General

Question 1

Vicarious liability

Answer 1

Liability is imputed to one person or company on the basis of what another person did (or failed to do), even though the actors do not share a common purpose. Employer-employee, principal-agent, it does not arise at common law; conduct in the scope of employment

Question 2

Corporate liability

Answer 2

It refers to situations where a corporate entity-generally a company, but sometimes another entity having a legal identity separate from its consistent members - has itself engaged in criminal conduct and is accordingly held criminal responsibility for it’s own acts or omissions

Question 3

Controlling mind

Answer 3

Doctrine, which requires that a sufficiently senior person (or group of persons acting collectively) is identified as the mind behind the company's action.
Purcell Meats (Scotland) Ltd v McLeod 1987; Transco PLC v HM Advocate (No 1) 2004; Tesco Supermarkets Ltd v Nattrass 1972

Question 4

S.294 Criminal Procedure (Scotland) Act 1995

Answer 4

Any attempt to commit a crime is itself criminal

Question 5

Coercion

Answer 5

The defence that the accused was forced to commit a crime against their will by another person

Question 6

Theft

Answer 6

AR - appropriation of corporeal moveable property belonging to another without the owner’s consent.

Question 7

Embezzlement

Answer 7

The dishonest appropriation of property which is entrusted to the accused by the owner, where the accused has a power to administer that property and a duty to account.

Question 8

Fraud

Answer 8

AR- the use of a false pretence that deceived another and causes a definite practical result; show that the deceived party would have otherwise acted differently
Aclock v Archibald 1925

Question 9

Uttering

Answer 9

Committed where a person (1) deliberately exposes a forged document to another person as if it was genuine; the exposure is to the prejudice of another; and the forged document passes beyond the control of the person uttering it

Question 10

Extortion

Answer 10

Use of threat to obtain an advantage; Carmichael v Black

Question 11

Bribery

Answer 11

Bribing involves offering, promising or giving a financial or other advantage to another person, where the briber intends this to induce a person to perform improperly a relevant function or activity, or to reward a person for such improper performance, or where the briber knows or believes that the acceptance of the advantage would itself constitute such improper performance

Question 12

Health and Safety at Work etc. Act 1974

Answer 12

All employers have to comply with them; s2(1) “it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”; s2(3) employs more than 5 to prepare and keep updated written statement of his general policy;

Question 13

The Management of Health and Safety at Work Regulations 1999

Answer 13

Employer self-employed person to undertake a suitable assessment risk; obligation to control, review their health and safety provision.

Question 14

The Provision and Use of Work Equipment Regulations 1998

Answer 14

Suitable equipment for intended purpose, maintenance

Question 15

The Manual Handling Operations Regulations 1992

Answer 15

Manual handling which involve a risk of being injured

Question 16

The Manual Handling Operations Regulations 1992

Answer 16

Manual handling which involve a risk of being injured

Question 17

The Health and Safety (Display Screen Equipment) Regulations 1992

Answer 17

Assess suitability of work stations and train users

Question 18

The Corporate Manslaughter and Corporate Homicide Act 2007

Answer 18

S.1(1) the way in which its activities are managed or organised - (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased

Question 19

Competition law

Answer 19

Prohibit anti-competitive practices; the Competition Act 1998; EU law by arts 101 and 102 the Treaty on the Functioning of the European Union; CA and art 101 prohibit arrangements between businesses which have the capacity to affect trade in the UK or EU and have, as their object or effect, the restriction of competition in the UK or EU. Eg Price fixing, market sharing agreements. CA 1998 and art 102 prohibit conduct which amounts to abuse of a dominant position; and affects trade in the UK or EU. eg predatory pricing Aberdeen Journals Ltd v Director General of Fair Trading 2003 CAT 11; R v Whittle, Brammar and Allison 2008 EWCA Crim 2560

Question 20

Merger Control

Answer 20

Enterprise Act 2002 as amended by Regulatory Reform Act 2013

Question 21

Environmental law

Answer 21

Environmental Protection Act 1990; many regulations

Question 22

Procedural regulation

Answer 22

Is where the law is not concerned with the outcome of a given regulatory process, but requires only that a particular process be gone through before a decision is reached.

