Flashcards
UNIT 1 Section 1 - General Legal Concepts
Cards in this deck (66)
- 1What can damages cover?-Physical, Financial and psychological loss
- 2Name at least three common law obligations on the agent?-Acting on the clients lawful instruction
-Acting honestly
-Acting in the clients best interests
-Not to allow a conflict of interest
-Not to discriminate
-To observe confidentiality
- Not to make a secret profit
-Not to delegate instructions without authority
-To account to the client in full - 3Explain the remedy for breach of common lawThe remedy for breach of common law is one for compensation called Damages. Compensation can be awarded for loss or damage to people or property. Three area will need to considered:
- Physical damage to the person or property
- Consequential financial loss
- Psychological damage - 4Explain how the law of equity came about?The law of equity came about to make up for the defects in common law. Where damages are not applicable or suitable for the breach in common law.
- 5Describe the remedies for breach under equity and what these are- Specific performance: where the other part is asked to do something. For example fulfill the tenancy
- Injunction: The other party is ordered to cease something. - 6Explain how a contract can be formedWith the following criteria's are met:
- an offer
-an unconditional acceptance
-consideration
-intention
-capacity
-freedom from duress
-freedom from illegality - 7Describe what constitutes to an invitation to treatWhen someone is invited to make an offer on something which can be accepted or rejected
- 8Explain what is meant by misrepresentation and the implicationsMisrepresentation is when one party expresses something is a fact but is actually not true. Thus they have misrepresented the fact.
The implications of this:
- lead to tenancy coming to an end or rescinded
- a claim for losses suffered as a result - 9Describe how contracts can be endedA contract can be ended in one of four ways:
- Performance/fulfilment: naturally come to an end afte
r each party has fulfilled their part
- Mutual agreement between both sides
- Frustration: someone dying or external factor outside both parties control i.e a flood
- Breach of contract - 10What is a tort? Give some examplesFrench word meaning 'a wrong'
- 11Explain the concept of nuisanceA nuisance can either be “public” or “private”. Generally speaking, a public nuisance affects the rights of an entire community or a large number of people, whereas a private nuisance affects an individual or the property rights of a small number of people.
However, the sheer number of people affected does not transform a private nuisance into a public one. The public must be affected in a manner specifically proscribed by your state’s statutes or common laws.
What Is A Public Nuisance?
A public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public. Generally, any nuisance that is not a public nuisance is a private nuisance. So, a landlord's violation of a state’s housing codes would be both a public nuisance as well as a private nuisance to the tenants.
Public nuisance is a criminal offence. Private Nuisance is a tort, civil wrong doing - 12Describe who is liable under occupiers liability and how liability can be limited?This can be the property owner, landlord, agent or even tenant.
Liability can be limited if the hazard is removed, Hazard is highlighted, barriers creating access to property, restriction - 13Describe when an employer is vicariously liable for the torts of their employeeIn a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment.
- 14Explain the difference between direct and indirect discriminationDirect discrimination is oral or verbal abuse
Indirect discrimination is where barriers or obstacles are created for them - 15Describe who is impacted upon under discriminationIt can be just about anyone. Under Equality Act 2010, there are protected characteristics such as: religion, age, race, sex, sexual orientation, disability, belief, pregnancy, relationship status, gender reassignment.
- 16Explain the meaning of tenurethe conditions under which land or buildings are held or occupied
- 17Explain how land can be heldFreehold, Leasehold, Commonhold
- 18Describe what covenants are and where they would be foundCovenants are things which are to say things should or shouldn't be done. They can be found in lease or land registry documents.
Positive something should be done i.e to pay service charge
Negative - To not drill holes into any communal walls. - 19Describe what easements are and how they can come aboutEasements are rights over, under or on another persons land. They can be created or granted over a period of time i.e 20 years
- 20What is common law? Give an exampleCommon law is defined as a body of legal rules that have been made by judges as they issue rulings on cases, as opposed to rules and laws made by the legislature or in official statutes
- 21What is Private law?Civil matters between individuals or companies
- 22What is Legislation or Statute?This is law that is written, has passed through parliament and received Royal assent. Legislation covers both criminal & civil matters.
- 23Explain what is 'Mitigation of Loss' and given an exampleMitigation of loss means that an individual took all reasonable steps to ensure that they kept any potential loss to a minimum.
