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Private Law of Scotland I > Wk 1 - Intro and Formation of Contracts > Flashcards

Wk 1 - Intro and Formation of Contracts Flashcards

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1
Q

What is Private Law

A

Uphold rights and enforce duties. Courts can provide remedies when required or obligations are not held.

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2
Q

When may Private Law be invoked

A

Resolution of disputes between persons

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3
Q

How can rights be upheld?

A

Firstly, in the process of negotiation
Ultimately, in the civil courts

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4
Q

What are the 4 categories of Private Law?

A

Persons, Things, Obligations and Actions

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5
Q

Law of Persons

A

Rights and duties arising from status

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6
Q

Law of Property

A

Rights in ‘things’ eg. ownership

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7
Q

Law of Obligations

A

Rights against other persons (personal rights)

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8
Q

Law of Actions

A

Rules of evidence and procedure

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9
Q

Obligations can be…

A

Voluntary or
Involuntary

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10
Q

Voluntary obligations

A

Arise from contract or from promise

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11
Q

Involuntary obligations

A

Imposed by law (unjustified enrichment and delict)

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12
Q

4 Nature’s of Obligations

A

Contract
Promise
Unjustified enrichment
Delict

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13
Q

Types of obligations

A

Unilateral
Bilateral

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14
Q

Unilateral obligations

A

One party in debt to another who can legally enforce it

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15
Q

What is an obligation?

A

Relationship of corresponding rights and duties between two persons

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16
Q

Bilateral obligation

A

B has duty to perform and right to payment
A has right to compel performance and duty to pay

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17
Q

Why do we need law of contracts?

A

Facilities trade
Underpins transactions
Protect against abuse of power where parties aren’t of equal bargaining strength

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18
Q

Difference between Scots and English Law

A

Scots - doctrine of promise
English - doctrine of consideration

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19
Q

5 Principle remedies in a contract

A

Declarator
Payment
Specific implement
Interdict
Damages

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20
Q

Role of Courts?

A

To uphold rights and enforce duties

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21
Q

Party raising action

A

Pursuer

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22
Q

Party action is being raised against

A

Defender

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23
Q

What is needed for conclusion of a contract?

A

Agreement - consensus ad idem
Usually on
Nature of contract
Subject of contract
Price or consideration

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24
Q

What case related to contract or sale or contract of hire purchase?

A

Muirhead and Turnbull v Dickson

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25
Q

Muirhead and Turnbull v Dickson key word

A

Piano

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26
Q

What did court hold in Muirhead and Turnbull v Dickson?

A

Contract was on of sale, not hire purchase

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27
Q

How is consensus viewed?

A

Objectively

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28
Q

Case regarding consensus

A

Mathieson Gee (Ayrshire) LTD v Quigley

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29
Q

Mathieson Gee (Ayrshire) LTD v Quigley key word

A

Pond

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30
Q

What did court hold in Mathieson Gee (Ayrshire) v Quigley?

A

No contract had been concluded

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31
Q

No consensus =

A

No contract

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32
Q

An offer accepted is

A

A contract

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33
Q

Party making the offer

A

offeror

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34
Q

Party to whom the offer is made

A

offeree

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35
Q

When is a statement an offer?

A

When terms are sufficiently clear to indicate the intention of the offeror to be bound

36
Q

Case concerning issue of acceptance and terms

A

Philp & Co v Knoblaugh

37
Q

Philp & Co v Knoblaugh key word

A

linseed

38
Q

What did court hold in Philp v Knoblaugh?

A

Knoblaugh - knob
Found in favour of Philp

39
Q
A

Partridge v Crittenden

40
Q

Partridge v Crittenden key word

A
41
Q

What did court hold in Partridge v Crittenden?

A
42
Q

Case related to offer or invitation to treat

A

Carlill v Carbolic Smokeball Co

43
Q

Carlill v Carbolic Smokeball Co key word

A

Flu

44
Q

What did court hold in Carlill v Carbolic Smokeball Co?

