Summary Flashcards
What is needed to have a contract?
- Agreement (offer and acceptance)
- Intention to enter into legal relations
- Consideration
What is the doctrine of privity of contract?
Only parties to a contract can enforce that contract
What is a possible defence for breach of contract?
The plaintiff has a duty to mitigate loss
What are the remedies for breach of contract?
Compensatory damages (normal loss, loss in defendant’s contemplation), termination of contract (if clear party won’t carry out or serious breach), non compensatory remedies (specific performance, injunction)
What is S9 of the FTA?
No person shall, in trade, engage in conduct that is misleading or deceptive or likely to mislead or deceive
What is the definition of trade?
Any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply of goods or services or to the disposition or acquisition of any interest in land
How is S9 of FTA different from S10-13?
S9 results in civil liability and the rest is criminal liability
What is S10, S11 and S13 of FTA?
S10 - misleading conduct - goods
S11 - misleading conduct - services
S13 - false or misleading representations
What are possible defences to FTA?
S9 - no defences
S10-13 - reasonable reliance on info supplied by another person, breach due to cause beyond defendant’s control (reasonable precautions taken), contravention due to reasonable mistake
What are the remedies for FTA?
Civil - injunction, damages, refund
Criminal - 200k for individuals, 600k for companies
What is required to contract out of the FTA/CGA?
- Agreement in writing
- Both parties in trade
- Fair and reasonable
What is the two-part test for consumer under the CGA?
Acquires from a supplier goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption
Does not acquire for the purpose of;
- resupplying in trade
- consuming in a production/manufacturing process
- repairing other goods in trade
What are the guarantees for goods under the CGA?
- Acceptable quality
- Fitness for a particular purpose
- Compliance with description and samples
What is considered acceptable quality?
- Fit for all purposes commonly supplied for
- Acceptable in appearance and finish
- Free from minor defects
- Safe and durable
What are the guarantees for services under the CGA?
- Reasonable care and skill
- Fitness for a particular purpose
- Finish the task within reasonable time frame
- Reasonable price
What are the remedies against suppliers under CGA?
If can be repaired - repair/replace
If cannot be fixed or of substantial character - refund/replacement/damages
What are the remedies against manufacturers under CGA?
Damages - difference between price paid or average retail price and current value; reasonable foreseeable damages
What is failure of a substantial character under the CGA?
- Goods depart in significant way from description
- Substantially unfit for common purpose
- Unsafe
What are the elements to prove negligence?
- Owed a duty of care
- Breach of duty
- Breach caused harm
- Harm to plaintiff was not so remote
Who is owed a duty of care?
Persons who are so closely and directly affected by my act that I ought reasonably to have them in mind when I act
(proximity, foreseeability, policy factors)
How is requisite standard of care determined?
Reasonable person test - depends on facts, skills, probability of harm
How is causation determined?
The but for test
How is remoteness of harm determined?
Wagon Mound test - defendant is liable for the type or kind of loss that a reasonable person could foresee (liable for full extent)
What is the egg shell skull principle?
You take your victims as you find them
What are possible defences to a claim of negligence?
Contributory negligence and voluntary assumption of risk
What are the elements of negligent misstatement?
Duty of care (reasonable reliance)
Breach of duty of care
Actual reliance
Remoteness of harm (economic)
What factors affect whether a duty of care is owed in negligent misstatement?
Contract
Communication
Disclaimers
Defendant knows plaintiff will rely for immediate purpose
Defendant has special knowledge which reasonably infers plaintiff will use (liability possible)
Defendant knows statements likely to be relied on but knows nothing about plaintiff (liability unlikely)
What rights are in the bundle of rights theory?
The right to;
- Physically possess
- Use
- Exclude others from using
- Transfer and receive proceeds
- Abandon/destroy
What is title?
Full entitlement - all in bundle of rights
What is the Nemo dat rule?
No person can give better title to goods than they have
How is real property categorised?
Land (fixtures), estates in land, interest in land (easements, mortgages)
What are freehold estates in fee simple?
Most complete ownership of land
What are freehold life estates?
Right to live/rent over duration of life
What are leasehold estates?
Do not own the land; only the building on it
How is personal property categorised?
Chose in possession (tangible items enforced through property rights) and chose in action (intangible items enforced through legal action)
What is the difference between a secured creditor and an unsecured creditor?
Secured creditors have property rights and personal rights; unsecured only have personal
What are registration systems for?
Allows different types of interests to be registered in public registers
What are title based registers?
Records who has title/interest eg. Torrens system
What are interest based registers?
Records only certain types of interest eg. Personal Property Securities Act
How is the Torrens system indexed?
According to land’s identity
How is the PPSA indexed?
According to name of debtor - does not tell who owns personal property
What is the Doctrine of Indefeasability?
The record of title is final evidence of everything about the title and ownership of the land (givers certainty to Torrens system)
What is an inter vivos trust?
Set up while the settlor is alive. Does not require written document and settlor no longer owns assets once set up.
What is a testamentary trust under will?
Takes effect after settlor dies. Formal requirements to set up.
What must deeds/wills include?
Name of trustee Trust property Powers of trustees How income is distributed Duration
What are the requirements for a valid trust?
Certainty of intention
Certainty of beneficiaries
Certainty of subject matter
When are trusts invalidating?
Illegal purposes
Set aside by legislation
Defeating credits
What are the two types of fiduciary relationships?
Status-based and fact-based
What is required to comply with fiduciary duties?
No conflicts of interest
No secret profits
No competition with principal
No misuse of principal’s property
How can conflicts be avoided?
Disclosure
Consent
Fair price (suggest independent legal advice)
What are the 12 principles in the Privacy Act?
- Info relevant to purpose
- Collected from subject directly
- Must be told info being collected (who, why)
- Not collected unfairly
- Held securely
- Allow access
- Request correction
- Ensure accuracy
- Don’t keep for longer than needed
- Only used for purpose collected
- Info cannot be disclosed to others
- Cannot assign same unique identifier
What is the headstart doctrine?
Confidentiality until other competitors bring the product on the market
What are possible defences to a claim of breach of confidence?
Public knowledge
Independent discovery
Disclosure in public interest
What does copyright cover?
Original works;
- Literary
- Dramatic
- Musical
- Artistic
- Sound recordings
- Films
What is required to register a trade mark?
Must be a sign
Capable of being represented graphically and distinguishing
Cannot be laudatory/descriptive etc.
What can cause infringement under the Trade Marks Act?
Identical trademark/goods
Identical trademark/similar goods
Similar trademark/identical or similar goods
Identical or similar trademark/any goods if well known in NZ
What are the remedies for copyright and trademarks?
Injunctions
Delivery up of infringing copies
Account of profits
Damages
What authority can be held by an agent?
Actual - express or implied
Apparent
