Sport and contract law Flashcards
(91 cards)
1
Q
What is a tort?
A
A civil wrong, other than a breach of contract, which cause personal injury, property damage to financial loss and for which the innocent party usually claims damages.
2
Q
Why is tort law needed?
A
For justice to be achieved by transferring the victim to the wrongdoer. It is based on the principle that each citizen should take responsibility for the consequences of his/her actions.
3
Q
What are the different types of torts? (4)
A
- Defamation
- Negligence
- Nuisance
- Trespass (property and person)
4
Q
How is tort law different from contract law?
A
contract law is governed by contract agreements, whereas the individual who is bind by the contract must follow particular duties and responsibilities, whereas, tort law is mainly about when one person is harmed by another.
5
Q
Who are the stakeholders in sport?
A
- Amateurs and professional
- Paid coached, referees, trainers, physiotherapists, doctors and officials
- owners and occupiers
- venues, provider of equipment and organisers of events
- commercialisation of sport and advent of television and the internet
6
Q
Explain commerce
A
The activity of buying and selling, especially on a large scale or the social dealings between people
7
Q
Explain Salary
A
A fixed regular payment, typically paid on a monthly basis but often expressed as an annual sum, made by an employer to an employee, especially a professional or white-collar worker.
8
Q
Explain endorsement
A
a statement or action which shows that you support or approve of something or someone. An endorsement for a product or company involved appearing in advertisements for it or showing support for it .
9
Q
What are the characteristics of commercialisation of sport? (6)
A
- usually at a professional level
- sponsorship
- entertainment
- athletes as commodities
- winning and success
- the media being heavily involved
10
Q
Explain criminal law
A
a body of law that deals with conduct considered so harmful to society as a whole that it is prohibited by stature, prosecuted and punished.
11
Q
Explain consent
A
An excuse at law used to escape liability by claiming the action taken had the express or implied permission of party injured
12
Q
Explain accessories
A
Another person who has ‘aided’ the principle offender in some way and are often subject to the same punishments as the principle offender.
13
Q
How can assault occur in two ways and under which criminal code act is it categorised?
A
i) attempted to threaten application of force which is accompanied by behaviour that makes the victim believe the threat could be carried out
ii) actual application of force to the victim without the victim’s expressed or implied consent
- – s245 of Criminal Code 1899 (Qld)
14
Q
Explain expressed consent
A
Permission for something that is given specifically, either verbally or in writing
15
Q
Explain implied consent
A
Consent which is not expressly granted by a person. but rather implicitly granted by a person’s actions and that facts and circumstances of a particular situation.
16
Q
What are some other offences of criminal law?
A
- Manslaughter (s303) Killing a human being without malice aforethought, or in circumstances not amounting to murder
- Grievous bodily harm (s320) Serious physical injury inflicted on a person by the deliberate action of another
- Unlawful wounding (s323) Unlawful shots, stabs, cuts or wounds an person or by any means causes him bodily injury with the intent to maim, disfigure, disable or kill
- Assault occasioning bodily harm (s339) Unlawful assaults another and thereby does the other person bodily harm
- Serious assault (s340) Assaults another with intent to commit a crime, or the intend to resist or prevent the lawful arrest of detention of himself or herself or of any other person.
17
Q
Explain the balance of probabilities
A
The standard or proof required in a civil matter in order for a plaintiff to succeed in roving their case against the defendant (probable the person did the crime)
18
Q
Explain beyond a reasonable doubt
A
the standard of proof required in a criminal matter in order for the prosecution (the state) to improve a case against the accused (prove beyond doubt)
19
Q
Explain negligance
A
Under the tort of negligence, any person who is injured due to the negligent behaviours of another person can take legal action and seek compensation.
20
Q
For negligence to be proved, three elements must be breached, what are they?
A
i) the duty of care was owed
ii) the duty of care was breached
iii) injury resulted from breaching the duty of care
21
Q
What is duty of care?
A
A sports body needs to take such measures as are reasonable in the circumstances to ensure that individuals will be safe to participate in an activity to which they are invited to or which is permitted.
22
Q
Who owes a duty of care?
A
- Spectators
- Players
- Coaches
- Organisers
- Board members
23
Q
What is the standard of care?
A
the degree of caution required, usually with reference to the ‘reasonable person’, of an individual who owes a duty of care
24
Q
What is complete defence (volante non fir injuria)
A
Voluntary assumption of risk
A legal defence to a civil action for damages suffered by a party, usually in negligence or assault actions
25
What is partial defence?
