Lists Flashcards
3 stage test for duty of care
- Was the harm reasonably foreseeable?
- Are the party’s close enough?
- Is it fair, just and reasonable to impose a duty of care?
Consequential harm p17 on flash
When is it not consequential?
Harm is not consequent if:
- The claimant acted regardless of the defendant
- A third party is the actual cause of harm
- No single event is the cause of harm.
- Breach was unintentional, and consequent loss is remote and unforeseeable.
3 rules of Negligence
- Defending owed duty of care to avoid injury to person or property
- Defendant breach that duty of care
- Consequence; claiming suffered injury, damage or loss.
Ways an offer can be terminated
5 ways Rejection Counter offer (not request of info) Lapse of specific or reasonable time. Death of one of the party's. Revocation by the offeror.
Parts of a contract
Vitiating factors
4 parts: offer/acceptance/consideration/intention
4 vitiating factors
Form/consent/legality
9.
Form of a contract
Written: sale of shares or land/consumer credit and contracts of guarantee
Deeds: leases, transfer of legal estate in land/ gratuitous promises.
- Offer
Precise and definite. Eg: 1. Precise wording 2. Addressed to lots of people? 3. Monday on the table 4. Unilateral Acceptable.
10.
Invitation to treat
Inducement to encourage someone else to make an offer.
Goods in shop window
Goods on a shelf
Public advertisement-dog reward
A share prospectus
10.
Acceptance of an offer
Unconditional assent of all the terms of an offer.
Communication
- Needs to be expressly communicated (written/oral/deeds).
- Silence is not an acceptance.
10.
Exceptions to the communication rule.
- Unilateral acceptance
- Postal rule.
A. Properly stamped and addressed.
B. Must be in contemplation of both parties
C. Postal rule not excluded.
11.
Consideration
The element of value in an agreement
Promise in return for promise or act
.
(Giving something) 3 types:
-executory -promise to perform
-executed -act given in return for a promise
-past-consideration supplied after agreement is formed
10.
Sufficiency of consideration
Need not be adequate-only sufficient 3 things 1. Must be legal-(not illegal) 2. Must be possible 3. Both Parties must gain-even if it is a bad bargain. Sufficient not adequate.
- Doctrine of privity
Only parties in a contract can enforce or sue
Intention to create legal relations
Domestic
1. Spouses living together-no int.
2. Spouses separating-yes int.
3. Other friendly agreements-none, unless mutuality of intention
Commercial
1. Normally-very strong intent
2. Rebutted if transaction is binding in honour only.
13.
Express and implied terms
Express-
1. Agreed by both parties orally/written.
Implied-
- By statute
- By custom
- By courts
Types of term
Condition:
Fundamental part; breach=cancel + sue for damages.
Warranty:
A lesser term, does not affect meaning of contract; can sue for damages only.
Innominate:
Not classified until contract had been breached.
13.
Soga
Implied terms:
- Title
- Description
- Satisfactory quality
- Fitness for purpose
- Sale by sample
- Acceptance
Exclusion clauses
Def:
An attempt to reduce liability via an exclusion clause.
Subject to three layers:
1. Incorporation (put into contract before agreement) signature/notice/custom
2. Construction (wording needs to be clear and precise+can’t defeat main purpose of contract)
3. Reasonable. (Itccr-unfair terms in consumer contracts regulations)
15.
Misrepresentation
- False statement of fact made by one party before contract- made to induce other party into contract.
- Excludes opinion
- Silence does not count.
Three types of Mis:
- Fraudulent (knowingly making statement) can cancel contract and claim for damages
- Negligent (failing to take reasonable care) can cancel and claim for damages
- Innocent (genuine) not damages
Discharge by performance
Must be exact and complete-if not then you can discharge contract
Not Substantial performance Acceptance of part performance Prevented by other party Divisible contract-part payment Time performance-unless time is off the essence.
16.
Discharge by agreement
- Both parties agree to cancel
- Agreed that notice was ok.
- Novation, both agree new contract replaces old one.
Discharge by Frustration
- Destruction of the subject matter making something impossible to perform.
- Personal incapacity to perform a contract of personal service I.e. ill health.
- government intervention
- becoming illegal.
- non occurrence of an event if it is the sole purpose of the contract.
Exceptions 1. Alternative mode of performance is possible. 2 .if performance becomes more expensive 3. if one party has excepted the risk. 4. If one party has induced frustration.
Types of breach
Straightforward-fails to comply with a term
Anticipatory- gives notice.
17.
Remoteness of damage
2 rules
- Damage must arise naturally from breach
- Reasonably foreseeable by both parties.
Measure of damages
Doctrine of restitution
Rules of consideration:
- Nominal damage
- Market rule-(similar replacement)
- Non-financial losses-provision of enjoyment
- The injured party must mitigate their losses.
