WK 1 - Introduction Flashcards
Intro & formation of contract
When is private law invoked?
Resolution of disputes between persons.
Role of private law/courts/remedies
Uphold rights and enforce duties.
Structure of private law (4)
Persons: Rights & duties arising from status (e.g. parent & child)
Properties: Rights in ‘things’ (e.g. ownership)
Obligations: Personal rights against others (e.g. breach of contract)
Actions: Rules of evidence & procedure (e.g., remedies)
Voluntary obligations
Ex voluntante.
Arise from contracts/promise
Involuntary obligations
Ex lege.
Unjustified enrichment and delict.
Explain the nature of obligations (4)
Contract: Obligation to pay or perform
Promise: Obligation to carry out its terms
Unjustified enrichment: Obligation to restore benefit which was transferred
Delict: Obligation to make reparation for wrongfully caused harm
What is an obligation?
Relationship of corresponding rights and duties between two persons
What is a unilateral obligation? Example.
B (debtor) owes a debt to A (creditor).
B is under duty to pay creditor and the right is enforceable by A against B.
What is a contractual obligation?
B agrees to paint A’s shed for £40.
B is under a duty to perform and right to payment. A has the right to compel performance and a duty to pay.
[Usually bilateral.]
How is recourse made? (4)
Made to general principles in question of:
Formation; defective agreements; contractual terms; breach of contract + remedies
Where is a promise valid? And where is consideration valid?
Promise: Scotland
Consideration: England
[Which questions to ask?]
Is there a contract?
What is the contract?
Is it enforceable?
Can someone ‘get out’?
When does it end?
What are the principle remedies in a contract? (5)
Declarator
Damages
Payment
Specific implement
Interdict
What is necessary to conclude a contract?
Consensus
Which terms must typically be agreed upon?
Nature of the contract
Subject(s) of the contract
The price [or consideration]
How is consensus viewed?
Objectively
When is a statement an offer?
When its terms are sufficiently clear to indicate the intention of the offeror to be bound in contract on acceptance by the offeree
Invitations to treat must be followed by…
…an offer
When does an offer lapse? (3)
When rejected or met by counter offer.
When revoked (withdrawn) by offeror.
When it is not accepted in time.
_____ converts an offer into a contract.
Acceptance
How can acceptance be identified?
Expressly or implied by action in conformity with terms of the offer
When is acceptance effective?
On receipt. Until then can be withdrawn.
e.g., once read, phone answered, message listened.
Postal acceptance rule
But there is an exception: a contract will be formed at the time when the acceptance is posted.
Only applies to posted acceptances.
When is revocation effective (postal acceptance rule)?
Revocation of offer must be received to be effective.
Where acceptance and revocation of offer cross in post, contract is concluded.
When is acceptance effective (postal acceptance rule)?
On posting.
Not required to be actually communicated - once posted, concluded.
Describe a promise
Unilateral obligation
In writing and signed by person making it (unless business): Requirements of Writing (Scotland) Act 1995 s.1 (1) (a) (iii)
Serious intent to be bound
Must be communicated
Irrevocable once made, but rejection possible
No acceptance needed but may be subject to a condition
