AQA
A Level
Law
Paper 3
Contract Law
Notes
,Contents –
Non – Substantive –
- Nature of Law
- Rule of Law
- Law Making – Delegated Legislation
- Law Making – European Union
- Judiciary
- Independence of Judiciary
- Access to Justice and Funding
Substantive –
- Rules of Contract Law
- Theory of Contract Law
- Essential Requirements of Contract Law
- Contract Terms: General
- Contract Terms: Specific Terms implied by statute law in relation to consumer contracts
- Contract Terms: Exclusion Clauses
- Vitiating Factors
- Discharge of a contract
- Remedies
Concepts –
- Law and Society – Balancing Conflicting Interests
- Law and Justice
- Law and Morality
, Non Substantive –
Nature of Law –
Law – formal mechanism of social control, and set of rules imposed and Civil Law – private dispute between individuals or business. Aim is to put
enforced by state. System of courts that apply and enforce law if broken. you back into the position you should be in.
Criminal rules are enforced by police and courts. Tort Law – occurs when civil law holds that even though there is no
Rule – something that determines way we behave. There are legal contract, one person owes legal responsibility. Once breached, person
consequences or we submit voluntarily as it is inline with moral code. affected can make a claim. If successful, award damages (money or
Character of Rule – in all societies to keep order. Developed by norms of injunctions). Examples include – negligence, nuisance, occupiers liability.
behaviour. Twining and Miers – ‘general norm, mandating or guiding Contract Law – where parties made agreement and each side has put
conduct’ something into agreement. One part not kept their side, other brings claim
Moral Rules – rules become harden into our rights. Widely accepted then of money. If successful, award remedy (money or do what should have
become law. Common law links to it. Develop over time, ought to be done).
obeyed, enforced by community, voluntary and apply to those who accept Human Right Law – HRA 1998. European Convention of HR. Must be upheld
them. in courts and can take case to European Court of Human Rights. If breached,
Legal Rules – safeguard us from dictatorship. Change instantly, must be award compensation and injunctions.
obeyed, enforced by courts, obligatory and apply to all. Examples include – Article 5 Right to Liberty, Article 6 Right to fair trial,
Rules are obeyed as they – carry sense of moral obligation, reasonable and Article 8 Right to respect private life.
relevant, penalty may be imposed if they are broken. Sources of Law – ways in which law originates from.
Custom – rule of behaviour developed – basis of common law. Judges
Criminal Law – to maintain law, order, protect society and punish. Started previously made some decisions. Coke – ‘one of main triangles of laws of
by state, police or CPS (prosecutor). Heard usually in magistrates or crown. England.
Standard of proof is higher than civil law, burden of proof is beyond Common – basis of our laws, unwritten, developed by judges, example
reasonable doubt. Lay magistrate, district judge or jury make the decision. include (murder, contract or tort). Judges can instantly change when a new
Decision is guilty / not guilty. May receive sentence, fine or probation. case comes to relevancy.
Statute – highest ranking via Acts of Parliament, amended and new created.
Civil Law – aim is to uphold an individual and put back in position. Started Slow as many experts are consulted due to dealing with technical point.
by individual or business whose rights affected (claimant). Heard usually in Double Liability – occasionally occurs. Civil and criminal together.
county, high court or tribunal. Standard of proof is lower than criminal law, Ian Tomlinson – protest where killed unlawfully by police officer –
burden of proof is balance of probability. Judge makes the decision. manslaughter. Tort law due to duty of care.
Decision is liable or not liable. May receive fines or damage injunctions.
The Rule of Law –
What is Rule of Law? – a symbolic idea that all people are subject to and Constitutional Reform Act 2005 – parliament and judiciary need to be
accountable to law that is fairly enacted, administered and enforced. independent. S1 states does not affect existing constitutional principle of
Safeguards us from dictatorship and supports democracy by holding rule of law, or Lord Chancellor constitutional role in relation to principle.
government officials to account and preventing officials to exercise power in Safeguards show the importance that is attached to the rule of law.
unchecked way. Police and Criminal Evidence Act 1984
3 Principles of Rule of Law – no person shall be sanctioned except in Rule of Law and Law Making – mention about legislative process – long
accordance with the law, there is equality before law (no discrimination), process – so many people have to agree – (simple majority vote).
there must be fairness and clarity of the law. Rule of Law and Legal System – PACE Act 1984 – CRIMINAL – defendant
Academic Views – have a fair trial in criminal cases with trial by jury. CIVIL – impartial as deal
A.V Dicey View – believed rule of law distinguished English law from law in with ordinary people who need to resolve their differences and free from
other countries. 3 elements – corrupt. – N1 form.