Question 23

Contract

Answer 23

An agreement which creates or is intended to create a legal obligation between the parties to it Gloag

Question 24

Agreement

Answer 24

The need for two or more parties; the general lack of need for particular formality; agreement which intended to create legal obligation will constitute a contract

Question 25

Unilateral gratuitous promise

Answer 25

- formal writing or in the course of business, no acceptance, obligation on one person

Question 26

Consensus in idem

Answer 26

Meeting of the minds

Question 27

Muirhead and Turnbull v Dickson 1905

Answer 27

Piano, hire purchase, credit sale, although consensus in idem commercial contracts not in inmost minds but what people say

Question 28

Mathieson Gee Ltd v Quigly 1952

Answer 28

Pont equipment service what was agreed, no contract

Question 29

Invitation to treat

Answer 29

Is not an offer but merely an announcement that one would like others to come forward and make an offer

Question 30

Carlill v Carbolic Smoke Ball Company 1893

Answer 30

Advert. Influenza after 2 weeks of usage £100, deposit in bank, offer.

Question 31

Fisher v Bell 1961

Answer 31

Flick knife not guilty displaying was not an offer to sell but merely an invitation to treat

Question 32

Wolf and wolf v Forfar potato co 1984

Answer 32

Potatoes, counter offer

Question 33

Continental Tyre and Rubber Co Ltd v Trunk Trailer co Ltd 1987

Answer 33

Battle of forms , fired last shot, tyres

Question 34

Verbatim

Answer 34

in exactly the same words as were used originally; word for word; letter for letter

Question 35

Ascertain

Answer 35

to fix; to render certain or definite; to estimate and determine; to clear of doubt or obscurity

Question 36

Proof before answer

Answer 36

Is a hearing on both factual and legal issues. A proof before answer is appropriate where the court need to hear the evidence before addressing the legal issue

Question 37

Faciliative

Answer 37

adj, helpful; providing assistance or serving a useful function

Question 38

sequestrate | /ˈsiːkwəstreɪt,ˈsiːkwɛstreɪt/

Answer 38

take forcible possession of (something); confiscate

Question 39

consign | /kənˈsʌɪn/

Answer 39

deliver (something) to a person's keeping.

Question 40

conversion | /kənˈvəːʃ(ə)n/

Answer 40

the changing of real property into personalty, or of joint into separate property, or vice versa.;the action of wrongfully dealing with goods in a manner inconsistent with the owner's rights

Question 41

approbation | /ˌaprəˈbeɪʃ(ə)n/

Answer 41

approval

Question 42

remuneration | /rɪˌmjuːnəˈreɪʃ(ə)n/

Answer 42

payment

Question 43

pledge | /plɛdʒ/

Answer 43

a solemn promise or undertaking.;a thing that is given as security for the fulfilment of a contract or the payment of a debt and is liable to forfeiture in the event of failure.

Question 44

endeavour | /ɪnˈdɛvə,ɛnˈdɛvə/

Answer 44

try hard to do or achieve something.

Question 45

seize | /siːz/

Answer 45

(of the police or another authority) take possession of (something) by warrant or legal right.

Question 46

topical | [ˈtɒpɪk(ə)l]

Answer 46

(of a subject) of immediate relevance, interest, or importance owing to its relation to current events

Question 47

Communication of acceptance

Answer 47

Instantenous, delayed,

Question 48

Entries Ltd v Miles Far East Corporation 1955

Answer 48

Communication of acceptance, acceptance must be received

Question 49

Dunlop v Higgins 1848

Answer 49

Delayed communication of acceptance

Question 50

Carmarthen Developments Ltd v Pennington 2008

Answer 50

Postal acceptance rule did not apply,

Question 51

The Requirements of Writing (Scotland) Act 1995

Answer 51

Writing is not required for the constitution of a contract, unilateral obligation or trust; require writing: interest in land, a gratuitous unilateral obligation (outside business), trust, will testamentary.

