Introduction to Private Law

What is Private Law
Essentially, the role of private law is to uphold rights and to enforce duties (by court order) 

Private law may be invoked in the resolution of disputes between persons - 
- First, in the process of negotiation 
- Ultimately, in the civil courts 

 

4 categories of Private Law 

  • Persons

  • Property

  • Obligation

  • Action

Private Law - Persons

Refers to rights and duties arising from status.

e.g. between parent and child.

Private Law - Property

Refers to the rights in ‘things’ (property rights)

e.g. ownership; rights in security.

Private Law - Obligation

Refers to rights against other persons (personal rights)

e.g. a debt; right to damages for breach of contract.

Private Law - Actions

Refers to rules of evidence and procedures.

e.g. Admissibility of evidence; remedies

 

Law of Obligations  

Voluntary Obligation

  • Arises from contract or promise

In-Voluntary Obligation

  • Are imposed by the law (unjustified enrichment and delict)

 

Nature of Obligations  

  • Contract

  • Promise

  • Unjustified Enrichment

  • Delict

Nature of Obligations - Contract

The obligation is to pay or perform.

Nature of Obligations - Promise

The obligation is to carry out the terms of the promise.

Nature of Obligations - Unjustified Enrichment

The obligation is to restore the benefit that has been transferred.

Nature of Obligations - Delict

The obligation is to make reparation for harm wrongfully caused.

 

Unilateral Obligation 

Where one party is indebted to the other 

Contractual Obligation (normally bilateral)  

Both parties are indebted to eachother  

 

General Principles of the Scots law of Contract 
There are many different forms of contract and many rules of law that apply only to certain types. 
Whatever the type of contract, recourse is made to general principles in questions of: 

  • Formation 

  • Defective agreements 

  • Contractual terms 

  • Breach of contract  

  • Remedies 

 

Scots Law of Contract 
Why do we need a law of contract? 

  • Facilitates trade 

  • Underpins transactions 

  • Can be used to protect against abuse of power where parties are not of equal bargaining strength e.g. consumer contracts. 
     

Difference between Scots and English Contract Law 
Only English law has doctrine of consideration in contract.

Only Scots law has doctrine of promise.

Some distinct sources, many sources common to both. 

 

What questions do we need to ask? 

  • Is there a contract? 

  • What is in the contract?

  • Can it be enforced? 

  • Can a person 'get out' of the contract?

  • When will it come to an end?

 

Principal Remedies in a contract  

  • Declaration

  • Payment

  • Specific Implement

  • Interdict

  • Damages