Civil Law Foundations & Contractual Obligations - Quick Notes

5.1 Civil v Criminal – Purposes

  • Civil law protects the rights and responsibilities of individuals in their interactions with others; remedy typically compensation to place the aggrieved party in the position before the grievance.

  • Criminal law balances individual freedoms from interference with society’s need for order; uses legislation (e.g., Criminal Code Act 1899 (Qld)).

  • EQ: Difference between civil law and criminal law: Civil focuses on private rights and remedies; Criminal focuses on offences against the state/society and penalties.

5.2 Sources of Civil Law

  • Common Law (judge-made law): based on judges’ decisions over time; precedent matters; ratio decidendi used to follow or distinguish cases.

  • Statute Law (legislation): enacted by Parliament; creates written rules and statutes.

  • EQ: Two types of Civil Law? Common Law and Statute Law. EQ: What is Contract Law?

5.3 Types of Civil Law

5.3.1 Contract Law

  • Definition: A legally binding agreement between parties, created when promises are exchanged with the intention to exchange value (consideration).

  • Key idea: If either party breaches the promise, a remedy via contract law may be sought.

  • Relationship-focused; essential for transactions like purchases, employment, loans, etc.

5.3.2 Torts

  • Definition: A tort is a civil wrong for which the usual remedy is damages; protects fundamental liberties and property rights and regulates conduct.

  • No formal relationship like contract; focuses on wrongful interference by one party with another.

  • Common example: Negligence (Donoghue v. Stevenson as a foundational case).

5.3 Resolving the Civil Dispute (ADR and Civil Dispute Resolution Act 2011)

  • Civil disputes will arise; ADR is commonly used before court hearings.

  • Only a minority of civil cases go to a final hearing; many are resolved through ADR (early, voluntary, or court-mandated).

  • Civil Dispute Resolution Act 2011 sets the process to ensure disputes are handled efficiently and without unnecessary justice-system burden.

  • ADR processes: independent third party helps resolve the dispute; does not include judicial determinations.

  • Dispute management strategies: respond promptly, assess disputes, resolve in a timely manner.

5.4 Types of ADR (main types with examples)

  • Facilitative: mediator helps parties reach agreement (e.g., mediation, conciliation, facilitation, facilitated negotiation).

  • Advisory: case appraisal or early neutral evaluation; provides factual and legal assessment.

  • Determinative: dispute resolution practitioner evaluates and makes a determination (e.g., arbitration, expert determination).

  • Three main ADR types and examples: Facilitative (mediation), Advisory (case appraisal), Determinative (arbitration).

  • Other ADR options include conciliations and collaborative law (non-litigation-driven approaches).

5.5 Advantages and Disadvantages of ADR

  • Mediation: Pros – preserves relationships, voluntary, confidential; Cons – non-binding, no outcome if parties don’t agree.

  • Arbitration: Pros – binding decision, faster, private; Cons – limited appeal, potential costs.

  • Expert Determination: Pros – quick, expertise applied; Cons – limited appeal, potential bias.

  • Tribunals: Pros – specialized expertise, quicker; Cons – costs, possible appeals.

  • Conciliation: Pros – collaborative, less formal; Cons – non-binding, potential power imbalance.

  • Collaborative Law: Pros – cooperative resolution, relationship-preserving; Cons – not suitable for all disputes, may extend process.

5.6 Ombudsman, Tribunals & QCAT

  • Ombudsman: Investigates complaints about state government departments/agencies; free and independent; reports to parliament; can investigate formally or informally; may investigate systemic issues.

  • Tribunals & Commissions (Queensland): Anti-Discrimination Commission, Qld Civil and Administrative Tribunal (QCAT), Crime & Misconduct Commission, Electoral Commission, etc.

  • QCAT (Queensland Civil and Administrative Tribunal): Independent, accessible, quick, inexpensive dispute resolution; self-representation is common; may resolve via hearing, mediation, compulsory conference, or hybrid hearing; orders are legally binding.

  • Roles in QCAT: Members/adjudicators/mediators may be legally qualified or have relevant professional expertise; their background shapes decisions.

  • Why QCAT is cost-effective: generally cheaper and faster; supports self-representation; streamlined process.

  • Enforceability: QCAT orders are legally binding and enforceable; non-compliance can be challenged in court.

5.7 Equitable Access to Civil Law (Barriers to Justice)

  • Barriers include: remote/rural populations; Indigenous people; culturally diverse backgrounds; low literacy/education levels; disabilities; single parents/low-income earners/social security recipients; disadvantaged housing; elderly people.

  • Brief rationale: geographic distance, language or cultural barriers, affordability, accessibility, and capacity limitations affect access to justice.

5.8 Class Actions: Provisions and Conflict of Interest

  • Closed Class Action: group members are specifically defined; sign-up required to participate.

  • Open Class Action: group members can benefit at any time during proceedings; larger potential class but more defendants may resist.

