Week 1 Notes

Question 1

Contract

Answer 1

An agreement between two parties with the intention of creating legally binding rights and duties between the two parties.

Question 2

Animus Contrahendi

Answer 2

The actual intention of creating legally binding rights and duties between contracting parties.

Question 3

Performance

Answer 3

The act which was promised within the contract which must be carried out by parties:
1.Dare =To Give Something
2.Facere=To Do Something
3.Non-Facere=TO refrain From Doing Something

Question 4

Obligations

Answer 4

One right to receive performance and one corresponding duty to give the performance created between contracting parties.
UNILATERAL: one person has rights and one person has duties.
BILATERAL: both parties have right and duties to performance.

Question 5

Analyse the general nature and place of contract
law in the legal system

Answer 5

National law=Private law=Law of Obligations=Contract Law
1.Performance can only be claimed from those party to a contract.
2.Privity of Right=created by contracts where personal rights and contractual remedies only enforceable to those party to the contract.
3.Terms in a contract=create obligations, which can be oral, tacit or implied via actions.

Question 6

Essentialia

Answer 6

The terms of a contract that help identify what type of a contract. The main aspects of a contract.

Question 7

Naturalia

Answer 7

Terms that are automatically attached by law to a specific type of contract, without expressly being said.

Question 8

Incidentalia

Answer 8

Residual matters for which there are special provisions for in the contract

Question 9

Express

Answer 9

Terms which parties agreed upon in the contract, written or orally.

Question 10

Implied Terms

Answer 10

Terms that become part of the contract by operation of the law(naturalia)

Question 11

Tacit Terms

Answer 11

Terms which parties do not expressly agree, but are implied because of the parties’ conduct.

Question 12

Cornerstones

Answer 12

1.Freedom Of Contract: contracting parties have the right to contract with whomever they wish and on whichever terms. Supported by Constitutional Values of freedom and dignity.
2.Value of Good Faith :based on fairness & reasonableness; requires party to act honestly when dealing with other negotiating parties; respect.

Question 13

Requirements for a Valid Contract (CCLPCF)

Answer 13

1.Consensus: Parties must be in agreement on material aspects of contract.
2.Capacity: Parties must have necessary legal capacity to contract.
3.Legality: Agreement must be lawful
4.Possibility: Performance must be possible
5.Certainty: Agreement must be definite, no confusing points. Enough to determine the obligation of parties.
6.Formalities: Agreement must be in certain format, usually in writing and signed.

Question 14

Valid Contract

Answer 14

Where all requirements are fulfilled, the contract is legally binding and breach thereof has its own remedies.

Question 15

Invalid Contract/Void

Answer 15

If requirements are missing, contract is considered completely void. Contract cannot be enforced and performances must be returned.

Question 16

Voidable Contract

Answer 16

Requirements are met, however one of the parties acts improperly. The offended party can choose cancel the contract and ab initio comes into affect or uphold it.