- 24Explain what is 'Contributory negligence' and give an exampleContributory Negligence means that the claimants actions or inactions made the matter worse and added to their loss.
- 25Why was the Law of Equity introduced?To make up for the shortfalls in in common law
- 26In order for a contract be formed it must meet a certain number of criteria's. Name these and match one legal case to them. Explain briefly each of the legal cases- An offer
- An unconditional acceptance
- Consideration
- Intention
- Capacity
- Free from Duress
- Free from illegality - 27What does an 'Invitation to Treat to mean'? Give an exampleIs an invitation to a party to make an offer which can accepted or negotiated. A good example is items displayed on a shop shelf
- 28What does the 'Law of Torts' relate to?The law of torts related to civil wrongdoings. It allows the person suffering the wrong to seek compensation from the person committing the act.
- 29What are the three elements a torts has?- Human behaviour the law classes as wrongful
- Such behaviour infringes an interest of another person
- the person suffering the wrong can seek redress through the civil courts - 30What are the common torts? Explain these with scenarios- Negligence
- Trespass
- Nuisance
- Occupiers Liability
- Rylands vs Fetchers: where something dangerous escapes from their land and causes damage
- Defamation - saying something untrue about someone which leads others & public thinking low of them
- Deceit - a false statement which causes loss
- unlawful eviction or harassment - Sections 27 & 28 of The Housing Act 1988 make these matters torts - 31What are the remedies for torts?They lie with common law and equity: Damages, Specific performance and Injunction
- 32If someone where to claim negligence what are the three things they most prove first?- The defendant owed the claimant a duty of care
- The defendant was in breach of that duty
- The claimant suffered foreseeable damage as a result of the breach - 33What is a repudiatory breach?A repudiatory breach is a breach that the law regards as sufficiently serious to justify termination.
- 34In order for a negligence claim to succeed, what factors must be established?-Foreseeability: could the defendant have foreseen that the result could have happened through their act or omission?
-Proximity: is there a sufficient relationship or proximity between the two parties in time and space? - 35Which legal case relates to 'Duty of Care'? Briefly explain thisDonogue v Stevenson 1932
- 36In the case of a breach of duty, how does the courts decided if this has occurred due to the actions of a relevant person?The courts use the concept of the reasonable person which has been referred to as ' the man on the Clapham Omnibus.
- 37Explain the following acts and the differences - Occupiers Liability 1957 - Occupiers Liability 1984Occupiers Liability 1957: This relates to Lawful visitors
Occupiers Liability 1984: The relates to unlawful visitors and the owners having a duty of care - 38A homeowner has lost patience after repeated attempted break-ins to the rear of their home, and has decided to put broken glass embedded in mortar along the top of the garden wall. A short time after this had been done, some teenagers were injured trying to climb over the wall. What is the homeowners legal position?Think what Act is he breach of?
Occupiers Liability Act 1984 - Unlawful visitors - 39When would a duty of care be owed under Occupiers Liability Act 1984?- The occupier is aware of the danger or have reasonable grounds to believe a danger exists
- They know or have reasonable grounds to believe that others are in the vicinity- The risk is such that they may reasonably be expected to offer the other person(s) some protection - 40Who can be liable for Occupiers liability?Landlords Tenants or Agents
- 41Explain what Vicarious liability is and consequences associated with this.Vicarious liability is a concept in tort often linked to the issue of liability for negligence but can apply where any tort has happened.
It arises where there is a master and servant relationship, for example between an employer and an employee. If the employee act negligently during the course of the employment not only will the employee will be sue but so can the employer be vicariously liable for their actions and sued.
The injured part can sue:
- Who committed the tort, or
- The person who committed the tort and their employment, or
- The employer - 42Under an employer/employee relationship, explain why the employer will be vicariously liable for any claims of torts due to the actions of the employee.
- 43Under an principal/agent relationship, explain why the employer will be vicariously liable for any claims of torts due to the actions of the employee.Enter text here...
- 44Define the word nusiancea person or thing causing inconvenience or annoyance.