Absence of arbitrary power on part of state – state power be controlled by Rule of Law and Substantive Law –
law. Law must set limits on what state can do and cannot do. Actions of govt Criminal Law – aimed at protecting people (murder), property (theft), and
ministers challenged by judicial review. Avoids state having wide disruptive behaviour. Regulatory offences prevent pollution, driving offences.
discretionary powers. Standard is beyond reasonable doubt and for prosecution to prove. Judge
Equality before the law – no person is above law, regardless of money or enforces maximum penalty if found guilty.
power everyone should be treated the same. Those that carry out functions Tort Law – protect people and property by giving the right to claim
of state must also be accountable under law for actions. compensation for damage caused by breaches of law. Anyone affected can
Supremacy of ordinary law – law must be supreme, most supreme is acts of bring claim but there is no public funding for most claims.
parliament and delegated legislation. Judicial decisions still create law and Contract Law – people free to make any agreements they wish. Consumers
must be followed. have limited say when make agreements with companies. Consumer
Problems with Dicey Views – conflicts with principle of parliamentary Protection Act 1987 – gives consumers wider rights when injured or property
supremacy (act can overrule any other law and no other body can override damaged, allowing consumers to claim.
act). Law passed by parliament cannot be challenged through judicial Human Rights – supports rule of law in many ways (such as discrimination),
review. Not really equality in place as cost of taking cases is high. An European Convention sets out right to liberty and right to fair trial. Rule of
abstract view – hard to apply to real life. law is central to any legal claim.
, Delegated Legislation –
What is it? – law made by person or body other than parliament, but with authority of Control of Delegated Legislation – because made by non-elected bodies it is essential there is a
parliament. This is because parliament cannot make all laws requires. Usually laid out in enabling level of control so people do what they should, how they should, and not do more with power
act which creates framework of law and delegates power to others to make detailed law in area. they have than they should.
Types of Delegated Legislation – Parliamentary Control – before, during and sometimes after creation of enabling act. 7 ways –
Order in Council – King and Privy Council (PM and senior judges, 500 members) have authority to enabling act, delegated powers scrutiny committee, affirmative resolution, negative resolution, MP
make orders in council. Power is given via enabling act. Allows govt to make laws or amendments Questions, Scrutiny Committee, Legislative and Regulatory Reform Act 2006.
without go through parliament. Most formal but rarely used such as make laws in emergency DPSC – Delegated Powers Scrutiny Committee in House of Lords considers the provisions of any
situations under Civil Contingencies Act 2004. Example – Al Qa’ida Taliban Order 2003 through bills going through parliament to ensure their delegated legislative powers are appropriately set
enabling act of Terrorism Act 2000. out. Committee reports its findings back to Lords before Committee Stage of process – only report
Statutory Instruments – govt ministers and departments for their particular area of responsibility. its findings.
23 govt departments in total, such as Minister for Education on Education. Power is given via MP Questions – individual ministers maybe questioned by MPs in parliament on work of their
enabling act. Often used to update the law (short or long and detailed). Over 3500 made each departments. This can also be questions about proposed new regulations. Specifically focused on
year – MAJOR. Commencement orders – bring into force whole or part at a later date. If no order statutory instruments.
– midnight. Example – mobile phone use whilst driving banned by SI No 2695 – Road Traffic Act Effectiveness of Parliamentary Control – generally effective – is it working? There are 7 different
1988 – enabling act. controls. 7 different ways DL can be checked to ensure that the power is not being abused at
By-laws – made by local authorities / councils or public bodies. By-law must be confirmed / various stages of procedure. Negative is there is lot of DL to check and can only be referred if is
approved by the relevant govt minister before becomes law and can make laws within jurisdiction problem not amended.
so can enforce rules about behaviour. Power to make by laws is given via enabling act. Deal with Judicial Control – used once the delegated legislation has been created and is active law.
many local laws and must have sign displayed clearly showing it is prohibited. National Trust Act Challenged in courts on grounds it is ultra vires – ‘goes beyond powers parliament are granted via
1907 allows National Trust to make by-laws affecting property. enabling act’. If decided is ultra vires, it is void and no longer law.
3 things it cannot do – make unreasonable regulations – Strickland v Hayes Borough Council, levy
taxes, or allow sub-delegation.
Advantages of Delegated Legislation –
Types of Ultra Vires –
Access to technical expertise, allows consultation, and flexible and easy to amend.
Substantive – delegated legislation has gone beyond the limits set out in enabling act – A-G v
Saves parliament time – prevents having to go through the long parliamentary process of
Fulham Corporation.
legislation which reduces time for MPs in parliament.
