Types of Law and Contract Formation Flashcards
(47 cards)
Fill in the following blanks for CIVIL LAW
Parties involved:
Burden of proof:
Standard of proof (level of persuasion needed):
Potential outcome:
CIVIL LAW
Parties involved: Claimant and defendant
Burden of proof: the claimant must prove their case
Standard of proof (level of persuasion needed): on the balance of probabilities
Potential outcome: pay for damages/compensation (NOT fine, no punishment)
Fill in the following blanks for CRIMINAL LAW
Parties involved:
Burden of proof:
Standard of proof (level of persuasion needed):
Potential outcome:
CRIMINAL LAW
Parties involved: Prosecutor and accused
Burden of proof: Prosecution
Standard of proof (level of persuasion needed): beyond reasonable doubt
Potential outcome: punishment - imprisonment or fines
Who creates primary legislation?
Parliament
Who creates secondary legislation?
Organisations/individuals that parliament has delegated its law making powers to
Do laws made via primary vs secondary legislation have the same impact?
Yes
How is case law created?
Judicial precedent - judge’s decision sets a precedent for similar cases.
What are the three essential features of a simple contract?
Acceptance of an offer
Consideration
Intention
Do simple contracts need to be presented in a certain format?
No - do not need to be written or formally completed unless involves the sale of LAND in which case a deed must be exchanged
Where the contract is in the form of a deed, then consideration is not required
What are the four factors that affect the validity of a contract, regardless of whether the essential features are present?
a) Lack of capacity
b) Absence of free will
c) Illegality involved
d) Misrepresentation (someone has been misled)
What is the difference between a void and a voidable contract?
A void contract is not a contract at all - has some illegal element to its nature.
Parties are not bound by it and a inured party can generally recover all goods from a third party
A voidable contract can occur if one party had a lack of capacity, absence of free will or misrepresentation. That party is ABLE to VOID the contract. However, property transferred is usually unrecoverable from a third party
Which of the following features are present in an offer?
a) Offer must be possible
b) Further negotiation needed
c) Specific terms
d) Can be open to interpretation
a & c
What is the difference between an offer and an invitation to treat?
Offer: Definite promise to be bound on specific terms
more than a supply of information or a statement of intention
Invitation to treat: an invitation by one party to to the other to enter into negotiations which could or could not lead to an offer. Encourages other people to make an offer - not capable of acceptance itself
What are the four ways in which an offer can be terminated?
Rejection
Counter offer - ceases original offer
Lapse of time
Revocation of offer that is communicated to offeree
Failure of precondition
The Unfair Contract Terms Act 1977 defines a consumer as;
a) Someone who makes a contract as a private individual
b) Someone who does not make a contract in the course of a business
b
What is the postal rule and in what situation does it apply?
Acceptance of an offer is completed as soon as the letter has been posted.
Must have been addressed and stamped properly and agreed upon by both parties.
Postal rules do not apply to revocation of an offer
What are the three types of consideration and are they generally valid or invalid?
Executory - valid. A promise for a promise
Executed - valid. An act executed for a promise.
Past - generally invalid. Act was carried out before agreement was formed
Must consideration be
a) Adequate
or
b) Sufficient
b
What are three exceptions to the privity of contracts rule?
Where agents act on behalf of a principle
Motor insurance companies
Where third parties are expressly identified in contract
In an action for breach of contract, the court will not award:
a) Damages for financial loss.
b) Unliquidated damages.
c) Liquidated damages.
d) Damages identified in a penalty clause.
d) Damages identified in a penalty clause.
Penalty clauses are void in contract law.
Vincent sells paintings by Pablo in his art shop. He has undertaken not to advertise the paintings at a lower price than Pablo has specified, only to sell the paintings to private collectors, and not to display any of Pablo’s paintings without his permission. They have agreed that if Vincent breaks any of these conditions, he will have to pay Pablo £10,000.
Vincent hangs a picture that Pablo gave Vincent’s husband for Christmas the previous year above the counter in his shop. Pablo claims that Vincent does not have permission to display the picture and is demanding £10,000.
a) Vincent owes Pablo £10,000 as liquidated damages.
b) Vincent owes Pablo £10,000 under a penalty clause.
c) Vincent owes Pablo nothing because the penalty clause is void.
d) Vincent may choose to not pay Pablo because the penalty clause is voidable.
c) Vincent owes Pablo nothing because the penalty clause is void.
First statement is not right, because the fact that the fixed sum of damages arranged covers several issues implies that it is a penalty clause rather than a genuine pre-estimate of loss. If the pre-arranged sum is judged to be a penalty clause, then the clause is void.
By virtue of the Unfair Contract Terms Act 1977, an attempt by any person to exclude or restrict their liability for damage to property caused by negligence is:
a) Void unless reasonable.
b) Effective only in a non-consumer transaction.
c) Void.
d) Valid if the other party to the contract knows of the exclusion clause or has been given reasonable notice of it.
a) Void unless unreasonable.
This is the rule in section 2 of the Act.
David owed Michael £1,000. Michael said that he would accept a cheque.
a) If David were to offer £900 in cash instead of a cheque, would that constitute valid
consideration?
b) If Zak were to offer to pay £900 on behalf of David, would that constitute valid
consideration for Michael’s promise to release David from his original debt?
a) No
Paying cash instead of cheque is not sufficient to support the waiver of debt by Michael.
b) Yes.
The promise of payment from a third party, against whom the creditor previously had no claim, is sufficient.
a) What forms primary legislation?
b)What is secondary legislation?
a) Acts of parliament
b) Delegated legislation
When a specific body or individual creates law on behalf of parliament
Can civil law cases be settled out of court, even where the court has already begun hearing the case?
Yes
