Ture/False?

21* In New Zealand a draft Act of Parliament is a Bill which passes through various stages of discussionand becomes law when signed by the British Queen's representative in NZ, the solicitor-general

22* A building contract over $20,000 in value is not legally enforceable unless it is in writing

23* Terms of a contract have to be made by prior express agreement as terms cannot be impliedinto a contract

24* A term that is necessary for business efficacy can be implied into a contract

25* If an agreement has been entered into in writing and both parties signed the agreement but oneparty did not willingly sign the agreement, the agreement is unenforceable

26* It automatically follows that if one party to an agreement has used its economic position topersuade the other party to agree to disadvantageous terms, that the agreement is not enforceable

27* Being in breach of a contract by not doing what a party agreed to do, makes a party liable to the otherparty in damages as money to compensate that party for the harm or loss caused by the breach

28* Once an agreement is made between two parties then providing there is an agreement for thepayment of some money, the agreement is always a legally enforceable contract

29* The element of "consideration" in a contract means that the parties have thought about it and haveconsidered their intentions under the agreement

30* An agreement may have the basic components of a contract but unless there was an intention tocreate legal relations when it was made, it is not a legally enforceable agreement

31* Capacity to contract concerns a party's mental ability to be able to know what they are doing whenmaking a contract for example by reason of age or mental state, either permanent or temporarytherefore it is impossible to make a legally binding contract after drinking alcohol

32* A deed is an agreement made in a specific form which, unlike a contract, can create legallybinding obligations without the presence of consideration

33* Before legislation changed the position, an advertisement offering to sell an article at a certainprice did not bind the seller to have to sell at the advertised price because it was not an offer butwas only an invitation to treat inviting the buyer to offer to buy at the advertised price which theseller could accept or reject

34* If an offer is accepted by post then the 'postal rule' says the offer is accepted when the letteris put into the letter box by the offeree regardless of whether the offeror ever received that letter

35* Even if the Courts consider the parties real intention was to enter into a binding agreement unlessthe nature of the agreement is 100% certain on every point they will not enforce an agreement

36* If agreements are made in a business setting there is a presumption by the Court that there was nointention to create legal relations if one party actually thought that when it entered the agreement

37* If agreements are made in a social or family setting there is a presumption by the Court that therewas an intention to create legal relations which either party may argue against

38* A legally binding contract can be made by A promising to do something for B in exchange for apromise by B to do something for A

39* Some legislation in New Zealand applies solely to construction work including theConstruction Contracts Act 2002 and the Building Act 2004

40* A builder and a property owner agree a price to extend a house, which requires a building consent buthas not yet been applied for. Shortly before the builder is due to start work, the owner tells thebuilder she will not be proceeding with the work and because there is no building consent, then unders73(1) Contract and Commercial Law Act 2017 because they had not got a building consent whenthey made their agreement, it was an illegal contract so the builder cannot take action against herto recover as damages, the profit etc. the builder would have made if the work had proceeded

41* A misrepresentation is an untrue statement of a future fact for the purposes of the Contract andCommercial Law Act 2017 e.g. the statement made to sell agricultural land that it will produce acertain quantity of corn per acre next year which it fails to do

42* A tells B that A's house is constructed entirely with treated timber. B relies on that being true and buysA's house but later discovers the timber is untreated and the house leaks and rots. B says she has twooptions under the Contract and Commercial Law Act 2017 being to either keep the contract in placeand claim damages or cancel the contract but lose entitlement to damages

43* A tort is a 'wrong' which when committed by someone [a tortfeasor] gives someone harmed by ita right to take action, for example the tort of trespass by placing building materials used to build ahouse on an adjacent section without the owner's permission would entitle the owner to have thematerials removed and receive compensation for any damage caused

44* There were once in NZ three types of trespass, to land, to property, and to a person, and trespass toa person is now superseded by the crime of assault in New Zealand, the difference beingthat trespass to a person was once only actionable if the 'injured' person pursued it whereas theState can take action against a person committing assault [refer Crimes Act 1961] and punish them

