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SQE FLK 1 > Contracts > Flashcards

Contracts Flashcards

1
Q

What are the three basics requirements for a contract

A

Offer
Acceptance
Consideration

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2
Q

What type of contracts MUST be in writing

A

Guarantee
Sale of Land
Consumer Credit Transactions

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3
Q

What is a deed

A

Document that makes it clear on its face that it is a deed

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4
Q

Examples of deeds

A

Promise to make a gift (giving without consideration)

Conveyance of a land

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5
Q

Deeds must be

A

Executed in the presence of a witness

Delivered to be effective

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6
Q

Claim under a simple contract must be brought within…

A

6 years

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7
Q

Claim under a deed must be brought within…

A

12 years

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8
Q

The terms of the offer must be…

A

Definite and Certain

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9
Q

Does requesting information constitute an offer?

A

No

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10
Q

What is an invitation to treat?

A

Words or conduct to invite the other party to make an offer

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11
Q

What offers cannot be revoked?

A

Collateral contract was made
Unilateral contract where the offeree has began performance
Bilateral contract where the offeree has accepted the contract by beginning the performance

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12
Q

What is the effect of a counter offer?

A

The effect is a rejection of the original offer

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13
Q

How is an offer for a unilateral contract accepted?

A

completion of the requested act

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14
Q

Postal rule

A

acceptance by post creates a contract at the moment of posting (letter is properly addressed and stamped) - unless otherwise stated by offer

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15
Q

What is a consideration?

A

Act or forbearance
or
A promise to act or forbear

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16
Q

What is an illusory consideration?

A

consideration offered has no value

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17
Q

When is a promise to accept part of a debt valid?

A

Debt was disputed in good faith
Claim was unliquidated (uncertain)
Payment is at a different place or time or by different means
A composition of creditors

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18
Q

For promissory estoppel to apply…

A

there must be a promise not to rely on existing legal rights,
promisee must have detrimentally relied on the promise by altering their position
it would be inequitable for the promisor to go back on their promise

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19
Q

What is a representation?

A

A statement which induces someone to enter a contract

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20
Q

What is a term?

A

A statement of law or fact which is part of the contract

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21
Q

What are the types of contract terms?

A

Warranties or conditions
Express or implied

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22
Q

What is a condition?

A

Term that is so fundamental
It goes to the root of the contract

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23
Q

Remedy for breach of condition?

A

Termination + Damages

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24
Q

What is a warranty?

A

a term that is incidental or collateral to the main terms

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25
Q

Remedy for breach of warranty?

A

Damages

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26
Q

What is an innominate term?

A

not clear whether the term is a condition or warranty

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27
Q

What is the Parol Evidence Rule

A

External evidence cannot add to, subtract from, contradict or vary the terms of a written contract

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28
Q

What are the implications of the Sale of Goods Act 1979

A

Seller has right to sell goods
Goods match the description applied by the seller
Goods are of satisfactory quality
Goods are fit for any special purpose
The condition of title cannot be excluded

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29
Q

Exclusions of the implication of the Sale of Goods Act 1979 and the Supply of Goods and Services 1982 must be…

A

Reasonable

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30
Q

What are the implications of the Supply of Goods and Services Act 1982?

A

An innominate term - the supplier will carry out the services in a reasonable time and with reasonable skill and care

similar implications to the SGA 1979

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31
Q

The implications of Consumer Rights Act 2015

A

Seller has title
Goods comply with description
Quality
Fitness for purpose

32
Q

Can the terms under the CRA 2015 be excluded or limited?

A

Not at all

33
Q

When will a court imply a term into a contract?

A

Only when it is necessary to give the contract business efficacy

34
Q

What is a defence against an exclusion clause?

A

An oral misrepresentation

35
Q

What is the defence of non est factum?

A

The party can show they had no understanding of the contract they signed and there is a fundamental difference between what they thought they signed and what they actually signed

36
Q

Exclusion clauses can be incorporated by notice if….

A

the party relying on it took reasonable steps to bring it to the other party before or while the contract was being made

37
Q

What is the contra proferentem rule?

A

An ambiguous exclusion clause is interpreted against the party seeking to rely on it

38
Q

What clauses are void under the Unfair Contract Terms Act 1977

A

Exclusion of liability for death caused by negligence
Exclusion of liability for breach of condition of title

39
Q

What clauses are void under the Unfair Contract Terms Act 1977 UNLESS reasonable

A

Exclusion of liability for loss caused by negligence
Exclusion of liability for obligation of compliance with description, quality, or fitness

40
Q

When is a term unfair under the CRA 2015?

