Dispute Resolution - Flashcards Full Deck
What is the first requirement for a contract?
An agreement between parties who intended to be legally bound (includes an offer and an acceptance).
What is an “offer” in contract law?
A clear proposal made by one party to another, indicating a willingness to enter into a contract on specific terms.
What is “acceptance” in contract law?
An unequivocal agreement to the terms of the offer, communicated to the offeror.
What is the second requirement for a contract?
Consideration (something of legal value exchanged between the parties).
What is “consideration”?
The value that is exchanged in a contract, which can be money, services, or a promise to do (or not do) something.
What is a requirement for executing a deed?
A deed must be executed in the presence of a witness.
How must a deed be made effective?
A deed must be delivered to be effective.
Is a promise to make a gift enforceable?
Yes, a promise to make a gift is enforceable if made by deed.
How must land be conveyed?
A conveyance of land must be by deed.
What is the limitation period for a simple contract claim?
A claim under a simple contract must be brought within 6 years.
When does the limitation period for a contract claim start?
It runs from the accrual date (when the breach occurs).
What is the limitation period for a contract by deed?
A claim under a contract by deed must be brought within 12 years.
What is the limitation period for a tort claim?
A claim under tort must be brought within 6 years from the time the action accrued.
When does the limitation period for a tort claim start if not readily apparent?
It starts 6 years from when the claimant gained knowledge of the tort.
What is the limitation period for personal injury claims?
The limitation period is 3 years from accrual or knowledge of the injury.
What if the victim of a tort dies within 3 years of accrual?
The limitation period is 3 years from the date of death or from when the deceased’s personal representative gained knowledge of the tort.
What are the key components required for a contractual agreement?
An offer and acceptance.
What must an offer express to be considered valid?
An intent to be bound in a contract if accepted by the other party.
How must the terms of an offer be for it to be enforceable?
The terms must be definite and certain enough for a court to enforce.
What must the offeree have to accept an offer?
The offeree must have knowledge of the offer.
What is not considered an offer?
A statement made to request information.
What are invitations to treat?
Words or conduct that invite another party to make an offer.
When can an offeror revoke their offer?
An offeror can revoke most offers at any time before acceptance.
When cannot an offer be revoked?
If a collateral contract exists, if it’s a unilateral contract and performance has begun, or if it’s a bilateral contract with performance begun.
How can an offeree terminate an offer?
By expressly rejecting it or by impliedly rejecting it through failure to accept in a reasonable time.
What happens to an offer by operation of law?
It terminates if the offeror or offeree dies, the subject matter is destroyed, or if a condition isn’t met.
Who can accept an offer?
Usually, only the offeree to whom the offer is made.
How must acceptance be communicated?
Unless specified, any method of acceptance no less advantageous is valid; silence usually is not acceptance.
When is a unilateral contract accepted?
Not until completion of the requested act.
What is the postal rule?
Acceptance by post creates a contract at the moment of posting, unless conditions about addressing or receipt apply.
What controls in a battle of the forms situation?
Usually, the last set of terms that were not objected to controls.
What is required for a party to have capacity to contract?
A party must have legal capacity, meaning they are of legal age and mentally competent.
What is the status of a contract entered by a minor (under 18)?
It is voidable by the minor; they can enforce it but cannot be bound unless ratified upon turning 18.
When are minors bound by a contract?
When they enter a contract for necessary goods or services at a reasonable price.
Can minors enter employment contracts?
Yes, minors can enter into employment contracts.
What happens if a person without mental capacity enters a contract?
The contract is voidable by that person if the other party knew of their lack of capacity.
Are contracts for necessities binding for those without mental capacity?
Yes, contracts for necessities at a reasonable price are binding even if entered by someone lacking capacity.
What is required for a promise to be enforceable in a contract?
Each party must give consideration to make the other party’s promise enforceable.
What is consideration?
An act or forbearance from acting, or a promise to act or forbear.
What is executory consideration?
Consideration that is promised for the future; once performed, it becomes executed consideration.
How must consideration be valued?
It must have some value, but the courts are not concerned with whether it is adequate or equivalent.
What happens if consideration has no value?
It is considered illusory.
Is a promise to perform an existing duty valid consideration?
No, but if something additional is offered (e.g., finishing early), there is valid consideration.
Is a promise to perform a statutory duty valid consideration?
No, it is not valid consideration.
What is past consideration and is it valid?
Acts performed in the past before the promise are not valid consideration, except if payment was understood to be due.
Is a promise to accept part of a debt as full payment enforceable?
No, it is not enforceable for lack of valid consideration.
What are express terms?
Terms that are intended to be binding and incorporated into the contract.
How can express terms be incorporated into a contract?
- Signed written contract (binding even if unread).
- Incorporation by notice (reasonable steps to bring terms to attention).
- Incorporation by consistent and regular course of dealing.
What is the effect of signing a written contract?
It makes the express terms binding, even if the signer has not read the document.
What is incorporation by notice?
