private law

Question 1

Explain the domains of law

Answer 1

1. Public law
   a. Criminal law = consists mostly of the material rules that state actions that are punishable (‘thou shalt not kill’), as well as the procedural rules that state the way in which suspects are to be prosecuted.
   b. Administrative law = mostly states the rules by which the government is bound when acting in administrative affairs, such as when deciding on an application for a permit.
2. Private law = provides rules to govern relationships between private parties (individuals, groups, or companies), without the involvement of a public body.
   a. Contract law = promises have to be kept.
   b. Property law = property must be respected.
   c. Tort law = harming others is not allowed.

Question 2

Explain contract formation

Answer 2

1. Formation
   A contract is concluded, without any further requirement (the absence of formalities, and the absence of a general requirement of consideration, hence contracts can be formed by writing as well as through other actions, such as nodding, or signifying assent in other ways) if there is:
   a. Intention to be bound
   b. Agreement between parties
   * In common law there is a further requirement of consideration = a mere unilateral promise has no legal effect, as nothing has been paid or offered in return for this promise.
   E.g. money or promises or forbearances

Question 3

Name the grounds for voidness of a contract:

Answer 3

a. Mistake =one party or both parties closed the contract under mistaken assumptions, to such an extent that the contract cannot be upheld.
b. Fraud = one party by devious means caused the other party to agree to the contract.
c. Threat = one party threatened the other party in order to have that party agree to the contract.
d. Undue influence = This involves abusing the other party’s vulnerable position in order to obtain favorable contractual conditions.

• Common law systems are stricter: these rarely allow a successful appeal to mistake. A party who finds certain qualities of the object decisive has to arrange that the other party provides explicit representations regarding these qualities, and if these qualities are absent, can act on the ground of misrepresentation.

Question 4

What are the functions of good faith?

Answer 4

1. Supplementary = gaps in contract can be filled in by court per reasonability.
2. Interpretive = guiding interpretation by keeping in mind what reasonable parties are supposed to have intended.
3. Restrictive = unreasonable behavior is disallowed if allowed by the contract.

Question 5

How can clauses be dismissed?

Answer 5

1. Unfair Terms Directive = A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
2. If against public order
3. If violating norms of human dignity

Question 6

What are the types of contract termination?

Answer 6

1. Termination for breach = termination is a response to breach of contract by the other party.
2. Termination for cause = the
   termination is based on a ground that justifies terminating the contract. E.g. death or insolvency of a party, behavior that justifies termination.
3. Termination at will = a party is free to terminate without having to provide any reasons.

Question 7

Explain fault-based liability (in civil law)

Answer 7

1. Fault = an act by a tortfeasor that should not have been committed, unlawfulness & wrongfulness
   Three kinds of unlawful acts:
   a. infringement of (other people’s) right
   b. violation of statutory duty, e.g. speeding
   c. violation of a rule of unwritten law = people have to follow standards of social conduct that serve to protect others from harm. -> negligence
    Under civil law systems omissions may be unlawful as well as positive acts.
    Under common law systems there is usually no liability for pure omissions.
2. Damage = harm to some interest
3. Causality = the damage is cause by the fault
   a. Condicio sine qua non (c.s.q.n.) = ‘but for’ causality: if the act would not have occurred, the damage would also not have occurred
   b. attribution of damage to the fault

Question 8

Explain fault-based liability (in common law)

Answer 8

Several torts, such as trespass, negligence and fraud. For every kind of tort there is a different regime.
Negligence = the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” (Blyth)
Requirements:
1. The existence of a duty of care.
Caparo v. Dickman
a. Foreseeability of damage
b. Proximity
c. The situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of care
Robinson-case  three-step test rejected by Supreme Court, only in novel cases otherwise check precedents
2. A breach of that duty
3. Harm as a consequence of the breach
- An award of damages for negligence can only compensate for injury or property damage. Pure economic loss is not compensated in case of negligence.
- Under common law omissions may lead to violation of a duty of care where such a duty exists. But in case of no prior involvement, a pure omission is usually not a violation of a duty of care as in such a case no duty of care exists.

Question 9

What are the defenses against tort?

Answer 9

1. Consent = it is not unlawful if someone consented to the action (volenti non
   fit injuria).
2. Contributory negligence = the damage was caused primarily or at least partly by the plaintiff. This leads to a reduction of the award of damages and may even lead to a complete absence of unlawfulness hence no damages at all.
3. Prescription = The statute of (time)limitations can stand in the way of an action on the basis of tort. These periods start from the moment the victim (briefly put) has the necessary knowledge to start a court action.

Question 10

What are the remedies for tort?

Answer 10

1. Award of damages
2. Court injunction = to refrain from specific unlawful activity
3. Court order = to act in a certain way

Question 11

How do you become an owner of a tangible object?

Answer 11

• creating the object
• transfer of ownership:
  o (valid) title or reason for transfer;
  o power to dispose (you have to have ownership to be able to transfer it)
  o delivery (via physically handing over or deed, For claims the delivery can either be by notification, notarial deed or deed drafted by parties which is registered. An intellectual property right is generally also transferred by deed.