Poole, Textbook on Contract Law - Chapter 1 Flashcards
What is a contract that binds both parties to performance in the future called?
an executory contract
How is contractual agreements different in essence to tortious agreements?
contractual obligations are voluntarily assumed, in that individuals are free to make or refrain from making them. Tortious obligations arise independently of the will of those involved and derive from standards of behaviour imposed by law
How is contract law different to tort law in use?
- contract law can create a future obligation, which tort law can’t
- standard of performance under contract law is normally strict, whereas liability for the tort of negligence depends on the defendant being proved to have acted unreasonably.
What differences are there between the damages offered by tort law and by contract law?
Normally, contract provides for greater damages by having the potential to award damages based on lost profit (ie money that would have been earned in the future if the contract hadn’t been broken). Tort is normally limited to the recovery of reliance loss (restoring the claimant to the position they were in before the tort took place)
In both contract and tort law, what kind of damages can’t be recovered by a successful claimant?
damages for losses which are too remote a consequence of the breach of contract or breach of duty.
What is the standard limitation period for tort and contract law?
6 years (3 for personal injury claims).
- in contract, judged from the breach
- in tort, judged from when the damage occurred.
Define a contract of sale of goods.
a “contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration.” Property in this context means ‘ownership’
What is the general rule as regards the transfer of ownership?
“the seller can transfer only such title to goods as the seller himself enjoys.” So if someone doesn’t own something they can’t sell it. “Nemo dat quod non habet”
What is a void contract? Give an example.
a void contract is automatically no contract at all. It is treated as if it had never been made. No consequences can ensue from it. eg a contract with has a “common mistake” in it
What is a voidable contract? Give an example.
a voidable contract remains a valid contract until the party who has the right to complain takes steps to set it aside. If they don’t do so, the contract continues to be valid. eg a contract that has been affected by misrepresentation
What is the rule in relation to voidable contracts and third parties?
once third party rights have intervened in the case of a voidable contract, the party had the right to rescind it loses that right.
What is the PECL?
Principles of European Contract Law. Attempt to harmonise contract and commercial law within the EU.
What is the principle of “good faith” and what is its relationship with UK contract law?
a “principle of fair and open dealing”. No traditional provision in UK law in terms of negotiation, content or performance of contracts but introduced due to European directives and influence.
What is the main criticism of the introduction of the “good faith” principle?
that it’s too vague and uncertain.
How does the Rome I regulation determine the jurisdiction of international contracts?
Where the parties have failed to chose a governing legal system, the governing law will be the law of the place where the party required to effect the characteristic performance of the contract has his habitual reference. eg the seller in a sale of goods contract