- 45Explain the difference in test between nuisance and negligenceIn negligence, the defendants behaviour is considered against their duty
In nuisance, the damage alleged is measured against the claimants right - 46What are the three types of Nuisance? Explain what these arePrivate - an unlawful interference with a persons use or enjoyment of land, or some right over, or in connection with it
Public Nuisance is similar to private and it includes public rights such as obstruction to highways. It is also a crime. - 47Name three activities which can be deemed as private nuisance?smells, noise, fumes, flooding, vibrations
- 48Explain what Private nuisance is:An unlawful interference with a persons use or enjoyment of land, some right over, or in connection with it. An interference with land which is unreasonable will be held unlawful
Civil wrong doing - can be sued - 49What are the tests which help establish what is unlawful interference for a private nuisance?Damage, locality, sensitivity, time & duration, social utility of the defendants conduct, malice
- 50What can bring an action in private nuisance?This may be brought by the owner of the land or by anyone with an interest in the land affected. A tenant would be able to bring action, however a licensee wouldn't be able to
- 51What are the two principal defences for private nuisance? Explain these- Prescription: A prescriptive right if the nuisance had continued for 20 years without interference. This would need be established.
- Statutory authority: Changed due to a legislation - 52For private nuisance list same examples of ineffective nuisance:Enter text here...
- 53What are the remedies for private nuisance?- Damages and Injuction
- 54What is public Nuisance?This may be defined as an act or omission 'which affects the reasonable comfort and convenience of life of a class of her Majesty's subjects.
Public nuisance is seen as a crime
Private nuisance protects a persons enjoyment of land. Public nuisance doesn’t have to concern itself with interference of land.
Public nuisance may concern those activities which are private nuisance in addition to these activities interfering with public rights
Take for example the case Halsey vs Esso Petroleum Co Ltd 1961
Criminal offence - 55Other than the two principal defences to private nuisance, what other defences could a defendant make?An act of god, an act of stranger, a claimants consent if it can be proved
- 56How would you distinguish public nuisance from private nuisanceWhat is a Private Nuisance?
A private nuisance is an unreasonable, unwarranted, or unlawful interference with another person’s private use and enjoyment of his or her property. The test to determine whether an invasion is reasonable is whether the gravity of the harm is outweighed by the social benefit of the nuisance.
What Is A Public Nuisance?
A public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public. Generally, any nuisance that is not a public nuisance is a private nuisance. So, a landlord's violation of a state’s housing codes would be both a public nuisance as well as a private nuisance to the tenants. - 57What are the two types of discrimination?Direct - verbally or orally abusing someone
Indirect - obstacles and Barriers are put in the way of someone having the same opportunities - 58In what circumstance will a landlord not be bound by discrimination laws?If they are residing in the property as well and renting a room out
- 59What legislation was introduced to simplify and formalise the way that land was held?Law of Property Act 1925
- 60What three ways can land be held? Explain theseFreehold -fee simple absolute in possession
Leasehold - Term of years absolute
Commonhold - Arose from the Commonhold and Leasehold Reform Act 2002. Own property by share ownership of common parts of building - 61Explain what covenants are and the two categories they fall into? Where can the be found?Covenants are written into the title/deed or a lease or freehold explain to do or not to do something (i.e positive and restrictive)
They can be found in the Land Registry documents - 62What are 'Legal Interests' and 'equitable interests' in property law?Legal interests are noted in statute, for example Law of Property Act 1925. For example easements
Equitable interests arise from common law and include covenants - 63Explain the difference between positive and restrictive covenants.Positive - to do something
Negative - not to do something - 64Explain the positive and restrictive covenants for the below: Freehold LeaseholdLeasehold:
Restrictive: not to knock down any internal walls etc
Positive: To pay service charge or carry out maintenance
Freehold:
Registered on title with land registry on charges registry. When someone sells their land then can place these covenants onto new owner (only for negative).
Positive: They are more personal and harder to pass on when land is sold. So do not generally get passed on.
Restrictive: not do something on their land, for example build more x plots.
(These can be passed down through leases. However negative and restrictive covenants attached to freehold land that pass on the sale of freehold interest) - 65What are easements? What conditions are needed to be met to create this? Give example of other easements that rights would include of?An easement give rights across, over or under another persons land.The dominant and servient tenements must be adjacent or close to one another. For example, neighbhour A needs to drive over property owner Bs driveway to access his garage. A has the right over Bs land. Therefore A has the dominant tenement and B has the servient tenement.
Rights include:
Light, way, parking, water, shelter and support. - 66How can easements be created or acquired?Easements can be for life and are permanently binded to the land over which is exercisable.
'As of rights' can be obtained over a period of at least 20 years
-Uninterrupted
-Without secrecy
-Without force
-Without permission
Then may an easement be claimed