid contract are missing.
What is a voidable contract
Voidable contracts are contracts where an agreement was concluded betweent he parties but a material deficiency was present at the time when the contract was concluded.
Examples include:
Duress
MIsrepresentation
Economic bribery
List the tree contents of a contract
Essentialia
Naturalia
Incidentalia
Briefly describe Essentialia
Those disnctive terms used to identify or classify a contract.
Examplle:
The essentialia of a contract of sale: Are terms stupulating that property must be delivered and that the purchase price must be paid
Briefly explain Naturalia
Terms automatically included in any contract belonging to one of the classes of specific contracts traditionally recognised by our law.
They can therefore be said to be implied by law.
Briefly explain Incidentalia
The terms other then than the naturalia and essentialia.
They are the additioanl terms agreed upon by the parties that supplement or modify the rights and duties incorporated by law into the particular contract in question - namely, the naturalia
Who do not have capacity for a contract
Infants Age (0-6)
Deemed phhysically incapable by a court of law (Mentally incapable)
Severly intoxicated
People who have limited capacity
Minors (7-17)
Married persons
Sequestrated insolvent
Prodigal
Name the three types of Capacities (Degree of which Natural Persons can sign)
Full capacity
Limitied capacity
No capacity
List ways in which a contract is terminated (6)
Mora Debitoris
Positive Malperformance
More Creditoris
Repudiation
Prevention of performance
List the principles in which commercial contracts need to occur (4)
Risk Management
Tax Efficiency
Business Practice
Trade Usages
List two items and or skills that Engineers offer
Services
Products
Define Juristic Persons
These entities cannot contract by themselves and are represented by specific indiciduals (natural persons) who have been appointed to contract on their behalf. Usually directors, and must be specified in the contract
List 5 ways in which one can enter a bilateral or multilateral agreement
Government or private propert company lender
Requests for Proposal
Request for quote
Public media
Registered/preapproved suppliers.
List 7 guidelines for drafting contracts
- Establish what your requirements are and do proper research;
- Provide for any eventuality that might become a potential dispute in the future;
- Consider inserting a clause for arbitration (dispute resolution);
- Keep the language simple and avoid ambiguous or vague terminology that can later prove to be
problematic; - Ensure that the object of performance and the parties are properly described to avoid confusion;
- Ensure that the agreement complies with all regulatory legislature and rules of Engineering practice;
- Prepare a first draft and have it checked by a partner, colleague or attorney for advice.
Briefly describe Mora debitoris
The debtor culpabbly fails to make timeous performance of his or her obligations. (relates to the time of the performance)
Briefly describe positive malperformance
The debtor performs in a defective or incomplete manner (Relates to the content of the performance made)
Briefly describe Mora creditoris
The creditor culpably fails to cooperate timeously with the debtor so that the latter may perform his or her obligations
Briefly describe repudiation
Either party indicates an unequivocal intention not to honour the agreement
Prevention of performance
Either party renders the performance of the contract impossible
List three types of remedies
Remedy at keeping the contract alive
Remedy at cancelling the agreement
Remedy aimed at compensating the innocent party for loss or harm caused by the breach
List ways in which a contract can be terminated (4)
Compliance
New Contract
Debt comparison
Force Majeure
