4314709
Description
Flashcards by daniel kuhr, updated more than 1 year ago
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Created by daniel kuhr
over 8 years ago
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| Question | Answer |
| Characteristics of Law | Rules - What you are allowed to do... Positive Law - Rules created through government action Collective Enforcement - Rules enforced by the government |
| Definition of Law | Laws are the rules that we as a society specifically set up to govern our lives, enforced by the government. |
| What is Civil Law (two basic categories) | Public Law - Where the government is involved. Private Law (Civil Law) - Where the government is not involved. |
| Basic Structure of Civil Law | Law of Obligations - (Schuldrecht) Contract Law Tort Law Law of Things - (Sachenrecht) Property Law |
| Rechtsfähigkeit | Capacity to have rights & duties - all humans have this - Begins at birth, sometime earlier |
| Handlungsfähigkeit | Capacity to perform legal acts - Varies by age |
| Deliktsfähigkeit | Capacity to be liable for the consequences of one's own actions |
| Geschäftsfähigkeit | Power to undertake legally binding actions and contracts. |
| Who else may have some form of legal capacity | Natural Persons - Us.... Legal Persons - Entities that gain legal capacity through the law |
| Legal Transactions (Das Rechtsgeschäft) | All legal acts that bring about a legal consequence or effect |
| Basic Parts of a Legal Transaction | Declaration of Will Realakt |
| Declaration of Will | Statement or action aimed at achieving some legal consequence |
| Realakt | Any act which the legal system attaches legal consequences regardless of the actor's intent |
| Legal Transactions = | One or more Declarations of Will or Realakt + Declaration of Will |
| Elements of a Declaration of Will | Objective vs Subjective |
| Objective | The outward act of expressing one's intent. What people actually see happen, or what they think happend... |
| Subjective | The Person's actual intent behind the outward act. Must: 1) desire the act 2) be aware of it 3) know its consequence |
| Limitations of Legal Transactions | Void Voidable |
| Void | Transactions that are without legal effect from the very beginning Outcome - A void contract may not be enforced by either party. Legally, it never happened... |
| Voidable | Transactions which are initially valid, but may be voided once challenged. Outcome - A voidable contract may be enforced by the "innocent" party, if they so choose |
| Agency | Where one individual (agent) legally acts on behalft of another individual (principal) |
| Compulsory vs Non-compulsory | Agency created by law vs. Agency created by transaction, voluntary |
| Active vs. Passive | agent gives the declaration of will vs. agent receives the declaration of will |
| Direct vs. Indirect | agent acts using the principal's name vs. agent acts in his own name, but for principal |
| Spezialvollmacht | Authority for a single, specific transaction |
| Generalvollmacht | Authority for generally anything and everything |
| Untervollmacht | Authority given from an agent to a subagent |
| Duldungsvollmacht | Authority where the principal knows the agent is actiong on his behalf (but beyond his actual authority) but does nothing about it. The actions become legally enforeable against the principal |
| Anscheinsvollmacht | Authority that arises where the principal should have know that the agent was acting outside his authority. Theses actions also become enforceable against the principal. |
| Within Authority | The transaction is immediately valid and has legal effect for and against the principal |
| Beyond Authority | The transaction is not valid (unless the principal ratifies it afterwards) |
| Unclear Authority | Where the agent does not make it clear that he is acting on behalf of a principal, then the agent is personally liable for the transaction |
| contracts | legal act consisting of two or more Delcarations of Will, corresponding with each other, aimed at bringing about a specific legal effect. Every contract requires an offer and an acceptance |
| Freedom to conclude a contract | can conclude or not conclude a contract with anyone... - May not disciminate upon age, gender, race or disability - Allowed monopolies must contract with everyone |
| Freedom to Decide Contract Contents | Individuals may decide their own content and form. Limitations: - Anti trust law - not contract for anything illegal... - Consumer Protections laws. etc. |
| Offer | Declaration of will that must be received by another party, offering the conclusion of a contract |
| Details of an Offer | - must contain all the essential aspects - other party must be able to just say "yes" - person making the offer is bound by the details of the offer until it lapses - only open to the person to whom it is addressed. - the offerer can avoid being bound be inserting: subject to change; revocable; without obligation |
| Timing of an Offer | An offer is effective and valid once it enters a person's "sphere of control" and they could have been expected to take notice of it. |
| Acceptance | Declaration of Will accepting the offer of a contract |
| Details of an Acceptance | - must be unreserved and unconditional - not effectiv if the offer was timely revoked - only effective by the person to whom the offer is made - Acceptance need not always to be overt - An acceptance is effective once it enters a person's "sphere of control" |
| Open Lack of Agreement | The parties know that they are not in agreement... - lack of agreement on fundamental points of the contract, then the contract fails ab initio. - Lack of agreement on side issues, it depends on whether the parties' still want to go forward regardless of the disagreement |
