anglais

• Tort law 


   set of rules which provides remedies for damage caused by the tortfeasor to the victim.
• Aim of tort is to prevent or compensate harm, not punish the wrongdoer. 

  Private wrong, the suit will be filed by the wronged person since the wrongful act affects one person, not the society as a whole. 
• Negligence

  tort of causing foreseeable damage by unreasonable conduct, where there is a duty to take care. 
• To establish negligence, the defendant must prove on a balance of probabilities that : 

  • The defendant owed him a duty of care 
  • The duty was breach 
  • As a consequence of the breach, he sustained damage. 
• Donoghue v. Stevenson case, 1932 : 


  snail in the bottle case, individuals have a duty not to harm their neighbours in a legal and general sense, before it only existed in contractual relationships. 
• Then, Caparo v. Dickman, 1990, 


  established a caparo test : 

  • Foreseeability 
  • Proximity 
  • Fair and reasonable to hold such a duty. 
• Rea i psa loquitur : 


  the case can speak for itself. 
• « But for » test : 


  but for the defendant breach of duty, would the loss or damage have occurred? 
• Novus actus interviene ( a new fact has occurred ) : 


  break of causation by a third party or by the claimant himself. 
• Remoteness : 


  legal causation, you cannot make someone indefinitely responsible for all the consequences of his wrongful act. 
• Egg shell skull : 


  you take the claimant as you find them. 
• Consequential economic damage 


  economic damage flowing from the physical damage to the claimant’s property
• Pure economic loss 


  purely financial loss suffered which does not entail any physical damage
• To establish a claim in pure economic loss, the claimants needs to establish that : 

  • A proximate relationship by looking at whether the advice was required for a purpose 
  • This purpose was made known 
  • The advice was acted upon without further inquiry. 
• Psychiatric damage : 


  damage flowing from witnessing with unaided senses an accident in which a loved one is involved. 
• Nuisance : 


  interference with a person’s use or enjoyment of land,, or in connection with it. ( excessive noise or noxious smell ) 
• Factors taken into account for nuisance : 

  • The character of the location ( ex. Car racing stadium )
  • The sensitivity of the claimant ( the judge will take into account the standard of an average, reasonable  person. )
  • The duration of the nuisance ( if you have building works from 9 to 5PM, it is reasonable, not at night ). 
  • The public interest ( if there is a benefit for the community for instance ). 
  • The malice of the defendant ( quite rare, if the defendant show hostility towards the claimant ). 
• Type of statutory torts : 

  • Product liability 
  • Occuper’s liability 
  • Employer’s liability 
• Valid claim for breach of statutory duty : 

  • The statute must allow a civil claim 
  • The claimant must be owed a duty under the statute 
  • The damage alleged is within the scope of the statute 
  • The defendant have breached a statutory duty 
  • The defendant’s breach must have caused the claimant’s loss.  
• Restituo in integrum : 


  the purpose of most damage is to put the victim of the tort back in the situation he was before the tort was committed.
• Contract law : 


  body of law governing the creation and enforcement of binding agreements entered into by contracting parties. 
• Modern contract law has been shaped by 19th century economic theory and the doctrine of laissez-faire, freedom of contract. 
• Enforceable promises are based on the notion of a bargain, in which there is an exchange of some kind. 

  Promises which are gratuitous ( nothing has been offered in exchange ) are not binding. 

  Parties are free to make their own bargains, if they are not illegal or contrary to public policy. 
• Bilateral contracts 


  are created through the exchange of promises by contracting parties. The contractual obligations arise at the moment the promises are exchanged 
• In unilateral contracts, 


  one party promises to do something in the event that a certain act or service is performed, but there is no corresponding obligation on the promisee to undertake performance. 
• Elements of contract : 

  • Intention to create legal relations 
  • Agreement ( offer and acceptance ) 
  • Consideration ( something of legal value was given in exchange to the original offer ) 
• Agreement : 


  offer by one party and a corresponding acceptance by the other party. 
• Offer : 


  the offeror indicates his willingness to do something ( or refrain from doing something ) without further negotiation. 
• invitation to treat


  where one party invites the other party to make an offer or enter into negotiations. ( ex. Auction, displays in shop windows and advertisements ) 
• An offeror can revoke his offer anytime before acceptance. 

  Offer may also be terminated by rejection, lapse of time, failure to satisfy a condition precedent or by a counter-offer.  
• Acceptance : 


  The offer is unqualifiedly accepted by the offeree.
• The acceptance must be unqualified, must mirror the offer made. 

  A qualified acceptance is treated as a counter-offer. 
• The acceptance may be explicit or inferred from the offeree’s conduct. 

  In the case of a unilateral offer, performance of the required act or service will constitute acceptance and entitle the promisee to enforce the original promise. 
• An agreement is not formed unless acceptance is communicated to the offeror. Silence will not amount to acceptance unless there is no doubt. 

  Communication can take any form unless the offeror prescribes a particular method of acceptance. 
• When the communication is delayed between sending and receiving the communication, the « postal acceptance rule » states that the agreement is formed at the moment the communication is sent. 
• Consideration : 


  a contract will not be enforceable unless something of value is give en in exchange for the promise made by the offeree. 
• The consideration must be sufficient, not adequate, there is no requirement that the consideration be of equal monetary value to the original promise, but rather that it has some value recognized at law. 
• Past consideration ( act done before any promise is made ) cannot operate as valid consideration because it was not given in the context of an exchange. 
• the equitable doctrine of promissory estoppel 


  will operate to prevent the first party from retracting his promise not to enforce certain rights. 
• Intention : 


  the parties intended to be bound by the agreement.