Legal studies revision

What is civil law?

Civil law is private law that regulates disputes and relationships between individuals. It allows people to enforce their rights when harm has occurred and seek compensation through courts or tribunals.

What are the purposes of civil law?

The purposes are to protect and enforce individual rights, achieve social cohesion, and allow people to seek compensation through courts and tribunals.

What are the two main sources of civil law?

Common law and statute law. Common law is developed by judges through decisions and precedent, while statute law is created through legislation passed by Parliament.

What is common law?

Judge-made law based on court decisions and precedent. Judges can establish new legal principles to keep the law up to date.

What is statute law?

Law made by Parliament through legislation. It is a major source of criminal and civil law in Australia.

What is ratio decidendi?

The legal reason or principle explaining the outcome of a court case, which can form the basis of a precedent.

What is an agreement?

An exchange of promises between two or more people, where one person promises to do something in return for another person's promise.

What is an offer?

A proposal capable of acceptance to form an agreement. It may be made in writing, orally, or through conduct.

What is an invitation to treat?

An invitation for potential customers to make an offer, such as a price tag or advertisement. The customer's offer is generally made when they present the item for purchase.

How can an offer be terminated?

An offer can end after a set or reasonable time, through revocation (cancellation), or through a counter-offer.

What is acceptance?

Acceptance is agreeing to the proposal. It must be communicated, cannot be qualified, and can only be made by the offeree.

What is intention in contract law?

Whether both parties intended to create a legally binding agreement. Casual promises between family or close friends are generally not intended to be legally binding, while formal agreements usually are.

What is consideration?

Something of value that passes between the parties. It does not have to be money or equal to market value.

Why are minors protected in contract law?

Minors may make poor decisions because of their youth or lack of experience, particularly when entering commercial agreements.

What contracts must be in writing according to the notes?

Contracts covering the sale of land, purchasing an automobile, door-to-door sales, and transfers of shares.

What is puff?

A statement about a product or service that is exaggerated and not meant to be taken seriously. It is not legally binding.

What is a representation?

A statement made to persuade someone to enter an agreement. It is not itself a term of the contract.

What is misrepresentation?

A false representation concerning factual information that persuades someone to enter a contract. It may provide legal protection against misleading or deceptive conduct.

What are express terms?

Terms specifically agreed by the parties and included in the contract. They can be written or oral and are legally binding.

What are implied terms?

Terms not written into the contract but still part of it. They may be implied by fact or by law.

What is an exclusion clause?

A contract term that limits one party's liability if a loss occurs.

What is a condition?

A term so important that the contract would not exist without it. Breach allows the innocent party to terminate the contract and seek damages.

What is a warranty?

A less significant contract term. Breach allows the innocent party to seek damages, but the contract is not terminated.

What must be shown for misrepresentation?

• It was about a real fact (something existing or from the past). It was said to the plaintiff. It was said before or when the contract was made. It was meant to convince the plaintiff to enter the contract. It actually convinced them.

What is innocent misrepresentation?

A false statement made while the person genuinely believes it is true. The contract may be rescinded.

What is negligent misrepresentation?

A statement made without reasonable care to check its accuracy. The contract may be rescinded and/or damages may be awarded.

What is fraudulent misrepresentation?

A statement made knowing it is false, intended to be acted upon, and actually acted upon, causing damage. The contract can be rescinded and damages sought.

What is frustration?

An unexpected event after the contract is made, through no party's fault, fundamentally changes the contract so it can no longer be performed as originally agreed.

What is an illegal contract?

A contract involving unlawful behaviour. It is not valid or enforceable through the courts.

What is duress?

Being forced into a contract through threats, violence, or unlawful pressure. It destroys genuine consent because the person acts from fear rather than free choice.

What is an actual breach?

Failure to perform contractual obligations when performance is due. The innocent party may seek damages and/or terminate depending on seriousness.

What is an anticipatory breach?

