Mixed Deck — All FE-1 Topics Flashcards

What is an express trust and what are the three certainties required for its valid creation in Irish equity?

Answer: Certainty of intention (clear intention to create a trust), certainty of subject matter (the property to be held on trust), and certainty of objects (the beneficiaries or purpose must be identifiable)

Knight v Knight [1840] established the three certainties for a valid express trust. Without all three the trust fails: intention (language must show trust was intended, not a gift or debt), subject matter (identifiable property), and objects (beneficiaries or purpose sufficiently certain to be executed).

What is the separation of powers doctrine and how is it reflected in the Irish Constitution?

Answer: The Constitution distributes power between the legislature (Oireachtas), executive (Government), and judiciary (courts), with each branch limited to its own sphere

The separation of powers under the Irish Constitution distributes legislative power to the Oireachtas (Article 15), executive power to the Government (Article 28), and judicial power exclusively to the courts (Article 34). Each branch is prevented from encroaching on the others.

Under Irish law, what is the offence of manslaughter?

Answer: An unlawful killing that does not amount to murder, either through lack of intent (involuntary) or due to provocation/excessive self-defence (voluntary)

Manslaughter in Irish law is divided into voluntary manslaughter (where the killing would otherwise be murder but is reduced due to provocation or excessive self-defence) and involuntary manslaughter (where the killing is unlawful but lacks the intent required for murder).

What is joint enterprise liability in Irish criminal law?

Answer: Where two or more persons participate in a common criminal purpose, each may be liable for offences committed in furtherance of that purpose

Under the doctrine of joint enterprise, where persons share a common purpose to commit an offence, each participant may be convicted of that offence and of any other offence committed in the course of carrying out the common purpose that was a probable consequence.

What are the duties of a trustee under Irish equity and the Trustee Act 1893 (as amended)?

Answer: Trustees must: follow the trust instrument, act in the interests of all beneficiaries, exercise the standard of care of a prudent investor, avoid conflicts of interest, keep accounts, and act unanimously (unless authorised otherwise)

Trustees are fiduciaries with onerous obligations: strict adherence to the trust terms, no unauthorised profit from their position, investment duty (prudent investor standard under Trustee Act amendments), duty to account, and duty of impartiality between beneficiaries.

Under the Statute of Frauds (Ireland) 1695, which type of trust must be evidenced in writing and signed by the settlor?

Answer: Express trust of land

Section 4 of the Statute of Frauds (Ireland) 1695 requires that an express trust of land be manifested and proved in writing signed by the settlor or their authorised agent.

Under the Companies Act 2014, what is the most common type of private company in Ireland?

Answer: A private company limited by shares (LTD)

The Companies Act 2014 introduced the LTD as the default model for private companies in Ireland. It is a simplified company form with a single-document constitution, full capacity, and no requirement for an objects clause.

What is a liquidated damages clause and how does Irish law distinguish it from a penalty clause?

Answer: A liquidated damages clause is a genuine pre-estimate of loss — it is enforceable. A penalty clause imposes a payment in terrorem to compel performance — traditionally unenforceable, though now assessed under a broader test post-Cavendish Square [2015]

The traditional test from Dunlop v New Garage [1915] distinguishes a genuine pre-estimate of loss (enforceable) from a penalty (unenforceable). The UK Supreme Court in Cavendish Square broadened this to ask whether the clause protects a legitimate interest proportionately.

What is legal professional privilege in Irish evidence law?

Answer: Communications between a lawyer and client made for the purpose of giving or obtaining legal advice are privileged — they cannot be compelled to be disclosed in litigation, subject to the crime/fraud exception

Legal professional privilege in Ireland protects confidential communications between lawyer and client (legal advice privilege) and communications made for the dominant purpose of litigation (litigation privilege). The crime/fraud exception removes privilege from communications that facilitate wrongdoing.

What is the neighbour principle as stated by Lord Atkin in Donoghue v Stevenson [1932]?