Allows the person responsible for the damages to the plaintiff to claim that the plaintiff in fact contributed in some eat to the damage and therefore that the damages payable should be reduced.
26
Explain the Defamation Act 2005
An act of communication of untrue statements that injuries another person's reputation without good reason or justification, causing them to be shamed, ridiculed, and held i contempt and to lose their standing in the community or their place or work.
27
How can Defamation be proved?
Publication - a statement is made to communicated to the third party
Identification - the statement made must identify the person claiming defamation
Damage - the defamed person must suffer some loss or damage to their reputation
28
What are the defences for defamation?
- Justification: Section 25
- Contextual truth: Section 26
- Absolute privileged: section 27
- Public documents: Section 28
- Fair report of proceedings of public concern: Section 29
- Qualified privilege: Section 30
- Honest opinion: Section 31 (1)
- Innocent dissemination: Section 32
- Triviality: Section 33
29
What is a contract?
1. Legal agreement
2. Consent
3. Involves at least two parties
4. Piece of paper
5. Signed by a lawyer
- A valid contract is defined as an agreement made between to or more parties that creates legal rights and obligations which law will enforce
30
What are the types of sporting contracts?
- A contract to play exclusively for one club
- A contract to play in a particular event or series of events
- player management
- advertising and endorsement contrats
31
What are the elements of a valid contract?
To be valid and binding, a contract must meet three essential elements:
- Intention + Agreement + Consideration = Contract
32
What is element one of a valid contract?
1. Intention to create legal relations
| - Private and social arrangements are not usually intended to carry legal consequences.
33
Explain element two of a valid contract?
2. Offer and acceptance
| - legally binding (there must be an offer by one party which is accepted by the other)
34
What is an offer?
- A proposal by one party to enter into a legally binding contract with another.
- The offer can be made orally, by contract, or in writing.
- Offer must be clear and certain
35
What are the general principles as to offer
1. An offer ma be made to a particular person, to a class of persons, or to the world
2. offer must be communicated to the person accepting the offer
3. all terms must be communicated to the persona accepting the offer (offeree) and bought to his or her notice
4. offer may specify conditions to be followed by the person accepting the offer
5. may be revoked before acceptance
6. offer will lapse
- --- if not accepted within the times stated;
- --- if not accepted with a reasonable time, where no time for acceptance has been stated.
36
What is acceptance?
when the party to whom an offer is made (offeree) agrees to the proposal of the personal making the offer (offeror)
37
What are the general principles as to acceptance?
1. Acceptance must be communicated unless the offer requires an act to be done which does not have to be communicated to the person making the offer
2. A qualified acceptance cannot be made. Any offer must be wholly accepted
3. conditions in the offer must be followed before an acceptance can take place
4. acceptance can be made only by the parties to whom the offer was made
5. once acceptance is communicated, it cannot be withdrawn except with the consent of the person making the offer
6. Acceptance must be made with the time prescribed, or if no time has been prescribed, within a reasonable time
7. Person accepting an offer must know that it exists, no one accepts an offer she or he does not know that it exists
38
What is consideration?
Money
| - The gain or benefit, must be present in valid, legal and enforceable agreements.
39
What are the general principles of consideration?
1. Consideration must be provided by the person who has made the offer
2. Someone promised to do something which he or she is already obliged to do under a contract, then that promise is not further consideration
3. To refrain from taking legal action may be in consideration
4. Agreeing to compromise (settle) a claim against another person
5. Consideration offered now in return for part performances is not good consideration
40
List the elements of setting aside a contract
1. Lack of legal capacity
| 2. Lack of genuine consent
41
List the elements of lack of genuine consent?
i. Mistake of law
ii. Mistake of fact
iii. Misrepresentation
iv. Duress
v. Unconscionably
vi. Unfair contract terms
42
What is lack of legal capacity?
enforce an agreement insists that the parties have the power or ability to enter into that agreement
43
What is lack of genuine consent?
the state of mind of each party, at the moment the agreement is reached
44
what is mistake of law?
avoid their obligations by claiming they did not know the applicable law when they entered into the contract. Everyone should know that 'ignorance of the law is no excuse'. An exception to this is where two parties do something illegal as part of these obligations under the contract.
45
What is mistake of fact?
Courts do not necessarily set aside contracts where the mistake is made. Only where the court can say that mistakes were made that a 'reasonable mean' would not have entered into the contract that it would set aside such a contract
46
What is misrepresentation?