| Hidden Lack of Agreement | Where the parties do not know of a disagreement or ambiguity in the contract -Disagreement on fundamental aspects leads to no contract -Disagreement on side issues or secondary aspects allow the contract to go ahead, but ONLY IF the contract would have gone ahead if the parties knew of the disagreement beforehand |
| Standard Form Contracts | Many contracts now have a "fine print" - Accepting party need to have had a reasonable opportunity to take notice of it and accept it. -the law protects against certain unfair practices or illegal acts. |
| General Forms of a Contract | No basic form necessities are required by statute, however with respect to certain types of contracts, specific forms may be required by statute in order to provide increased certainty that the parties understand the legal consequences of their actions Example - Sale of land, donation |
| Breaches of Requirements = Void | Breach of formal requirements Breach of a Law - Where a contract itself violates a statutory provision Breach of Good Morals - Where a contract is against public morality |
| Defects of the Declaration of Will = Void | Mental Reservations - Both parties know that the declared intent by one side was not real Sham Transactions - Actual agreement is fake, to cover a different agreement Joke Declaration - one party is making a joke about their intent to enter into the agreement = void. However they must clarify the situation as soon as possible |
| Defects of the Declaration of Will = Voidable | Content mistake Characteristic Mistake Declaration Mistake Deceit Duress |
| Creditor and Obligor | Creditor - Person to whom an obligation is owed. Obligor - Person who owes the performance of the obligation |
| Primary Duties | Arises from the contract itself, and is generally the entire point of the contract |
| Secondary Duties | Arise generally when the primary duty has not been fulfilled |
| Types of Performance Obligations | Individual Obligations Generic Obligations Quasi Generic Obligations |
| Obligations as the Place of Performance | Holschuld Bringschuld Schickschuld |
| Ending the Obligation to Perform | Timely performance of the obligation Some substitute is accepted in lieu of performance by the Creditor |
| Partially Fulfulling the Obligation to Perform | Some alternative is accepted "on account of fulfillment". The obligation to perform continues A set-off of performance obligations. This occurs where both parties owe the other something form a prior transaction. |
| Impossibility | Where it has become impossible for the Obligor to perform |
| Collapse of the Foundation of the Contract | Where circumstances have changed to an extend that the contract cannot reasonably be upheld |
| Impossibility Basic Concepts | Impossibility does not invalidate a contract Impossibility is a defence or and excuse Creditor may still have a claim for monetary damages from the Obligor |
| Objective Impossibility | Impossible for anyone to perform |
| Subjective Impossibility | Impossible for the Obligor specifically to perform |
| Initial Impossibility | Where it was already impossible to perform at the time the contract was made |
| Subsequent Impossibility | Where it only became impossible to perform after the contract was concluded |
| Unreasonableness | Where the actual performance is possible, but would impose a disproportionate cost on the Obligor |
| Factual Impossibility | Where the performance is actually, factually impossible |
| Temporary Impossibility | Where the Performance is currently impossible, but may be possible at a later date |
| Permanent Impossibility | Where the performance is and will always be impossible |
| Delay | Where the Obligor does not perform in time |
| Positive Breach | Where the contract was poorly performed and that substandard performance resulted in unexpected damage |
| Pre-Contractual Duties | Where one party in a contract negotiation causes damage to the other party |
| Creditor Delay | Obligor offers to perform, but the performance is refused by the Creditor. The obligor is generally entitled to compensation for the delay |
| Obligor Delay | The Obligor does not perform by the original set date....the creditor is generally entitled to claim compensation for the delay (unless the Obligor can prove that he was not responsible). The Creditor must eventually accept performance when tendered, even if it is late. |
| Damages in Lieu of Performance | The damages necessary to make the Creditor whole as if the Obligor had actually performed |
| Damages caused by the delay | The damages that result from the delay, to compensate the Creditor for waiting for performance |
| What elements are necesssary in order for a party to claim damages through a "positive breach" ? | -A contractual duty has been breached -The Creditor has suffered damages, -The breach caused the Creditor's damage, and -The obligor was at fault for the breach |
| Damage | Every disadvantage a person suffers as a result of action on property, belongings, or to a lawfully protected right. |
| Causation | Damage must have been caused by an action or omission carried out or omitted under a contract |
| Two Basic Types of Compensation | Natural substitution - Substituition as compensation Schadenersatz in Geld - Money as compensation |
| Direct Damage | Actual impairment of the injured object or right |
| Indirect Damage | Any further consequences of the original damage |
| Material Damage | Any damage that money can naturally compensate |
| Non - Material damage | Damage that money cannot easily compensate |
| Two Goals for Compensation | Expectancy (Schadensersatz statt Leistung) - Placing the person in the position they would have been in had the deal been completed with no breach Reliance (Vertrauensschaden) - Placing the person in the position they were in before the deal and breach |
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