Contract Law - Key terms Flashcards
Define an Offer
‘an expression of willingness to contract on certain terms made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed’ (Treitel The law of contract)
Define Acceptance
Contract acceptance is the act of agreeing to form a legally binding agreement based on an offer provided by the other party. It is an essential element of a contract, and without it, a contract will not be valid or binding.
Define Certainty
Certainty in contract law refers to the clarity and precision of the terms and conditions within a contractual agreement. All parties involved in a contract need to fully understand and interpret its terms. A contract should be a complete and final agreement, leaving no room for ambiguity or misunderstanding.
Define Consideration
In legal terms, consideration refers to the value exchanged between parties in a contract. It is a fundamental element that differentiates a contract from a mere agreement or promise. Consideration is the inducement to a contract; it’s what each party brings to the table, making the contract worthwhile.
Define Intent/Intention (to create legal relations)
Intention to create legal relations, otherwise an “intention to be legally bound”, is a doctrine used in contract law, particularly English contract law and related common law jurisdictions.
Define Agreement
An agreement in contract law is the consent of two or more persons concurring, respecting the transmission of some property, right or benefit, with a view of contracting an obligation. An agreement is a promise that involves consideration, which is a gain or advantage for each party. An agreement becomes a contract when it is legally binding and enforceable in a court of law.
Define Freedom
Freedom of contract is a fundamental principle in civil law that grants individuals the right to freely enter into, shape, and terminate contracts.
Define Objectivity
Defined in the following terms by Blackburn J in Smith v Hughes (1871): If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting upon the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.
Define Silence
Accepting a contract without saying anything or replying is one notion connected to contract acceptance. This is referred to as quiet acceptance. According to this theory, if one party makes an offer and the other side does not reply or take any action, no response means acceptance
Define Restitution
Restitution is a remedy which can operate alongside or distinct from contractual or tortious claims, and which can be available in a claim which arises either as a matter of law or in equity. Restitution restores the claimant to the position it was in before the defendant had been unjustly enriched at its expense.
Define Unjust enrichment
when someone is said to have been “unjustly enriched,” this means that he has benefitted at someone else’s expense, due to chance or mistake. In such situations, the law of equity dema: A promise (offer) in return for an act (acceptance). Acceptance of the offer is performing the act.
Define Bilateral Contracts
A promise (offer) in return for an act (acceptance). Acceptance of the offer is performing the act. Effectively this contract places obligations upon and grants rights to both parties.
Define Unilateral Contracts
In a unilateral contract, the offeree makes no promise and so is under no obligation to do anything.Essentially an exchange between two parties is immediately binding. With unilateral contracts the promiser is bound to perform, if and only if, the person (or persons) with whom the promise is made performs the specified act. (i.e. carlill v carbolic smoke)
Define The principle of objective intention
Words are to be interpreted as they were reasonably understood by the person to whom they were spoken, not as they were understood by the person who spoke them.
Define Estoppel
a principle, originating in the courts of equity, that is difficult to define but essentially embodies the general idea that if you say or do something and another person takes you at your word or at face value, and relies on what you have said or done, you cannot later change your mind or resile from your position—this would be unconscionable so you will be prevented or ‘estopped’ from doing so
Define Proprietary estoppel
a principle, originating in the courts of equity, that is difficult to define but essentially embodies the general idea that if you say or do something and another person takes you at your word or at face value, and relies on what you have said or done, you cannot later change your mind or resile from your position—this would be unconscionable so you will be prevented or ‘estopped’ from doing so
Define Suspensory (estoppel)
Suspensory (estoppel) The most common view in cases and commentary is that promissory estoppel is merely suspensory. (a promissory estoppel can be part-extinctive, part-suspensory).
Define Instantaneous methods of communicating vs non instantaneous
One of the defining features of Digital Communication is its ability to enable immediate and real-time interaction. Whether it’s through instant messaging, video calls, or live chat, Digital Communication allows individuals to connect and communicate with each other instantly, transcending geographical barriers
non-instantaneous is Post etc
Define Executed consideration
Relates to payment for promise in the present time (e.g. buying groceries in a shop, paying for them straight away)
Define Executory consideration
Executory consideration: relates to payment for a promise in the future (Hiring equipment, payment happens in the future once equipment is delivered for use)
Define the Doctrine of Privity:
Doctrine of Privity: The doctrine of privity of contract is a common law principle that states that a contract cannot confer rights or impose obligations upon anyone who is not a party to that contract. It imposes rights and obligations to parties of a contract and restricts non-contractual parties from enforcing the contract. The doctrine means that a contract cannot, as a general rule, confer rights or impose obligations arising under it on any person except the parties to it.
Define Collateral contracts
Collateral contracts are independent oral or written contracts that are made between two parties to a separate agreement or between one of the original parties and a third party.
They are usually made before or simultaneously with the original contract. A collateral contract is usually a single term contract, made in consideration of the party for whose benefit the contract operates agreeing to enter into the principal or main contract, which sets out additional terms relating to the same subject matter as the main contract.
Define what is meant by an Incorporation of express terms
Incorporation of express terms: A term may be incorporated into the contract either expressly or impliedly. Express terms are those which have been explicitly communicated between the parties orally or in writing. The intention of the parties is clear and there is little discussion to be had of these.
Define what its meant by an Incorporation by notice
Incorporation by notice: Where a signature is not present, a Contract term may be incorporated by Notice, which must be given at, or before, the time of contracting and reasonable steps taken to bring the term to the Notice or the other Party.
Can someone claim if someone breaches a condition?
Condition: breach always gives innocent party option to terminate contract and claim damages;
Can someone claim if someone breaches an Innominate term?