A

Court held in favour of Carlill stating that Carbolic Smokeball Co had made an offer and she accepted by purchasing the item

45
Q
A

Harvey v Facey

46
Q

Harvey v Facey key word

A
47
Q

What did court hold in Harvey v Facey?

A
48
Q

Case relating to offers or invitation to treat

A

Pharmaceutical Society of Great Britain v Boots

49
Q

Pharmaceutical Society of Great Britain v Boots key word

A

Self-checkout

50
Q

What the court held in Pharmaceutical Society off Great Britain v Boots

A

Boots were not in breach of their obligations

51
Q
A

Fisher v Bell

52
Q

Fisher v Bell key word

A
53
Q

What did the court hold in Fisher v Bell?

A
54
Q
A

Chwee Kin Keong v Digilandmall.com Pte Ltd

55
Q

Chwee Kin Keong v Digilandmall.com Pte Ltd key word

A
56
Q

What did the court hold in Chwee Kin Keong v Digilandmall.com Pte Ltd?

A
57
Q
A

McArthur v Lawson

58
Q

McArthur v Lawson key word

A
59
Q

What did the court hold in McArthur v Lawson?

A
60
Q

What is an invitation to treat?

A

Not an offer, advert, invitation for another to make an offer

61
Q

3 conditions on which an offer can lapse

A

Passage of time
Offer revoked or withdrawn
Counter-offer

62
Q

What is the effect of a counter-offer?

A

Kills off original offer

63
Q

Cases relating to the effect of a counter-offer

A

Hyde v Wrench and Wolf and Wolf v Forfar Potato Co

64
Q

Hyde v Wrench key word

A
65
Q

Wolf and Wolf v Forfar Potato Co key word

A
66
Q

Case relating to passage of time

A

Wylie & Lochhead v McElroy & Sons

67
Q

Wylie & Lochhead v McElroy & Sons key word

A

Iron - 5 week delay

68
Q

What does acceptance do?

A

Converts offer into a contract

69
Q

Case relating to stipulating mode of acceptance

A

Holwell Securities Ltd v Hughes

70
Q

Holwell Securities Ltd v Hughes key word and what the court held

A
71
Q

Case about stipulating acceptance by silence

A

Felthouse v Bindley

72
Q

Felthouse v Bindley key words and what the court held

A

Failure to repond could not be regarded as acceptance

73
Q

Case regarding acceptance by silence exception

A

Shaw [2010]

74
Q

When is acceptance communicated?

A

On receipt

75
Q

What is the postal acceptance rule?

A

Acceptance is communicated upon posting

76
Q

What happens when acceptance and revocation cross in the post?

A

the contract is concluded as revocation must be received to be effective

77
Q

Case relating to postal acceptance rule

A

Thomson v James

78
Q

What the court held in Thomson v James and key word

A

It is not enough to post a withdrawal as it must actually communicated so the contract was upheld

79
Q

What did Dunlop v Higgins suggest about the postal acceptance rule?

A

That if a withdrawal is received before or at the same time as acceptance, it it possible to withdraw

80
Q

6 principles of a promise

A

Unilateral obligation
Must be in writing and signed by the person making the promise unless in course of business
serious intention to be bound
Must reach third stage of: desire, resolution and engagement
Must be communicated
Irrevocable once made, but may be rejected
Needs no acceptance but may be subject to a condition

81
Q

Where is it stated that a promise must be in writing?

A

Requirements of Writing (Scotland) Act 1995

82
Q

Case relating to third stage of desire, resolution and engagement

A

Cawdor v Cawdor
no promise had actually been made

83
Q

Case relating to use of promise in commercial setting

A

Carlyle v RBS

84
Q

Case relating to promise to keep an offer open

A

Littlejohn v Hadwen

85
Q

Case regarding rewards

A

Petrie v Earl of Airlie

86
Q

Case relating to bilateral gratuitous contract

A

Wick Harbour Trs v The Admiralty

87
Q

Cases relating to a promise (unilateral gratuitous promise)

A

Macfarlane v Johnston, Regus (Maxim) Ltd v Bank of Scotland plc

Private Law of Scotland I (9 decks)

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