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chapter 4 reading Flashcards

1
Q

contracts

A

business agreements that must be respected

people enter them voluntarily

create obligations

–> building blocks used to construct contracts

bilateral agreement

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2
Q

three basic requirements in order for obligations to exist

A
  1. there must be at least two parties
  2. the must be a prestation that is the object of the obligation
  3. there must be a lawful reason for undertaking the obligation
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3
Q

prestation

A

a payment or performance

the rendering of a service

doing or not doing something

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4
Q

the two way obligations may come into existence

A

they commonly emerge from contacts, agreements that people enter with each other

they can also arise from an act carried out by someone

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5
Q

legal obligation

A

one that is sanctioned by law and enforceable before the courts

–> failure to discharge your obligation gives the person to whom you are obligated the right to demand performance and/or damages

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6
Q

natural obligation

A

one that binds us in conscience only

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7
Q

the most common source of legal obligations in business

A

the contract

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8
Q

contracts which involve very little negotiation

art. 1379 to 1384

A

contracts of adhesion

contracts by mutual agreement

synallagmatic or bilateral contracts

unilateral contracts

onerous contracts

gratuitous contracts

commutative contracts

aleatory contracts

contracts of instantaneous performance

contracts of successive performance

consumer contracts

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9
Q

contracts of adhesion art. 1379

A

the conditions are drawn up only by one of the parties

the only choice available to the other party is to accept these conditions or no to enter into the contract

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10
Q

contracts by mutual agreement art. 1379

A

both parties discuss and agree on all of the conditions of the contract

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11
Q

synallagmatic or bilateral contracts art. 1380

A

both parties have agreed to perform an obligation

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12
Q

unilateral contracts art. 1380

A

one party undertakes to perform an obligation

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13
Q

onerous contracts art. 1381

A

in which each party receives something in return for undertaking an obligation to the other party

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14
Q

gratuitous contracts art. 1381

A

the object of which is for the benefit of the person with whom it is made

one party promises to do something without receiving anything in exchange

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15
Q

commutative contracts art. 1382

A

One in which each of the contracting parties gives and, receives an equivalent

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16
Q

aleatory contracts art. 1382

A

an agreement whereby the parties involved do not have to perform a particular action until a specific, triggering event occurs

Events are those that cannot be controlled by either party, such as natural disasters and death

Aleatory contracts are commonly used in insurance policies

in which the full extent of the obligation is uncertain at the time the contract is entered into

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17
Q

contracts of instantaneous performance art. 1383

A

the obligations of party can be executed or rendered at one single point in time

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18
Q

contracts of successive performance art. 1383

A

a type of contract where the obligations can be executed over a period of time or continuously

ex: rental agreement

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19
Q

consumer contracts art. 1384

A

legally binding agreement between you and the consumer concerning the sale of goods or digital content

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20
Q

consensus in idem

A

two people that have a clear meeting of minds

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21
Q

an offer

A

an expression of readiness to do or give something if desired

a clear, precise, firm proposition containing a genuine intention to enter into a binding contract

will exist when there is a specific merchandise offered for sale

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22
Q

after an offer is made, what creates a contract?

A

acceptance

–> must be the same terms as the offer

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23
Q

where is the contract made?

A

wherever the offerer (person that offers the contract) is

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24
Q

essential elements required for the formation of a valid contract according to article 1385 of the Civil Code