- Quantum meruit. As much as he deserves-allowing for partial damages.
- Action for the price.
17.
Liquidation damages?
For genuine pre-estimate of the loss.
Not a penalty for breach
Equitable remedies
Cancel contract, injunction, specific performance.
Specific performance is not awarded for employment or minors. -normally only land
18.
Employment status
Employee vs self employed.
Tests:
1. Control test.
Who controls what the person does and how they do it.
2. Integration test
How integrated they are in the business-(doctor)
3. Multiple test
Provision of tools/holidays/substitution labour/payment.
Contract formation
Contract must be evident in writing within two months. Job title/description/length of notice/holidays.
Additional terms implied by statute, common law, and custom.
18.
Contractual duties
Implied by common law and statute:
Employer Pay Paylslip Respect Insurance Safe work
Employee Obey reasonable orders Turn up Skill and care No bribes
Types of dismissal
Wrongful dismissal: No notice Without justification Under 2 years Unfair dismissal:
18.
Redundancy + constructively dismissed
Where employer has severely breached the contract. Can claim redundancy.
18.
Remedies of dismissal
For unfair dismissal:
- reinstatement old position
- Re-engagement to a comparable position
- compensation
Redundancy: Table 21 1/2 22-40 1 41+ 1.5
18.
Discrimination in employment
You cannot discriminate on sex, race, disability who are you employ 15 or more employees, equal pay act.
18.
Occupational safety
Employers
Assessments/magic measures to reduce risk/protective equipment/safety training/records of accidents/form a safety committee.
Employees
Cooperate and take reasonable care
Enforcement by health and safety commission
Civil action can be brought by employees If One. Employee needs to give proper instructions Two. Maintaining material and machinery Three. Safe system of working
19.
Standard Partnership
Relationship between people carrying on a business in common with a view to profit.
Governed by A private partnership agreement otherwise it is governed by the partnership act 1890
Three duties
- Duty to disclose
- Duty to account for transactions
- Duty not to compete
19.
Limited partnership
Allowed some partner to limit their liability, there must be an unlimited liable person.
Restrictions:
1.partnership must be registered with the companies registry
To.one or more of the partners must retain unlimited liability.
3.partners with Limited liability cannot bind or manage the business.
4.limited partners cannot withdraw their capital.
19.
Limited liability partnerships
Are separate legal entities.
retain some flexibility through a private partnership agreement between themselves
Key features:
- registrar of companies signed by at least two members
- Must end in LLP
- partners are known as members at least two
- must file annual returns
- llp separate legal entity
19.
Incorporation
Companies are incorporated entity having separate legal personality to the owners
19.
Lifting the Veil
This happens when: (common law) 1.Company is being used to invade legal duties.
2.Recognise enemy character of the company.
3.identify controlling mind of a company in cases of corporate manslaughter.
Four. Recognise the breakdown of the quasi partnership relationship
19.
Advantages of incorporation
Advantages:
1. Limited liability for members
To.company owns its own assets
3.company may be sued be sued
Disadvantages:
1.less formality of inception
Less expensive there is no audit.
2. No restriction on the withdrawal of capital.
20.
Types of companies.
Unlimited
Limited by guarantee or Shares, privately or publicly.
20.
Different differences between LCD and plc
See table on p 159
Directors, members, minimum share capital, advertise shares to benches to public, time to hold accounting records, annual general meeting, company secretary, file accounts after year end.
20.
Formation of the company
Public companies need a certificate of incorporation and a trading certificate.
Private companies need only a certificate of corporation.
21.
Memorandum
The company constitution consists of:
1.memorandum.
To.articles of association
20.
Articles
The company can choose its own aoa or adult model articles.
The main areas regulated:
Objects
Name
Registered office
21.
Binding powers of the article.
Alterations also
Article Binds companies to members and vice versa.
Alterations: by special resolution and must benefit company as a whole.
Expelling members only allowed one fraud or competing against the company
21.
Objects
If directors transact outside of the scope they are in breach of duty.
Third parties may rely on any contract entered into by the company
21
Name of the company
Must end in Ltd or plc
The registrar is able to reject names
21.
Registered office
States domicile
Houses some of the statutory books
22
Key distinctions between annual general meeting and general meetings.
AGM-only Plc
AGM-GM Notice. 21-14 Frequency. Annual-as required Called by directors-directors/members Business. Routine-exceptional Short notice 100% - 95% Plc /90% ltd
22
Resolutions
Ordinary. - special Notice 14 -per meeting notice Votes at meeting: >50% ~75% File with registrar? Director/auditor changes- yes Uses Ord Allot shares Approve auditors Appoint remove directors Spec Liquidation Change of AOA Change company name.
Notice
Ordinary
14
Special
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