Reasonable steps must be taken to ensure the party is aware of the terms.
What does “consistent and regular course of dealing” mean?
Terms can be incorporated if parties have a history of dealing in a consistent manner that includes those terms.
What does the Sale of Goods Act 1979 apply to?
It applies whenever goods are sold.
What condition must the seller meet regarding ownership?
The seller has the right to sell the goods.
What does the seller guarantee about the description of the goods?
The goods must match any description applied by the seller.
What is meant by “satisfactory quality”?
Goods must be of satisfactory quality, meaning they are fit for the purpose for which they are used.
What is the requirement regarding special purposes?
The goods must be fit for any special purpose that the buyer tells the seller they will be used for.
Can the condition of title be excluded?
No, the condition of title cannot be excluded.
Can other implied conditions be excluded?
Yes, but whether they can be excluded depends on whether the exclusion was reasonable.
What does the Supply of Goods and Services Act 1982 apply to?
It generally applies to contracts for services supplied by a business and to goods supplied in relation to the service.
What type of term is implied in service contracts under the Act?
An innominate term is implied, meaning the remedy for breach depends on the impact of the breach.
What is required from suppliers in relation to service contracts?
Suppliers must carry out the service in a reasonable time and with reasonable care and skill.
What terms are implied regarding the supply of goods?
Terms similar to those implied under the Sale of Goods Act are applied.
Can implied terms under the Act be excluded?
Yes, but a contract may only exclude these implied terms if the exclusion is reasonable.
What does the Consumer Rights Act 2015 apply to?
It implies terms into sales contracts between a trader and a consumer, similar to those under the Supply of Goods Act.
What seller obligations are implied under the CRA regarding goods?
The seller has title, goods comply with description, quality, and fitness for purpose.
What terms are implied for service contracts under the CRA?
Services must be carried out with reasonable care and skill, completed according to consumer-reliant information, for a reasonable price, and within a reasonable timeframe.
Can terms implied by the CRA be excluded or limited?
No, the terms implied by the CRA cannot be excluded or limited.
When will a court imply a term into a contract?
If it is necessary to give the contract business efficacy.
How can terms be implied based on industry practices?
Terms may be implied based on custom and usage in the industry or market standard for the relevant field.
What else can lead to implied terms in a contract?
Terms may also be implied based on a regular and consistent course of dealings between the parties.
What happens if a contract is too vague or incomplete?
If a contract is so vague that a court cannot determine the parties’ intentions, the court will not enforce it.
Can a court enforce a contract if part of it is uncertain?
Yes, the court may sever the uncertain part and enforce the rest of the contract if it doesn’t affect the whole.
How can exclusion clauses be incorporated into a contract?
- Expressly in a signed contract.
- By notice if reasonable steps were taken to bring it to attention.
Can exclusion clauses be implied?
Yes, if there is an industry custom or a regular and consistent course of dealings that includes the exclusion.
What must an exclusion clause do to be enforceable?
It must clearly and unambiguously cover the loss suffered.
What does the Unfair Contract Terms Act 1977 say about exclusion clauses?
It voids clauses that:
1. Exclude liability for death caused by negligence.
2. Exclude liability for breach of title.
3. Exclude liability for breach of description, quality, or fitness for purpose.
What is the purpose of damages in a breach of contract?
To put the innocent party in the position they would have been in if the contract had been performed properly.
What are expectation/loss of bargain damages?
Damages designed to put the nonbreaching party in the position they would be in if the contract had been performed.
What are reliance damages?
Damages that compensate the nonbreaching party for expenses incurred in reliance on the contract up to the time of the breach.
What are nominal damages?
Damages awarded when no loss has occurred as a result of the breach, typically amounting to £1.
What constitutes negligence?
When a person owes a duty of care to another, breaches that duty, and the breach causes damage.
When are damages not recoverable in a negligence claim?
If the harm suffered was not within the scope of the duty of care, damages are not recoverable.
What is the standard of care in negligence?
A duty to act with reasonable care, assessed objectively by considering the likelihood and seriousness of harm.
What special duties apply to skilled defendants and professionals?
They must act as a reasonably competent member of their profession would.
What are the components of causation in negligence?
1) Breach caused harm, 2) No new act intervened, 3) Harm was reasonably foreseeable (egg shell skull doctrine).
What is contributory negligence?
A partial defense where the claimant’s own negligence contributed to their injury.
What is voluntary assumption of risk?
A complete defense where the claimant knowingly and voluntarily assumes the risk of harm.
What is the goal of damages in tort?
To put the injured party in the position they would have been in had the tort not occurred.
What duty do tort victims have regarding their losses?
They have a duty to mitigate their loss to avoid avoidable damages.
What are recoverable pecuniary losses for a living claimant?
1) Loss of past income, 2) Loss of future income, 3) Past and future medical treatment expenses, costs of care, necessary equipment, or modifications.
What are recoverable non-pecuniary losses?
Past and future pain and suffering and loss of amenity.
