Week 3: The English Legal System, Contract Law Flashcards
What is the nature of law?
A system of rules laid down by some person or institution with the authority to do so.
What may rules do?
Forbid types of behaviour or impose certain duties or may confer power
What may law consist of?
Set of fundamental principles of morality which legal rules are based on
What are the International categories of law?
Public - governs relationship between countries
Private - governs which country’s law should apply to individuals where there are links to at least 2 different countries
What are the National/Domestic categories of law?
Public - involves the state in some way
Private - concerns relationship between citizens or individuals and corporations. State only establishes framework of legal rules and not concerned with punishment
What types of public domestic law are there?
Constitutional - rules governing elections, who can vote, procedure…
Administrative - how ministers and other public bodies operate
Criminal - concerned with prohibition/prevention of types of conduct, offence is committed against the state.
What does the meaning of common law depend on?
The context in which is is used in
What is the meaning of common law when talking about civil law?
Common law refers to the system of law in England and Wales and other jurisdictions which derive from the English system. Civil law systems are found largely on the continent and are influenced by Roman law
What is the meaning of common law when discussing equity?
There is now no formal division between the two courts
What is the meaning of common law when discussing statute law?
Common law describes rules that have evolved through the courts by the judiciary.
Statute law refers to law created by Parliament (statutes, which are acts of Parliament legislation)
What are the 3 institutions of government?
Government (executive function)
Parliament (legislative function)
Courts (judicial function)
What are the 2 primary sources of law?
Legislation and Case Law (or common law)
Why is it important to have as much separation as possible between the 3 branches of power?
So that the Rule of Law is fair and honourable
What is the final court of appeal for all UK cases?
The Supreme Court
What are the lower levels of courts?
Magistrate’s Court, County Court, Family Court and Crown Court
What court are most civil cases held in?
County Court
What court are family cases held in?
Family Court
What court are most criminal offence cases held in?
Magistrates’ Court
What cases are held in the Crown Court?
Jury trial for all indictable and some either way criminal offences. Appeals against conviction and sentence from the magistrates’ court.
What cases are held in the high court?
Appeals from all other courts and ‘first instance’ cases
Which courts only hear cases that are appeal only, on points of law?
The Court of Appeal and UK Supreme Court
What is the role of the judiciary?
To adjudicate on the law.
Can the judiciary be sued?
They cannot be sued for decisions made in court, but can be investigated regarding procedure of a case before it reaches court.
What should you think about when taking a case to court?
The time, the cost and the relationships it would effect
What determines where a criminal case will be held?
The seriousness of the offence.
What is the Doctrine of Precedent?
It is the use of past decisions to assist in resolution of present problems.
What two elements are there for the judiciary?
Adjudication/interpretation of statutes
Application of precedent
What is the difference between civil and criminal law?
Differences exist in procedure, terminology and outcome
What is Double Indemnity?
Where a case may not be distinguished between civil and criminal law, such as assault, death by dangerous driving, fraud
What are the features of civil cases?
Brought by one indivdual / body against another
No state involvement
Claimant sues defendant
Judge only trial
Standard of proof - balance of probabilities
Outcome is usually damages, injunction, specific performance
What are some examples of civil cases?
Breach of contract Negligence claims Personal injury Nuisance Land disputes
What are the features of criminal cases?
Action brought by the state against individual for behaviour deemed criminal
State prosecutes
Standard of proof - beyond reasonable doubt
Outcome is sanction imposed by state - caution, fine, community service, custodial sentence
What are some examples of criminal cases?
Murder, rape, assault, theft, burglary, driving offences.
What is the Subjective Test?
This looks at the two parties from the perspective of one of the parties
What is the Objective Test?
This looks at contractual relationships as if they were an outsider, a reasonable person
What is the Smith vs Hughes case?
This was where someone went to buy oats, when they arrived they were new oats when they intended to buy old oats. Both parties agreed to the sale of the oats so a contract existed
What is a bilateral contract?
This is where both parties are a promisor and a promisee
Give an example of a bilateral contract
A buyer and a seller - the buyer promises to pay the seller for the goods (buyer - promisor, seller - promisee), and the seller promises to deliver the goods (seller - promisor, buyer - promisee)
What is a unilateral contract?
Where one party promises something to another party, there is only one promisor and one promisee
What is the Carbolic Smoke Ball case?
