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Commerce > LEGAL > Flashcards

LEGAL Flashcards

1
Q

Define: Contract

A

An agreement between two or more parties that creates rights and obligations which are enforceable by law.

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2
Q

What are the three elements of a valid contract?

A

Intention to create a legal relationship
Agreement (Offer + Acceptance)
Consideration

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3
Q

What is an invitation to treat?

A

Goods on display, for example in a supermarket, represent an invitation to negotiate or treat and are not an actual offer.

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4
Q

Define: Counter offer

A

A new offer made by a party which replaces the original offer.

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5
Q

What are the two terms required for acceptance to occur?

A

The offeree must conform to any conditions set by the offeror.
Acceptance must be clearly communicated to the offeror. Silence doesn’t constitute acceptance.

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6
Q

Define: Capacity to contract

A

Refers to one’s ability to fully understand the terms and obligations contained in a contract.

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7
Q

When are contracts involving minors legally enforceable?

A

When the pays for goods and services with cash

When the contract involves the purchasing of necessaries.

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8
Q

Define: Necessaries

A

Items that are needed for reasonable comfort of a minor. Eg Food, shelter, clothing, education and medicine.

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9
Q

Define: Beneficial contracts of service

A

Refer to contracts such as apprenticeships or contracts that provide education and training. These are judged to be for the minors benefit.

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10
Q

What contracts are void for minors:

A

Contracts for the repayment of money lent
Contracts for the payment of goods other than necessaries
Accounts stated necessary

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11
Q

What has to occur for real consent to be breached in a contract?

A

A mistake
Misrepresentation
Duress
Undue influence

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12
Q

What happens if there is not real consent given?

A

The contract may become void or voidable.

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13
Q

Define: Misrepresentation

A

A false statement about the facts

May be made innocently or deliberately

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14
Q

Define: Puffery

A

A term used to describe wildly exaggerated, fanciful or vague claims about a good or service that no-one could possibly treat seriously or find misleading.

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15
Q

Define: Duress

A

Refers to the use of violence or threats to make a person agree to become a party to a contract.
Contract can be avoided if consent was obtained by threats of property of personal safety.

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16
Q

Define: Undue Influence

A

May occur in circumstances where one person has the power to influence another in an unacceptable manner, in which case genuine consent is missing.

17
Q

What makes a contract illegal?

A

If the subject matter is illegal

A contract that is designed to defraud the government

18
Q

Define: Term

A

A term is a legally binding promise

All contracts include terms

19
Q

What are Express Terms?

A

Refers to a term the parties have agreed to either in words, writing or both.

20
Q

What are implied terms?

A

An implied term is one that is read into a contract by the parties or the courts
Eg. When you purchase a food product, the implied term is that the food will be fit to eat.

21
Q

Distinguish between Conditions and Warranties:

A

Terms that are regarded as essential to the contract are referred to as conditions.
Terms of less importance are referred to as warranties

22
Q

What is the result of a breach of a condition?

A

If there is a breach of a condition, the party affected has several choices:
To terminate the contract and claim damages
To confirm the contract and also claim damages

23
Q

What is the result of a breach of warranties?

A

The breach of a warranty gives the innocent party the right to claim damages but the contract remains in force.

24
Q

What are Standard Form Contracts?

A

Contracts that are pre-prepared by one party to the other party on a ‘take it or leave it basis’. There is little to no room for negotiation.
Eg Apple’s Terms and conditions when downloading an app.

25
Q

What is an example of an unfair term?

A

A term that allows one party to terminate the contract but not the other party, and/or a term that limits one party’s right to sue the other party

26
Q

What are the two Institutions used to resolve disputes?

A

Courts- Federal courts system, Victorian court system

VCAT- Civil claims list, Residential tenancy list, Domestic building list

27
Q

Define: Mediation

A

Mediation: a settlement of a dispute or controversy by setting up an independent person between two contending parties in order to aid them in the settlement of their disagreement.

28
Q

Define: Arbitration

A

The submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the decision.

29
Q

Why are courts often seen as a last resort?

A

Because they take a long time to solve and resolve disputes

Because they are expensive

30
Q

What does the civil claims list deal with?

A

Deals with disputes between buyers and sellers of goods and services.

31
Q

What does the Residency and Tenancy list deal with?

A

Deals with disputes between landlords, tenants, rooming house owners and residents, in relation to a tenancy agreement.

32
Q

What does the Domestic Building List deal with?

A

Has unlimited jurisdiction to deal with contractual disputes about domestic buildings, ranging from high rise developments to small projects such as kitchen or bathroom renovations.

33
Q

What is a remedy?

A

The reward or compensation for a successful plaintiff in court

34
Q

What are the five types of remedies?

A

Damages- a sum of money awarded to the plaintiff to compensate him or her for loss or injury suffered.
Injunctions- a court order restricting the actions of a person or requiring a party to do something
Order of specific performance- ordering the defendant to comply with the terms of a contract
Rescission- an order to cancel a contract
Restitution- order compelling the return of property

35
Q

What are three advantages of electronic signatures?

A

Transactions can be undertaken over the Internet with speed and efficiency
Reduces need for storage facilities, can be more secure
Reduces human error

36
Q

What are three disadvantages of electronic signatures?

A

Need to be verified, no legal means stipulating this verification process
Hardware and software may become obsolete (outdated)
May be difficult for all parties to understand, requires complex verification services.

37
Q

Applicant and Respondent = ?

A

Plaintiff and Defendant, respectively.

Commerce (3 decks)

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