law Flashcards
Relative rights
have effect only between people in special relation
The conditions for liability of its auxiliary person L
- the obligor calls on an auxiliary person,
- the auxiliary person violates a contractual obligation (i.e., causes damage),
- the damage occurs in the course of fulfilling the obligor’s obligation (functional connection),
and - the obligor could be held liable for the violation of the contractual obligation had they acted
themself (hypothetical liability).
creation of obligation
contract (art 1)
Obligation in tort
Obligation deriving from unjust enrichment
agency without authority
relative right
can only be assserted againt people in specific contract
absolute right
can be asserted against anyone
Principle of freedom of the contract
Everyone can choose whether and with whom they want to conclude a contract, as well as the content of the contract (Art 27 FC)
Mandatory legal provisions:
* These have priority over contractual agreements
* The parties may not deviate from these rules in their contract. Any contractual provisions deviating from the law are null and void.
Optional legal provisions:
* The parties can deviate from the optional provisions in the law, and these agreements have priority over optional provisions in the jaw.
* Optional provisions in the law only apply as a default rule if the parties have not agreed otherwise.
Culpa in contrahendo
describes the issues that arise if one party suffers losses during contractual negotiation.
→ Because the parties have not yet concluded a contract, they cannot rely on contractual rights and obligations. For this reason, liability during this stage is often-called pre-contractual liability.
Offer
First expresion of intent
Commercial Letter of Confirmation
*
Confirmation of an oral agreement; serves as evidence of the contract If there is a discrepancy between agreement and letter of confirmation:
methods of interpretation of contract
- gramatical 2
- systematic (How does this specif form relate to other forms)
- realistic
- historical ( when was it put into effect )
- teological (What is the purpose of the law ) 1
Form of contracts
- simple writen form
- qualified writen form
- public deed
Initial objective impossibility
No one can perform this
Initial subjective imposibility
I cant do it but someone else could do it
fundamental Error
- subjective materiality
- objective materiality
- recognizibility for the counterparty
Requirements for Direct Agency
* Capacity of judgment of agent
* Acting on behalf of the principal
* Agency is permissible
* Authority to act for someone else
General Terms and Conditions
= Standard, pre-formulated contractual clauses that are constructed by one of the parties, intended for the use in a multitude of contracts
obligor’s default
- uphold the contract, stick to the claim, and demand damages due to late performance;
- uphold the contract, waive performance, and demand damages in the amount of the positive
contractual interest; or - withdraw from the contract and demand damages in the amount of the negative contractual
interest.
mandate
dilligent and faithfull performance of buisness entrusted to him
expiry of time limit for subsequemt performance
- uphold contract, demand performance and claim damages for late performance
- uphold contract waive performance and claim damages for non performance (Positive contractual interest)
- terminate contract and demand compensation for negative contractual interest
requirments for liability in general
- unlawfullness/ breach of duty of care
- infringmetn of leggaly protected interest/ damage
- legal causation
unlawfullness / breach of duty of care
- design defect
- manufactoring defect
- instruction defect
- monitoring defect
requirments for prla
- product
- defect of product
- infringmetn od legally protected interest
- legal causation