45* Nuisance is similar to trespass to land but whereas trespass is direct intrusion to land, nuisanceis indirect intrusion such as: smells, fumes, noise, smoke, dust, noxious weed seeds, cropspray and so on which leaves one area and intrudes upon another to affect the 'quiet enjoyment'by a person of their land

46* There is a single category of the tort of nuisance

47* Nuisance is the most common category of tort raised in court cases involving construction work

48* Negligence is the most common tort applied in court cases generally

49* If someone does something with insufficient care and skill thereby causing harm to another persons/he is automatically liable to compensate that person for the harm caused

50* Whether a person is liable to another person for the consequences of his/her negligence dependson whether in such circumstances the Court has found that s/he owes a duty of care to that person

51* Liability for the consequences of negligence are limited to physical harm to persons or property

52* A person can be held concurrently liable for both a breach of contract and in the tort of negligence

53* Any harm suffered that but for a person's negligence would not have arisen has to be compensatedby the negligent party

54* A professional indemnity insurance policy is designed to bear the costs of defending an actionagainst the policy holder for his/her negligence but not to cover the cost of damages if it is provens/he was negligent

55* Designers are particularly vulnerable to claims for negligence because their designs may lead todefective work or even structural failure

56* Just because a design is defective does not mean it was done negligently, for example the state ofindustry knowledge when the design was produced was such that it was believed to be satisfactory

57* Quantity surveyors are never held liable in negligence because they do not provide design services

58* If a quantity surveyor negligently provides a client with a cost estimate for construction work that is fartoo low, so when tenders are called, the bids are much higher, the client can accept the lowest bidand successfully claim the difference in price between the lowest bid and the quantity surveyor'sestimate of cost, as damages

59* Builders are less likely to be found liable in negligence when working under a contract to follow adesign provided by the building owner than they are to be found liable for breach of contract becauseany deviation from the design leading to defective work or structural failure is a breach of contractand the builder is liable for the consequences without any need to prove the builder was negligent

60* Even when a builder accurately follows a design produced by the building owner it does not followthat the builder cannot be held liable to some extent for the defective work that results

61* A builder is in a difficult position when told to follow a design the builder believes to be defectiveunless the builder makes it clear it only does so on the basis that the building owner indemnifiesthe builder against any adverse consequences of doing so, otherwise when problems arise, thethe builder may be held responsible for proceeding according to a design it knew was defective

62* A designer with limited experience is not required to perform to the same standard of care anan experienced practitioner must work to in order to avoid being held liable for negligence

63* An agent is someone who acts for a principal and the agent can bind the principal by his/her actions,for example the supervisor on a building site acts as agent for the building company employinghim/her and can agree on the building company's behalf to do extra work for the principal

64* If an agent acts beyond the authority the principal gives the agent but it appears to a third party thatthe agent is acting correctly, then the agent's wrongful actions nevertheless bind the principal

65*An example of an agent binding his/her principal for their wrongful action is a real estate agent sellinga house for the owner, the agent misrepresents the location of the boundaries of the property toa potential purchaser who buys the house in reliance on where the agent says the boundaries are,later discovers the site is much smaller than it was represented to be by the agent, the purchaser thensues the vendor [not the agent] for misrepresentation, and seeks damages to compensate for thelesser value of the house

66* The instructions a principal gives to an agent to act for him/her are a warranty of authority

67* Breach of a warranty given in respect to the sale of goods gives the injured party the right tocompensation but breach of a condition also allows the sale and purchase agreement to be cancelled

68* In a business partnership each partner acts as agent for every other partner as his/her principalwhich is why each partner is responsible for the torts committed by any other partner when it appearss/he has acted according to the business conducted by the partnership for example a firm of architectsin which one partner negligently designs a defective building and the other partners are also liablefor the consequences

69* Partners in an ordinary partnership are only liable for the value of their shares in the partnershipwhen issues of legal liability arise for any reason

70* In the order of development of English law, rules of equity preceded the common law

71* In NZ the common law and the rules of equity were always applied in the same Court

72* The role of equity in New Zealand has largely been supplanted by legislation

73* Common law developed in the courts of England by the judges who followed earlier decisions withsimilar facts and circumstances and by analogy determined principles to apply to similar situationsit is arguable whether judges today make law or simply discover it

