Civil law

Question 1

What is civil law

Answer 1

Civil law deals with disputes between individuals that involve ab act or failure to act that has caused harm or loss. Breach of rights, deserve to sue.

Question 2

What does it protect

Answer 2

Civil law protects your rights. If your rights have been infringed and you are harmed or have suffered loss as a result, you can sue the other party for of remedy, usually of some form of compensation.

Question 3

Civil rights and obligations arise in two main ways:

Answer 3

Contract law and The law of Torts

Question 4

Two parties involved

Answer 4

• Plaintiff sues for damages for injury or loss caused by the defendant
• The Plaintiff must prove that the defendant was in the wring on the balance of probability’s.

Question 5

Principles of contract law

Answer 5

○ A contract is a legally binding agreement between 2 or more persons or a company and individuals
○ Contracts do not always have to be in writing (can be oral)
○ You must be over 18 years of age to enter into a contract unless it was for necessities of life or contract for employment
○ People with a form of mental impairment cannot enter a contract or if entered into the contract under duress.

Question 6

What are necessary and what are they not limited to

Answer 6

Necessary: are defined as goods or services necessary for a Minor’s existing way of life such as: Food, Education, Shelter, Clothes, Water, Heath care, Medical

Necessities are not limited to bare essential and are determined in the context of what would be normal for the minor to maintain their existing lifestyle, at the time that the contract was entered into.

Question 7

3 elements of a valid contract

Answer 7

1. An offer - is a written or orally given statement or act of a person or persons addressed to another, or a group of people, which will bind the person or persons making the offer (distinguish from invitation to treat)
2. An acceptance - is an oral or written statement, or actions showing that a person or persons will accept.
3. Consideration - is an exchange of some benefit or something of value by each party.

Question 8

An offer

Answer 8

is a written or orally given statement or act of a person or persons addressed to another, or a group of people, which will bind the person or persons making the offer (distinguish from invitation to treat)

Question 9

An acceptance

Answer 9

is an oral or written statement, or actions showing that a person or persons will accept the offer

Question 10

Consideration

Answer 10

is an exchange of some benefit or something of value by each party

Question 11

Counter offer:

Answer 11

Counter offer - an offer made in response to a previous offer by the other party during negotiations for a final contract. Making a counter offer automatically rejects the prior offer, and requires an acceptance under the terms of the counter offer or there is no contract

Question 12

Invitation to treat:

Answer 12

• An offer must be distinguished from an invitation to treat. This is not always a simple process; the test is one of intent; did the party making the statement intend that an affirmative response would give rise to an agreement or simply result in further negotiation?
• An invitation to treat intends to invite people to make and offer, whereas an offer intends to bind someone to the offer if they accept it.

Question 13

Auctions

Answer 13

are generally analysed as an invitation to deal by the auctioneer. With bids constituting offers.

Question 14

Breach of contract

Answer 14

if a party to a contract fails to follow the terms of the contract, the other party can take action for breach of contract. If a plaintiff is successful, he or she is entitled to a civil remedy.

Question 15

Injunctions

Answer 15

these are orders directing a party not to do something - eg, not to persist with a contractual breach

Question 16

Damages

Answer 16

payment for loss or harm suffered and to restore person to the position they were in before wrongdoing occurred.

Question 17

Breach of contract

Answer 17

• Breach of contract - if a party to a contract fails to follow the terms of the contract, the other party can take action for breach of contract. If a plaintiff is successful, he or she is entitled to civil remedy
• Injunctions - these are orders directing a party not to do something - e.g., not persist with a contractual breach
• Damages - payment for loss or harm suffered and to restore person to the position they were in before wrong doing occurred.

Question 18

elements of negligence

Answer 18

• That the defendant owed the plaintiff duty of care (a person owes a duty of care according to the neighbour principle = someone likely to be affected by your actions)
• The person who owed the duty of care failed to take reasonable care (breach of duty of care)
• Harm was caused as a result of the breach of duty of care (harm can include loss or injury)

Question 19

Defences of negligence for defendant

Answer 19

• No duty of care was owed - not reasonably foreseeable that the action would cause loss or damage
• Duty of care was not breached - no breach if the defendant acted as any normal person would and injury resulted by accident or could reasonably have been avoided.
• No damage occurred or the injury was caused by other means - right may have been breached but no damage suffered
• Contributory Negligence - Plaintiff contributed to the damages - person injured is in some way partly responsible for the injury (partial damages)
• Voluntary Assumption of risk- Plaintiff willingly took a risk - person willingly consented to the risk and fully appreciated the dangers.

