foundations of private law Exam Questions And Answers 100% Guaranteed Success.

contract - correct answer fundamental idea is that the obligations finds it's source in an agreement, in sale eg, the agreement must be on object to be exchanges for a fixed definite price in money note: there are 4 distinct principles of liability limits of contractual obligations - correct answer -privity- a contract in principle binds only the parties to it: hence in principle third persons can neither derive nor be placed under obligations by a contract to which they are not party -capacity to contract- age and mental capacity -illegal contracts- courts will not intervene in any way, consequences? -legal but unenforceable agreements- courts will not enforce the agreement but will put right the consequences of part performance of the agreement of the agreement by applying the law of unjustified enrichment to re-establish the status quo ante: if one party performs his/her side of a bargain and the other party fails to perform he/she agreed to perform in exchange -breach of contract the 4 main groups of contract - correct answer -real- mutuum, commodatum, depositum, pignus -literal -verbal- eg stipulatio -consensual- sale, hire, partnership, mandate the real contracts - correct answer liability arises not on mere agreement but on the handing over of the thing they are gratuitous- usually between friends mutuum. commodatum, depositum, pignus mutuum- loan for consumption, a gratuitous loan of a fungible (thing that will be used up) such that both ownership and possession pass to the borrower involves a) handing over of fungible thing and b) agreement that equivalent thing will be returned effects of contract- borrower obliged to return equivalent when demanded, ie separate stipulation of date enforcement of contract- condictio. unilateral contract commodatum- loan for use, gratuitous loan of non-fungible neither ownership not legally protected possession passes only mere physical possession (detention) mutuum - correct answer gratuitous loan for consumption- both ownership and possession pass to the borrower a) handing over of fungible thing (thing that will be used up) b) agreement that equivalent thing will be returned effects of contract- borrower is obliged to return equivalent when demanded, separate stipulation eg date enforcement of contract- condictio unilateral absolute obligation on the borrower to return an equivalent amount and quality of the fungible at the appointed time- no fault liability commodatum - correct answer gratuitous loan for use- only natural possession passes to the borrower a) handing over of thing b) agreement same thing will be returned borrower obliged to return thing when agreed and obliged to look after the thing in the meantime imperfectly bilateral contract- borrower is always obliged to return the object at the appointed time lender always has claim on the contract to enforce borrower to return the object at the agreed time, fair wear and tear except or failing return of the object, for damages for loss- subject to culpa levis the lender is obliged to compensate the borrower for any losses sustained ie exceptional costs, such as carrying essential repairs out on a car while borrowing it enforcement of contract -actio commodity directa (obligations on borrowers side arise directly from the contract) -actio commodati indirecta (obligations of the lenders side only arise indirectly from circumstances) depositum - correct answer gratuitous leaving of an object with another for safe keeping deposit requires neither ownership nor possession a) handing over of thing b) agreement thing will be looked after effects of contract (imperfectly bilateral) -depositary obliged to look after thing -depositary obliged to return thing when agreed -depositor obliged to reimburse depositary for expenses incurred -depositor obliged to compensate depositary for losses sustained enforcement of contract -actio depositi directa -actio depositi indirecta *note depositee is not entitled to use the thing they are looking after , "use" connotes a breach of contract and theft pignus - correct answer pledge- a form of security under which the creditor obtains possession, not ownership, he is liable for certain degrees of carelessness a) handing over of thing b) agreement of thing effects of contract -creditor obliged to look after the thing -creditor obliged to return the thing when debt was paid -debtor obliges to reimburse creditor for expenses incurred -debtor obliged to compensate creditor for losses sustained enforcement of contract -actio pigneraticia directa -actio pigneraticia indirecta the consensual contracts (made by an agreement) - correct answer liability arises on agreement alone, only four specific clearly defined agreements were recognised as constituting a contract on mere agreement (sale, hire, mandate, partnership) stages of a contract conclusion- brings the contract into existence, each contract is governed by general principles but also gives rise to it's own set of rules perfection-makes contract fully enforceable and effects a transfer of risk in sale performance- occurs when parties do what they are bound to in law under the contract eg seller delvers the object and buyer pays the price, ownership is transferred on delivery sale - correct answer agreement to exchange a (A) specific thing for (B) a fixed price (C) consent, meeting of two minds, the concurrence of two intents *note- can be a future thing ie in emptio rei speratae(the sale of an expected thing) and emptio spei (the sale of an expectation) errors error in negotio-type of transaction error in pretio-price error in quantitate-quantity error in persona-identity of buyer/seller error in corpore- identity of thing being sold error in nominae-description/name of thing error in substantia-quality ownership passed after conveyance BUT payment/security for payment must have been made risk- passed to buyer as soon as contract is complete, as long as the seller looked after the thing with due care in the period between contract and conveyance, he could claim the price from the buyer no matter what happened to the thing, the buyer had no claim against the seller is without his fault the thing was destroyed/damaged before conveyance rights and duties of parties duties of the seller- 1)care and delivery, fault:negligence and wrongdoing constituted breach of contract 2) warranty against eviction- guarantee buyers vacant possession, can claim breach of contract if this does not happen 3) warranty against latent defects- sellers required to display on a board a statement of any defects and if a defect had not been declared the buyer could sue within 6 months they could claim recession of the sale by the actio redhibitoria within 12 months they could claim the difference between the price paid and the value of the thing, liability was strict, knowledge/ignorance irrelevant, BUT the seller could avoid liability by expressing their intention but would still be liable for bad faith duties of the buyer- make payment, and compensate seller for any costs incurred eg in delivery sale 2 - correct answer conclusion- contract perfected(risk has transfers) when all matters complete apart from performance 3 exceptions where contract is imperfect -contract subject to suspensive condition -object definite but not fully determined eg has to be chosen for mass/from alternatives -price is certain but not fully determined because fixed at say so many pounds per kilo hire - correct answer there must be an agreement of the object of hire and price 3 types locatio conductio rei- hire of a thing/land for enjoyment locatio conductio operarum- hiring out ones services eg as gardener locatio conductio operas faciendi- placing a piece of work out to be done, eg making a ring out of gold I supply, building a house on my land with materials you or I supply, cleaning my dress, *note if a goldsmith makes a ring with his gold this is sale rights and duties- duty- person hiring out object had to supply it and allow person paying for it enjoyment of the object for agreed period of time risk- person hiring out was entitled to payment only in so far as he provided the other with enjoyment if the thing ie risk of destruction/deterioration falls on the person hiring out