  • Four provisions to proceed in Australia:

    • Must be at least 7 members.

    • Single representative on behalf of all members.

    • Claims arise from similar circumstances and share a substantial common issue.

    • Consent of group members to join is not required; but all must be notified and given the right to opt out by a set date.

  • Conflict of Interest: financial funders and lawyers may act in ways that benefit funding interests rather than litigants; ALRC is examining class actions; funders may pressure firms to reject settlements to pursue longer litigation or higher fees, creating potential conflicts for litigants.

  • Why funders pressure settlement offers: to maximize return on investment; potential misalignment with litigants’ best financial outcomes.

5.9 Tenancy Reforms Research Task (How 5 key tenancy reforms are affecting renters and landlords)

  • Identify main issues in relation to tenant rights as discussed in the article.

  • Evaluate whether proposed reforms strike a fair balance between tenants and landlords; justify using article information.

5.10 Class Action Provisions and Practical Examples

  • Summary of key provisions and their impact on plaintiffs and defendants; reference to real-world examples (e.g., Uber and other large group actions).

5.x Equity and Access to Justice: Summary Points

  • The civil system includes avenues (courts, tribunals, ADR) designed to resolve disputes efficiently while balancing access, cost, and fairness.

  • Early ADR and robust dispute-resolution frameworks are central to reducing court backlogs and improving outcomes for disputing parties.

Topic 2: Contractual Obligations

Topic 2 overview

  • Definition: A contract is a promise between two parties that the law enforces; a party may be required to perform or compensate for non-performance.

  • Why we need contract law: facilitates transactions, reassures performance, balances interests, protects weaker parties in some contexts (consumers, employees).

  • Common law basis; emphasis on fairness and predictability in exchanges.

  • Examples of contracts in everyday life: opening a bank account, employment, purchasing goods, housing, car sale, education, licenses.

  • Not all promises are legally enforceable; capacity and other limits may apply.

Elements of a contract

  • Agreement: existence of a mutual exchange of promises; three elements: Offers & Acceptance, Intention, Consideration.

  • Offers & Acceptance

    • Offer: can be written, oral, or by conduct; offeror is bound by acceptance; withdrawal possible before acceptance; invitation to treat (e.g., price tags, advertisements) is not an offer.

    • Acceptance: must be unequivocal; must be communicated to the offeror; can be by conduct or mail (postal acceptance rule); silence is not acceptance; acceptance must occur within prescribed or reasonable time.

  • Intention: parties must intend to create a legally binding agreement; usually evidenced by consideration.

  • Consideration: something of value exchanged; can be money, goods, services, or forbearance; not necessarily equal in value; past consideration is not valid; consideration must be sufficient but need not be adequate.

Capacity, Formalities, and Written vs Oral Contracts

  • Capacity: who can enter contracts; voidable for certain groups (bankrupt, in prison, mentally impaired, intoxicated, minors); exceptions include necessaries and certain business contracts.

  • Formalities: Electronic Transactions Act (Queensland) 2001 governs time of despatch/receipt and electronic signatures; not all contracts require writing.

  • Written vs Oral: Some contracts must be in writing (land, credit, insurance, guarantees, door-to-door sales); many orally formed contracts are enforceable but can be harder to prove.

Express vs Implied Terms

  • Express terms: explicit terms stated in writing or spoken.

  • Implied terms: not written or spoken but read into the contract by law or common practice; examples include implied confidentiality in certain service arrangements.

  • Terms classification: Main terms (conditions) vs subsidiary terms (warranties).

Conditions and Warranties; Performance and Breach

  • Conditions: fundamental terms; breach may allow termination.

  • Warranties: less essential terms; breach may lead to damages but not termination.

  • Performance: both parties fulfill obligations; can end by mutual agreement or through a termination clause.

  • Breach by one party: may allow termination if breach is permitted by contract, repudiation occurs, or breach is sufficiently serious.

Remedies for Breach of Contract

  • Damages: monetary compensation to put the injured party in the position as if the contract was performed.

  • Injunction: court order prohibiting a party from doing something.

  • Specific performance: compelling a party to perform the contract (less common for certain types of promises).

Defences and Vitiation

  • Defences to breach: include misrepresentation, mistake, duress, undue influence, unconscionable conduct, illegality, illegitimate or unclear terms, incapacity, etc.

  • Vitiated contracts: circumstances making a contract unenforceable (e.g., misrepresentation, mistake, duress, undue influence, unconscionability, illegality, unfair terms).

Implied vs Express Terms (review focus)

  • Express terms are those clearly stated; implied terms are read into the contract by law or by the nature of the relationship.

  • Distinguish: main terms (conditions) vs ancillary terms (warranties).

Practical review prompts (for last-minute revision)

  • Be able to identify offer vs invitation to treat.

  • Distinguish between conditions and warranties.

  • Explain when a contract must be in writing.

  • List key vitiating factors and give an example of each.

  • Describe remedies and when each is appropriate.