Lernkarten

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Sprache English
Stufe Universität
Erstellt / Aktualisiert 24.09.2014 / 29.09.2014
Lizenzierung Keine Angabe     (Introduction to Law)
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Fenster schliessen

What are the three type of rules relevant to contract law ?

1) Rules that are made by the contracting parties themselves

2) Rules that emerge from the official national, European and supranational sources

3) Informal Rules that are made by others

Fenster schliessen

What are the 2 caracteristics of rules that are made by the contracting parties ?

1) Freedom of contract. Parties are free to decide whether they want to contract at all and with whom, but they can also determine the contents of their contract

2) General conditions. To standardised set  of rules that are suited to their own interests.

Fenster schliessen

What are the characteristic of rules that emerged from official national, European and supranational sources?

1) default and mandatory rules are set.

Fenster schliessen

Who produces national rules ?

At the national level, the official contract law is produced by the legislature and the courts.

Fenster schliessen

What is informal rule ?

Soft law.  Rules that are not officially binding but have the status of soft law.

Fenster schliessen

Formation of a binding contract.

1) From a promise to a binding contract (3)

No legal system allows all promises to be enforceable. So, what the criterion is for the legal enforceability of promises :

Intention to be legally bound : the intention of the parties to enter into a legal relationship.

Gratuitous promises : A purely gratuitous promise (a donation) usually need to be put in a notarial deed.

Consideration : requires that there is a qui pro quo, the promise must be given for a counterperformance by the other party.

Fenster schliessen

Formation of a binding contract.

2) Offer and Acceptance

If an acceptance has been dispatched by the offeree the contract is concluded when the acceptance reaches the offeror.

Fenster schliessen

How are the weaker parties protected ?

1) Consumer protection : put the contract in writing and the need to comply with information duties.

2) Withdrawal Rights : allow the cancellation of a contract without any reason, consumer only need to return the good or send the seller a notice of cancellation within the "cooling-off period".

3) Incapacity : certain persons are incapable of entering into anlegal transactions at all. (Young children and the mentally ill)

Fenster schliessen

How is interpreted a contract ?

The contract is interpreted in the way in which a reasonable person would understand it.

Fenster schliessen

When is a contract prohibited ?

If they are contrary to law, public order and morality.

Fenster schliessen

What is nonperformance ?

When the other party is nonperforming at all, is performing too late (delay) or is performing in the wrong way. (Defective performance)

Fenster schliessen

What is the position of civil law  for performance ?

If a party does not perform, it can be forced to do so by a court.

Expect : 

A case of objective impossibility

when performance requires specific personal qualities

when performance would cause the debtor unreasonable effort or expense

Fenster schliessen

What us the position of common law on performance ?

The normal action is for damages, so-called specific performance being the exception.

Fenster schliessen

What happen if the performance of the contract does not take place at all, is too late or defective, in the common law ?

To hold the nonperforming party liable simply because it did not perform, the wrong party must compensate its customers.

Fenster schliessen

What happen if the performance of a contract does not take place, is too late or defective, in the civil law ?

Allow a claim for damages only if he other party was at fault or can at least be held responsible for the nonperformance. (Excuse of force majeur are accepted)