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COMP3219 > Week 3 > Flashcards

Week 3 Flashcards

1
Q

Law definition

A

SYSTEM of rules laid down by an entity with the authority to do so

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2
Q

Three main powers of law

A

Forbid certain behaviours
Impose duties
Confer power

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3
Q

Difference between law and ethics/morality

A

Ethics and morality change as our society does

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4
Q

Public international law definition

A

Governs relationships between countries (treaties)

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5
Q

Public domestic law definition

A

Involves the state (constitutional, administrative or criminal)

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6
Q

Private domestic law

A

Concerns the relationship between entities (contract law)

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7
Q

Private international law

A

What countries’ law applies to individuals when there are links to 2 different countries

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8
Q

2 Sources of legislation in England

A

Legislation
Case Law (Common law)

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9
Q

Common law definition

A

Judges rely on precedents set by prevoius courts to interpret those laws and apply them

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10
Q

Difference between law and equity

A

Law ensures justice, equity ensures fairness (Can come into conflict)

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11
Q

Executive definition

A

Prime minister and cabinet (Authority to govern)

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12
Q

Legislature definition

A

Parliament (Enacts new laws)

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13
Q

Judiciary definition

A

Courts (Deals with interpreting statutes/To adjudicate on the law)

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14
Q

Civil cases definition

A

Brought by one individual/body against the other (state not involved/no juries)
No criminal record if you lose a civil case
Lower burden of proof to succeed
Outcome is usually damages or an injunction
Can be costly to take to court so should consider impact

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15
Q

Criminal cases definition

A

Brought by the state against invididuals for behaviour deemed criminal (state prosecutes and involvement of juries)
Burden of proof much higher (beyond reasonable doubt)
Seriousness of offence determines where the case is heard
Outcomes range from fine, community service to a custodial sentence

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16
Q

Judicial review

A

Judges can check executive decisions. If there has been an abuse of power (ultra vires), remedial action can be taken
Done by an impartial body

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17
Q

Example of abuse of power check in judicial review

A

Gina Miller, Article 50

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18
Q

Indictable offences

A

Most serious offences (murder or rape)
Tried in a crown court

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19
Q

Summary offences

A

More minor offences (speeding)
Quicker trials

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20
Q

“Either way offence”

A

Tried in either depending on nature/seriousness

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21
Q

Magistrates’ Court

A

Most criminal offences, some civil matters

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22
Q

County court

A

Most civil cases

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23
Q

Crown court

A

Jury trial for all indictable and some either-way criminal offences.
Appeals against conviction and sentence from the magistrates’ court

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24
Q

High Court divisions

A

Chancery
Queen’s Bench
Family Divisions

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25
Q

High court purpose

A

Hear appeals from all other courts
Hear “first instance” cases

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26
Q

Court of Appeal

A

Appeal only, on points of law to either criminal or civil divisions (Above the high court)

27
Q

UK Supreme Court

A

Appeal only, on points of law (Above all other courts)

28
Q

Contract main points

A

Bargain between 2 or more entities
Legally enforceable

29
Q

Freedom to contract

A

Parties can make their own bargains but the courts/statues may imply terms or prohibit certain types of clauses.

30
Q

Necessary conditions for contract

A

Offer and Acceptance
Intention to create legal relations
Consideration
The capacity to enter into a contract

31
Q

What can a statement be?

A

Boast
Invitation to treat
Information/Opinion on an offer

32
Q

Bilateral contract

A

One party offers to do something in return for an action by the other party; there is an obligation to do what is agreed

33
Q

Unilateral contract

A

One party promises to perform an action, if the other party completes an action
Reward “If you do x, I’ll do y”

34
Q

Offer definition

A

Statement of terms by which a party is willing to be bound
Must be certain
Requesting information about something does not form an offer

35
Q

Invitation to treat definition

A

Invitation to negotiate (Not an offer)

36
Q

Termination of an offer

A

Produce a counter offer
Express said intention clearly
Let a significant amount of time pass
Die
Accept said offer

37
Q

Revocation of offer

A

Offeror can revoke offer at any time until acceptance takes place but the revocation must be communicated and received by the offeree
With the same prominence as the offer in the case of unilateral contracts

38
Q

Acceptance of an offer

A

Assent to all terms of an offer
Only made by party itself or their agent
Positive act (Silence is invalid)

