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Industrial Skills > Law > Flashcards

Law Flashcards

1
Q

What is a contract?

A
  • Agreement more than in informal/vague promise
  • Legally binding
  • Innocent party is entitled to compensation for losses if breached
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2
Q

Why are contracts used?

A
  • Setting expectations
  • Clarifying risks and how they are managed
  • Confirming ownership rights
  • Time restrictions
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3
Q

Key elements of a contract

A
  • Offer
    • Definite promise; must be clear and certain
    • Basic terms of agreement and evidence/intention that no further bargening will occur
    • Invitation to treat: Different to an offer; is an invitaion to make an offer
  • Acceptance
    • ​Orally/in writing
    • Must correspond with offer - no variations
    • Counter-offer can be made -> Battle of the Forms
  • Consideration
    • ​Based on notion of reciprocity; cant have something for nothing
    • Law doesnt normally interfere
  • Intention
    • Parties must intend to create legal relations
    • In commercial context assumption made that legal relations are intended
    • Negotiations usually on a ‘subject to contract’ bases
      *
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4
Q

Battle of the forms

A

Arises when 2 parties wish to enter int a contract and each try to incorporate their T’s+C’s

Last T+C’s to be sent are incorportated

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5
Q

Key contract points

A
  • Don’t have to be in writing
  • Lack of written ontract may mean misunderstandings etc.
  • Some MUST be in writing (eg. those for transfer of land)
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6
Q

Discharge of contract

A
  • Bring a contract to an end
  • Can be on completion of all terms of contracyt
  • Parties may wish to vary contract by agreement
  • Can be automatically discharged if become impossible to carry out (eg. acts of God)
  • Breach of terms can entitle innocent party to compensation and to terminate contract
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7
Q

Breach of contract

A
  • Contract usually sets out what happens if breached
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8
Q

Remedies of breach of contract

A
  • Where parties cannot reach ammicable decision, courts will seek to place innocent party in same position as if contract had been performed
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9
Q

Diminution v Cure

A
  • Claimant may pay 3rd party to remedy breach and recover costs of doing so
  • May claim for decerase/difference/diminution in value that has occured due to breach
  • Court may decide which is more reasonable
  • Court decides if cost of cure is proportional and if claimant intended to effect the cure
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10
Q

Remedies of breach of contract

A
  • Awards for non-financial losses (mental distress, personal injury etc.)
  • Non-compensatory damage awards - go beyond requirement to place requirement in position as though contract was performed
  • can punish defendant for breach but very rare
  • Specific performance: breaching party compelled to perform obligations under contract at courts discretion
  • Injunction may be granted requiring party to do/not do something under the contract
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11
Q

Court System

A
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12
Q

Limitation Period

A
  • time to bring a claim
  • Generally, claimants have 6 years to bring claim after contract breached
  • IF contract executed as deed, claimant has 12yrs
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13
Q

Pre-action protocols

A
  • Pre-action protocols are rules and deadlines the parties should follow
  • Before any legal court action can commence
  • Purpose: encourage the parties to be transparent, identify issues and try to settle these issues between them
  • There are different pre-action protocols depending on the type of claim – construction and engineeringdisputes are governed by their own distinct protocols
  • Where no pre-action protocol exists, the parties are expected to comply with the generic“overriding objective”
  • The court also expects alternative dispute resolution to have been considered
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14
Q

Alternative Dispute Resolution

A
  • Defined as a “collective description of methods of resolving disputes otherwise than through the normal trial process
  • Types of ADR include:
    • Mediation
    • Adjudication
    • Negotiation
    • Arbitration
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15
Q

Mediation

A
  • Non binding
  • Neutral party assits in reaching an agreement
  • Mediator agreed or appointed
  • Settlement agreement signed
  • Parties remain control of whether or not to settle - more flexible than other forms of ADR
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16
Q

The Basic Path of a Claim

A
17
Q

Level of Court

A

The level of court required to deal with any given claim will depend on the value and complexity of that claim

  • Generally speaking, the High Court deal with matter in excess of £100,000 and anything below that is dealt with by the County Court
  • The High Court is divided into the Chancery, Queen’s Bench and Family divisions
  • The Chancery deals with matter such as bankruptcy, tax and IP
  • The Queen’s Bench deal with breaches of contract, negligence and personal injury – the Technology & Construction Court is part of the Queen’s Bench
18
Q

