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Contract Admin > Exam Revision > Flashcards

Exam Revision Flashcards

1
Q

Explain the Separation of the Powers Doctrine?

A

The Commonwealth Constitution (CC) vests certain governmental powers in different institutions:

  • The power to make law is vested in Parliament (LP)
  • The power to interpret law is vested in the Judiciary (IJ)
  • The power to administer law is vested in the Executive (AE)
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2
Q

List the Australian Court Hierarchy (from a Victorian perspective) from highest to lowest level court

A
  1. The High Court
  2. The Supreme Court
  3. The County Court
  4. The Magistrates Court
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3
Q

What is an exclusion clause?

A

A clause in a contract that attempts too exclude liability for breach of contract or tortious liability

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4
Q

Parliament Passed Law

A

Statute Act or Legislation

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5
Q

Proposed Law

A

Bill

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6
Q

Delegated Legislation

A

Executive made law

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7
Q

Ratio Decidendi is

A
  • Judge’s reasons for his/her decision

- May be binding or persuasive on another court depending on circumstances

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8
Q

Obiter Dicta is

A
  • The other comments made by the judge

- Always persuasive

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9
Q

What are the case law rules?

A
  1. Lower courts are bound by decisions of higher courts
  2. Decisions of low courts are persuasive but not binding on higher courts.
  3. Decisions from other courts outside the state are merely persuasive.
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10
Q

Common Law facts

A
  • Inherited from England
  • Rules are not written down
  • Judges act as independent arbiters
  • Decision often occurs by Jury
  • Judges can make law
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11
Q

Civil Law Facts

A
  • Inherited from Roman Law
  • All law is written down
  • Judges tend to be investigators trying to establish facts of case
  • Described as ‘Inquisitorial’ rather than ‘adversarial’
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12
Q

What can VCAT do?

A
  • Order payment of money owed
  • Order performance of work
  • Order the return of goods
  • Declare a contract unfair
  • Dismiss an application
  • An injunction
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13
Q

Sole Trader

A
  • Business run by individual
  • Owner has all decision making power & liability
    ADVANTAGES:
  • Low cost, simple structure, full control, low tax if low profit, easy to wind up.
    DISADVANTAGES:
  • Individual liability, high profit = high tax, responsibility all on owner.
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14
Q

Partnership

A
  • Persons carrying on a business with a common view to make profit.
  • Requires writeen agreement outlining roles, responsibilities and benefits of each party.
    ADVANTAGES:
  • low cost, pooling of knowledge/skills, some tax benefits if family business
    DISADVANTAGES:
    -Relies on ongoing relationship, individuals are liable, if one partner leaves the business can be dissolved.
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15
Q

Company

A
  • Distinct legal entities registered by the Australian Securities & Investment Commision (ASIC)
  • Ownership is usually portioned out as shares.
  • Separation of ownership and management
  • Managed by a board of directors.
    ADVANTAGES:
  • Greater access to capital, tax on profits not income, shareholders not liable for business debts or legal liability, increased asset protection.
    DISADVANTAGES:
  • Requires registration, high cost to establish, lots of tax reporting requirements, heavily regulated, difficult to wind up.
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16
Q

Proprietary Companies (Pty)

A
  • Not publically listed
  • Have less than 50 shareholders
  • End with Pty Ltd
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17
Q

Public companies

A
  • Have shares freely available to public
  • Often ASX listed
  • Name ends with Ltd
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18
Q

What are types of contract?

A
  • Lump sum contracts
  • Schedule of Rates contracts
  • Cost Plus contracts
  • Design & Construct contracts
  • Management contracts
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19
Q

What is a contract?

A
  • An enforceable bargain between two parties.

- A written or spoken agreement, entered voluntarily into by two or more parties, that is enforceable by law.

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20
Q

What are the contract formation elements?

A
  • Offer
  • Acceptance
  • Consideration
  • Intention to be bound
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21
Q

What is an Offer?

A
  • An indication by one person to another of their willingness to enter into a contract on certain terms.
  • Must be clear
  • Determined by what a reasonable person would think
  • Will last untill accepted/ revoked or until after reasonable time has passed
  • Can be conditional requiring a certain sequence of events
  • Different from invitation to tender and invitation to treat.
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22
Q

What is an Invitation to Tender?

A

A call for competing offers for a project.

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23
Q

What is an Invitation to Treat?

A

A call for offers.

24
Q

What is Acceptance?

A
  • An unqualified assent to the terms of the offer
  • Cannot Agree to Agree
  • Can include conduct, oral, written or other communication & signed documentation.
  • Cannot be mere silence except if unilateral or it is expressly stated
25
Q

What is Consideration?

A
  • The price paid by one party for another party’s goods or services.
  • Requires some benefit/detriment between promisor and promisee.
  • Cannot be past consideration, something you are already legally obligated to do, something of unappreciable value.
26
Q

What is Intention?

A
  • Parties must have intended to create legally binding obligations
  • If commercial, there is a presumption of intention
  • If family arrangement there is a presumption against intention
27
Q

What is Enforceability?

