CAMS Level I
Introduction to Business Law and Ethics flashcards
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How does criminal law differ from civil law in who brings the case and the standard of proof?
Criminal: the state brings it, through the Director of Public Prosecutions, to punish and deter a wrong against the public; proof is beyond reasonable doubt, and the parties cannot settle. Civil: the aggrieved person brings it to win compensation or enforce a right; proof is on a balance of probabilities, and the parties may settle at any time. One incident can give rise to both, and an acquittal does not defeat the civil claim.
What are the two rules of natural justice?
Audi alteram partem (hear the other side): notice of the case and a genuine chance to respond before an adverse decision. Nemo judex in causa sua (no one may be a judge in their own cause): the decision-maker must be free of bias or a personal interest in the outcome. A decision in breach of either can be set aside, however sound it looks on the merits.
Where does a court's jurisdiction come from, and what happens if it acts without it?
Only from the Constitution or a statute. Parties cannot confer it or remove it by agreement, though they may agree to arbitrate instead. A court acting without jurisdiction produces a nullity, so an objection is decided at the outset. Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd: "Jurisdiction is everything."
Who controls the outcome in mediation, and who controls it in arbitration?
Mediation: the parties. The mediator only facilitates and cannot impose an outcome; a settlement binds only once the parties agree to it. Arbitration: the arbitrator. The award is final and binding on the parties whether they like it or not, and is enforceable through the High Court.
What did Salomon v A Salomon & Co Ltd [1897] AC 22 decide?
A validly incorporated company is a legal person entirely separate from its members, even where one person effectively owns and controls it. Its creditors cannot sue the shareholders personally for its debts, because the company's rights and liabilities belong to the company itself.
What four elements must a claimant prove to succeed in negligence?
Duty: the defendant owed the claimant a duty of care (the neighbour principle). Breach: the conduct fell below what a reasonable person would have done. Causation: but for the breach the loss would not have happened, and it is not too remote. Damages: a real, legally recognised loss. The elements are cumulative: missing any one defeats the claim.
What remedy follows breach of a condition, a warranty and an innominate term?
Condition (goes to the root of the contract): the innocent party may treat the contract as at an end and claim damages. Warranty (a minor term): damages only. Innominate term: depends on how serious the actual breach turns out to be.
Which terms do sections 14, 15 and 16 of the Sale of Goods Act imply?
Section 14: a condition that the seller has a right to sell, with warranties of quiet possession and freedom from undisclosed encumbrances. Section 15: a condition that goods sold by description correspond with it. Section 16: caveat emptor, with two exceptions: fitness for a purpose the buyer made known while relying on the seller's skill, and merchantable quality where goods are bought by description from a dealer in such goods.
How do consequentialism, deontology and virtue ethics each judge an act?
Consequentialism: by its outcomes, the greatest good for the greatest number. Deontology: by whether it follows a moral duty or rule, regardless of the outcome. Virtue ethics: by whether it reflects a virtuous character, such as honesty, fairness and courage.
What standards does Chapter Six of the Constitution of Kenya 2010 set for State officers?
Chapter Six, 'Leadership and Integrity', requires selection and appointment on the basis of personal integrity, competence and suitability, and accountability to the public for decisions and actions taken in office. The Public Officers Ethics Act and the Leadership and Integrity Act give it practical effect.
What three traits mark law out from other rules?
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In what order does section 3 of the Judicature Act (Cap 8) direct the courts to apply the law?
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What four limits does section 3(2) of the Judicature Act place on African customary law?
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What is the difference between the ratio decidendi and an obiter dictum?
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How do Articles 2(5) and 2(6) of the Constitution bring international law into Kenyan law?
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What do certiorari, prohibition and mandamus each do?
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What three grounds of judicial review did Lord Diplock set out in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case)?
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What are the three ways administrative bodies are controlled?
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How is state power separated, and what does Article 160 add?
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Which courts are superior and which are subordinate under Article 162?
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What is the difference between original and appellate jurisdiction, and which does the Court of Appeal have?
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What jurisdiction do the Supreme Court and the High Court have?
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When does the Kadhis' Court have jurisdiction?
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What are the shared advantages of ADR over litigation?
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What is negotiation, and how does it differ from mediation?
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What does Article 159(2)(c) of the Constitution say about traditional dispute resolution?
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What makes arbitration attractive in commercial contracts, and which case shows its finality?
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How does domicile differ from nationality and citizenship?
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How does an incorporated association differ from an unincorporated one?
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What is a tort, and how does a duty in tort differ from a contractual duty?
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What are vicarious liability and occupiers' liability?
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What principle did Donoghue v Stevenson [1932] AC 562 establish?
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What is the rule in Rylands v Fletcher (1868) LR 3 HL 330?
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What are the general defences in tort?
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What is defamation, how do libel and slander differ, and what defences are open?
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What are the essentials of a valid contract?
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How does an offer differ from an invitation to treat, and who makes the offer in a self-service shop?
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What do Hyde v Wrench and Felthouse v Bindley teach about acceptance?
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What do Carlill v Carbolic Smoke Ball Co and Balfour v Balfour decide?
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What are the vitiating elements, and what is the effect of misrepresentation?
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How can a contract be discharged?
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What remedies are available for breach of contract?
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Under the Limitation of Actions Act, how long does a claimant have to sue in contract and in tort?
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What does nemo dat quod non habet mean for a buyer?
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What remedies does an unpaid seller of goods have?
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How does an ethical dilemma differ from unethical conduct?
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What is the difference between independence of mind and independence in appearance?
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What do integrity and a conflict of interest mean for a professional?
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Who enforces ethical standards in Kenya, and what sanctions can follow a breach?
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Which Kenyan statutes principally address online commercial transactions?
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How to revise with these cards
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- When a card catches you out, read the chapter it links to, then try the topic in a past paper.