Usually when parties are negotiating a contract. When it is argued that a contract should be avoided because of misrepresentation, one party avoids the contract because he/ she has relied on something said by the other party. If there is misrepresentation the contract may be terminated (voidable) this will give the injured party certain rights against the party making the misrepresentation.
47
What is Duress?
Threatening violence to the contracting party, or his immediate party etc.
48
Explain undue influence?
```
Occurs when one person used the power he or she holds over another person to cause that person to enter into a contract. Undue influence is a type of moral pressure. The party must prove hat he or she did not exercise undue influence.
Examples:
- Parent to child
- Solicitor to client
- guardian to ward
```
49
What is unconscionably?
A contract that describes the terms that are so extremely unjust, or overwhelmingly one-sided in favour of the party who has the superior bargaining power, that they are contrary to good conscience
50
Explain unfair contract terms
It is now possible to set aside all or part of a contract to be unfair and therefore void. If the contract is not capable of operating without the unfair terms, the court will end the whole contract.
51
What is legality of object?
The effect of being able to set the contract aside if it is found to be void or voidable.
52
What is the definition of void?
contract never existed
53
Definition of voidable
Injured party can decide whether the contract can continue or not
54
What are infants?
Defined as a person under the age of 18
55
List the exceptions of an infant entering into a contract
1. Contracts for necessaries
2. Contract for the benefits of infants
3. Long term contracts - binding unless repudiated
4. Where an infant needs to ratify a contract for it to be binding
56
Explain contracts for necessaries in relation to infants
not confirmed to things which are needed to maintain life, but include things that are used to maintain the infant in question as the standard of living he/ she enjoys. Age, occupation, social position are taken into consideration by the court
57
Explain contracts for the benefits of infants
Infant enters into contract for an apprenticeship or some other agreement which will benefit the individual, usually bound by such an agreement
58
Explain long term- contracts - binding unless repudiated (infants)
Requires property of a permanent nature (shares in a company, partnership, purchase business) after turning 18 the agreements become legally binding
59
Explain where an infant needs to ratify a contract for it to be binding
When the infant turns 18 may elect to confirm the agreement made previously, so that he/she becomes legally bound by the terms of the contract, known as ratification.
60
What are some examples of contract which are illegal (legality of object)
i. Agreement to commit a crime or tort
ii. Agreement which prejudices the relationship of one country with another
iii. Agreement which hinders the administration of justice
61
What are the steps of discharging a contract?
1. Performance
2. Agreement between two parties
3. Operation of law
4. Frustration
5. Breach of contract
62
What is performance is relation to the discharge of contracts?
Once the ties to a contract have carried out all their obligations under the contract, the contract is over
63
What is agreement between two parties in relation to the discharge of contracts?
May be ended by mutual agreement
Original contract can be ended by the parties cancelling or by substituting a new contract for the old one
Discharge or termination of the contract when terms change from the original contract
Contract must say how the contract can be ended if a party wishes to do so, particularly important in partnership agreements
64
Explain operation of law in relation to discharge of contracts
Contract can be discharged without reference to the wishes of either parties by operation of law
65
Explain frustration in relation to discharge of contracts
Contracts should not be performed because of the circumstances outside of the control of the parties (contract is frustrated)
When the contract is frustrated the parties do not lose all their rights, liabilities the parties have under the contract may be enforced up until the moment of frustration
66
Explain the breach of contract in relation to discharge of contracts
Breaking the contract - by breaking part of the contract or by repudiating the whole of the contract. If the injured party accepts to repudiation, damages are then the only remedy available
67
When can a contract restrain a player from competing?
- The rules of the national or states body to which the clubs belong
- Any contract which a player enters at the time of the agreeing to play the sport for the club
- Player contracts may have clauses which say that they are not allowed to play in particular area or for another club for a period of time.
68
What does Prima Facie Void mean?
restricting he freedom of a player to be able to play for any club in a competitions
69
What must be taken into account (Prima Facie Void)
- The types of activity
- The length of time of the restriction
- the area of restriction
- other evidence relevant to whether or not the restraint is reasonable as between the parties
70
What is the breach of contract in relation to sport?
To end a contract, simply means to tell the other part that the contract has been ended
To end a contract, he/ she:
- Refuse to perform his or her part of the contract
- Resist any action brought by the defaulting party either for damages or specific performance
- Recover any money paid provided there has been a total failure of consideration
- Take action against the offending party for the damages sustained by the breach
- Take action against the offending party for an amount equivalent to the value of labour performed or goods supplied.