A
  1. an exchange
  2. of consents
  3. between persons
  4. having the capacity to contract
  5. in any form, unless a special form is required
  6. a cause
  7. and object
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25
when is consent expressed? art. 1398
when there is clear indication on the part of a person can also be tacit
26
tacit
understood or implied without being stated
27
can an offer be rocked if they gave the offer a certain time period to think about it?
nah bruv
28
should silence be considered as an acceptance or refusal of an offer?
refusal
29
the defects of consent that render it invalid art. 1399
error fraud fear Lesion
30
error invalidating consent art. 1400
error in which one party did not fully understand or note all the details of a contract
31
fraud invalidating consent art. 1401
closely related to error --> error induced by fraud when one person tricks another in making an error or gives untrue information
32
fear invalidating consent art. 1402, 1403, 1404
if a person uses fear to extract someone's consent, it is not real consent can also be position of authority over another person
33
lesion invalidating consent art. 1405, 1406, 1408
comes from roman law and the French expression meaning harm usually used for economic harm on someone that lacks knowledge --> for this reason, only applied to people who do no have full legal capacities, such as minors under 14
34
legal capacity
the authority or right to enter in a contract
35
people that cannot legally enter in a contract
minors persons under protective supervision
36
what does it mean when we say that minors can be emancipated?
they can enter contracts alone
37
persons under protective supervision
have no legal capacity over the age of 18 and cannot look for their financial affairs due to physical and/or mental incapacity or disability
38
when are contract subjects or objects restricted?
when they're illegal
39
why are certain contract forms required by law?
to preserve the validity of the contract
40
when can a contract be declared null?
when they do not meet the conditions of formation discussed
41
the two degrees of nullity
absolute nullity relative nullity
42
absolute nullity
a contract is absolutely null when it contradicts or violates provisions of law deemed of public order and therefore does not meet the conditions of formation a contract that puts at risk protections of the general public may not be confirmed or maintained by any party court can invoke this nullity
43
relative nullity
A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made may be confirmed or maintained by the parties no other party can invoke this nullity --> must be clearly expressed that they wanna maintain contract
44
what happens when a co tract is deemed null?
this contract is considered to have never existed
45
what can the creditor do when we fail to do an obligation of a contract?
1. force performance through expense of debtor or by means such of injunction 2. have contract annulled by resolution of resiliation 3. reduce the scope of his share of related obligations 4. refuse to perform his share of the obligations 5. hold on to debtor's property until he is paid for work related to the property
46
resolution
each party must restore to each other all prestations the contract is deemed to have never existed
47
resiliation
the contract ceases to exist for the future with no restoration of prestations
48
injunction
a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act
49
Interlocutory injunction
a court order to compel or prevent a party from doing certain acts pending the final determination of the case It is an order made at an interim stage during the trial, and is usually issued to maintain the status quo until judgment can be made
50
when is an interlocutory injunction granted?
if the plaintiff demonstrates interest and seriousness of the issue if it is necessary to avoid irreparable injury before the final judgment 3. if the plaintiff will suffer significantly more than the defendant on the balance of convenience
51
provisional injunction
a provisional equitable remedy by which a court orders a litigant to perform, or refrain from performing, a particular act before the entry of final judgment in the case of urgency, the plaintiff can request that an injunction be issued before the defendants has received notice of an interlocutory hearing can last no more than 10 days
52
prior to taking action against the debtor, the civil code requires to be placed in default what were the ways this has to be achieved?
by the contract itself by extrajudicial demand by operation of law
53
placed on default by the contract itself
when the debtor fails to perform an obligation by a stipulated deadline
54
placed on default by extrajudicial demand
the creditor sends the debtor a letter requesting performance within a certain period of time
55
placed on default by operation of law
the debtor fails to perform an obligation within a useful time, or failed to perform immediately in case of urgency, or where performance becomes impossible due to debtor's fault
56
what happens if creditor files legal action against debtor without placing him in default first?
the debtor maintains the right to perform the obligation within a reasonable time
57
types of damages
present damages Article 1607 to 1611 future damages art. 1611 to 1615 punitive damages art. 1621 penal damages art. 1622 to 1623
58
present damages
failure on the part of the debtor to fulfill his obligations may result in bodily, moral, or material damages these damages have to be directly attributed to the fault of the debtor and assessable in their present value
59
future damages
possible to seek future damages as long as they are certain to take place and are assessable ex: employee fired for unjustifiable reasons
60
punitive damages
legal recompense that a defendant found guilty of committing a wrong or offense is ordered to pay on top of compensatory damages They are awarded by a court of law not to compensate injured plaintiffs but to punish defendants whose conduct is considered grossly negligent or intentional amount wired cannot surpass purposes of teaching debtor a lessons
61
penal damages
contractual stipulation that is used as a means of motivating a contracting party to perform obligations --> failure to perform obligations allows the creditor to claim from the debtor the stipulated amount o damages for default creditor may not exercise penal clause and require performance from debtor --> can only do it if the clause is for the purpose of punishing the debtor for Time delays can be used without having to prove that any actual damages were suffered, unlike other types of damages
62
classification of contracts
contract of adhesion
63
an offer to contract art. 1388
a proposal which contains all essential elements of the proposed contract the offeror signifies his willingness to be bound if it is accepted
64
art 1390. an offer to contract may be made to both a determinate or an indeterminate person true or false
true
65
art 1390. an offer to contract may be made to both a determinate or an indeterminate person true or false
true
66
art. 1390 a term of acceptance may or may not be attached to an offer to contract true or false
true
67
when does an offer lapse? art. 1392
if no acceptance is received by the offeror before the expiry of the specified term when no term is specified before the expiry or a reasonable time death or bankruptcy of the offeror

comm 315 (12 decks)

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