Law of Tort Flashcards
1
Q
What are the essential elements of a contract?
A
- Invitation to treat, offer and acceptance
- consideration
- intention to create legal relations
- certainty
- capacity to contract
- genuine consent
- lawfulness of object
- required formalities
2
Q
What are the characteristics of an offer?
A
- can be made to particular person or general public
- must be communicated
- can be terminated by acceptance, rejection, offset by a counteroffer, withdrawn prior to acceptance, lapsing due to death of one of parties before acceptance, lapsing because not accepted wtihin reasonable time
3
Q
exceptions to the general rule that acceptance must be communicatied
A
- offeror dispensed with the need for it
- offeror allows the party whom the offer is made to accept in the form of an act stated in the offer
- offeror allows acceptance of any consideration for a reciprocal promise
- postal acceptance rule: when posted by poster and when received by receiver
4
Q
Exception to general rule of consideration
A
- made on account of natural love and affection between parties in near relation to each other
- Agreement to compensate for past voluntary act
- agreement to compensate a person who did an act which the promisor was legally compelled to do
- an agreement to pay a statute barred dent
5
Q
what makes a consideration valid?
A
- must be given in exchange of a promise
- must have some value
- need not be adequate
- must be given by someone, even if not given by the person to whom the promise was made
6
Q
exceptions to general rule for minors capacity to contract
A
- contracts for necessaries
- scholarhsips
- legislation to allow minors enter insurance and apprenticeship agreements
7
Q
what are the possible remedies for a breach in contract?
A
- Recession of contract
- damages
- specific performance
- injuction
8
Q
Elements of the tort of negligence
A
- defendant owes investor a legal duty of care
- company failed to meet standard expected under that duty of care
- as a result, the investor suffered a loss
9
Q
Elements of reasonable duty of care
A
- risks in carrying out conduct
- seriousness of possible injury
- opportunities of reducing or avoiding the risk
10
Q
Liability in tort for negligent misstatement can arise in what circumstance?
A
- one person owes a duty to exercise care, based on the known or apparent skill and competence of the maker of the statement, or the fact that the maker of the statement intends it to operate as a direct inducement to act
- duty of care breached, ie misstatement is due to negligent
- If statement was not made as an inducement to act, whether it was reasonable for the recipient nevertheless to rely on it
- person suffered loss or damage as a result of relyign on the misstatement
11
Q
statutes for misleading recommendations , capital markets and services act 2007
A
- prohibits making a statement or dissemination of information that is false or misleading
- prohibits from improperly inducing another person to deal in securities
- prohibits person from making untrue statements or ommitting to state a material fact for a purchase of sale or securities
- imposes civil liability on a person who contravenes
12
Q
Provisions in companies act 1975 given toi persons who have suffered a loss`
A
- s46 subscribers of shares or debentures who act on a basis of a prospectus, right of action against directors, promoters or others authorizing the issue of the prospectus, for compensation for loss or damage sustained by reason of any untrue statement or willful nondisclousre of a material matter in the prospectus
- 364, s364a and 366 also impose criminal liability for a false and misleading statements, false reports and fraudulently inducing people invest money
13
Q
Liabilities of a licensed person
A
- made a recommendation and has not disclose the nature of any relevant interest in the acquisition or disposal of those securities, including fees or benefits. other than commission or fee from the client
- makes recommendation to a person who may reasonably be expected to rely on it without having a reasonable basis for making the recommendation and the client in reliance on the recommendation does a particular act and suffer losses as a result s92 of CMSA
14
Q
LIcensed person will not be regarded as having a reasonable basis for making a securities recommendation unless
A
- it has, for the purpose of ascertaining that recommendation is appropriate, taken all practicable measures to ascertain that the information possessed and relied upon by the licensed person concerning the lclients investment objectives, financial situation and particular needs are accurate and complete
- given consideration , and conducted such investigation of , the subject matter of the recommendation as may be reasonable in all circumstances, and
- recommendation made is based on such consideration and investigation
15
Q
Defences to a prosecution for contravention of s.92
A
If the person makin gthe recommendation did not know, and could not reasonably have been expected to know, of the interest when making the recommendation
- if the person was merely a codirector and was not involved in making of that recommendation
- reasonable person in the client’s circumstances could have been expected to have done the act in reliance on the recommendation even if the licensed person had complied with s.92
