Unit 2 Flashcards
What is negligence
the failure of care to something or someone
What 3 elements must be proven to claim negligence
If there is a duty of care, was there a breach, did the breach cause loss
What is a contract
An agreement between 2 (or more) parties that is legally binding.
What are the 6 elements to contract law
intention, offer and acceptance, consideration, genuine consent, capacity and legality
What is an offer
An offer is a proposal by one party to enter into a legally binding agreement. It can be orally, in writing or by your contract.
What are the rules as to offer
- offer can be made to one person, a group or the whole world
- must be communicated
- can be revoked
- offer can lapse
What are the rules as to acceptance
- acceptance must be communicated
- must be unconditional
- conditions must be followed
- acceptance cannot be revoked
- existence of offer must be present
What are the postal rules
- offer made by letter may be accepted by letter
- offer is not communicated until received
- acceptance happens when it is posted
- revocation must reach offeror before posting acceptance
What is consideration
Consideration is the gain or benefit that is obtained under a contract.
What are the rules of consideration
- must exist in every contract (except deed)
- must not be illegal
- must be definite
- must be possible
- cant be something you are already obliged to do
- can be a promise to not take legal action
What is your neighbour in the topic of negligence
Your neighbour is someone who can reasonably be expected to be affected by your act or omission
What are ways an offer can lapse
- time period
- death or loss
- loss of capacity
- reasonable time
- counteroffer
can acceptance be revoked by the offeree
acceptance cannot be revoked unless offeror agrees
can a contract exist without being in writing
important agreements should be in writing but dont have to be (e.g. milkman)
what is the difference between an offer and an invitation to treat
An invitation to treat is an offer for someone else to make an offer to you
what are the rules concerning the legality of an object in a contract
the contract must be legal and cannot contain anything illegal
how does a deed differ from a contract
a deed does not have consideration
define forseeability
The neighbour principle works of the concept of is what you do reasonably foreseeable
what capacities prevents certain people from entering a contract
mental disability, bankruptcy and infants
what is the case that started negligence and duty of care
Donoghue V Stevenson (snail case)
what are the 3 different types of proximity
casual, physical and circumstancial
what is violenti non-fit injuria
full defence (voluntary assumption of risk)
what are torts
classification of civil actions
what are negligence defences
contributory and volenti non-fit injuria
what is contributory negligence
partial defence and both parties have been negligent
what are implied terms of a contract
A term can be implied (not explicitly stated) into a contract through:
- The courts
- Custom or trade usage
- Legislation
who can enter a contract
everyone except for infants, mental disabled and if you are bankrupt
define misrepresentation
Representation that is untrue (statements around the contract that are untrue)
This can be both deliberate (fraudulent) and innocent (an accident)
what is duress
Someone forces you to enter a contract violence, threats to other people, emotional Voidable
what are exemption clauses used for
An exemption clause is designed to remove liability for one’s actions under a contract.
what is novus actus interviens
new intervening act
what is the ‘but for’ test used for
to determine if breach caused loss
what is vicarious liability
where employers can be held vicariously liable for the wrongful actions of their employees if this act took place in the course of employment.
is a deal between siblings a contract
no because it is not legal binding
if a product is listed at a cheaper price compared when the cashier scans it, does the store have to comply with the listed price
no because it is an invitation to treat and not an offer
in what circumstances can someone under 18 enter a contract
for a necessary cause
- something that is necessary for a minor to enjoy the lifestyle they are accustomed to.
- employment contracts
- shares - as long as they keep them after turning 18
