Introduction

Question 1

Private law may be invoked in the resolution of disputes between persons.

Answer 1

First, in the process of negotiation. Ultimately, in the civil courts. Role: uphold rights and enforce duties (by court order).

Question 2

4 Categories of Private Law: Persons

Answer 2

Refer to rights and duties arising from status.

Example: rights between parent and child.

Question 3

4 Categories of Private Law: Property

Answer 3

Refer to rights in ‘things’ (property rights).

Example: ownership; rights in security.

Question 4

4 Categories of Private Law: Obligation

Answer 4

Refer to rights against other persons (personal rights).

Example: a debt; right to damages for breach of contract.

Question 5

4 Categories of Private Law: Action

Answer 5

Refer to rules of evidence and procedure.

Example: admissibility of evidence; remedies.

Question 6

Law of Obligations

Answer 6

Voluntary obligations: arise from contract or promise.
Involuntary obligations: Are imposed by law (e.g., unjustified enrichment, delict).

Question 7

Nature of Obligations: Contract

Answer 7

The obligation is to pay or perform.

Question 8

Nature of Obligations: Promise

Answer 8

The obligation is to carry out the terms of the promise.

Question 9

Nature of Obligations: Unjustified Enrichment

Answer 9

The obligation is to restore the benefit that has been transferred.

Question 10

Nature of Obligations: Delict

Answer 10

The obligation is to make reparation for harm wrongfully caused.

Question 11

Unilateral Obligation

Answer 11

Where one party is indebted to the other.

Question 12

Contractual Obligation

Answer 12

Normally bilateral: both parties are indebted to each other.

Question 13

General Principles of Scots Law of Contract

Answer 13

Applicable to all contract types:
1. Formation
2. Defective agreements
3. Contractual terms
4. Breach of contract
5. Remedies.

Question 14

Why do we need a law of contract?

Answer 14

• Facilitates trade
• Underpins transactions
• Protects against abuse of power (e.g., consumer contracts).

Question 15

Difference between Scots and English Contract Law

Answer 15

Scots Law: has the doctrine of promise.
English Law: has the doctrine of consideration.

Question 16

What questions do we need to ask about a contract?

Answer 16

1. Is there a contract?
2. What is in the contract?
3. Can it be enforced?
4. Can a person ‘get out’ of the contract?
5. When will it come to an end?

Question 17

Principal Remedies in a Contract

Answer 17

1. Declaration
2. Payment
3. Specific implement
4. Interdict
5. Damages.

Question 18

Formation of a Contract: What is required?

Answer 18

Agreement on the same thing (consensus in idem):
- Nature of the contract
- Subject(s) of the contract
- Price or consideration.

Question 19

Consensus in Scots Law

Answer 19

• Viewed objectively
• No consensus = no contract
• Performance may affect the outcome.

Question 20

Consensus Case: Muirhead and Turnbull v Dickson (1905)

Answer 20

Court focuses on what was said, not intended:
“Commercial contracts are arranged by what people say.” — LP Dunedin.

Question 21

Consensus Case: Mathieson Gee v Quigley (1952)

Answer 21

No clear offer and acceptance:
- Disagreement on who would perform excavation
- No binding contract formed.

Question 22

When is a statement an offer?

Answer 22

When its terms clearly indicate the offeror’s intention to be bound upon acceptance.

Question 23

Invitation to Treat

Answer 23

Not an offer:
- Must be followed by an offer to form a contract.

Question 24

When does an offer lapse?

Answer 24

1. Rejected or met by a counter-offer
2. Revoked by the offeror
3. Not accepted in time.

Question 25

Acceptance in Scots Law

Answer 25

• Converts an offer into a contract
• May be express or implied by action
• Cannot be by silence unless specified.

Question 26

Postal Acceptance Rule

Answer 26

• Acceptance effective on posting
• Revocation effective only upon receipt.

Question 27

Difference: Contract vs Promise

Answer 27

Contract: Requires agreement and acceptance
Promise: Unilateral, no acceptance needed but may be rejected.

Question 28

What is a Promise?

Answer 28

Unilateral obligation that is binding once communicated:
- Must show intent to be bound.