Week 3 Flashcards
Law definition
SYSTEM of rules laid down by an entity with the authority to do so
Three main powers of law
Forbid certain behaviours
Impose duties
Confer power
Difference between law and ethics/morality
Ethics and morality change as our society does
Public international law definition
Governs relationships between countries (treaties)
Public domestic law definition
Involves the state (constitutional, administrative or criminal)
Private domestic law
Concerns the relationship between entities (contract law)
Private international law
What countries’ law applies to individuals when there are links to 2 different countries
2 Sources of legislation in England
Legislation
Case Law (Common law)
Common law definition
Judges rely on precedents set by prevoius courts to interpret those laws and apply them
Difference between law and equity
Law ensures justice, equity ensures fairness (Can come into conflict)
Executive definition
Prime minister and cabinet (Authority to govern)
Legislature definition
Parliament (Enacts new laws)
Judiciary definition
Courts (Deals with interpreting statutes/To adjudicate on the law)
Civil cases definition
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
Criminal cases definition
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
Judicial review
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
Example of abuse of power check in judicial review
Gina Miller, Article 50
Indictable offences
Most serious offences (murder or rape)
Tried in a crown court
Summary offences
More minor offences (speeding)
Quicker trials
“Either way offence”
Tried in either depending on nature/seriousness
Magistrates’ Court
Most criminal offences, some civil matters
County court
Most civil cases
Crown court
Jury trial for all indictable and some either-way criminal offences.
Appeals against conviction and sentence from the magistrates’ court
High Court divisions
Chancery
Queen’s Bench
Family Divisions
High court purpose
Hear appeals from all other courts
Hear “first instance” cases
Court of Appeal
Appeal only, on points of law to either criminal or civil divisions (Above the high court)
UK Supreme Court
Appeal only, on points of law (Above all other courts)
Contract main points
Bargain between 2 or more entities
Legally enforceable
Freedom to contract
Parties can make their own bargains but the courts/statues may imply terms or prohibit certain types of clauses.
Necessary conditions for contract
Offer and Acceptance
Intention to create legal relations
Consideration
The capacity to enter into a contract
What can a statement be?
Boast
Invitation to treat
Information/Opinion on an offer
Bilateral contract
One party offers to do something in return for an action by the other party; there is an obligation to do what is agreed
Unilateral contract
One party promises to perform an action, if the other party completes an action
Reward “If you do x, I’ll do y”
Offer definition
Statement of terms by which a party is willing to be bound
Must be certain
Requesting information about something does not form an offer
Invitation to treat definition
Invitation to negotiate (Not an offer)
Termination of an offer
Produce a counter offer
Express said intention clearly
Let a significant amount of time pass
Die
Accept said offer
Revocation of offer
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
Acceptance of an offer
Assent to all terms of an offer
Only made by party itself or their agent
Positive act (Silence is invalid)
Posting rule
Acceptance takes effect when acceptance letter is posted
Acceptance produced + acceptance communicated = Valid acceptance -> contract
Problems in agreeing on a contract
Unilateral mistakes to terms/identites, mutual mistakes or uncertainty
Overcome by statutory machinery
Consideration
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
Term definition
Part of a contract orally or in writing
Difference between representation and trader’s hype
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
Express terms
Expressed orally on in writing in a contract
Implied terms
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
3 methods of including express terms in a contract
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)
Condition
Major term. Party not in breach can choose to end the contract and claim damages
Warranty
Minor term. Damages can be claimed but contract continues
Innominate terms
Depend on seriousness of breach as to how they’re treated
Exemption clauses
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
Exemption clauses must be reasonable
Under the Unfair Contract Terms Act 1977 (B2B)
Exemption clauses purporting to exclude liability for death or injury through negligence are invalid
Consumer rights act 2015
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
Interpretation definition
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
4 methods of bringing a contract to it’s end
Agreement
Performance
Frustration
Breach
Contract termination through agreement
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
Contract termination through performance
When both parties have performed their contractual obligations
Performance must mirror exactly and precisely what was promised
Contract termination through performance exceptions
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)
Contract termination through frustration
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
5 ways contracts become frustrated
Destruction of subject matter
Subsequent illegality
Government intervention
Personal incapacity of one party
Purpose of contract doesn’t occur
Contract termination through breach
Covers many scenarios but usually involves one party failing to comply with either an express or implied term under the contract
2 types of breach
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)
Remedy for contract breach
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
Damages as remedy for contract breach
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
