Eval Flashcards

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1
Q

Pretty v UK - cannot consent to murder

A

Rigid- does not take into account circum where may have low quality of life
Unfair- goes against common sense for suicide to be legal but when assisted by others when you can’t end your life yourself then it is unlawful
Certain- clear rule without exceptions other than medical reasons
Good policy decision- law may be open to abuse and coerced consent may be an issue, may be a dangerous law as death is irreversible

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2
Q

Brown & others- usually cannot consent to S47 & S20 GBH & Wounding
Wilson- personal adornment is an exception

A

Unfair- branding with a hot iron as in Wilson (led to hospitalisation) deemed acceptable whereas Brown none needed medical attention (goes against common sense
Uncertain- usually not being able to consent to crimes in Brown is vague
Flexible- can take circum/purpose into account to see whether V can consent to causing harm (like loving branding in Wilson) can cause justice

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3
Q

Aitken- D’s drunken and mistaken belief in consent to horseplay can still be a defence

A

Unfair- goes against common sense as there is no genuine consent and this is valid
Dangerous/bad policy- excuses drunk dangerous behaviour against one’s will (set fire to them and serious injuries)
Flexible- taking into account circum where D does not have bad intent and genuinely believes in consent allows flexibility to create no injustice to D
- hard to prove so may be effective

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4
Q

Intoxicated mistakes often are allowed for property offences like theft but not for very minor offences against the person like battery

A

Uncertain- confusing rule for the public very unsure of how intoxicated exceptions work in the law of consent as they are very inconsistent
Flexible- these exceptions leave room for justice as property offences can be deemed less significant impact on others so may be less anti social

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5
Q

S76 (6A) Criminal Justice & Immigration Act 2008- D does not have to retreat but if D has opportunity to do so, jury are more likely to decide force used not necessary

A

Uncertain- hard for jury to decide how important retreat is to determine if force was necessary
Flexible- can take case facts into account to see how reasonable it was for D to retreat which means just decisions

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6
Q

O’Grady- drunken mistakes cannot be used
Other areas of law (consent horseplay) drunken mistakes can be used
Intoxication to murder

A

Uncertain- inconsistency through other areas of law where intoxication can’t be used in self defence but can be used as defence to murder if negated MR
Policy decision- means public have to be extra careful when calculating if using force is needed to protect themselves

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7
Q

Clegg- excessive force is not self defence

A

Rigid- cannot take into account case facts or lesser of two evils (cannot use judicial creativity to step in to create justice)
injustice to those in defensive areas of work who are often put on those situations
Stricter rules Prevents people abusing the law or killing out of revenge as in Hussain
Respects separation of powers- said decision would have to be made by P to allow this

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8
Q

S76 (5A) CJ & IA 2008- householder cases as long as force not grossly disproportionate in circum D believed them to be

A

Flexible- takes into account circumstances of own home being invaded and allows room for more defence to be used to adapt to this
Subjective- in circum as D believed that and flexible rule of only not needing to be grossly disproportionate is dangerous- can lead to unjust killing and injustice to V

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9
Q

D allowed to make honest mistakes & allowed pre emptied strike

A

Gives easy excuse for D to instigate violence when nothing threatening had been done to them (unreasonable violence to V)
- Jury must honestly believe D thought there was a threat so may be fair that D not punished for doing what they felt they had to

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10
Q

ICLR: Sadler v Reynolds

A
  • Presumptions create certainty as the parties have an idea how the courts will interpret their contract (makes sense as may be more formal/informal) fair
  • unclear how commercial/social agreements differentiate from eachother in cases like this so uncertain which presumption will apply
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11
Q

ICLR: All presumptions can be rebutted like in Simpkins v Pays- no family connection and small sum of money meant a social agreement was binding

A
  • injustice can be avoided by taking into account specific case facts and be flexible towards this
  • type of agreement does not make parties certain and does not really determine if binding
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12
Q

ICLR: Rose & Frank v Crompton Bros

Jones v Vernon’s Pools

A
  • Rose & Frank respects freedom of contract as although presumption is commercial agreements are binding, courts accepted and respected parties’ wishes not to be binding as clearly stated
  • Jones, inequality of bargaining power as the same applies to B2C contracts where consumers may be unaware it’s not binding and so weaker parties are not protected
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13
Q

ICLR: Esso v CCE

Jones v Vernon’s Pools

A
  • protects weaker parties from being exploited by false promises, justice, flexible
  • rules when companies don’t want to be bound are inconsistent and so parties cannot be certain if they will be bound by their promises
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14
Q

Probity: General rule

A
  • certainty and easy to see who has rights in a contract (either party gives consideration or does not)
  • sticking to this rigidly could create injustices where 3rd parties deserve rights like in Jackson v Horizon
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15
Q

Probity: 4 common law exceptions

A
  • creating broad exceptions creates flexible law which achieves justice
  • uncertain as much less clear which 3rd parties can sue which makes more long and complex cases using the taxpayers money
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16
Q

Privity : S1(1)(a) S1(1)(b)

A
  • respects freedom of contract and created certainty as applies exactly what is written in contracts and allows parties control
  • (b) includes third parties not specified in the contract which is uncertain and limits freedom of contract (parties ability to choose
17
Q

Privity: S1(1)(b) S1(2)

A
  • creates certainty in that parties can choose to exclude anyone and have a lot of power in choosing this
  • can create very unfair situations where third parties who obviously deserve rights to sue could be excluded and uncertain which rule would apply
18
Q

O&A- Adams v Lindsell

A

✅- certain, moment of acceptance very clear for offeree & not affected by factors out of offeree’s control
❎- uncertain- offeror unaware they are in contract until letter arrives so unfair
exceptions like Holwell v Hughes & specific circum it only applies in

19
Q

O&A- Holwell v Hughes

A

❎- uncertain, postal rule won’t always apply
✅- allows f.o.c to allow offeror to specify needing offeree to give written notice- flexible as there are exceptions to postal rule (allowing parties power of how contract dealt with)

20
Q

O&A- Entores

A

✅- certain acceptance cannot he made without offeror receiving which means offeror is certain of when they can revoke- makes sense
❎- uncertain- unclear what constitutes as ‘received’- able to access/seen or heard?

21
Q

O&A- Brinkibon

A

✅- f.o.c takes into account intentions of parties and flexible as takes each case’s facts into account (justice)
❎- uncertain- especially if businesses don’t have standardised business hours, figuring out parties intent can be subjective and uncertain

22
Q

Consideration: Thomas v Thomas

A

✅- certain things of value can always be consideration
✅- f.o.c parties free to choose even if unequal
❎- inequality of bargaining power- may allow weaker parties to be exploited into giving up disproportionate consideration

23
Q

Consideration: White v Bluett/Lord Denning Ward v Byham

A

❎- uncertain if contract will be binding when affection is consideration as contrasting decisions to be followed
✅- most likely an isolated decision for a specific case which creates justice and shows flexibility

24
Q

Consideration: Williams v Roffey

A

❎- uncertain if consideration will be valid when it’s tricky to decide if it’s directly worth anything
✅- f.o.c to make deals even with consideration that doesn’t have obvious value

25
Q

Consideration: Promissory Estoppel (debtee expected to give up value to Debtor in exchange for nothing)

A

✅- undermines entire concept

❎- can be justified as it’s grounded in equity & fairness

26
Q

O&A Dickenson v Dodds

A

❎ unclear who counts as reliable third party so unclear when offer is successfully revoked
✅ in big businesses, unrealistic to expect same individual to revoke offers made and stops rigidity