Vitiating Factors : General Principles Vitiating Factors and Mistake Flashcards

1
Q

Name five or more vitating factors that undermine a contract?

A
  1. Mistake
  2. Misrepresentation
  3. Misleading and Deceptive Conduct
  4. Duress
  5. Undue Infulence
  6. Unconscionable Conduct
  7. Unfair Terms
  8. Illegality.
  9. Legislation
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2
Q

What are the four forms of mistake that may provide contractual remedies in limited circumstances?

A
  1. Common mistake
  2. Mutual Mistake
  3. Unilateral Mistake
  4. Non es factum.
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3
Q

What is a common mistake?

A

A common mistake occurs when both parties are mistaken about the same thing (eg, the authenticity of a piece of art)

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4
Q

What is a mutual mistake?

A

A mutual mistake occurs when both parties are mistaken but about different things; often where such mistakes exists the agreement might be too vague or uncertain to be enforceable without the need to rely on mistake as a separate cause of action.

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5
Q

What type of mistake occurs when one party is mistaken about some aspect of the contract but the other is not.

A

Unilateral Mistake.

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6
Q

What does ‘Non est factum’ mean?

A

‘This is not my deed’

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7
Q

Briefly describe ‘Non est factum’

A

Non est factum (it is not my deed) is established where a party is mistaken about the nature of the document they are signing - essentially that, through no fault or neglect of their own they were unable to understand the meaning or the significance of the document they were signing.

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8
Q

What are some facts about VOID contracts?

A
  1. Contracts have not come into existence, thus have never existed.
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9
Q

When a contract that requires one party to perform its obligtaion that is impossible or illegal, a contract will be considered..

A

VOID

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10
Q

What is ‘void ab initio’?

A

‘from the beginning’. When a contract is void ab initio, it means that the contract in fact never existed and thus any consideration which moved between the parties did not legally change ownership.

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11
Q

What is a Voidable contract?

A
  1. Voidable contracts it may be rescinded by one or both parties.
  2. It is not void, as a party can elect to rescind the contract.
  3. Contract usually become voidable if they were entered into because of a vitiating factor such as a misrepresentation, duress, undue influence or others.
  4. Damages are not available.
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12
Q

What occurs during the running of a contract and the contract stops so that rights and liabilities in the future no longer apply.

A

TERMINATION

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13
Q

What right and liabilties, (those that have already dallen due before the terminating event) are enforceable?

A

Accrued rights and liberties.

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14
Q

Rescission is …

A

the contract is treated as if it had never existed

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15
Q

Rescission remedy is available when something has gone wrong during ..

A

negotiation for the contract.

Such as misrepresentation, misleading and deceptive conduct, unconscionable conduct, undue influence, duress or mistake.

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16
Q

Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679

According this case what are the five definitions of common law mistake?

A
  1. There must be a common assumption as to the existence of a state of affairs
  2. There must be no warranty by either party that that state of affairs exists
  3. The non-existence of the state of affairs must not be attributable to the fault of either party
  4. The non-existence of the state of affairs must render performance impossible
  5. The state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contract is to be possible