Question 52

Terms and conditions

Answer 52

Expressly, by agreement; by incorporation from an outside source ( by reference or through a prior course of dealings); and by implication

Question 53

Scots contractual interpretation

Answer 53

Contractual document to be read as a whole; determining what a reasonable person knowing what the parties knew at the time of contract formation would understand the words used to mean; different approaches for different types of contract;construction not reconstruction

Question 54

Exemption clauses

Answer 54

These are clauses by which one party seeks to exclude liability it would otherwise incur.; (common law) if ambiguous it would be interpreted in the way least favourable of the interest of the party who had imposed them.

Question 55

Exemption clause

Answer 55

These are clauses by which one party seeks to exclude liability it would otherwise incur

Question 56

The Unfair Contract Terms Act 1977

Answer 56

No for consumer (here CRA) but business to business, reg attempts by business to exclude or limit their liabilities through the exemption clause., apply to broad range of contracts, excluded: contracts of insurance, contracts of the sale of land or relative to the formation or dissolution of any form of business organisation;state that exemption clauses which exclude or limit liability for other sorts of losses caused as a result of negligence or other breach of duty will only be enforceable if they satisfy a fair and reasonable test (16(1)(b); render enforceable exemption clauses which purport to exclude or limit liability for death or personal injury caused as a result of negligence or other breach of duty (16(1)(a); make all exemption clauses contained in standard-form contracts subject to a fair and reasonable test (s.17)

Question 57

The Consumer Rights Act 2015

Answer 57

Pt 2 - contractual terms - consumer contract;s.2 def trader and consumer, s.68 - consumer contract written is transparent - plain, intelligible language and be legible.

Question 58

Void

Answer 58

Absolute nullity, no legal effect, never came into being; lack of legal capacity

Question 59

Voidable

Answer 59

Does come to existence, but suffers from an underlying defect which means that either of the parties can go to court, asking for it to be annulled or reduced.; so tricked into entering by provision of false info; problem with legal capacity; restitutio in integrum

Question 60

Boyd and Forrest v Glasgow and South West Railway Company 1915 SC (HL) 20

Answer 60

BF entered into a contract with GSW to build a railway line. BF started the job, they found out that info from GSW about geological characteristics was incorrect. Contract voidable. But not reduced,, they job they've done could not be undone, restitutio in integrum impossible

Question 61

Unenforceable agreement

Answer 61

The court without giving consideration to whether the contract is void or voidable, simply say that the contract is of nature that they will not enforce it. Contrary to public policy, an immoral objective

Question 62

Age of Legal Capacity (Scotland) Act 1991

Answer 62

3 period of young legal capacity contract

Question 63

Prejudicial transaction

Answer 63

One which a reasonably prudent adult would not have entered into, and which has caused or is likely to cause substantial prejudice to the young person ALCSA 1991 s. 3

Question 64

Force and fear

Answer 64

Null void, Earl of Orkney v Vinfra 1606 more 16481,

Question 65

Facility and circumvention

Answer 65

Weakened state of mind, old age mind illness, insanity, or physical frailty

Question 66

misapprehension

Answer 66

error

Question 67

Pacta illicita (pactum illicitum)

Answer 67

[illegal contracts] certain contracts which the courts will not enforce, even if the parties themselves intend them to be enforceable. At comman law, at least, such contracts are not void or voidable; the courts take the view that they will not allow the parties to enforce them.; unlawful acts; contrary to public interest - promote immorality or is an unjustifiable restrain of free trade. (contracts to commit crimes; contracts to commit delicts egA into a contract with B compelling B to breach his pre-existing contract with C;contracts which promote immorality - Hammilton v Main (1823) 2 S 356; (6 days in inn with prostitute consume a lot of alcohol -M entitled for money for alcohol but not prostitute); contracts which are contrary to public policy; statutory eg s16(10) UCTA;in restrain of free trade

