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Sem 1 Flashcards

1
Q

Name the 5 English law characteristics

A

-developed gradually since Norman conquest
-absence of codification
-judges can create + interpret law
-adversarial trial system (2 parties involved)
-role of lay ppl

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2
Q

Types of law

A

Public law: government v individuals , this includes criminal law
Private/Civil law: claimant v defendant, this includes contract law, family law, tort law, probate law, company law, property law
Common law: has 3 meanings (it’s a legal system- the English legal system, it establishes general rules to provide certainty- equitable law is the opposite, refers to judge made- opposed to statutory law)
Statutory law: Acts of parliament

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3
Q

Differences between criminal and civil law

A

Purpose: Crim- regulate behaviour, promote public order, preserve national security. Civil- govern relationships between individuals, enforce individual rights + duties
Parties involved: Crim- police then state prosecutes individual. Civil- claimant sues defendant (individual v institution)
Location of case hearing: Crim- magistrates court (summary offences, offences trialable either way) + crown court (indictable offences, offences trialable either way). Civil- county court 90%, high court, specialised tribunals, ADR)
Burden of proof: Crim- BEYOND REASONABLE DOUBT prosecution. Civil- ON THE BALANCE OF PROBABILITIES claimant and defendant
Penalties: Crim- punish, protect, rehabilitate, deter. Civil- correct wrong, compensate sufferer
Language: Crim- Prosecution v defendant. Civil- Claimant v defendant

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4
Q

What power do parliament have

A

Parliamentary sovereignty
Power to create + end any law
Courts can’t question their decisions

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5
Q

What are statutes with constitutional status?

A

They are politically significant so hard to change, e.g HUMAN RIGHTS ACT

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6
Q

What are the 2 types of legislation?

A

Primary legislation- an act passed by parliament e.g. HEALTH & SAFETY AT WORK ACT
Delegated legislation- parliament delegate to gov department/ local authority to make small changes to an act e.g MANAGEMENT OF HEALTH & SAFETY AT WORK ACT

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7
Q

Advantages and disadvantages of delegated legislation

A

Advantages:
- speed
-flexibility
-allows for technical knowledge

Disadvantages:
- sometimes policies they’re given are too important to handle
-laws are therefore passed by unelected officials

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8
Q

What are the 8 Statutory presumptions

A

1 applies to whole of UK
2 doesn’t breach any international agreement
3 doesn’t alter common law
4 doesn’t go against earlier statutes
5 doesn’t interfere with persons liberty, private property or other rights
6 doesn’t apply to past, only present
7 says intention to commit crime must be present for criminal liability
8 doesn’t intend to remove any jurisdiction (power) from court

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9
Q

Literal rule + case

A

Literal meaning must be followed even if leads to absurd results
WHITELY CASE

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10
Q

Golden rule + case

A

If it gives absurd result then it can be substituted with reasonable one
ADLER CASE

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11
Q

Mischief rule

A

Considers laws purpose instead of literal meaning
SMITH CASE

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12
Q

What are the 2 aids or interpretation + their cases

A

Intrinsic aids- materials found inside statute ANIMAL BOARDING ACT
External aids- gov + parliamentary reports PEPPER CASE, legal textbooks, Oxford dictionary

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13
Q

What is stare decisis and what does it mean

A

Stand by things decided, refer to past cases with legal precedents

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14
Q

What is ratio decidendi

A

Reason for deciding
Point in case that forms binding precedent

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15
Q

What is orbiter dictum

A

Things said by the way
Everything else other than main point, so basically judges opinion + this doesn’t form binding precedent

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16
Q

Hierarchy of civil + criminal law

A

Civil:
1 Supreme Court
2 court of appeal
3 high court
4 county court

Criminal:
1 Supreme Court
2 court of appeal
3 high court
4 crown court
5 magistrates court

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17
Q

Explain interpretation of judicial precedent

A

Whatever court precedent is made binding in all courts below + including must follow this interpretation
Only court that can OVERRULE is the court above
If party wants to appeal case, only courts above can REVERSE DECISION
If a case has similar issue as a binding precedent but facts are different, lower courts can choose to distinguish from the previous case precedent + not follow it

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18
Q

What 5 things are necessary for formation of contract?

A
  • an agreement (offer +acceptance)
    -consideration
    -intention to create legal relations
    -capacity
    -certainty
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19
Q

What are the 2 types of contracts

A

Speciality:
-in form of deed
-in writing
-evidenced in writing

Simple:
- everyday transactions like shopping at supermarket

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20
Q

What is an invitation to treat and what types are there (5) 3 cases

A

It’s an invitation to negotiate
Advertisements - CRITTENDEN CASE
Goods displayed in shop for sale- FISHER V BELL
Goods displayed in shelves for sale- BOOTS CASE
Auctions
Tenders

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21
Q

Exceptions where inv to treat constitutes offer to public at large + case

A

Advertisements - SMOKE BALL CASE

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22
Q

Ways to terminate an offer 3 + cases

A

1 by acceptance
2 by rejection inc counter offer HYDE CASE
But asking for more info doesn’t terminate offer MCLEAN CASE
3 by revocation , offer can be revoked anytime before acceptance but it has to be communicated ROUTLEDGE CASE , can be revoked by eligible 3rd party DICKINSON V DODDS, can’t be revoked after performance has started (unilateral agreement) ERRINGTON CASE

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23
Q

Communication of withdrawals is effective when? +case

A

When it could be read, not when it’s in fact read BRIMNES CASE

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24
Q

When does acceptance take place + cases

A

Acceptance takes place when received by offeror ENTORES CASE
silence doesn’t = acceptance BINDLEY CASE
When acceptance is a non-instantaneous method like letter then POSTAL RULE applies ADAM V LINDSELL
Unless offeror specifies method of acceptance SECURITIES CASE

