L03/4 Flashcards
What are the elements of a contract?
1.Offer (certainty of terms)
2.Consideration:
-Promise the supply and payment (cash for service or property).
-Perform or refrain from an act.
3.Intention to create legal relations.
4.Acceptance (voluntary/uncoerced).
What are the five ways of discharging/terminating a contract?
1.Performance- Successful completion of contract obligations.
2.Agreement- Both parties waive contractual obligations.
3.Frustration- Unpreventable occurrence beyond both parties control that prevents completion of contractual obligations.
4. Actual Breach - One party fails to fulfil the conditions of the contract.
5. Anticipatory Breach - Early termination where one party believes the other cannot fulfil their contractual obligations.
What does the term ‘conditions’ mean in relation to a contract?
Important term which goes to the roof of a contract, fundamental, a breach gives the injured party the right to repudiate the contract and sue for damages.
What does the term ‘warranties’ mean in relation to a contract?
Less essential, no right to repudiate but may sue for damages to cargo.
What does the term ‘innominate’ mean in relation to a contract?
Unclear if the condition or warranty may require a court to decide the outcome.
What are the four ways in resolving disputes?
1.Arbitration - Like a tribunal
2.Amicable - Out of court settlement.
3.Litigation - Court action.
4.Mediation - Neutral third party aids negotiation/settlement.
What is Arbitration?
The submission of a matter in dispute between contracting parties to a tribunal consisting of one or more independent arbitrators chosen by the parties.
What is Amicable?
-An out of court settlement used to resolve disputes of shipping contracts but the terms of the settlement should be agreed by both parties
-This method is a long more cost effective and less time consuming.
What is litigation?
Litigation is the process of taking a dispute to a court of law. When parties cannot agree between themselves about the fair and proper outcome of a dispute they will present their respective cases to a court for its judgment.
What is Mediation?
The submission by contracting parties of a matter in dispute to an independent neutral third party who can assist them in negotiating a settlement.
What are the main advantages of Arbitration over litigation?
- Convenience (court cases are more difficult to arrange)
- Faster to reach a settlement (court cases are relatively slow)
-The expert knowledge of arbitrators in the subject area.
-Lower costs.
-Little or no publicity in London arbitrations (but not the case in New York arbitrations).
What are the the three Chief Torts which are recognised by English law?
- Negligence.
- Strict liability.
- Vicarious liability.
What is Negligence?
A form of tort which evolved due to types of loss or damage that can occur between parties that have no contract between them, meaning legally there is nothing for one party to sue the other over.
What are the elements of negligence?
- The defendant owed them a duty of care.
- The defendant breached that duty of care.
- The defendant suffered loss or damages as a direct consequence of the breach.
What is strict liability?
A liability that’s imposed on a defendant without the requirement for the claimant to prove intent, negligence or even fault. If damage is done by the
defendant or his property, the defendant is liable.
What is Vicarious liability?
A liability that’s imposed on one person for the acts of another person, even though the person made liable is not personally at fault.
What is Possessory Lien?
When the carrier may keep possession of cargo to to account for unpaid freight, any unexpected general average charges and money spent in protecting the cargo in emergencies.
What is a Lien?
It is the right of a party to a contract to retain possession of another party’s property, either as security for the performance of an obligation under the contract, or to secure satisfaction of a claim.