Procedural – procedures set out in enabling act were not followed when making the delegated
Allows quick law making – orders in council allow for emergency situations via civil contingencies
legislation – The Aylesbury Mushroom Case
act 2004. Ensures situations change law changes too.
Effectiveness of Judicial Control - is it working? Generally effective yet limited. Good range of
Disadvantages of Delegated Legislation –
controls to look at delegated legislation once in action. Court have to have cases before them so it
Risk of sub-delegation, obscure and difficult wording.
is rare person question validity of law. To do so, requires considerable legal knowledge, finance,
To an extent undemocratic – by-laws and orders in councils made by individuals who not enacted
and time (civil case). Even if brought forward, judge can only declare void not amend.
by people such as judges and local authorities.
Large Volume and Lack of Publicity – over 3500 pieces of statutory instruments created each
year. Each one of order in council – hardly in media.
European Union –
Formation of EU – originally known as European Economic Community. UK joined in Court of Justice of EU – function set out under S19 TEU – ‘ensure interpretation and
January 1973. In 1993, changed to EU via Treaty of EU. Other members include application of treaty is observed.’ 28 judges who sit in Luxembourg are appointed
France, Germany, Spain and Belgium. under S253 TFEU. Tends to be those who eligible for the highest court in the land of
respective nation or leading academic lawyers – sit for 6 years and can be reappointed
Institutions of EU – The rules of the EU are set out via the Treaty of EU (TEU) and for another 6. Assisted by 11 Advocate Generals who serve for 6 years. 11 judges make
Treaty of Functioning of EU (TFEU). In 2009, the Treaty of Lisbon restructured the EU. up full court – statute of court – dismiss ombudsman or members of commission.
The Treaty of Rome established 4 institutions – council of EU, commission, European Functions – ensure law is applied uniformed in all member states – hear cases
Parliament and court of Justice of EU. deciding whether they fulfil their obligations – RE Tachographs or hear references
Council of EU – each nations govt sends representative – usually minister who is from national courts for preliminary rulings.
responsible for specific topic under consideration. Each takes it in turns to provide a Preliminary Rulings – rulings on points of European law are binding on all courts in all
president every 6 months. Consists of a committee of permanent reps who assist in states. Ensures law is uniform. Request via A267 TFEU on either treaties, validity of
the day to day work. Tend to discuss matters of policy. Govt heads tend to meet twice acts, or interpretation of statutes of bodies. Occurred in Van Duyn v Home Office. SC
a year at ‘summit’ and discuss broad policies. Main role is the principle law making must refer questions yet Court Appeal does not.
body of EU – vote on 80% of decisions via double majority rule. Court of Justice vs English Courts – EU judges’ deliberations are in secret and all sign
Commission – 28 commissioners (1 from each state) who act independently from judgement but do not mention who disagrees. UK judges’ give dissenting judgements
their nation. Appointed every 5 years and can be removed by vote of censure by if they do not agree with ruling. EU lawyers required to present on paper – low
European parliament. Each head a department with a specific responsibility. reliance on oral presentation due to many languages. UK slowly introducing this. Court
Functions – putting forward proposals for new laws, guardians of treaties (ensure of Justice not bound on previous decisions. Advocate General not used in England.
provisions followed in all states), responsible administration of union – budget and
supervise spending. Sources of EU Law –
European Parliament – consists of MEPs who are directly elected by electorate of Treaties – primary source – any treaties made are automatically apart of law. S2(1)
member states every 5 years. Currently around 750 MEPs. Contain standing European Communities Act 1972. Van Duyn shows this. Citizens can rely on rights in
committees who discuss proposals made by commission and report to full parliament treaties even though not specifically enacted in English law by applying treaty directly.
to debate. Overall decision made by council of minister. Meet once a month and can Regulations – secondary source – laws issued by EU which are binding on member
last for a week. states and automatically apply in each state. Article 288 states automatically become
Functions – approve / reject legislative proposals of commission, put forward opinion law – seen in RE Tachographs. Prevents states from picking and choosing the
on competition laws, decide international agreements and whether to admit new legislation they implement.
member states. Review commissions work programme. Directives – issued by EU and direct all states to bring in same laws. Article 288 – pass
own law to bring directive into effect and time is set in which do this – Restriction of
Impact of EU Law on Law in England and Wales – As shown in Van Gend en Loos, EU Hazardous Substances 2012. Direct effect (do not implement within time). Vertical
law takes precedence over national law. Costa v ENEL established that EU law takes direct effect (can claim against state when not implemented – Marshall v
precedent over any later national laws. This means parliamentary sovereignty has Southampton). Horizontal direct (do not give individual rights against others – Paola
gone to European law as that is now supreme. Member states have right to withdraw Faccini Dori).
