WK 1 - Introduction

Question 1

When is private law invoked?

Answer 1

Resolution of disputes between persons.

Question 2

Role of private law/courts/remedies

Answer 2

Uphold rights and enforce duties.

Question 3

Structure of private law (4)

Answer 3

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)

Question 4

Voluntary obligations

Answer 4

Ex voluntante.
Arise from contracts/promise

Question 5

Involuntary obligations

Answer 5

Ex lege.
Unjustified enrichment and delict.

Question 6

Explain the nature of obligations (4)

Answer 6

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

Question 7

What is an obligation?

Answer 7

Relationship of corresponding rights and duties between two persons

Question 8

What is a unilateral obligation? Example.

Answer 8

B (debtor) owes a debt to A (creditor).
B is under duty to pay creditor and the right is enforceable by A against B.

Question 9

What is a contractual obligation?

Answer 9

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.]

Question 10

How is recourse made? (4)

Answer 10

Made to general principles in question of:
Formation; defective agreements; contractual terms; breach of contract + remedies

Question 11

Where is a promise valid? And where is consideration valid?

Answer 11

Promise: Scotland
Consideration: England

Question 12

[Which questions to ask?]

Answer 12

Is there a contract?
What is the contract?
Is it enforceable?
Can someone ‘get out’?
When does it end?

Question 13

What are the principle remedies in a contract? (5)

Answer 13

Declarator
Damages
Payment
Specific implement
Interdict

Question 14

What is necessary to conclude a contract?

Answer 14

Consensus

Question 15

Which terms must typically be agreed upon?

Answer 15

Nature of the contract
Subject(s) of the contract
The price [or consideration]

Question 16

How is consensus viewed?

Answer 16

Objectively

Question 17

When is a statement an offer?

Answer 17

When its terms are sufficiently clear to indicate the intention of the offeror to be bound in contract on acceptance by the offeree

Question 18

Invitations to treat must be followed by…

Answer 18

…an offer

Question 19

When does an offer lapse? (3)

Answer 19

When rejected or met by counter offer.
When revoked (withdrawn) by offeror.
When it is not accepted in time.

Question 20

_____ converts an offer into a contract.

Answer 20

Acceptance

Question 21

How can acceptance be identified?

Answer 21

Expressly or implied by action in conformity with terms of the offer

Question 22

When is acceptance effective?

Answer 22

On receipt. Until then can be withdrawn.
e.g., once read, phone answered, message listened.

Question 23

Postal acceptance rule

Answer 23

But there is an exception: a contract will be formed at the time when the acceptance is posted.
Only applies to posted acceptances.

Question 24

When is revocation effective (postal acceptance rule)?

Answer 24

Revocation of offer must be received to be effective.
Where acceptance and revocation of offer cross in post, contract is concluded.

Question 25

When is acceptance effective (postal acceptance rule)?

Answer 25

On posting.
Not required to be actually communicated - once posted, concluded.

Question 26

Describe a promise

Answer 26

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