Introduction Flashcards
Private law may be invoked in the resolution of disputes between persons.
First, in the process of negotiation. Ultimately, in the civil courts. Role: uphold rights and enforce duties (by court order).
4 Categories of Private Law: Persons
Refer to rights and duties arising from status.
Example: rights between parent and child.
4 Categories of Private Law: Property
Refer to rights in ‘things’ (property rights).
Example: ownership; rights in security.
4 Categories of Private Law: Obligation
Refer to rights against other persons (personal rights).
Example: a debt; right to damages for breach of contract.
4 Categories of Private Law: Action
Refer to rules of evidence and procedure.
Example: admissibility of evidence; remedies.
Law of Obligations
Voluntary obligations: arise from contract or promise.
Involuntary obligations: Are imposed by law (e.g., unjustified enrichment, delict).
Nature of Obligations: Contract
The obligation is to pay or perform.
Nature of Obligations: Promise
The obligation is to carry out the terms of the promise.
Nature of Obligations: Unjustified Enrichment
The obligation is to restore the benefit that has been transferred.
Nature of Obligations: Delict
The obligation is to make reparation for harm wrongfully caused.
Unilateral Obligation
Where one party is indebted to the other.
Contractual Obligation
Normally bilateral: both parties are indebted to each other.
General Principles of Scots Law of Contract
Applicable to all contract types:
1. Formation
2. Defective agreements
3. Contractual terms
4. Breach of contract
5. Remedies.
Why do we need a law of contract?
- Facilitates trade
- Underpins transactions
- Protects against abuse of power (e.g., consumer contracts).
Difference between Scots and English Contract Law
Scots Law: has the doctrine of promise.
English Law: has the doctrine of consideration.
What questions do we need to ask about a contract?
- Is there a contract?
- What is in the contract?
- Can it be enforced?
- Can a person ‘get out’ of the contract?
- When will it come to an end?
Principal Remedies in a Contract
- Declaration
- Payment
- Specific implement
- Interdict
- Damages.
Formation of a Contract: What is required?
Agreement on the same thing (consensus in idem):
- Nature of the contract
- Subject(s) of the contract
- Price or consideration.
Consensus in Scots Law
- Viewed objectively
- No consensus = no contract
- Performance may affect the outcome.
Consensus Case: Muirhead and Turnbull v Dickson (1905)
Court focuses on what was said, not intended:
“Commercial contracts are arranged by what people say.” — LP Dunedin.
Consensus Case: Mathieson Gee v Quigley (1952)
No clear offer and acceptance:
- Disagreement on who would perform excavation
- No binding contract formed.
When is a statement an offer?
When its terms clearly indicate the offeror’s intention to be bound upon acceptance.
Invitation to Treat
Not an offer:
- Must be followed by an offer to form a contract.
When does an offer lapse?
- Rejected or met by a counter-offer
- Revoked by the offeror
- Not accepted in time.