Answer: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour — persons closely and directly affected by your act

Lord Atkin's neighbour principle forms the foundation of the duty of care: duty arises where harm to the claimant is reasonably foreseeable and the claimant is 'closely and directly affected' by the defendant's acts — the neighbour in law.

A Mareva injunction (freezing order) is an equitable remedy primarily designed to achieve which purpose?

Answer: Freezing a defendant's assets to prevent dissipation before judgment can be enforced

A Mareva injunction restrains the defendant from disposing of or dealing with assets so that any judgment the plaintiff obtains remains capable of enforcement.

What is contributory negligence in Irish law and how does it affect damages under the Civil Liability Act 1961?

Answer: Where the plaintiff's own negligence contributed to their damage, their award is reduced proportionately to their degree of fault — contributory negligence no longer bars the claim but reduces it

The Civil Liability Act 1961 abolished the old rule that contributory negligence barred recovery entirely. Now, the plaintiff's damages are reduced in proportion to their degree of fault. A plaintiff 30% at fault recovers 70% of their loss.

Under Irish law, what is the difference between summary offences and indictable offences?

Answer: Summary offences are tried in the District Court without a jury; indictable offences are tried in higher courts, usually with a jury

Summary offences are minor offences tried in the District Court by a judge alone. Indictable offences are more serious and are generally tried before a judge and jury in the Circuit Court or Central Criminal Court.

What is the difference between an EU Regulation and an EU Directive?

Answer: A Regulation is directly applicable and binding in its entirety; a Directive requires transposition into national law and is binding as to the result to be achieved

Under Article 288 TFEU, a Regulation is binding in its entirety and directly applicable in all member states without national implementation. A Directive binds member states as to the result but leaves the choice of form and methods to national authorities, requiring transposition.

What is the constitutional status of international treaties in Ireland under Article 29.6?

Answer: International agreements do not form part of domestic law unless the Oireachtas passes legislation to incorporate them

Article 29.6 provides that no international agreement shall be part of domestic law except as determined by the Oireachtas. This is the 'dualist' approach — international law and domestic law are separate systems requiring a bridge.

What is the test for pure psychiatric injury (nervous shock) in Irish tort law following Kelly v Hennessy [1995]?

Answer: The plaintiff must have suffered a recognised psychiatric illness caused by the defendant's negligence — either as a primary victim (within zone of physical danger) or a secondary victim (witnessing harm to another, with proximity requirements)

Kelly v Hennessy applied principles similar to Alcock v Chief Constable of Yorkshire to Ireland. Primary victims (in the zone of physical danger) face fewer restrictions. Secondary victims must show: a close tie of love and affection with the primary victim, proximity to the incident, and perception through own unaided senses.

The test for granting an interlocutory injunction in Ireland, derived from American Cyanamid Co v Ethicon Ltd [1975], first requires the court to determine what?

Answer: Whether there is a serious issue to be tried

Under the American Cyanamid test, the first stage requires the plaintiff to demonstrate that there is a serious question to be tried, not a mere frivolous or vexatious claim.

What is the standard of proof in criminal proceedings in Ireland?

Answer: Beyond reasonable doubt — the prosecution must make the court sure of the defendant's guilt

The prosecution bears the burden of proof in criminal cases and must establish guilt beyond reasonable doubt. This high standard reflects the presumption of innocence (Article 38 of the Constitution) and the serious consequences of a criminal conviction.

What is the effect of a declaration of incompatibility under the European Convention on Human Rights Act 2003 in Ireland?

Answer: The court declares the law is incompatible with the ECHR but the law remains in force — it is for the government to decide whether to amend it

Unlike constitutional invalidity, a declaration of incompatibility under section 5 of the ECHR Act 2003 does not invalidate the legislation. It is a formal statement that the law is incompatible, leaving it to the government to decide how to respond.

What is the legal effect of a counter-offer in contract law?

Answer: A counter-offer terminates the original offer — it cannot be revived unless the original offeror makes a new offer

As established in Hyde v Wrench [1840], a counter-offer constitutes a rejection of the original offer and replaces it with a new offer. The original offer is destroyed and cannot be accepted unless the original offeror repeats it.