74* A precedent is a decision made by a judge in court with sufficient authority to serve as an example tobe followed by other judges. Lower courts follow the decisions made by judges in higher courts

75* The principle of "stare decisis" is a fundamental aspect of the doctrine of judicial precedent wherebythe courts follow earlier decisions. It means "look intently at the decision"

76* Civil laws relating to wrongs or harm done by one person to another person or his/her property isknown as the 'law of torts'

77* There are a number of individual torts including negligence, nuisance, trespass, defamation, and themost common of all, invasion of privacy

78* If the nature of an act or omission is recognised by the law as being a tort, the person causing theharm is liable for the consequences in a civil action

79* Liability in contract, criminal law, or breach of some statutory obligation may render a person liablefor his/her acts or omissions independent of liability in tort

80* Private nuisance concerns the rights of the public's use of land such as blocking a highway

81* If a person who occupies land unreasonably interferes with an occupier of nearby or neighbouringland and his/her proper use and enjoyment of the land s/he occupies, then that unreasonableinterference is the tort of public nuisance.

82* The common law only developed two forms of trespass, 'trespass to goods' and 'trespass to land'

83* TheAccident Compensation Act 2001 compensates for accidental injury to persons withoutthem having to prove their injuries were caused by someone's fault such as a negligent employer, andhaving to sue for damages in court.

84* The 'no fault' compensation scheme of the Accident Insurance Act 2001 allows injured parties tobe compensated for their injuries but effectively removes their right to sue the person who causedtheir injuries, unless they are claiming "exemplary damages"

85* 'Trespass to the land' only gave rise to a civil action until the Trespass Act 1980 was enacted

86* Negligence is a word used in the legal sense that in the ordinary sense of the word meanscarelessness. Basically a person who is careless thereby causing harm to others by his/her acts oromissions may be held liable for the consequences.

87* The tort of negligence was one of the first torts to be established in the English legal system

88* It is usually a straightforward process in court to decide whether someone accused of being negligentwas actually negligent under the law

89* In the absence of a court saying that a person owes a 'duty of care', a person will not be liable for theconsequences of his/her acts or omissions in the tort of negligence

90* A duty of care is owed to the 'world at large'

91* If a claimant brings a claim for the tort of negligence the court will first establish whether therespondent owes a duty of care in those circumstances and then decide whether his/her acts oromissions fell below the required standard of care so at to make him/her liable in negligence to theclaimant. The standard required is subjective according to the defendant's personal circumstances.

92* Originally the tort of negligence was restricted to acts or omissions causing physical harm to personsor property but in 1963 the English House of Lords held that a person giving negligent advice couldbe held liable for loss in value of property I.e. economic loss without physical harm.

93* The tort of defamation consists of an oral statement made in private that lowers a person's standingamongst other optional factors.

94* The only remedy available for the tort of defamation is an award of damages

95* The substantial difference between a morally binding agreement and a legally binding contract is thatthe former has an intention by the parties to it to create legal relations whereas the latter does not

96* Apart from one or two exceptions set out in legislation, which should include some building work acontract does not have to be in writing to be enforceable at law

97* A contract can consist of an exchange of money for services or goods by the actual exchange itselfe.g. buying something in a shop, or it can consist of an exchange of promises where delivery andpayment are postponed so an action for breach can be based on either of two grounds, breach ofterms by failing to carry out the contract correctly or breach of promise by a failure to perform at all

98* A contract exists when the following factors can be identified in an agreement: intention to createlegal relations; offer and acceptance; capacity to contract; genuine consent; absence of duress;legality of purpose; and consensus ad idem (I.e. agreement on what has been agreed to).

99* Freedom to contract on any terms the parties think fit is an important element of contract although inpractice it can lead to unfortunate results where for example there may be inequality of bargainingpower so that one party is taken unfair advantage of

100* In addition to express terms in a contract a court will imply terms into it if such terms are in commonuse in the trade to which the contract is related, regardless of whether such terms are essential forthe operation of the contract.