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TO PREPARE THE EXAM. QUESTIONS:
CONTRACT LAW:
- In Carlill v Carbolic Smoke Ball Co , the advertisement was considered: a. An invitation to treat. b. An offer restricted to those who acted according to the terms of the advertisement.
- In Carlill v Carbolic Smoke Ball Co , acceptance of the offer: a. Required to be communicated by Carlill for an agreement to be established. b. Was not required to be notified by Carlill, since the contract was concluded when Carlill decided to use thesmoke ball as directed.
- In Carlill v Carbolic Smoke Ball Co , the advertisement was: a. A promise, id est , a statement to be taken seriously, since the deposit in the Alliance Bank showed a serious intention of the company to be legally bound. b. A mere puff, since the statement had not been made in a serious manner.
- In Carlill v Carbolic Smoke Ball Co , it is considered that consideration for a promise: a. May consist of an indirect advantage to a party (for instance, the promotion of sales). b. Must consist of a direct advantage to a party.
- According to Adams v. Lindsell , a contract concluded by post is concluded when: a. The acceptance is posted. b. The acceptance is received.
- According to Adams v Lindsell , where the parties have expressly stated that the post will not be considered a valid means of acceptance, or where the parties require the acceptance to be received and in writing: a. The postal rule is applicable, since the parties cannot exclude its application. b. The rule of communication and reception of acceptance applies.
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- The issue in Chappell & Co Ltd v Nestle Co was whether: a. Consideration could be other thing than money. b. The wrappers were part of the consideration for the records.
- According to Chappell & Co Ltd v Nestle Co Ltd , an item of little value in itself: a. May represent a benefit to one of the parties and therefore can be good consideration. b. Cannot be good consideration as soon as consideration must be adequate to a ‘fair’ price for the contract.
- According to Chappell & Co Ltd v Nestle Co Ltd , chocolate wrappers: a. Were part of the consideration because their acquisition involved a direct benefit to Nestle and required expenditure by the acquirer which he might not otherwise have incurred. b. Were not part of consideration because they were valueless and were thrown away.
- According to Hamer v. Sidway , consideration must be given in return for the promise made, and it must move from: a. The promisor or the promise. b. The promissee.
- According to Hamer v. Sidway , consideration: a. May consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. b. Cannot consist of some forbearance, detriment, loss, but some right, interest, profit or benefit accruing to the one party.
- The issue in Hughes v Metropolitan Railway Co was: a. Whether there was an implied promise that allows the six month term to be suspended during the negotiations of the purchase agreement. b. Whether the clause that compelled the tenant to repair the building within six months of notice was unfair.
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a. Whether Rookes was entitled to punitive damages to punish the defendant. b. Whether Rookes was entitled to aggravated damages in order to compensate his pain, anguish and humiliation.
- According to Rookes v. Barnard , punitive damages: a. Are intended to punish and to deter defendants and are not directly related to the harm suffered by the plaintiff. b. Are compensatory damages that take into consideration intangible injuries (such as distress, injuries to reputation, etc.)
- According to Rookes v. Barnard , punitive damages can be awarded: a.In all cases where compensatory damages are insufficient to provide the plaintiff an optimal compensation. b. Where servants of the government carry out oppressive, arbitrary or unconstitutional actions; where the defendant's conduct is calculated by him to make a profit for himself, and where they are expressly authorized by statute.
TORT LAW:
TEST:
1. The PETL intend to be applied as guidelines :
a. When parties decide to replace their national dispositive rules by the
PETL
b. When judges do not have national rules to solve difficult cases
c. When legislators have to reform national laws
d. All of the above
2. The PETL foresee:
a. A list of torts whose occurrence will amount to liability
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b. A general clause of liability so the specific situations where liability
arises are established by the case law and academics
c. Procedural rules for the appointment and removal of judges
d. None of the above
3. According to the PETL, liability may be based on :
a. Fault (it makes a person liable for the damage and loss caused by a
negligent act or omission),
b. Strict liability (it makes a person liable for the damage and loss
caused by carrying out an abnormally dangerous activity regardless of fault)
c. Liability for others (vicarious liability).
d. All of the above
4. The PETL grants the most extensive protection to:
a. Life
b. Human dignity
c. Property rights
d. a) and b) are correct
5. According to the PETL, parents are subject to :
a. A liability regime based on fault.
b. A liability regime based on fault, although there is a reversal of proof
c. A strict liability regime
d. None of the above
6. According to the PETL, automobile driving is governed by :
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**7. The general base of tortuous liability in the PETL is strict liability.