Question 68

Sponsiones ludicrae

Answer 68

contracts relating to gambling

Question 69

Restrictive covenants

Answer 69

Term by which one party to the contract agrees that for a period of time he will refrain from doing certain things which would involve him commercially competing with the other party - " Seller hereby undertakes and covenants no to set up any business within [X] miles of [the location of the business sold] for a period of [Y] years from the date hereof" ( you at radio you could not work for a competition); Nordenfelt v Maxim Nordenfelt [1894] AC 535 - restrictive covenant test - conf info, reasonableness, public interest;

Question 70

Nordenfelt v Maxim Nordenfelt [1894] AC 535

Answer 70

N sell arm company, agreed that he stay as Managing director for next five years, and also entered into restrictive covenant - 25 years not engage in manufacturing of guns except for this company. N left MN started selling guns. HL upheld covenant, restrain reasonable. (M world wide tratder)

Question 71

Agri Energy v McCallion [2014] CSOH 14

Answer 71

M sold domestic oil supply and recycling business North East of Scotland to AE. M agreed to restrictive covenant - prevent competing against AE anywhere within Scotland for 5 years. M established rival business around three years later. Restrictive covenant upheld

Question 72

MacFarlane v Dumbarton Steamboat Co Ltd (1899) 1 F 993

Answer 72

a restrictive covenant which sought to prevent the seller of a business which carried goods between Dumbarton and Glasgow from operating as carriers anywhere within the UK - 10 years, the court relied upon the inherently local nature of the ferry buisness, nationwide restriction unreasonable.

Question 73

Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Abbassi [2010] EWHC (Ch) 1178

Answer 73

protect price info preventing the employee from working for competitor for year. held that in fast-moving market (currency market) it was too long.

Question 74

Solus agreements

Answer 74

a seller of goods agrees to sell only or predominantly the products of a particular supplier (must be reasonable)

Question 75

Significant breach of the contract

Answer 75

which " goes to the roots of the contract" material breach

Question 76

Anticipatory breach

Answer 76

(repudiation). The party who is due to make performance under a contract informs the innocent party, before the time for performance, that he is not going to fulfil his side of the bargain. rescind contract or If cause a loss - innocent party action for damages; wait; carry out the contract

Question 77

Remedies for breach of contract

Answer 77

(where a contract has been breached, the innocent party will be able to pursue one or more remedies against the party who has breached the contract: self-help remedies: -rescission: material breach- innocent decides not to continue with the contract and brings it an end (rescind) - can be combined with a claim for damages if there was loss - retention: innocent withholds payments or performance of its obligations until the party in breach performs its obligations. (e.g. rent) -lien: innocent party happens to have lawfully within its possession goods or doc belonging to the party in breach, it may retain possession of that property until the party breach performs its obligations under the contract. Judicial remedies )only by order of the court - action for debt -specific implement (not money e.g. delivery of item); to do something -Interdict : the converse of a decree for specific implement; not to do something -damages (compensate for losses - put in the state before the contract, requirement of causation, mitigating loss, remoteness of loss, liquidate damages (clauses) penalty?-true nature of the clause) available with conjunction of another remedy

Question 78

Balfour Beatty Construction v Scottish Power Plc 1994 SC (HL) 20

Answer 78

BB won a tender to build a length of road, needed provision of electricity (SP), BB needed continuous pour of concentrate for aqueduct. Electricity supply failed. BB sued SP for breach of contract. HL held not liable for loss, the consequence did not naturally flow from the failure, SP was also not aware of need of continous supplu and what damages would occur.

Question 79

Who may when a contract is breached

Answer 79

- privity of contract ( parties of the contract, "not world at large": an exception third party rights- the Contracts (Third Party Rights) (Scotland) Act 2017)