exam questions Flashcards
(22 cards)
Discuss the rules of statutory interpretation. Use case law to support your answer
literal rule - Whiteley v Chappell 1869
golden rule - alder v George 1964
mischief rule - carpenter v cookery 1950
Explain the difference between an invitation to treat, an offer and a
‘mere puff’, using relevant case law.
an offer needs to be clear and not vague its a definite promise to be bound to specific terms that will become legally binding as soon as accepted
offer: Storer v manchester council 1974
invitation to treat: Fisher v bell 1961
Discuss the importance of intention to create legal contractual relations?
- Esential element to a legall binding contract is the intention to create legal realtions
- Ensures only agreement made with serious intention of being legall enforcable are up heald in cours
- The law espacilly in comercial context presumes parties do intend to be legally bound
- However in social and domestic arangments there is a presmption that no such legal inteiton exits
- This distinction help prevent the courts form becoming involed in trivial disputed that were never meant to have tlegal consequences
- Requirment of intention protects both aprties by ensuring clarity and seriousness in contractual dealings
Discuss the importance of the Privity of any Contract?
- Fundamental principle in contract law
- Only parties in a contract can sue or be sues
- A third party even if they ebenfit form the contract ahs no legal right to enforce its terms
- Ensures certainty and fairness
- Ensuring only those who have been given consideration are bound by the agreement can rely on its terms
- Sometimes led to unfair results
- Contracts act 1999 in the uk now allows third parties to enforce a contract if it clearly states they should benefit ot if the contract was made with their benefit in mind
Discuss the contractual capacity as a major element of any legally binding contract.
- legal ability of a person to enter into a contract ensures the parties know what they are getting into and are legal to do so
- minors only bound to education and necessities
- void and if not can’t be unenforceable
- mentally impaired and intoxicated
- corporation binded unless use powers special laws give them in the companies act 1985
What is the difference between conditions, warranties and innominate terms (support your argument with relevant cases)?
- terms classified into warranties, conditions and innominate terms
- condition fundamental term goes to the root of the contract
- a breach of a condition entitles the innocent part to terminate the contract and claim damages
- Poussard v Spiers (1876)
- opera singer fell ill producer hired replacement and refused to use poussard because poussard had broken a condition
- a warranty is a minor term a breach allows for a claim of damages but not termination
- Bettini v gye
- singers 3 day late arrival didnt justify contract termination
- innominate terms they don’t fit into categories of conditions or warranties
- consequence of breach is only decide once breach has occurred
- if the breach removes all benefit of the contract termination is allowed otherwise only damages rewarded
Discuss the Pre-contractual statements and to distinguish
between them.
- pre contractual statements are representation made before a contract is formed
- include representations, terms and mere puff
- representation is a statment of fact made to induce the other party to enter the contract
- if this is false then innocent party can make a claim of misinformation but not enough to breach
- term contractual promise or obligation abrecah allows for contractual remedies
- the distinction between these depends on the importance of the statment its timing and wether the parties intended it to be legally binding, a mere puff is exaggerated sales talk it is not legally binding therefore if not entirely true does not lead to reprocuscions
What are the four components that make up actionable misrepresentation?
- a false statment of fact
- statment must be made to one party to another before entering the contract
- statment must have been intended to induce the party
- the other party must have relied not he statment when deciding he contract
- if all elements are met the party may rescind the contract or claim damages
- opinions or statements of further intent dot usually amount to misrepresentation tho
What are the types of contract mistakes? Use case law to explain your answer
- common mistake
- mutual mistake
- unilateral mistake
- a common mistake is when both parties share the same incorrect belief about something fundemental which affects the contract validity
- bell v lever brothers ltd 1932 House of Lords held that a common mistake must relate to something fundamental for the contract to be void
- mutual mistake is when parties mis understand each other and are at a cross purpose where there is no true agreement
- a unilateral mistake happens when only one party is mistaken about a fundamental term but the other party Is aware
if that party takes advantage the contract cab be voidable - smith v hughes 1871 the seller knew the buyer was mistaken about the type of oats
Discuss the different ways to discharge any contract (the
contract comes to an end)
- contact can come to an end due to performance
- this is when both parties have fuflied their contract obligations
- agreement this is when parties mutually decide to end their contract
- frustration this is when unforeseen circumstances make it impossible for one or both parties to perform the contract
- breach of contract this can lead to discharge is the breach is serious enough to justify termination
- operations of law this could be when issues such as bankruptcy or expiration of statute of limitations
Discuss the damages as the main remedy for breach of
contract in commercial context,
- damages are the primary remedy for breach in correct
- they are intended to compensate the innocent party for losses caused by the breach
- the purpose is to put the injured party back in th exposition they would have been had the beach not have occurred
- damages aim to cover direct losses and consequential losses provided they were reasonably foreseeable at the time
- rely on damages other than performance because monetary compensation is usually more sufficient and practical
- however damages must be proven with reasonable certainty and the claimant has a duty to mitigate their losses
A contract to construct a new factory for B to be ready by 1st
November. The contract provides that A shall pay B £20,000 for
each day the building is late. The building is not complete until 8th
November. Advise B whether he can claim £140,000 and, if not, how
his loss is to be assessed for the purposes of a damages award
- b can not automatically claim 140,000 based solely on 20,000 a day clause unless the clause is a genuine pre estimation of loss and to a penalty.