The producers promised to pay anyone with the product some money if they contract the influenza if they were using the product. In the newspaper ad, they said money had been set aside should someone get influenza to be given to them - when this happened they claimed no contract was in place but courts disagreed.
What is an offer and invitation to treat?
An offer is a statement showing a desire to contract.
An invitation to treat is only an invitation to make an offer.
What is Gibson v Manchester City Council case of 1979
CC had a policy of selling houses to tenants, Gibson wished to buy house. CC said they may be prepared to sell house so Gibson completed form. CC changed policy so Gibson sued claiming there was a contract. Courts decided that CC was an invitation to treat, not an offer
What is acceptance defined as?
A final and unqualified expression of assent to the terms of an offer
What are some forms of acceptance?
Conduct, performance, silence
What does agreement consist of?
Offer + Acceptance
What is required for valid acceptance?
Acceptance Produced + Acceptance Communicated = Valid Acceptance
What is the Postal Rule?
That a contract exists once the contract has been posted
What is the Communication Rule?
That acceptance needs to be communicated for it to be valid
What is the exception to the communication rule?
The postal rule
What are agreement problems?
Unilateral mistake as to terms
Unilateral mistake as to identity
Mutual mistake
Uncertainty
What is consideration?
It is needed to form a contract, it must not be past, must move from the promise, must be sufficient but need not be adequate, and requires an exchange
What does consideration need to be?
Sufficient, but need not be adequate.
What must consideration not be?
Past
What does consideration require?
An exchange
What must consideration move from?
The promise
What are implied terms?
These are terms in a contract that are implied by reference to some statute or legislation
What are expressed terms in a contract?
These are terms in a contract that are explicitly stated - can be written or oral
What is a condition when referring to contract terms?
They are the most important terms, the consequences for breaching these are outlined. The party not in breach can end the contract and claim damages in this case.
What are warranties when referring to contract terms?
These are minor terms in a contract, the consequences for breaching these are outlined, damages can be claimed but the contract must continue
What are innominate terms?
These terms are somewhere between conditions and warranties - depending on the seriousness of the breach leads to how it will be treated.
What is an exemption clause?
These are clauses that allow for a break of contract
What are exemption clauses regulated by?
Common Law and Statutory Interventions
What are the two acts related to exemption clauses?
Unfair Contract Terms Act 1977
Consumer Rights Act 2015
How can contracts be discharged?
By performance
By agreement
By frustration
By breach
What are some exceptions to performance being precisely what is promised under the contract?
Substantial performance
Divisible contracts
Prevention of completion by the other party
Acceptance of partial performance by the other party
What is Discharge of a Contract by Agreement?
It is where it is agreed upon between the parties that the contract can be brought to a close, not necessarily with the terms of the original contract fulfilled. This agreement becomes a new contract.
What are the two ways a contract can be discharged by agreement?
Unilateral discharge and bilateral discharge
What are some frustrating events that can lead to the discharge of a contract?
Destruction of subject matter
Government intervention
Non-occurrence of even central to the purpose of the contract
Subsequent illegaility
Personal incapacity of one of the parties
What does the Law Reform Act of 1943 state in regards to the rights and liabilities of parties with frustrated contracts?
Sums paid or payable in pursuance of the contract prior to the discharge may be recoverable, depending on the incurred expenses before the time of discharge
What does discharge of a contract by breach mean?
This is where a party has not fulfilled an obligation
What are the two types of breaches when it comes to Discharge of Contract by Breach
Anticipatory Breaches
Actual Breaches
What is an actual breach of contract?
This is where a term has been broken, the contract has been breached
What is an anticipatory breach of contract?
This is where one party has indicated that they do not intend to perform an action that they originally intended to perform.
When may an innocent party sue with an anticipatory breach?
They can sue immediately, or wait for the date of the performance to pass
What are the remedies for a breach of contract?
Damages Action for the agreed contract price Quantum meruit (as much as he has earned) Specific performances Injunction Repudiation
Can damages be agreed in advance for a contract?
Yes, but they must not amount to a penalty cause
What are damages that are agreed in advance called?
Liquidated damages
What are expectation losses?
This is for when a contract has been breached, they aim to put the party into the position they would have been had the original contract been compelted
What are reliance losses?
These relate to a breach of contract - they aim to put the party back to where they were before the contract was established