A
  • Must have capacity
  • Terms must be certain
  • Must not be illegal
  • Formalities must be met
  • Vitiating Factors
28
Q

Express Terms

A
  • Anything expressly stated or written.

- Must be a promise

29
Q

Implied Terms

A
  • Can imply terms to fill gaps in express terms

- There is always an implied term of ‘Good Faith’

30
Q

Classifying Terms

A
  • Conditions are essential terms of the contract
  • Warranties are minor terms
  • Intermediate terms sit somewhere in between i.e building specs
31
Q

When can you terminate?

A 
- Agreement 
(We both agree to not build the house)
- Performance
(I built the house)
- Breach of Contract: only if breach is of a condition of contract
(I didn't build the house)
- Frustration
(The house burnt down)
-Repudiation
(I dont want to build your house)
32
Q

Remedies for Breach

A
  • Electing to continue with contract without legal claim
  • Claiming damages for loss as a result of breach
  • Claiming payment for work done (Quantum Meruit)
  • Asking a court to order specific performance of an obligation under contract.
33
Q

What is a Tort

A
  • A Tort is a civil wrong committed because someone failed to uphold a legally recognised duty to another
34
Q

What are the 4 elements of Negligence?

A
  1. A person must have OWED a DUTY OF CARE under law
  2. There must have been a BREACH of that duty
  3. The breach of duty must have caused reasonably foreseeable DAMAGE
  4. There must be NO DEFENCES
35
Q

When is Duty of Care owed?

A
  • In non professional circumstances it depends on the facts of a case.
    i. e vulnerability, position of control, assumption of responsibility & foreseeability of harm
  • In professional circumstances a duty is always owed
    i. e Employers owe a duty to employees, manufacturers owe a duty to consumers, professionals owe a duty to clients & a builder owes a duty to future house owners
36
Q

What is Trespass to Land?

A
  • Requires direct interference with another person’s land whether intentional or not.
    DEFENCES:
    -Implied licence, consent by owner & necessity.
37
Q

What is Private Nuisance?

A
  • Unreasonable interference
  • Interference with a persons use and enjoyment of their land due to physical damage
  • Interference with the exclusive use an d enjoyment of land as a result of discomfort or damage to a persons sensibilities.
    DEFENCES:
  • Authorised by Statute
  • Coming to the Nuisance
38
Q

Tort Remedies

A
  • Compensatory Damages: (fixing situation to be the same as if the wrong had not occurred)
  • Exemplary/Punitive Damages: (money awarded to punish and deter some action)
  • Injunction: (stopping someone doing an offending act)
  • Declaration: (court determining a tort has been committed)
39
Q

What is Occupiers Liability?

A
  • Establishes a duty by occupiers of a property to take reasonable care of entrants.
  • Only extends to dangers relating to the state of the premises.
40
Q

Who is an Occupier?

A

An occupier is a person who has a degree of control over a premises such that they can prevent injury to entrants
i.e. on a construction site the contractor is usually the occupier

41
Q

What is Vicarious Liability?

A
  • The liability for the actions of others

- Generally an employer is vicariously liable for an employee

42
Q

What the the 3 main forms of Dispute Avoidance Process Models?

A
  • Dispute Resolution Advisors
  • Dispute Review Boards
  • Dispute Adjudication Boards
43
Q

What are alternatives to dispute resolution?

A
  • Mediation
  • Conciliation
  • Commercial Arbitration
44
Q

What is Mediation?

A
  • Involves an impartial third party called a mediator assisting both parties to resolve a dispute
  • Costs are low and lawyers unnecessary
  • No final decision is made but negotiation is encouraged
45
Q

What is Conciliation?

A
  • Involves an independent third party meeting with each party separately
  • Differs from mediation as goal is to convince each party to make certain concessions to bring about an agreement
46
Q

What is Commercial Arbitration?

A
  • Most common form of ADR used in construction disputes
  • Involves both parties agreeing to have their dispute determined by an independent third party in a quasi-judicial hearing.
  • The decision is intended to be final and binding
47
Q

What is Litigation?

A
  • A civil action brought in court or binding tribunal (VCAT)
  • Usually requires some ADR process to have been exhausted before commencing litigation
  • Costly and unprectable
48
Q

What are the key elements of negligence?

A

Duty of Care owed, Breach of Duty, Material Damage, No Defences

49
Q

What is the role of Dispute Avoidance Processes (DAPS)?

A

Resolve disputes before they escalate

50
Q

What is the key difference between civil law and criminal law?

A

The consequences of being found liable

51
Q

What does the Parole Evidence Rule state?

A

If a contract is wholly in writing you cannot use oral evidence to prove what was promised.

52
Q

What is the key difference between Civil Law legal systems and Common Law legal systems?

A

In Common law legal systems juries often make the final decision.

53
Q

What does the “Privity of Contract Doctrine” state?

A

Liability and obligations in contract are limited to the contractual parties.

54
Q

What is the difference between a term and a representation in contract law?

A

A term is a promise to do something whilst a representation is a statement of fact

55
Q

What is proportionate liability?

A

A scheme intended to equally spread liability amongst wrong doers in tort.

Contract Admin (2 decks)

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