Innominate term:
innocent party can always claim damages and might also be able to terminate contract if the effect of breach is serious enough;
If a warranty is breached can someone claim?
Warranty:
breach never gives innocent party option to terminate contract; he can only claim damages.
Define termination
Termination: Terminating a contract means legally ending the contract before both parties have fulfilled their obligations under the terms of the contract.
Define a breach
Breach: an act of breaking or failing to observe a law, agreement, or code of conduct:
Define Exhaustion:
Exhaustion is the unforeseen termination of a contract as a result of an event that either renders its performance impossible or illegal or prevents its main purpose from being achieved.
Define Non-performance
Non-performance of a contract refers to a situation where one or both parties fail to fulfil their obligations under the terms of the agreement they entered into. Under the law in England and Wales, non-performance of a contract can result in legal consequences, including breach of contract claims for damages or other remedies.
Define Repudiation
Repudiation of contract is a serious breach of contract, which gives the innocent, or aggrieved, party the right to terminate the contract and potentially claim damages. Such breaches are demonstrated through the repudiating party’s conduct, which objectively shows that they are no longer able to substantially fulfil their contractual obligations
Define an Anticipatory breach
An anticipatory breach, or repudiation, preempts a failure of a party to meet its contractual obligations to another party. Parties claiming an anticipatory breach are obliged to make every effort to mitigate their own damages if they wish to seek compensation in court.
Define Compensation
Compensation: something, typically money, awarded to someone in recognition of loss, suffering, or injury:
Define a Quantification of loss
Quantification of loss is the process of determining the amount of compensation that should be paid to the claimant to put it in the same position that it would have been but for the wrongful act1. This process involves the presentation of both oral and written evidence, and may also involve the leading of expert evidence, depending on the complexity of the matter2. The quantification of financial loss usually underpins any compensatory claim for damages3.
Define Damages
Damages: In contract law, damages refer to a sum of money paid to the innocent party in compensation for a breach of contract1. Typically, damage awards are in the form of monetary compensation to the harmed party2. Damages are imposed if the court finds that a party breached a duty under contract or violated some right.
Definen Wasted expenditure
Wasted expenditure: It is one of the losses that may be recovered for breach of contract. It refers to the expenses incurred by the claimant in reliance of the contract being performed. The aim of damages for reliance loss is to put the claimant in the position they would have been in had the contract never been made.
Define The burden of proof:
The phrase burden of proof refers to the obligation of a party who initiates a legal action (the “ plaintiff ”) to prove his or her claims. If that party cannot prove sufficiently that the other party has committed a wrong, whether civil or criminal, he loses
Define Causation
Causation is a legal concept that refers to the relationship of cause and effect between one event or action and the result1. It is an overarching area of law that restricts the amount of compensation in damages which may be recovered which arises from a legal wrong.
Causation ensures that a defendant guilty of a legal wrong only pays for the loss for which they are legally responsible. The concept of causation is central to many insurance claims, most especially as it regulates the necessary link between an insured peril and the insured harm.
Define Contributory negligence
Contributory negligence refers to a plaintiff’s neglect of their own safety. It could reduce the plaintiff’s compensation if their negligence increased the chance of an incident occurring. Courts decide how much damage was caused by the policyholder’s actions, and payment of the policy could be denied.
Define normal vs abnormal losses
Normal losses (those arising in the usual course of things); and
Abnormal losses (those arising out of special circumstances).
Define Non-pecuniary loss
: Non-pecuniary damages are compensatory damages that cannot be quantified in monetary terms. They are sometimes called general, intangible or non-economic damages. This can be things such as pain and suffering, or loss of quality of life, or other things that cause the plaintiff pain but aren’t measurable in monetary terms.
Define a penalty
A penalty: A penalty has traditionally been defined as a clause designed as a threat to compel performance by penalizing the other for non-performance and as not amounting to genuine compensation because it was unrelated to the amount of the likely loss
i.e. not being a genuine pre-estimate of the likely loss or being ‘an exorbitant alternative to common law damages’. It followed that a liquidated damages clause was generally defined as a clause which represented a genuine attempt to pre-estimate the loss so that it was in line with the compensatory principle.
Define what an offeror and offeree are
Offeror - person making the offer
Offeree - person to whom the offers being made to
Define Agency
Agency is a legal relationship between an agent who is a person having the authority or capacity to create legal relations between a principal and third parties.
The agent is a person who has the authority to act on behalf of the principal and consents to do so. The relationship called ‘agency’ or ‘principal-agent relationship’ depends on the nature of the agreement and the circumstances.
If the substance of the agreement intends that the alleged agent act on his own behalf and not on the behalf of the principal then notwithstanding explicit language in the agreement describing the person as agent, the relation of agency will not have arisen. Conversely, an agency relationship may arise superseding a clause in an agreement that it shall not.
Define Actual authority (agency)
Actual authority is the most straightforward form of authority. According to a classic definition from Diplock LJ, it is a “legal relationship between principal and agent created by a consensual agreement to which they alone are parties.” Actual authority comes in two forms: express and implied. Crucially, both express and implied actual authority are binding.
Define Implied authority (agency)
Implied authority, is more nuanced, and is more likely to involve the concepts of “usages of the trade” or “the course of business.” Holding the job title of chief executive, for example, will naturally imply an authority to carry out certain transactions, unless explicitly stated otherwise.
Define Apparent or ostensible authority (agency)
Apparent or ostensible authority: If principal’s acts or words lead another to believe that he has appointed the agent to act on his behalf. Principal will generally be estopped from denying agent’s authority though in fact no agency really existed. The agent is said to have apparent or ostensible authority