- The required standard of conduct foreseen by the PETL is the same than that foreseen by Article 1104 of the Spanish civil Code, which states that “The debtor’s fault or negligence consists of the omission of the diligence required by the nature of the obligation that corresponds to the circumstances of the persons, the time and the place. (...) Where the obligation does not express the diligence to be used in its performance, the diligence of an orderly paterfamilias will be required”.
- In order to establish the required standard of conduct, rules on games and sport and professional standards may be considered.
- The claimant always has the burden of proving that the requirements for liability are met.
- Nuclear power generation industry is an “abnormally dangerous activity” and therefore it will be governed by a strict liability regime.
- In a forest, frequently visited by hikers, X, Y and Z fire a shot to bring down a bird. One bullet hits and kills P. X, Y and Z will be liable for one third of the damage.
- Liability for damage caused by others is based on fault in the case of auxiliaries who caused damage in the course of their**
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functions, and it is strict in the case of damage caused by minors and disabled persons.
**14. As in the Spanish legal system, the PETL states the liability of an independent contractor when the principal keeps the control of the activity.
- Defences generally excluding liability are private defence, necessity, self-help, consent and lawful authority, while in the case of strict liability force majeure and the conduct of a third party are applicable.
- The general rule in the PETL is that defences only allow judges to reduce the award of damages.
- If there are multiple persons who cause the same damage to the victim, each person is liable for the whole of such damage.
- Awards of nominal (symbolic) damages are forbidden by the PETL.
- The general principle of compensation** lucri cum damno **that governs the Spanish tort system is not foreseen by the PETL.
- If, in the light of the financial situation of the parties, full compensation is oppressive to the defendant, damages must be reduced.**
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4. Courts which have limited powers and whose work is subject
to judicial review are:
1.m. Inferior courts
1.n. Appellate courts
1.o. Higher courts
1.p. Superior courts
5. US State Courts have jurisdiction over:
1.q. Cases on real property
1.r. Cases on torts
1.s. Cases on family law
1.t. All of the above are correct
6. According to the horizontal effect of the doctrine of stare
decisis :
1.u. In England, the Court of Appeal is bound to the decision
of the Supreme Court
1.v. In England, the Court of Appeal is bound to its previous
decisions.
1.w. In England, the Supreme Court is bound to its previous
decisions unless it may lead to an unfair solution
1.x. Answers b) and c) are correct
7. In Carlill v. Carbolic Smoke Ball Company ([1893] 1 QB 256):
1.y. Advertisements must always be considered as a treat
1.z. Advertisements may be considered offers restricted to
those who act according to their terms if an only acceptance is notified
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1.aa. Advertisements may be considered offers restricted to
those who act according to their terms regardless of whether acceptance is notified
1.bb. None of the above
8. The traditional view that punitive or exemplary damages are
exceptional in contract law cases is stated by:
1.cc. Rookes v. Barnard
1.dd. Dunlop v. New Garage and Motor Company
1.ee. Hughes v. Metropolitan Railway Co
1.ff. Chappell & Co Ltd v. Nestlé Co Ltd
9. The convention on Contracts for the International Sales of
Goods (CISG):
1.gg. Consists of a way to achieve the unification of legal
systems by using both supranational legislation and institutions
1.hh. Consists of a way to achieve the unification of legal
systems by means of a transplantation of legal institutions
1.ii. Consists of a way to achieve the unification of legal
systems by means of natural convergence
1.jj. Cannot be considered an instrument for the unification of
legal systems since Contracting Parties can exclude the application of some of its provisions
10. According to the doctrine of estates:
1.kk. Individuals are not the owners of land but only the
owners of rights in land
1.ll. Multiple individuals may have interest in one piece of
land for different times
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d. Most of the cases come before the US Supreme Court because
the executive branch requires it to review the cases.
14. During the first years of the history of the United States,
there was a long-running debate between Federalists and Anti-Federalists. The Federalists:
a. Supported a decentralized government where powers are
widely dispersed.
b. Supported a confederation with the Canadian provinces.
c. Supported a strong natural government.
d. Supported municipalities with significant powers.
