09/10/2008
U
CONTRACT: Unilateral contract - Where only one party has an obligation to the other; A promises X to B if B will do something for X
T
TORT: Trespass to land - A direct and immediate interference with the claimants' possession of land. An indirect incursion might be nuisance.
M
CONTRACT: Misrepresentation - A misleading statement made during the negotiations leading to a contract. It must be addressed to the other party, and have induced them into entering the contract. There must be a representation or statement made (silence does not constitute this) which is false, unambiguous, of fact/law
P
TORT: Proximity - This factor differs from situation to situation; it does not necessarily mean physical proximity only, but also legal. This relates to the 'neighbour' principle in that it relates to any person who it could have been reasonably foreseen that they would have been affected by the defendant's negligent act.
The necessary degree of proximity is the product of the court's conclusion on what is fair, just and reasonable.
TORT: Public authority - PA's generally act under statutory duties, pursuant to discretionary statutory powers. Claimants must satisfy CAPARO factors to establish a duty of care, and also, to allege negligence in the exercise of statutory powers or duties, must also go up against the additional hurdle of courts not wanting to fetter discretions conferred by Parliament.
If there is a statutory duty, a breach of it will be actionable in tort. However, if there is no general rule of liability in the statute, then one cannot fall back on a liability for negligence in the performance of the duty.
TORT: Psychiatric injury - A problematic form of personal injury, as despite advances in science, diagnosis of mind problems are still inaccurate, and the very existence of some conditions is controversial. Whilst the physical effects of an accident are limited by actual injury of the threat of, mental trauma has no such boundaries and can affect witness, friends or relatives.
This sort of shock must come on as a direct result of witnessing or being involved in a horrifying event. There is no recovery for psychiatric illness which appears over time. Sensations of fear or grief also cannot be included.
CONTRACT: Promise - A promise has to involve a promisor and a promisee, as well as an outward expression of common intention and of expectation as to the declation or assurance contained in the promise (which will normally take the form of an agreement).
CONTRACT: Promissory estoppel - "If parties have entered into definite...terms involving certain legal results...afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense...the person who otherwise might have enforced [them] will not be allowed [to] where it would be inequitable having regard to the dealings which have taken place". There must be a clear and unambiguous representation by words or conduct, regarding the past, present or future upon which the promisee must have relied and for which it would be inequitable for the promisor to go back upon. It is not a cause of action (can only be used as a shield, not a sword), and it will only protect a person if he comes with 'clean hands'.
CONTRACT: Privity of contract - A third party cannot be subjected to a burden by a contract to which he is not a party. Prior to the Contracts (Right of Third Parties) Act 1999, a person who was not a party to a contract could not sue upon it in order to obtain the promised performance, even where the contract was entered into with the very objective of benefitting him. Exceptions are collateral contracts (between one of the contracting parties and the third party), agency, promise of trusts, or in tort.
The necessary degree of proximity is the product of the court's conclusion on what is fair, just and reasonable.
TORT: Public authority - PA's generally act under statutory duties, pursuant to discretionary statutory powers. Claimants must satisfy CAPARO factors to establish a duty of care, and also, to allege negligence in the exercise of statutory powers or duties, must also go up against the additional hurdle of courts not wanting to fetter discretions conferred by Parliament.
If there is a statutory duty, a breach of it will be actionable in tort. However, if there is no general rule of liability in the statute, then one cannot fall back on a liability for negligence in the performance of the duty.
TORT: Psychiatric injury - A problematic form of personal injury, as despite advances in science, diagnosis of mind problems are still inaccurate, and the very existence of some conditions is controversial. Whilst the physical effects of an accident are limited by actual injury of the threat of, mental trauma has no such boundaries and can affect witness, friends or relatives.
This sort of shock must come on as a direct result of witnessing or being involved in a horrifying event. There is no recovery for psychiatric illness which appears over time. Sensations of fear or grief also cannot be included.
CONTRACT: Promise - A promise has to involve a promisor and a promisee, as well as an outward expression of common intention and of expectation as to the declation or assurance contained in the promise (which will normally take the form of an agreement).
CONTRACT: Promissory estoppel - "If parties have entered into definite...terms involving certain legal results...afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense...the person who otherwise might have enforced [them] will not be allowed [to] where it would be inequitable having regard to the dealings which have taken place". There must be a clear and unambiguous representation by words or conduct, regarding the past, present or future upon which the promisee must have relied and for which it would be inequitable for the promisor to go back upon. It is not a cause of action (can only be used as a shield, not a sword), and it will only protect a person if he comes with 'clean hands'.
CONTRACT: Privity of contract - A third party cannot be subjected to a burden by a contract to which he is not a party. Prior to the Contracts (Right of Third Parties) Act 1999, a person who was not a party to a contract could not sue upon it in order to obtain the promised performance, even where the contract was entered into with the very objective of benefitting him. Exceptions are collateral contracts (between one of the contracting parties and the third party), agency, promise of trusts, or in tort.
R
TORT: Res ipsa loquitur - 'The thing speaks for itself'. It is open to the court to infer negligence from the circumstances (circumstantial evidence) in which the accident occurred. There are certain happening that do not normally occur in the absence of negligence and upon proof of these a court will probably hold that there is a case to answer. If the defendant chooses not to respond by offering an explanation consistent with due care, then the claimant will win.
