Week 1 Introduction

Question 1

what is a contract

Answer 1

agreement between two or more parties creating obligations which are enforceable by law

Question 2

what is the older definition of contract

Answer 2

pacta sunt servanda

Question 3

what does pasta suit servanda mean

Answer 3

• Pacta = agreement
• Sunt = agreement to do something
• Servanda = enforceable by law

Question 4

what was the union of the crown 1603

Answer 4

same person wearing crown in Scot and Eng but the states and legal systems are separate

Question 5

union of parliaments 1707

Answer 5

• political union, created GB
• abolished Scots parliament and replaced it with British legislature
• preserved Scots courts and law

Question 6

act of union 1707

Answer 6

preserved the Scots courts and Scots law

Question 7

what is the relationship between Scots and English contract law

Answer 7

• Legal doctrines have different roots, but grew close together due to the Union of parliaments 1707
• Law of contract is similar in the jurisdictions but important differences remain

Question 8

what is contract (defined by rights)

Answer 8

• a personal right
• jus in personam
• ‘owing’

Question 9

what is property

Answer 9

• real right
• ‘good against the world’
• ‘owning’

Question 10

most important contract statutes

Answer 10

• Unfair contract terms act 1977
• Requirements of Writing Act 1995
• Age of Legal Capacity Act 1991
• Consumer Rights Act 2015

Question 11

lifecycle of a contract

Answer 11

1. Pre contractual negotiation
2. Contract in existence
3. Vitiation
4. Content/Terms
5. Remedies

Question 12

Essential Elements of contractual formation

Answer 12

1. Capacity
2. Intention to be Legally Bound
3. Agreement
4. Formality
5. Consideration – English law only
6. Legality/Public Policy

Question 13

what is the connection between contract and property

Answer 13

Contract is the main way/method property is transferred

Question 14

connection between contract and delict/torts

Answer 14

• Delict is the’default setting’ of liability but delictual duties can be waived or altered by contractual agreement
• ‘Contract trumps tort’

Question 15

what shaped English law and what did it mean

Answer 15

• English law shaped by Writ system
• A writ was a formal order in writing issued under seal, in the name of a sovereign, government e.g., commanding someone to do an act specified

Question 16

what was the Judicature Acts of 1870s

Answer 16

Chancery and common law courts merged

Question 17

what influenced the shaping of contract

Answer 17

• the institutions of the Laws of Scotland
• shaped by principles

Question 18

what are the three theories of contract law

Answer 18

1. Promissory theory
2. Will theory
3. Reliance theory

Question 19

what are the four values of contract law

Answer 19

1. Freedom of contract
2. certainty of contract
3. Certainty and coercion in contractual performance
4. relative unimportance of fairness

Question 20

what is freedom of contract in summary

Answer 20

• freedom to agree to the terms of a contract which aren’t forbidden by law
• favours the stronger party that can impose terms in their favour
• once you agree, you are bound

Question 21

what is certainty of contract

Answer 21

• supreme value of contract law, judges respect this principles
• contracts must be performed, performance should be made as certain as possible
• obligation to perform contract is one of strict liability ,no excuses

Question 22

what is certainty and coercion in contractual performance

Answer 22

• liability to perform a contract is strict, no excuses
• non-performance is breach of contract and punished by monetary compensation paid by the breaching party to innocent party
• binding contract = enforceable by court

Question 23

what was the main aim of writs and what did it contrast

Answer 23

• achieve solutions to disputes by procedures
• contrasted Romano-Germanic family that the common law system didn’t attempt to find justice