71
What are the remedies for the breach of contract
- Specific Performance
- Injunction
- Sue for damages
- Seek Restitution
72
Explain specific performance
making the defaulting party carry out the contract as originally agreed, only be granted by the court if damages are an adequate remedy and the court can supervise the carrying out of the agreement
Example/s;
- famous paintings
- items of jewellery
73
What is Injunction?
court order which forces party to do a specific act, or restrain them from doing something, failure to perform or refrain from the act could face criminal or civil punishment.
74
What is sue for damages?
when one party is entitled to sue the other for breach of contract, the loss is referred to as damages. Injured party is awarded with money.
75
What are the six general principles of damage?
1. The general principle
2. The damage must not be too remote
3. The duty or migrate the loss
4. Damages are not usually recoverable for disappointment of distress
5. Punitive and nominal damages
6. Time limits
76
Explain the seek for restitution?
A legal word used to discuss a remedy based on the idea of unjust enrichment. The High Court makes decisions obliging a defendant to make restitution for a benefit at the plaintiff's expense.
77
When will restitution be awarded?
1. The defendant had received some form of benefit
2. The benefit or 'enrichment' was at the plaintiff's expense
3. It would be 'unjust' to permit the defendant to retain the benefit
4. there are no defences available to the defendent
78
Explain disputes
Disputes with a person believing he/ she has been wronged in some way by another person. Perception could be one sided. The feeling of being wronged grows into a dispute once there is communication
79
How is a dispute resolved?
1. 'Lumping' the grievance
2. Exit and Avoidance
3. Redirecting
4. Naming, Blaming and Shaming
5. Negotiation
6. Mediation
7. Expert determination/ case appraisal
8. Arbitration
9. Adjudication by a court or tribunal
80
What is mediation?
A third party who attempts to guide discussion between two sides to reach an agreement without restoring into litigation (legal action). Agreements made between mediation are not legally binding, unless ordered by the court
81
What are the usual characteristics of mediation process
- Participation is voluntary in many cases
- limited number of procedural rules
- No rules of evidence
- Informal discussion of the parties' concerns which allows for the venting of emotional issues
- Mediator's power is restricted
- Parties decide on content of what is discussed and the outcome
- Process is private and confidential
- Flexibility of possible solutions
82
Explain Arbitration
Involves an impartial party called an Arbiter who has the power to make binding decisions about the matter in dispute
83
What is negligence?
The breach of a person's duty to another person to take responsible care in the circumstances where such breach of duty causes damage to another person. When a person is reckless or careless, or acts without the degree of skills usually exacted of someone in those circumstances which causes some kind of damage or injury to someone else. It is a tort law (common law) governed by the Civil Liability Act 2003 (Qld) Negligence are principles applied by the judge to almost every situation in which a person has suffered personal injury, property damage or economic loss.
84
What are the main purpose of the law's against negligence are to:
- Compensate victims who have suffered loss by transferring the loss from them to the person who has caused the loss
- Deter members of our society from engaging in unsafe behaviour without due regard for others by imposing heavy personal and financial penalties for such behaviour
85
What are the elements of negligence?
1. The defendant must owe a duty of care to the plaintiff
2. The defendant must breach this duty by failing to meet the required standard of care
3. Damages to the plaintiff must be caused by the breach of the duty of care
86
What is the neighbour principle?
take reasonable care of your neighbour is a legal duty.
87
Explain duty to rescuers
A person who commits the Tort of Negligence by creating conditions of danger of emergency for another person is liable to third person who come to the rescue
e.g. car crash
88
Explain defences for negligence
civil jurisdiction, the standard of proof is on the balance of probabilities. Onus of proof is generally carried by the plaintiff, who must prove each elements of negligence. Failure to do so, denies being negligent], then there is no liability.
89
What are the two common defences in a negligence claim?
1. Volenti Non Fit Injuria (voluntary assumption of risk by the plaintiff)
2. Contributory negligence
90
What is volenti Non Fir Injuria?
Latin phrase - to one who consents no injury can be done. If defendant can prove that there was no voluntary acceptance of this risk by the plaintiff, then the negligence claim will fail, even if all three elements of negligence have been proved by the plaintiff. Legal test used to decide of their is a voluntary acceptance has two sub-elements
- - know the facts which make up the danger
- -- submit freely and willingly to that danger
91
Explain obvious risk
engage in dangerous recreational activities should be held responsible for their own behaviour and not be successful in negligence actions against others