Interim Remedies

A
  • An interim remedy will bring a matter to conclusion before trial
  • Summary Judgment involves the court disposing of the claim on the grounds that either the Claimant or Defendant has no real prospect of success
  • A Claimant can apply for a Default Judgment if the Defendant fails to acknowledge the proceedings or file a Defence within the required time
  • A Particulars of Claim or Defence may be Struck Out if they disclose no reasonable grounds for bringing or defending the claim, or if they amount toan abuse of court process
  • They may also be Struck Out if a party fails to comply with a rule, practice direction or Court Order
19
Q

Final Remedies

A

The courts may order:

  • Damages
  • Injunctions
  • Restitution
  • Specific Performance
  • Rectification/Rescission of a contract
20
Q

Appeals

A
  • An appeal is the process by which a party (the appellant) seeks to change a Judgmentor Order of a lower court or tribunal bybringing it for reconsideration by a higher court (the appeal court)
  • The court’s permission is needed before you can pursue an Appeal–you will need real prospects of success or some other compelling reason
  • You can appeal all the way up to the Supreme Court, but their decision will be final
21
Q

Technology & Construction Courts (TCC)

A
  • The TCC is the specialist branch of the High Court dedicated to hearing technology and construction disputes
  • The TCC is based in London at the Rolls Building with ten regional centres supporting the court outside of London
  • If you are looking at case law before 1998, it will refer to the TCC as the Official Referees Court
  • The judges in the TCC also have an important jurisdiction in relation to arbitration
  • There is a statutory jurisdiction enabling TCC judges to be appointed as arbitrator - his cross-over jurisdiction is an important link to commercialparties involved in construction, engineering and technology disputes
22
Q

Meaning of “Construction Contract”

A
  • Wide definition, and includes contracts with construction professionals (i.e. architects, engineers etc).
  • Defined in s104 of the Construction Act 1996 as an agreement with a person for: The carrying out of construction operations (whether by one of the parties or by a sub-contractor)
  • Providing labour (either his own labour or others’ labour) for the carrying out of construction operations
  • The contract must be enforceable in accordance with normal contractual principles.
  • Can be in writing, partly in writing, or oral (Construction Act 1996)
23
Q

Adjudication

A
  • Fast (28 day process)
  • Contractual
  • Right to adjudication any itme in a construction contract
  • Binding but not final - can be appealed
  • Cost effective
24
Q

Enforcement of Adjudication Decisions

A
  • Via the Technology and Construction Court (“TCC”)TCC will enforce decision unless the adjudicator:
    • Exceeded his jurisdiction
    • Materially breached the rules of natural justice. “Natural justice” requires that every party has the right to a fair hearing and the right to be heard by an impartial tribunal.
    • Covers bias, failure to act impartially and procedural irregularity
    • No other rights of appeal/defence to this rough justice resolution
  • If dissatisfied, take it to court or arbitration
25
Q

Timeline of an adjudication

A
26
Q

Arbitration

A
  • Alternative to court
  • Based on contract
  • Final and binding
  • 1 or 3 members of arbitration tribunal
  • Confidential
  • Parties decide on procedure, rules, powers of tribunal
  • Courts can be involved in appointing arbitration, disputes as to powers of tribunal, enforcement of award
27
Q

Benefits of arbitration over Court

A
  • Confidentiality
  • Flexible procedure
  • Choice of tribunal (choose arbitrators with relevant expertise)
  • Neutrality (of law, procedure, language, place)
  • Binding (limited grounds to challenge award)
  • Internationally enforceable (mainly via New York Convention)
28
Q

Arbitration – the cons

A
  • MONEY MONEY MONEY!!!
  • Arbitration is inherently expensive, particularly if a party seeks to have 3 Arbitrators
  • It might be a commercial decision to proceed to Court, and avoid Arbitration
29
Q

Arbitration – Grounds for Appeal

A
  • Challenging an arbitration award:
  • Incomplete or not addressed issues in dispute
  • Contains a clerical mistake, error or ambiguity
  • Tribunal lacks substantive jurisdiction (i.e. power to determine the dispute)
  • Serious irregularity affecting the tribunal, the proceedings or the award that has caused substantial injustice
  • Mistake of law (unique to UK Arbitration Act)

Industrial Skills (5 decks)

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