contracts Flashcards
what are contracts?
a legally binding agreement that will be enforced by the law
what is the content of a contract
obligations between parties. failure to perform these obligations, gives the right to a remedy.
what does the supply chain consist of?
supplier, distributer, manufacturer, retailer, logistics and consumer
private law is within the area of…
national law
private law covers
law of persons (family law, company law),and law of obligation (contract tort and property)
contract law consists of:
private regulations, contractual liability, person better-off with enforcement of promise,private parties(claiment vs respondent), obligations fixed by parties to the contract, succesful claim is a remedy for the person complaining
tort law consists of:
private regulations, extra-contractual liability, places parties in position they were before, private parties (claimentvs respondent), obligations fixed by law, and succesful claim is a remedy for the person complaining
types of parties within agreements
business to business, business to consumer and consumer to consumer
reasons for performance
- promise in exchange for a promise, bilateral contract, e.g. the sale of a bike
- a promise in exchange for an act, unilateral contract, e.g. reward for information about a criminal
types of performance
marriage, employment contracts, insurance, intellectual property, etc.
party agreement
Standard form contracts, General terms
formal sources of law
- National law (e.g. civil/common law)
- Default rules, facilitative rules, mandatory rules
- Regional Law (e.g. EU law)
- International Law (e.g. CISG)
informal sources of law
- Non-state organizations
- Academics
- Non-binding soft law
- e.g. Principles, Restatements, DFCR
meaning of freedom within contracts
- The autonomy of parties to make the choices they desire in contracting
- On Whatever terms (Freedom with regard to content)
- Whenever desired (Freedom to contract or not to contract)
- With Whomever (Freedom to choose the other party)
- BUT there are limits!
Binding Force meaning
- Agreements lawfully entered into by parties, have the force of law between the parties.
- Binding (i.e. there will be a consequence if the contract is breached)
- Party in default MUST compensate the party not in breach
- UNLESS terms are deemed unfair or prohibited by law
Informality
- Contracts do not require any particular form.
- HOWEVER a particular may form be required by law for certain contacts to be valid
Contractual fairness
procedural fairness within a contract.
procedural fairness
- unequal position between the parties is remedied
- NOT Substantive fairness
Substantive fairness
The contents of the contract is up to the parties even if to anybody else the contract seems to be a ‘bad contract
contract formation
offer, acceptance, intention, formality, capacity, lack of vitiating factor
Concensus ad idem
To have the same understanding of the terms of the agreement.
Mutual Assent
− A contract is an agreement between parties
− This agreement is evidence of consensus ad idem (agreement as to the same thing)
− The promisor makes the offer (also known as the offeror)
− The promisee is the person to whom offer is made (also known as the offeree)
− Acceptance of offer creates an agreement, which if legally enforceable is a contract
Effect of making the promise
Undertaking that certain state of affairs exists − Undertaking that something shall happen or not happen in the future − Failure (of the promisor to do or refrain from doing the action promised) = a breach − Breach creates legal right to remedy
Definition of an ‘obligatory agreement
An agreement in the sense of this Section is a more-sided (multilateral) juridical act under which one or more parties have subjected themselves to an obligation towards one or more other parties.
Definition of ‘juridical act’
- A juridical act requires the will (intention) of the acting person to establish a specific legal effect, which will (intention) has to be expressed through a statement of the acting person.