25
When are offers and revocation of offers effective
When received
26
Acceptances communicated outside office hours, is it effective + case
Yes bcoz email is still available to read BPE CASE
27
What is battle of forms
2 parties send their standard forms back + forth until whoever fires last shot wins and acceptance is effective when performance starts BUTLER CASE
28
Stages when answering PQ
IRAC Identify issue State relevant cases Apply relevant cases Conclude
29
What is consideration
Something of value exchanged for a promise , in a contract
30
2 types of consideration
Executory- both parties promise to do something after contracts formed (bilateral) Executed- 1 party promises to do something in return for act of other party (unilateral)
31
Consideration must not be past- case? + exception to this rule
MCARDLE CASE Exception is if act was completed upon promises request with understanding it’d be remunerated BRAITHEWAITE CASE
32
Consideration must be sufficient but need not be adequate- meaning + case
This means consideration must be of some economic value but that value doesn’t need to be equal to the other party’s consideration NESTLE CASE
33
Performing an existing public duty does not amount to consideration, case? + exception
GODEFROY CASE Exception is if promisee goes beyond their public duties GLASBROOK CASE
34
Performing an existing contractual duty does not amount to consideration, case? + exception
MYRICK CASE 2 ship member case Exception is when promisee goes beyond contractual duties HARTLEY half crew ship case Other exception is when promised receives an extra practical benefit which amounts to extra consideration WILLIAMS V ROFFEY
35
Agreements to accept lower amount doesn’t amount to consideration + won’t discharge duty to pay higher sum + 5 exceptions
PINNELS CASE Exception = -pay earlier -paying with something other than money -paying in diff way Exception 2 -promissory estoppel HIGH TREES CASE Exception 3 -agreement by deed
36
What is promissory estoppel
Equitable principle court can use at their discretion to prevent a party from going back on their promise. Promise must’ve been obvious, debtor must’ve relied on it and it would be inequitable to go back on that promise.
37
Intention to create legal relations for 2 types + cases
Business agreements are presumed to have intention to create legal relations ESSO CASE Social domestic arrangements aren’t presumed to BALFOUR CASE
38
Terms must be sufficiently certain not too vague , case? + exception
SCAMMEL CASE Except when details can be inferred ARCOS
39
Innominate term?
Can either be treated as condition or warranty
40
What happens when there’s a Breach of condition + case
Contracts terminated + injured party can sue for damages POUSSARD CASE
41
What happens when there’s a Breach of warranty + case
Injured party can claim damages but contract must continue GYE
42
If statement is v important to parties decision to enter contract is it term or representation + case
Term BANNERMAN
43
If statement comes from experienced party is it term or representation
Term BENTLEY CASE
44
What terms are incorporated in contract 4 + cases
Express terms- states in contract writing/orally Implied terms - can be implied by statute or by custom Terms implied in fact- by courts to make contract work for business efficacy MOORCOCK CASE Terms implied in law- by courts even if parties want them or not LIVERPOOL CASE
45
What is economic duress + case
When party is forced to enter contract even tho economic illegitimate pressure was applied ATLAS CASE
46
4 ways to discharge contractual obligations
By performance By agreement By frustration By breach
47
Bilateral and unilateral discharge by agreement
Bilateral- both parties agree to discharge from their contractual obligations, both receive benefit Unilateral- 1 has already carried out their contractual obligation but other hasn’t + wants to be discharged from it, therefore only 1 party receives benefit
48
Entire performance rule meaning + case, 3 exceptions
Both parties complete all contractual obligations POWELL CASE Exception 1 = substantial performance is where party completes contract fully but causes defect HOENIG CASE Exception 2= severable contracts where contract can be divided + paid for accordingly ATKINSON CASE Exception 3= voluntary acceptance of partial performance SUMPTER REJECTED BUT PAID FOR MATERIALS
49
Types of frustration 3/4 cases
-impossible to perform due to unavailability of key source CALDWELL -impossible to perform due to ill health ROBINSON -illegal to perform (subsequent illegality) FIBROSA -radically different KRELL
50
When won’t an event frustrate contract + cases 4
-occurs before contracts formed -contract makes provisions for such event FORCE MAJEURE CLAUSE , KYLA CASE -event merely makes contract more difficult FAREHAM CASE -self induced frustration MARITIME CASE
51
What happens when contracts frustrated + statute
It’s immediately terminated, it’s regulated by LAW REFORM ACT Money owed isn’t paid, money paid already is recoverable S1(2)
52
2 types of breach + case
Actual breach Anticipatory breach HOLCHESTER CASE
53
2 types of remedies
Common law remedies Equitable remedies
54
Damages for non pecuniary loss exception
Exception if sole purpose of contract was relaxation JARVIS CASE
55
In what situation are damages rewarded + case + exception
Where loss arises naturally from breach HADLEY Exception = when parties make provisions for this by making defendant aware of situation
56
Quantisation of damages
Expectation loss- aims to put party in position they would’ve been if contract had been performed Reliance loss- aims to put party in position they would’ve been before contract was formed
57
Duty to mitigate
Claimant must try mitigate their losses as they can’t claim damages for losses that could’ve been avoidable but it’s up to defendant to carry burden of proof to show they didn’t mitigate
58
Equitable remedies types + case
1- specific performance (orders party to carry out contractual obligations) 2- injunction (orders party to not do something) WARNER BROS CASE

Business Law (4 decks)

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