summary

standard and burden of proof

standard and burden of proof

to what extent does the case need to be proven

• burden → plaintiff

• standard = balance of probabilities

sources of civil law

• common law = judge made law

• statutory law = parliament made law → legislation → acts → fair trading Act 1989 (QLD)

provide 3 examples of statutory law

Fair Trading Act 1989

Personal Injuries and Proceedings Act

Civil Liability Act

define alternative dispute resolution and refer to its benefits and drawbacks

dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. they are used for disagreeing parties who cannot come to an agreement short of litigation. it provides a cost and time-effective alternative to parties that thus eases some of the strain in the court system. however, it requires commitment by all parties and depends on the skill of the third party

what are the 5 ADR’s

1. assisted negotiation

2. mediation

3. conciliation

4. arbitration

5. court appraisal

role of the courts

• resolve disputes

• determine guilt

  through

• precedents

  to

• create laws

elements of a contract

1. agreement

2. intention

3. consideration

4. capacity

5. formalities

define contract

an agreement made between two or more people, or parties, that is legally enforceable at which point certain conditions are met (validity).

define capacity

legal capacity to enter a legally binding contract

categories of capacity

• impaired mental capacity

• intoxication

• age (minors)

explain what conditions and warranties in a contract are

typically considered the ‘terms’ of a contract; conditions are the fundamental terms of an agreement that without it is likely the contract would never have been entered into - if these conditions are breached, the contract is voidable. a warranty is of lesser importance, where the contract is more likely not entered into if this element is not considered, such as a staff discount. this discount is considered a warranty as the person would more than likely have accepted the job even if the discount had not been included

identify and explain breach of contract defences

• misrepresentation - a false statement that causes the innocent party to be affected, and has the legal right to compensation for it

• mistake - when one or both parties make a mistake, either concerning the law - like an agreement to commit something illegal like selling stolen goods, the contract is void - or important facts

• undue influence - when one party enters into a contract due to pressure placed upon them by another party. certain relationships are presumed by the court to be relationships that may give rise to undue influence, meaning that the onus of proof is on the party who is in the position of influence to prove that they did not use that influence in an undue manner

what are the two ways a contract can end

• performance - both parties fulfilling their obligations

• mutual agreement

define breach

one party failing to perform a term in the contract, e.g. pay deposit

remedies of a breach

• compensation

• injunction