Definitions Flashcards
1
Q
Fundamental Rights
1.
2.
3.
A
- rights that every person has that cannot be taken away by anyone, e.g. government
- e.g. freedom of speech, religious freedom, right to equality
- constitutionally agree rights
2
Q
Freedom of Contract
1.
2.
3.
4.
5.
A
- everybody is free to conclude or not conclude a contract
- product of the contract itself is the contract
- guarantee in the constitution, art. 2 para 1 GG (general freedom of action)
- one of the fundamental rights in the Civil code, individuals are free to ec´xercise their free will without being restricted by the law
- freedom of scope
3
Q
Freedom of scope-
A
- freedom to determine the content of the contract
4
Q
How do parties conclude a contract?
1.
2.
3.
A
- we need two corresponding declarations of intent (in a sales contract called offer and acceptance)
- we need the parties intention to be bound, i.e. intention to enter into a legal relationship
- essentialia negotii: the most important contractual components, e.g.price, quality of item
5
Q
What are the essentialia negotii?
1.
2.
3.
A
- essential elements which must always be included in the contract
- for a sales contract: the object of purchase and the purchase price and the parties to the contract
- do not have to be expressly mentioned, suffiecient if they result from circumstances, e.g. by reference to a catalogue or prior negotiations
6
Q
What are obligations?
A
- its the rights and duties that parties face when entering a contract
7
Q
What are the duties arising from a contract?
1.
2.
3.
4.
A
- found in section 241 Civil Code
- main duties (typical obligations of a contract that characterise the type of contract, e.g. delivering the thing on time or paying the price - sales contract)
- secondary duties (other duties of the contract, esp. taking account of rights and interests)
- which obligation have to be fulfilled depends on type of contract
8
Q
What is a one-sided contract?
1.
2.
A
- when obligation only exists on the side of one of the contract party, e.g. donation and bail (=Kaution)
- opposite: mutual contract
9
Q
What is a mutual contract?
1.
2.
3.
4.
A
- most contract sare mutual
- party makes performance bcause other party makes perfromance, obligations depend on each other (do ut des)
- if one party does not perform the other party can claim the performance
- can be written or verbal
10
Q
What does Do ut Des mean?
1.
2.
A
- the party only makes a perfromacne because the ohter party makes a performance
- obligations depend on each other
11
Q
What is the Offer?
1.
2.
3.
A
- declaration of one party that he / she wants to enter into a contract, i.e. the declarant party must have the intention to be bound
- in a sales contract it is mostly the seller who makes the offer (can also be the buyer, though)
- in section 145: Any person who makes an offer to another to enter into a contract is bound by the offer, unless he has excluded being bound by it
12
Q
What is an Invitatio ad offerendum?
1.
2.
3.
A
- someone who has no intention to be bound but only wants to catch the attention of potential buyers, e.g. by oress announcements, or by an ad
- they thus do not make an offer but an I.a.O.
- the contract offer is made by the person who responds to the ad!
13
Q
what is Acceptance?
1.
2.
3.
4.
A
- the party to whom the offer is made accepts the offer by an own declaration of intent
- the acceptance must correspond to the offer
- it can be specified either explicitly (verbal or written approval - more straightforward) or implicitly (actions, e.g. accetpitng package)
- silence (=no reaction) is not an intention of will!
14
Q
What does Reception mean?
A
- it requires that the declaration has been placed in the sphere of control of the other party and that he/ she has the possibility to become aware of it
15
Q
What does effectiveness of a declaration of intent mean?
1.
2.
A
- section 130
- a declaration of intent which is made in the absence of
the other party becomes effective only once it has
been made and delivered to the addressee