A

If the term is contrary to good faith or causes significant imbalance

41
Q

What is a common/identical mistake?

A

Both parties made the same mistake

42
Q

What is a mutual mistake?

A

Parties are mutually and reasonably mistaken about different things - the agreement was ambiguous

43
Q

When does a unilateral mistake make the contract void?

A

If the other party was aware of the mistake

44
Q

What are examples of voidable contracts?

A

Contract in reliance on a misrepresentation

Contracts entered into by minors (other than necessities)

Duress

Undue influence

45
Q

Undue influence is presumed in the following cases:

A

parent and child
solicitor and client
guardian and ward
medical adviser and patient

46
Q

What is rectification?

A

The court will allow the written contract to reflect the oral agreement where the written contract mistakenly does not reflect the oral agreement

47
Q

Silence can be actionable misstatement if…

A

Contracts uberrimae fidei (utmost good faith)

Partial disclosure is misleading

Earlier representation has become untrue

48
Q

What are the types of misrepresentation?

A

Fraudulent misrepresentation

Negligent misrepresentation

Innocent misrepresentation

49
Q

What are the remedies for misrepresentation?

A

Contracts are voidable - innocent party may rescind the contract or seek damages

50
Q

Rescission is not available if…

A

Affirmation

IP waits so long that the other party would be harmed

impossibility to restore parties to their pre-contract positions

bona fide third-party purchaser has gained rights

51
Q

Damages for fraudulent misrepresentation

A

if IP can prove it was fraudulent

52
Q

Damages for negligent misrepresentation

A

If other party cannot disprove negligence

53
Q

When does a judge grant damages in lieu of rescission

A

for innocent and negligent misrepresentation

54
Q

Measure for damages for misrepresentation

A

losses incurred as a result of entering into the contract + incidental expenditure

55
Q

Measure for damages for breach

A

seeking to put the IP in the position they would have been in had the contract been performed as promised

56
Q

What is a discharge of the contract?

A

terminating the remaining duties of the parties under the contract

accrued rights remain in place

57
Q

What is a waiver?

A

a promise not to enforce the other party’s obligations - the waiving party has the right to reinstate the original obligation by giving a reasonable notice unless the other party determinately relied on the waiver

58
Q

What is frustration?

A

a contract is discharge if after the contract is made an event occurs that makes performance as originally agreed with impossible or radically different

59
Q

Frustration for radically different performance requires that…

A

the difference is fundamental to the contract

AND

Has not been considered by the parties when they made their contract

60
Q

Rules of frustration do not apply to contracts of…

A

insurance contracts

and

contracts including a force majeure clause

61
Q

What is the purpose of damages?

A

TO put the IP in the position in which they would have been in if the contract had been performed

62
Q

A party that has suffered no damages may recover only…

A

nominal damages

63
Q

What are the types of damages?

A

Expectation damages / loss of bargain

Reliance damages

Nominal damages

64
Q

What is an example of damages for injury to feelings?

A

contract where the sole purpose was enjoyment - the provision of a holiday

65
Q

When is the duty to mitigate not applicable?

A

claim for a debt

66
Q

What is a liquidated damages clause?

A

allows an innocent party to recover a specified amount for breach of contract without having to prove their loss

67
Q

When is a liquidated damages clause not enforceable

A

when the value amounts to a penalty

68
Q

What is an indmenity

A

promise to accept responsibility if someone else does not perform an obligation or a promise to make good all the other party’s losses arising from a breach of contract

69
Q

What is a guarantee

A

a promise to perform an obligation instead of the person in the primary contract

  • in writing
  • if obligations under the primary contract are discharged, it will cease
70
Q

When is specific performance order granted?

A

When money damages are inadequate

71
Q

When is specific performance order not granted?

A

When it would cause undue hardship

person relying was unreasonable in delaying the remedy

72
Q

Additional rights granted by the CRA 2015?

A

Right to reject defective goods within 30 days from supply

right to require the trader to repair or replace item at trader’s expense

right to require the trade to reduce the price, or right to reject the goods in return for a refund

73
Q

What is a restitution?

A

sought to prevent unjust enrichment

74
Q

Quantum meruit

A

restitution in relation to services - monetary award

75
Q

Quantum valebat

A

restitution in relation to goods - reasonable payment for the value of goods

SQE FLK 1 (7 decks)

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