- if the clause is deemed a penalty it will not be enforacble
- and bs loss will be instead asseed on actual damaged suffered due to the delay
- to do this b must prove extent of damages suffered
- if b can show that daly cause quanitfiebale finical loss these damages will be awarded accordingly
What are the methods to create an agency relationship?
- can be created through an express agreement
- where the principal and agent agree orally or in writing that the agent can act not heir behalf
- implied agreement this arises from conduct to circumstances of the parties that show even this not agreed they intended to create the relationship
- an agency can arise by necessity where an agent must act without prior authorisation in an emergency to protect the principals interest
- estoppel can also create an agency if a third party reasonable believes that an agent has authority based on principlas representations
Discuss all potentially fair reasons for employees’ dismissal
according to the employment law.
- four categories: conduct, capability, redundancy and statutory restriction
- dismissal for conduct involves an employees behaviour this includes misconduct and gross conduct
- capability refer to an employees ability’s and performance skills qualification or health effecting their performance not he job
- redundancy occurs when he employer needs to restruther to business or reduce work force due to economics or business closure
- staturtory restriction this is when continued employment is prohibited by law
- and for exception cases sosr can be reason for fair termination
X Ltd owns a bookshop in Soton. X Ltd intends to dismiss the
following staff, all of whom have worked for the company for over
two years:
- Mr B, because despite several training days, he still struggles to use
the stock control system correctly;
- Ms A, for attending official trade union meetings;
- Mr E, the delivery driver, because he has recently been convicted of
a driving offence and lost his driving license;
-Ms F for turning up to work drunk and behaving very aggressively
towards the customers.
Discuss whether there are fair grounds for dismissal for each employee.
- mr b struggle despite trialing this could constitute to a dismal via capability provided adequate training support and warning have been given
- mrs a attends official trade meetings unemploying her for this reason would be unfair because employees have a legal right to encage in union activities
- mr e lost his deriving license he could lose his jobs on grounds of statutory restriction as he can no longer legally fufill his task as a delivery driver
- ms f could be fired on the grounds of conduct as this is serious mis conduct
What is meant by:
(i) Associative discrimination
(ii) Perceptive discrimination
(iii) General harassment
(iv) Sexual harassment
(v) Vicarious liability
(vi) Duty of care owed to trespassers
(vii) Public nuisance
(viii) Vicarious liability
- associative discrimination : discrimination against someone who is associated to someone who has protective characteristics
- perceptive discirmination : based on the perception that someone has protective characteristics even this they do not
- general harassment - unwanted misconduct to a protected characteristic that violated a persona dignity or creates a hostile environment
- sexual harassment - unwanted sexual misconduct that creates a hostile environment or removes a person sense of dignity
- vicarious liability - legal repsonsibillitie an employer has for wrongful acts committed by employee under their employment
- duty of care owed to trespassers : a limited legal obligation owed by occupiers to avoidcauseing reckless intentional harm to tress passers
- public nuisance : an act that unreasonably interferes with the right of the general public such as polluting public spaces
Discuss the mediation and conciliation to resolve a dispute,
compared to going to court.
- mediation involves a neutral third party the mediator that aims to help the disagreeing parties come to a mutually acceptable agreement through communication.
- conciliation unlike a mediator takes a more proactive third party that actually suggest solutions to help bridge differences unliked the mediator.
- both methods are less costly and more time efficient than going to court and help preserve reltioshiips
- going to court is formal and results in legally binding decision imposed by a judge which may lead to further appeals so a prolonged out come
he Tort of Negligence covers a wide range of situations
where persons cause harm to others due to negligence.
What are the elements that the claimant has to prove to succeed in
any legal action?
must prove four things
- duty of care : defendant owed the claimant a legal obligation to take reasonable care
- breach of duty : defendant failed to meet to standard of care expected
- causation : breach caused the claimant injury or loss
- damage : the claimant suffered actual damage or injury
- damage has to also be shown to have been a foreseeable consequence
Under the Consumer Protection Act 1987, who are the potential claimants and defendants
- potential claimants are any consumers or individuals who suffer personal injury or property damage caused by a defective product
- defendant oculd be an importer or producer or suppliers
- liability is strict under this act meaning the claimant only needs to prove the product was defective and caused the harm not negligence
What are the rights and duties of an agent?
- an agent has the right to receive authority from the principal to act on their behalf
- the must act within the scope of that authority and in the principals best interest
- agent has a duty to perform these tests with reasonable care skill diligence and honesty to avoid any conflicts
- agent must keep the principal well informed and any profits gained through their agency
- the principal has the duty to compensate the agent as agreed and to replace any cover any expenses or liabilities while acting on the principals behalf
Sally purchased a halogen oven that, unknown to her, was defective. When Sally switched it on, it burst into flames. The oven was destroyed and Sally’s iPhone and Armani watch, which
were near the oven, were badly damaged. Sally suffered minor burns to her hands and neck. What losses will Sally be able to claim for under the Consumer Protection Act 1987?
sally can claim compensation for personal injuries she suffered from he defective over.
- she could also claim for compensation to her nearby property .
- she can’t claim for the actual product itself as the act excluded damages tot he defective product
- sally does not need to prove negligence only the the oven was defective and caused her losses
