ATD Level I

Fundamentals of Law and Ethics flashcards

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Complete Flashcard Reference

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In what order does section 3 of the Judicature Act rank the sources of Kenyan law?

1. The Constitution. 2. Subject to it, all other written law. 3. So far as written law does not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on 12 August 1897. The received English law applies only so far as the circumstances of Kenya and its inhabitants permit.

Which courts are superior and which are subordinate under Article 162 of the Constitution?

Superior: the Supreme Court, the Court of Appeal, the High Court, and the two courts of equal status to the High Court (the Employment and Labour Relations Court and the Environment and Land Court). Subordinate: the magistrates' courts, the Kadhis' courts, the courts martial and the tribunals.

What did Salomon v A Salomon & Co Ltd establish?

A company, once validly incorporated, is a legal person separate from its members. So even a shareholder who controls it entirely is not personally liable for its debts. It is the foundational authority for the corporate veil.

What four elements must a claimant prove to succeed in negligence?

1. Duty: the defendant owed the claimant a duty of care. 2. Breach: the defendant fell below the standard of the reasonable person. 3. Causation: the breach caused the loss (the but-for test) and the loss was not too remote. 4. Damage: actual, legally recognised loss. Failing any one defeats the claim.

What is the effect of a counter-offer on the original offer?

A counter-offer is a rejection: it destroys the original offer, so it can no longer be accepted. In Hyde v Wrench an offer to sell a farm for 1,000 pounds was met with an offer of 950; the buyer's later attempt to accept the 1,000 pound terms failed because nothing was left to accept.

What does the nemo dat rule provide, and where is it found?

Nemo dat quod non habet: nobody gives what they do not have. Section 23 of the Sale of Goods Act: where goods are sold by a person who is not the owner, without the owner's authority or consent, the buyer acquires no better title than the seller had. An innocent buyer who paid full value may still have to give the goods back to the true owner.

What is an agent's apparent (ostensible) authority, and why does it bind the principal?

It is the authority the principal held the agent out as having. It binds the principal even where the agent was privately forbidden to act, because the third party relied on the appearance the principal created. Actual authority, by contrast, is what the principal in fact conferred, expressly or by implication.

What are the six principles of insurance?

1. Utmost good faith 2. Insurable interest 3. Indemnity 4. Subrogation 5. Contribution 6. Proximate cause Several can operate on the same claim.

What do integrity and confidentiality require of a professional?

Integrity: being straightforward and honest in all professional and business relationships, and not being associated with information believed to be false or misleading. Confidentiality: respecting information acquired in professional or business relationships and not disclosing it without proper authority, unless there is a legal or professional right or duty to do so.

How does joint ownership of land differ from common ownership on the death of an owner?

Joint ownership: the interest accrues to the surviving joint owners by survivorship (jus accrescendi), so it cannot pass under a will or on intestacy. Common ownership: each owner holds a separate but undivided share, which passes under the will or on intestacy.

How does law differ from morality?