Before performance is due, one party indicates they will not fulfil the contract. The innocent party can immediately terminate and sue for damages.

What is mitigation?

The innocent party must take reasonable steps to reduce losses after a breach. They cannot generally claim losses that could reasonably have been avoided.

Why does the Australian Consumer Law exist?

Because businesses usually have more power and knowledge than consumers. Many consumer purchases are small, quick, and non-negotiable, so the law protects the weaker party.

Where is the ACL found?

Schedule 2 of the Competition and Consumer Act 2010 (Cth).

What does Section 18 of the ACL prohibit?

Misleading or deceptive conduct. Actual deception is not required; conduct only needs to be likely to mislead or deceive.

What does Section 23 of the ACL cover?

Unfair contract terms in standard form contracts, such as phone plans, internet plans, gym memberships, and car rentals. An unfair term becomes void.

When is a contract term unfair under Section 24?

All three must apply: significant imbalance, the term is not reasonably necessary to protect the business, and it causes detriment to the consumer.

What are consumer guarantees for goods?

The seller has the right to sell; goods have acceptable quality; are fit for purpose, safe and durable, free from defects; and repairs and spare parts are reasonably obtainable.

What are consumer guarantees for services?

Services must be performed with due care and skill, be fit for purpose, and be performed within a reasonable time.

What are the ACL defences in the notes?

Section 207: reasonable mistake of fact. Section 208: conduct by third parties beyond the supplier's control. Section 209: false information supplied to the supplier.

What does the Australian Competition and Consumer Commission do?

Implements the ACL, educates consumers and businesses, works on recalls and industry codes, and can take legal action against suppliers.

What is conciliation?

A dispute resolution process where a neutral third party (conciliator) helps the parties reach an agreement by suggesting solutions and guiding discussion.

What is mediation?

A process where a neutral mediator helps parties communicate and negotiate but does NOT give advice or solutions

What is arbitration?

A formal process where an arbitrator acts like a judge and makes a binding decision after hearing both sides.

What is a class action?

A class action is a type of litigation where:

• One person (the representative plaintiff) starts a lawsuit on behalf of a larger group of people.

• The group members have all suffered similar harm or loss due to the same wrongdoing.

• The purpose is to seek financial compensation efficiently, rather than each person filing separate individual claims.

• It helps reduce costs, avoid repeated trials, and ensure consistent outcomes.

One person (the representative plaintiff) starts a lawsuit on behalf of a larger group of people.

The group members have all suffered similar harm or loss due to the same wrongdoing.

The purpose is to seek financial compensation efficiently, rather than each person filing separate individual claims.

It helps reduce costs, avoid repeated trials, and ensure consistent outcomes.

What are the requirements for a class action?

To start a class action, the following must be shown:

• At least seven members in the group.

• One representative plaintiff who acts on behalf of the entire group.

• The claim must arise from similar or related circumstances (same issue, same harm, same defendant).

• Group members do not need to give consent to be included.

• All potential members must be notified of the action and given the right to opt out if they do not want to participate.

At least seven members in the group.

One representative plaintiff who acts on behalf of the entire group.

The claim must arise from similar or related circumstances (same issue, same harm, same defendant).

Group members do not need to give consent to be included.

All potential members must be notified of the action and given the right to opt out if they do not want to participate.

Why are class actions used?

Class actions are used because:

• They allow many people with similar claims to combine their resources.

• They make litigation more efficient, cheaper, and faster than individual lawsuits.

• They help hold large organisations accountable for widespread harm.

• They ensure consistent decisions instead of multiple separate trials.

• They still require cooperation and participation, and outcomes may not satisfy every member.

They allow many people with similar claims to combine their resources.

They make litigation more efficient, cheaper, and faster than individual lawsuits.

They help hold large organisations accountable for widespread harm.

They ensure consistent decisions instead of multiple separate trials.

They still require cooperation and participation, and outcomes may not satisfy every member.