15. Stare decisis is:
a. A written law enacted by a legislature.
b. The principle of adherence to settled cases.
c. One of the doctrines of jurisdiction used by the US Supreme
Court.
d. In an appellate court, to reach a decision that disagrees with
the result reached by the lower court.
16. Case law:
a. The law as defined by previously decided cases distinct from
statutes and other sources of law.
b. The law of cases that will be appealed in the future to the
higher courts.
c. The law of cases that are certified by the US Supreme Court as
relevant.
d. The law of cases that are relevant as defined by the Federal
Rules of Evidence
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17. What is most accurate about the constitutional framework of
the United Kingdom:
a. It has a written Constitution composed by constitutional norms.
b. It does not have a constitution.
c. It has an unwritten Constitution composed by legal rules and
conventions.
d. It has an unwritten Constitution composed by statutes and
common law.
18. The Declaration of incompatibility is a mechanism in the
hands of British judges that allows them:
a. To declare incompatible and void an Act of Parliament that is
contrary to the European Convention on Human Rights.
b. To declare incompatible an Act of Parliament that is contrary to
the European Convention on Human Rights.
c. To declare incompatible and void an Act of Parliament that is
contrary to rights and freedoms settled down by the Human Rights Act.
d. To declare incompatible an Act of Parliament that is contrary to
rights and freedoms settled down by the Human Rights Act.
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acceptability of their proposals, they look at the wisdom and experience of centuries reflected in the current European legal systems.
2. FALSE. The PETL intend to be applied as guidelines when parties
decide to replace their national dispositive rules by the PETL, when judges do not have national rules to solve difficult cases, when legislators have to reform national laws, etc.
3. FALSE. There are 3 grounds of liability as it may be based on (1) fault
(it makes a person liable for the damage and loss caused by a negligent act or omission), (2) strict liability (it makes a person liable for the damage and loss caused by carrying out an abnormally dangerous activity regardless or fault) or (3) liability for others (vicarious liability).
4. FALSE. As Article 1902 of the Spanish Civil Code, Article 1:101 PETL
foresees a general clause of liability when states that “a person to whom damage to another is legally attributed is liable to compensate that damage”, so the case law and academics will establish the specific situations where liability will arise.
5. FALSE. Article 2:201 PETL does NOT establish a closed list of
protected interests: “In determining the scope of protection, the interests of the actor, especially in liberty of action and in exercising his rights, as well as public interests also have to be taken into consideration”.
6. FALSE. Article 2:105 PETL states that damage must be proved
according to normal procedural standards, which refer to the national procedural laws.
7. FALSE. According to the PETL, the general rule is liability based on
fault (Article 4:101) and strict liability only applies to abnormally dangerous activities and dangerous activities foreseen by national laws (Article 5:101 and 5:102).
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8. TRUE. The diligence of an orderly paterfamilias refers to the diligence
of a reasonable person. The “nature of the obligation” (art. 1104 CC) refers to the nature and value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on, the foreseeability of the damage, the relationship of proximity or special reliance between those involved [art. 4:102 (1) PETL], and the “circumstances of the persons” (art. 1104 CC) refers to the age and mental or physical disabilities [art. 4:102 (2) PETL].
9. TRUE. According to Article 4:102 (3) PETL, rules which prescribe or
forbid certain conduct have to be considered when establishing the required standard of conduct.
10. FALSE. Article 4:201 PETL states that the burden of proving fault may
be reversed depending on gravity of the danger presented by the activity.
11. TRUE. According to Article 5:101 (2) PETL, nuclear power generation
is an abnormally dangerous activity: (1) this activity creates a foreseeable and highly significant risk of damage even when people participating act in a diligent way and (2) this activity cannot be considered a common usage.
12. TRUE. This is a case of alternative causes because several actions
have participated but it is impossible to know which specific action has caused the damage. According to Article 3:103 (1) PETL, the three hikers will be liable in proportion to their probability of having caused the damage (33%).
13. FALSE. According to Article 6:101 PETL, parents are subject to a
liability regime based on fault. However, there is a reversal of proof since they can be exonerated from liability if they demonstrate that they acted according to the required standard of conduct. Employers are subject to a strict regime since they are always liable for damage caused by their auxiliaries, regardless of whether they ( id est , the employers) acted negligently or not (Article 6:102 PETL).
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6. d
7. c
8. a
9. a
10. d
11. b
12. b
13. b
14. c
15. b
16. a
17. c
18. d
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