Question 20

Defamation - 4 elements

Answer 20

1. Untrue/ defamatory statement
2. Communicated to a 3rd party that
3. Refers to the plaintiff and
4. Harms the reputation of the plaintiff.

You can also sue if someone writes or draws something about another person that is untrue that harms that person’s reputation in the eyes of the public, then they can sue for defamation.

Question 21

Methods to resolve a civil dispute - negotiation

Answer 21

Involves people in dispute communicating directly, either by speaking or in writing, to try to reach an agreement. It is a good first step for most types of dispute

Question 22

Methods to resolve a civil dispute - Mediation

Answer 22

Is when an impartial person (a mediator) helps people to negotiate with each other to resolve their dispute

Question 23

Methods to resolve a civil dispute - Conciliation

Answer 23

A process in which the people in dispute try to reach an agreement with the assistance/ advice of an impartial person (a conciliator). The conciliator usually has some experience of the matter in dispute and can advise the parties of their rights and obligations.

Question 24

Methods to resolve a civil dispute - Arbitration

Answer 24

Is a formal process in which the people in dispute present their case to an independent third person (the arbitrator), and are bound by that persons decision. Parties in dispute may agree to arbitration (often as a term of contract before any dispute arises) but often one person applies and the other person is required to participate. Arbitration is sometimes used when other methods of dispute used in situations like industrial relations disputes or contractual disputes between businesses.

Question 25

Methods to resolve a civil dispute - Strengths of ADR

Answer 25

• Low cost: early settlement through ADR means that you can avoid the cost of preparing for trial, it cost less than to attend a trail
  
  • Saves time: disputes can generally be resolved more quickly though ADR that through trial
  • Confidential: the matter discussed for the purpose of settlement are kept in strict confidence

Question 26

Methods to resolve a civil dispute - Weaknesses of ADR

Answer 26

• Not legally binding unless contract is signed
  
  • If case is in public interest, they may be unable to access information
  • Power imbalance
  • Parties may not reach an agreement, need to go to court anyway (cost/time)

Question 27

Remedy - purpose

Answer 27

Remedies have a number of important aims:
○ To return the plaintiff to the position they were in before their rights were infringed
○ To compensate the plaintiff for the infringement of their rights, if returning them to their original position is not possible
○ In some instances, a remedy may aim to prevent the harm from occurring the first place

Question 28

Types of remedies - compensatory specific

Answer 28

Can be given a precise monetary value. These can be listed - such as medical expenses or loss of wages - and are easily quantifiable

Question 29

Types of remedies - compensatory General damages

Answer 29

Will be assessed by the court according to the magnitude of the wrong done and the long-term consequences of the wrong, taking into consideration such matters as future loss of wage, long term job prospects and pain and suffering (future and past). They are general estimate and not readily quantifiable.

Question 30

Types of remedies - compensatory aggravated

Answer 30

Can be awarded to compensate the plaintiff further if the court believes that the defendant’s conduct injured the plaintiff’s feelings caused by humiliation or insult.

Question 31

Types of remedies - non- compensatory normal

Answer 31

Small amount awarded when plaintiff is in the right, but limited harm/loss

Question 32

Types of remedies - non- compensatory contemptuous

Answer 32

Small amount awarded to mark the court’s disapproval of the conduct of the plaintiff

Question 33

Types of remedies - non- compensatory exemplary

Answer 33

Damages requested and/ or awarded in a lawsuit when the defendant’s wellful acts were malicious, violent, oppressive, fraudulent, or grossly reckless

Question 34

Injunction (another type of remedy)

Answer 34

is a court order directing someone to stop doing a certain act, or compelling someone to do a certain act. The purpose of an injunction is to rectify a situation cased by the person who was found to be in the wrong. It can be either:
Restrictive/prohibitive - ordering a person to refrain from undertaking an action (such as pulling down a building)
Or
Mandatory - ordering a person to do a particular act, such as preforming their part of a contract they have breached