39
Q

Posting rule

A

Acceptance takes effect when acceptance letter is posted
Acceptance produced + acceptance communicated = Valid acceptance -> contract

40
Q

Problems in agreeing on a contract

A

Unilateral mistakes to terms/identites, mutual mistakes or uncertainty
Overcome by statutory machinery

41
Q

Consideration

A

Required to enter into a contract
Price(anything of value) given in exchange for goods or services
Must occur even if you alter a contract
Requires an exchange, must move forward from promise and be sufficient

42
Q

Term definition

A

Part of a contract orally or in writing

43
Q

Difference between representation and trader’s hype

A

If statement is a representation, then there is a remedy for misrepresentation
If statement is a form of traders hype, then there is no remedy

44
Q

Express terms

A

Expressed orally on in writing in a contract

45
Q

Implied terms

A

Come from statute, the courts or trade custom
Terms implied in a contract by statue often aimed at protecting the party with the weaker bargaining power

46
Q

3 methods of including express terms in a contract

A

Signature (Written contract signed by the other party)
Notice (Reasonable notice given, if document is contractual in nature and sufficient notice given)
Custom (Established by party’s previous trading relationship or expected conduct of business in that locality)

47
Q

Condition

A

Major term. Party not in breach can choose to end the contract and claim damages

48
Q

Warranty

A

Minor term. Damages can be claimed but contract continues

49
Q

Innominate terms

A

Depend on seriousness of breach as to how they’re treated

50
Q

Exemption clauses

A

Seek to limit or exclude a liability that would otherwise exist
Must be incorporated into contract at time of agreement and reasonably brought to the other parties’ attention
New consideration required for new exemption cause
Court construes ambiguity against party seeking to rely on ambigious exemption clause
Must meet the test of fairness

51
Q

Exemption clauses must be reasonable

A

Under the Unfair Contract Terms Act 1977 (B2B)
Exemption clauses purporting to exclude liability for death or injury through negligence are invalid

52
Q

Consumer rights act 2015

A

Consumer-business contracts
States that an unfair term is not binding on a consumer
Rule against excluding liability for death/injury still applies as well

53
Q

Interpretation definition

A

The ascertainment of the meaning which the document would convey to a reasonable person having … all the background knowledge
The meaning a document conveys to a reasonable man is not the same as the meaning of its words

54
Q

4 methods of bringing a contract to it’s end

A

Agreement
Performance
Frustration
Breach

55
Q

Contract termination through agreement

A

End a contract by agreeing to do so; this creates a new contract which supersedes the old one.
Occurs via express provision or via release/abandonment

56
Q

Contract termination through performance

A

When both parties have performed their contractual obligations
Performance must mirror exactly and precisely what was promised

57
Q

Contract termination through performance exceptions

A

Substantial performance (Deduce an amount based on work not done if present)
Divisible contracts (If possible to divide contract into smaller parts, award sum for parts completed)
Acceptance of partial completion (If the other party freely accepts partial work, can discharge normally)
Prevention of completion (If promise prevents completion, then the promisor is entitled to payment for work done)

58
Q

Contract termination through frustration

A

Contract becomes impossible or illegal to perform
Can occur for many reasons, usually not at fault of either party
If one party purposefully attempts to frustrate a contract, this is prevention of completion

59
Q

5 ways contracts become frustrated

A

Destruction of subject matter
Subsequent illegality
Government intervention
Personal incapacity of one party
Purpose of contract doesn’t occur

60
Q

Contract termination through breach

A

Covers many scenarios but usually involves one party failing to comply with either an express or implied term under the contract

61
Q

2 types of breach

A

Actual breach (If the time of performance has passed and the contract has been breached)
Anticipatory breach (If the time of performance has not yet passed, but one party has indicated they do not intend to perform)

62
Q

Remedy for contract breach

A

Dependent on type of term breached and the importance of it
Innocent party can immediately discharge contract if breach was fundamental (major term) otherwise the contract usually continues
Quantum Meruit, specific performance, action of the agreed contract price, injunction, repudiation

63
Q

Damages as remedy for contract breach

A

Aim is to put the innocent party in the position they would’ve been in, had the contract been performed
Must not be too remote (legal test of causation)
Shouldn’t penalise the party in breach

COMP3219 (14 decks)

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