TORT: Remoteness of damage - This can be determined in most cases by a test of foreseeability.
CONTRACT: Revocation - An offer can be revoked before acceptance, or be rejected by the offeree. It can also lapse for want of acceptance, or by the death of the offeror/offeree. Acceptance can be revoked any time before it is communicated, provided that this travels/is communicated faster than the acceptance.
TORT: Remoteness of damage - This can be determined in most cases by a test of foreseeability.
CONTRACT: Revocation - An offer can be revoked before acceptance, or be rejected by the offeree. It can also lapse for want of acceptance, or by the death of the offeror/offeree. Acceptance can be revoked any time before it is communicated, provided that this travels/is communicated faster than the acceptance.
O
TORT: Omissions - The general rule is that a person must not harm their neighbour, but they are not required to save them either.
CONTRACT: Offer - Clear expression of an unequivocal willingness to be bound of the offeree's acceptance. It need not be made to a specific person, but it must be accepted by one, and it must be communicated to be effective.
CONTRACT: Offer - Clear expression of an unequivocal willingness to be bound of the offeree's acceptance. It need not be made to a specific person, but it must be accepted by one, and it must be communicated to be effective.
N
TORT: Negligence - Negligence as a tort is a breach of a legal duty to take care which results in damage to the claimant. The ingredients are:
1. A legal duty on the part of D towards C to exercise care in such conduct of D as falls within the
scope of the duty,
2. Breach of that duty, (failure to come up to the standard required by law)
3. Consequential damage to C which can be attributed to D’s conduct.
TORT: Nuisance - Protection of the environment, although some parts have nothing to do with this (obstruction of the highway). Main idea is protection of private rights in the enjoyment of land, so protection of the whole community is incidental. Common law of nuisance has been supplemented and replaced by a large extent by statutes. Can be divided into public and private nuisance.
1. A legal duty on the part of D towards C to exercise care in such conduct of D as falls within the
scope of the duty,
2. Breach of that duty, (failure to come up to the standard required by law)
3. Consequential damage to C which can be attributed to D’s conduct.
TORT: Nuisance - Protection of the environment, although some parts have nothing to do with this (obstruction of the highway). Main idea is protection of private rights in the enjoyment of land, so protection of the whole community is incidental. Common law of nuisance has been supplemented and replaced by a large extent by statutes. Can be divided into public and private nuisance.
C
TORT: Causation - The claimant must show a causal link between the loss he has suffered and the defendant's wrong, and if the claimant has contributed to the occurrence of that loss, his damages might be reduced (contributory negligence) or even extinguished completely. Causation is the link between fault and damage.
CONTRACT: Consideration - "Consists of some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other"; as such, consideration may be a benefit or detriment, it must be given in return for the promise, and although it must be real, it does not need to be adequate (i.e. £5 for a Lamborghini is adequate consideration).
CONTRACT: Consideration - "Consists of some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other"; as such, consideration may be a benefit or detriment, it must be given in return for the promise, and although it must be real, it does not need to be adequate (i.e. £5 for a Lamborghini is adequate consideration).
A
TORT: Actionability - Most torts are only actionable upon proof of damage (quantifiable proof); however some are actionable without, just the fact that it happened is enough (such as trespass to the person).
CONTRACT: Acceptance - The clear unequivocal expression of willingness made by the offeree to accede to the terms of the offeror. It is distinguished from counter-offers, counter-counter-offers, change of terms and battle of forms. The offeror must be aware of the acceptance, and it must be absolute. It cannot be communicated by someone other than the offeree except when this person is a duly authorised agent. Acceptance by silence does not normally constitute acceptance.
CONTRACT: Acceptance - The clear unequivocal expression of willingness made by the offeree to accede to the terms of the offeror. It is distinguished from counter-offers, counter-counter-offers, change of terms and battle of forms. The offeror must be aware of the acceptance, and it must be absolute. It cannot be communicated by someone other than the offeree except when this person is a duly authorised agent. Acceptance by silence does not normally constitute acceptance.
I
CONTRACT: Invitation to treat - An invitation to treat is an expression of willingness to enter into negotiations. They can be expressed as advertisements (adverts, catalogues etc), display of goods, transactions through machines (vending, petrol pumps etc), auctions, carriage of persons (rail timetables) and tenders.
E
TORT: Economic loss - There is no problem when a financial loss is a consequence of physical injury or damage to a claimant's property. Issues arise when this financial loss is unaccompanied by other damage. As a general rule, there is no liability for it, aside from careless false statements and some other acts based upon the assumption of responsibility.
D
TORT: Duty of care - The primary control device which allows the courts to keep liability for negligence within what they regard as acceptable limits, and the controversies which have centered around the criteria for the existence of a duty reflect differences of opinion as to the proper ambit of liability for negligence.
The key question to ask is "Did this defendant owe a duty of care to this claimant?" and as such the test is not one of physical closeness, but of foresight of the reasonable man.
The key question to ask is "Did this defendant owe a duty of care to this claimant?" and as such the test is not one of physical closeness, but of foresight of the reasonable man.
F
TORT: Fault - The breach of a duty of care. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which this reasonable person would not do. Where a duty of care exists, the courts must consider whether this risk was sufficiently great to require of the defendant more than he has actually done. The burden of proof of the defendant's negigence on the balance of probabilities is upon the claimant to prove what happened, that it was faulty, and that that particular defendant was to blame.
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