lecture one Flashcards
What is the law of Obligations, and why are the rights it governs considered “personal”?
The law of Contract is part of the broader law of Obligations, which also includes Promise, Unjustified Enrichment, and Negotiorum Gestio (covered in this module) and Delict (not covered). The law of Obligations defines the rights and duties between individuals, where one person (A) can enforce rights against another (B), but not usually against an unrelated third party (C). These rights and duties are considered “personal” because they apply specifically between the parties involved, with some exceptions to be discussed later.
What are the terms used to refer to the parties in the law of obligations, and can ‘persons’ include non-human entities?
In the law of obligations, terminology varies: the person who has a right (Person A) is called the obligee or creditor, while the person who has a duty (Person B) is called the obligor or debtor. A’s right is considered an asset, meaning they own the right to receive performance from B. Additionally, ‘persons’ in legal terms can refer not just to humans but also to entities like companies, partnerships, or government bodies.
What is the legal definition of a contract?
A contract is a legally recognized agreement between two or more parties with the capacity to enter into it. It must meet legal formalities and involve acts that are not trivial, impossible, or illegal.
Do contracts always have to be written, and what are some common types of contracts?
Contracts do not always need to be formal or written, except for certain types that require written documentation (covered in week 3). A contract is any agreement requiring action or performance by at least one party. Examples include contracts for sale, lease, loan, employment, and services. Some contracts combine multiple elements, such as mobile phone contracts. Many contract law disputes arise from informal agreements (e.g., ferry tickets, car park notices) because they often contain ambiguities that formal contracts avoid.
What remedies are available if a party fails to fulfill their contractual obligations?
If a party fails to fulfill their contractual obligations, the other party (obligee) can seek enforcement through the courts. This may involve compelling performance or awarding damages as compensation. Therefore, when analyzing a contract, it is important to consider its enforceability, even if no legal dispute currently exists.
What are the two main types of contracts, and how do they differ?
A contract requires at least two parties, as an agreement cannot be made with oneself. However, not all parties must have duties under the contract. Contracts can be:
- Onerous (bilateral/mutual): Both parties have obligations and exchange performance (e.g., paying for goods or services).
- Gratuitous (unilateral): Only one party has an obligation, while the other benefits without providing anything in return.
Unlike some legal systems (e.g., English law), certain jurisdictions recognize gratuitous contracts even without “consideration.”
What are the main influences on Scottish contract law, and how has it developed over time?
Scottish contract law has been shaped by Roman law, Canon law, Scottish common law, and, more recently, English common law (though English cases should be used cautiously). It primarily develops through case law rather than legislation. Early court decisions were supplemented by institutional writers, with Stair being the most influential on the law of obligations, followed to some extent by Bell.
How does a promise differ from a gratuitous contract, and what makes a promise legally binding?
A promise is a unilateral, gratuitous obligation, similar in effect to a gratuitous contract, as only one party performs. However, unlike a contract, a promise does not require acceptance from the beneficiary to be enforceable. For a promise to be binding, the promisor must clearly express an intention to create an enforceable obligation, rather than merely stating a probable intention.
What are the key requirements for a promise to be legally binding?
For a promise to be legally binding, the promisor must have a clear and definite intention to be bound, which must be expressed in clear words. Unlike contracts, a promise does not require acceptance, reliance, or even awareness by the promisee. The promisor does not need to receive anything in return. Promises can be conditional, but only the promisor is bound by the obligation, not by fulfilling the condition itself.
What is the difference between a promise and a gratuitous contract, and how can a promise create legal obligations?
A promise is a unilateral obligation where only the promisor is bound, while a gratuitous contract involves mutual agreement. For example, if Will simply declares he will give £100 to Mike, it is a promise. If Mike accepts an offer from Will to give him £100, it becomes a gratuitous contract. The key difference is that a promise does not require acceptance, whereas a contract does. Additionally, a promise can create enforceable obligations, such as John promising to sell a painting to Stuart—if John breaks this promise, he may be liable for damages.
