6 May 2016. Seminario Inglés Jurídico U.C.C. MUÑOZ LUNA, MauricioPEREZ DEL VISO, Adela.

**CONTRACT LAW: ELEMENTS OF A CONTRACT.

**THE DOCTRINE OF LEGAL PRECEDENTS

In Argentina: 1 Offer + 1 Acceptance =A contract.

In Argentina: «CAUSA» de la obligación. In Argentina: Contratos Unilaterales and

Bilaterales.

In Britain (and many Anglo-Saxon jurisdictions):

Offer + Acceptance + CONSIDERATION = Contract.

Offer + Acceptance + CONSIDERATION + INTENTION = Contract.

OFFER

It is a definite promise to be bound by, provided that the terms of the offer are accepted.

Offeror/ offereeAn offer is not «mere willingness to deal or

negotiate». John says: «Hey, Peter, I will sell you some

calendars…» but no specifications as to quality, size, style or price:

At this stage: NO LEGALLY BINDING CONTRACT between John and Peter.

Consumer Law regulations: Invitations or offers to purchase cannot be misleading or deceptive.

OFFER

It occurs when the party answering the offer agrees to the offer by way of a statement or an act.

Acceptance must be:

ACCEPTANCE

Unequivocal (would not lead to any misunderstanding)Communicated by the offeree to the offeror

It is the price paid for the promise of the other party.

It must be SOMETHING OF VALUE, although it must not need to be money.

It would be some RIGHT, INTEREST, OR BENEFIT going to the other party.

It would be some forbearance (to delay to cash the loan), detriment, loss or responsibility given or suffered by the other party, (ex: not to build over certain high)

IMPORTANT DIFFERENCE BETWEEN COMMON LAW AND CIVIL LAW SYSTEMS: IN CIVIL LAW SYSTEMS: CAUSE OF THE CONTRACT. (NOT AN EXCHANGE OF SOMETHING OF VALUE. )

CONSIDERATION Vs. «CAUSA»

CONSIDERATION

There are just a few exceptions in which the consideration is not required:

1) DOCUMENTS UNDER SEAL OR DEEDS: It must state on its face that it is a deed, using wording like "This Deed..." or "executed as a deed".It must be executed by the grantor in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form).In some jurisdictions, a seal  must be affixed to it.

CONSIDERATION

There are just a few exceptions in which the consideration is not required:

2) When the contract implies the recognition of a debt which payment would be prohibited by the STATUTE OF LIMITATIONS (prescripcion liberatoria)

3) When the contract implies an offer (pledge) to make a donation to a charity.

CONSIDERATION CAUSASomething of value delivered or paid for the promise of the other party.

«PRESTACION» ??

«CAUSA»??

Borda, Guillermo (Manual de Derecho Civil parte general. Perrot. Bs.As. ):«Causa es el fin inmediato y determinante que han tenido en mira las partes al contratar. Es la razón directa y concreta de la celebración del acto y por ello resalta para la contraparte, que no puede ignorarla. En los onerosos, la causa para cada uno será la contraprestación del otro; en los actos gratuitos, la causa es el propósito de beneficiar o bien el deseo de crear una institucion benéfica o ayudar. « (p.359)

CONSIDERATION

Intention, or «Intention to create legal relations»: It is a concept which implies that the parties have entered into a contract which is ENFORCEABLE at law.

NO INTENTION: not enforceability.It sounds as a subjective element but it must be

manifested to the outside world; therefore Courts apply the objective test: Whether a reasonable bystander thinks that the parties intended to be bound or not. That creates a rebuttable presumption: the other party must rebut the presumption by evidence to the contrary.

 A mother promised to pay her daughter $200 per month if she gave up her job in the US and went to London to study for the bar. The daughter was reluctant to do so at first as she had a well paid job with the Indian embassy in Washington and was quite happy and settled. However, the mother persuaded her that it would be in her interest to do so. The mother's idea was that the daughter could then join her in Trinidad Tobago as a lawyer. This initial agreement wasn't working out as the daughter believed the $200 was US dollars whereas the mother meant Trinidad dollars which was about less than half what she was expecting. This meant the daughter could not afford to rent a house in London. The Mother then agreed to purchase a house for the daughter to live in. The daughter then married and did not complete her studies. The mother sought possession of the house. The question for the court was whether there existed a legally binding agreement between the mother and daughter or whether the agreement was merely a family agreement not intended to be binding.Held:  The agreement was purely a domestic agreement which raises a presumption that the parties do not intend to be legally bound by the agreement. The mother had donated the house to the daughter and could not have it back from her. There was no evidence to rebut this presumption.

EXAMPLE: Jones v Padavatton [1969] 1

WLR 328 Court of Appeal. London

THE SOURCES OF CONTRACT LAW ARE:

STATUTES (AND) PRECEDENTS--A Statute is a law made by PARLIAMENT (UK) or THE CONGRESS (us). --Acts ; Statutes; Legislation.

--A Precedent is a principle or rule established in a previous legal case that is BINDING or PERSUASIVE for a court or other Tribunal when deciding other cases with similar issues or facts.

THE DOCTRINE OF LEGAL PRECEDENT

In a judgement we can find:

RATIO DECIDENDI: OBITER DICTUM--It is the principle that the case establishes as source of law.--It is a legal rule derived from or consistent with, those parts of legal reasoning within a judgment.--It is a general rule, binding on courts of LOWER OR LATER JURISDICTION.

Obiter dictum: singular.Obiter dicta: plural.--It means «by the way» type of sayings--Statements about the law which are not essential.--They are not rules for which that particular case stands in future cases.

THE DOCTRINE OF LEGAL PRECEDENT

The last point is

called «The doctrine of

stare decisis» (stear

disaisis)

OBITER DICTUM/ DICTA

 In Carlill v Carbolic Smoke Ball Company [1893] (a case in which a woman who had used a smoke ball as prescribed claimed against the manufacturer after catching influenza),  Judge Bowen LJ said:

“If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course (not)!”

This dog analogy is clearly obiter, as the case is about Carbolic Smoke Balls, and not about lost dogs.

DISTINGUISHABLE CASES

  In the analysis of precedents, there is the PROCESS OF DISTINGUISHING.

A later case is distinguishable when the JUSTIFICATION for the result in the precedent DOES NOT APPLY to the

different FACTS OF THAT NEW CASE, even if it might

seem to fall within the ratio of the decision (fundamentos de

la sentencia).

THANK YOU VERY MUCH!!

MAY 6 2016

ADELA AND MAURICIO