MEMBERSHIP AND EXAMS - PART IIIA EXAMINATION

This Part will consist of three papers each of three and a quarter hours on:

• Paper 1 - Contract
• Paper 2 - Delict
• Paper 3 - Evidence

Candidates must answer four out of eight questions in each paper.

To achieve a pass candidates must gain at least 55%.

Aims

A course of study based on this syllabus should:

• provide a sound understanding of the nature of law
• provide a sound knowledge of the law of Contract, Delict and Evidence
• provide an arbitrator with the ability to deal with matters of law in arbitration proceedings
• provide a knowledge of the sources of law, including statutes and cases and of how these sources are applied in arbitration
• develop an analytical and critical approach to the application of legal principles

Examination Objectives

Candidates should be able to demonstrate a sufficient understanding and knowledge of the law of Contract, Delict and Evidence to be able to deal with aspects of these subjects that might arise during arbitration proceedings. The standard will be a pass in an approved LLB course.

SYLLABUS CONTENT - FOR PART IIIA

This Part will be divided into three papers.

Paper 1 - The Law of Contract

A. Concept and General Principles of Law

• Administrative Law
• Criminal Law
• Civil Law involving delict and contract
• Procedure in civil actions

B. The Law of Contract

• Formation of Contracts
  • Oral contracts
  • Written contracts
  • Offer and acceptance - revocation and lapse of offer
  • Absence of need for consideration
  • Intention to create legal relations
  • Contracts uberrimae fidei

   

• Terms of Contract
  • Representations
  • Conditions and warranties
  • Fundamental terms
  • Express terms
  • Implied terms and trade custom
  • Terms implied into sale of goods
  • Exclusion clauses
  • Effect of statutory provisions

   

• Amendment of Contracts
  • Oral amendment of written contracts - contrast with variation orders issued under a construction contract

   

• Interpretation of Contracts
  • Intention of the parties
  • Background facts
  • Dealing with consistencies
  • Rectification
  • Contracts (Scotland) Act 1997

   

• Third Party involvement in contracts
  • Sub-contracting
  • Assignation of benefit of contracts
  • Death and bankruptcy - who has the right to sue and for what

   

• Agency
  • Types of Agency
  • Creation and termination
  • Agent’s rights and duties
  • Warranty of authority
  • Liability of agent
  • Undisclosed principal

   

• Limitation of Actions
  • Statutory prescription and limitation

   

• Quasi-contracts
  • Restitution
  • Quantum meruit

   

• Remedies for breach of contract
  • Repudiation or rescission
  • Interdict
  • Specific implement
  • Damages - General and special damages, liquidated and unliquidated damages, penalties
  • Assessment of damages
  • Mitigation of loss
  • Remoteness of loss/damage
  • Set-off
  • Retention

Paper 2 - The Law of Delict

• The Nature of Delict
  • Vicarious liability
  • Trespass to land
  • Dangerous premises
  • Private nuisance
  • The rule in Rylands v Fletcher
  • Interference with chattels
  • Interference with the person

   

• Negligence
  • The rule in Donoghue v Stevenson
    • Extensions of the Rule
    • Standard of care
    • Negligent mis-statement. The rule in Hedley Byrne v Heller & Partners
  • Defences
    • Volenti non fit injuria
    • Novus actus interveniens
    • Contributory negligence

     

• Remedies
  • Interdict
  • Damages
    • Mitigation of loss
    • Remoteness of damage
  • Prescription and limitation

Paper 3 - The Law of Evidence

• Types of Evidence
  • Best and inferior evidence
  • Direct and circumstantial evidence
  • Original and hearsay evidence
  • Real evidence
  • Expert evidence

   

• Relevance and admissibility
  • Orders for evidence to be preserved

   

• Proof
  • The burden of proof
  • Methods of proof
  • Standards of proof
  • "Judicial notice"
  • Similar fact evidence

   

• Hearsay evidence
  • Rules for submission of hearsay evidence

   

• Expert evidence
  • The role of the expert witness

   

• Privilege
  • Absolute privilege
  • Privilege attaching to negotiations and offers of settlement
  • Meaning of "without prejudice"
  • Waiver of privilege

   

• Examining Witnesses
  • Advantages and disadvantages of: Oral examination in chief; Written proofs of evidence; Expert reports; Cross-examination; Re-examination
  • Leading questions - when and when not allowed
  • The attendance of witnesses
  • Citation of witnesses: warrant from a court
  • Witnesses who are: ill; abroad; dead

   

• Dealing with conflicts
  • The arbitrator’s rôle when faced with conflicts of:
    • Factual evidence
    • Expert Opinion
    • Submissions as to the law applicable
  • How cases are distinguished