Theory Flashcards
What is Negligence?
- Nature and extent of potential loss (financial means)
- Probability of loss
- Costs of preventative measures
Preliminary Question regarding Duty of Care
Does the tortfeasor need to take somebody’s interest into account at all?
Yes: Duty of Care
No: No Duty of Care
Present Test for Duty Of Care
Caparo v Dickman - 3 Stage Test
- Forseeability
- Proximity
- Is imposing a duty of care, fair and reasonable?
Strict Liability
Liability for something you are inherintely responsible for
eg. child, car
Scope of Indirect Victims
- Duty of Care
- Loss of person
- Loss of object eg. C’s fabrik has no strom bc A damaged B’s cable
Expiration period for tort claims
10 years
What is a contract
Mandatory v non-mandatory
= Tacit agreement intended to be binding
- Non Mandatory Law = Deviation in contract is allowed (commercial)
- Mandatory Law = no deviation in contract eg. consumer to employee
What is an offer
Intended to be acepted
Start Negotiations
What is an acceptance / When is something an acceptance?
Fulfill “offer” requirements & Statement w/ Behaviour
Offer Requirements
1. Intention to be accepted
2. Intention to start negotiations
Approaches of Self-Determination & Reliance
- Contract based upon reliance of recipient (UK)
- Declaror can choose between upholding contract or paying compensation (DE)
Validity
Internal Validity
Valid Contract reflects free and authentic agreement of the parties
Validity
External Validity
Valid contract respects collective value
**** CANNOT BE BASED ON ILLEGAL ACTIVITIES!
Fundamental Principles
Mercantile Values
Relating to trade or commerce
Fundamental Principles
Non Mercantile Values
Not relating to trade/commerce eg. surrogacy
What is Force Majeure
= impossible performance for the debtor
Force Majeure Conditions
- External ; beyond debtor’s control
- Irresistable ; could not be avoided / overcome
- Unforseeable ; could not be taken into account
Force Majeure Consequence
If temporary = excused for time when impediment exists
If permanent = obligation is from that point on extinguished
How to get rid of a contract
Steps
- No Consensus
- Infringement of a Fundamental Principle / Mandatory Rule
- Avoidance
- Right of Withdrawal
- Termination due to non-performance
- Change of circumstances
- Force Majeure
Right to withdrawal ; Validity
Internally ; No consensus / fraud / mistake / coercion / unfair explotiation
Externally ; violation of fundamental right / mandatory rule
Right to withdrawal ; Non-Performance / Remedies
Remedies for non-performance ; Termination, Price Change etc.
Excuses : Change of Circumstances / Force Majeure
Avoidance of a Contract
- Fraud
- Mistake
- Coercion / Threats
- Unfair Exploitation
If the case mentions that a party is broke, DO NOT do avoidance of contract bc other party has no money nor assets
How to avoid a contract
- Give Notice
- No Form Prescribed
- Right to avoid is lost if;
- Notice is given after unreasonable lapse of time
- Confirmation on contract is expressed or implies
Unfair exploitation
= Some kind of dependency between one party and another
REMEMBER
- Benefit / Advantage of other party is irrelevant
- Adaptation of contract is possible
Reciprocal Obligations
Buyer –> Seller = Contract of Sale
Procedure for invoking remedy
- Non-Performance of a debtor
- Sent a notice of default to debtor
- Opportunity debtor to cure has passed
Burden of proof on creditor = need to prove debtor did not deliver, creditor gave chance and it was ignored
3 scenarios of mistake
- Mistake due to info given
- Leaving the other party in error (keeping silent)
- Both Parties were mistaken
