Description
CaseMr Bartholomew is 54 years old and has, for many years, worked in the construction industry. Mr Bartholomew recently inherited a sum of $100,000 from his deceased father and he has no other significant assets. Mr Bartholomew is planning his retirement and he has decided to invest in some shares using the inheritance money. Mr Bartholomew has no prior experience in shares investment and financial planning.Mr Bartholomew approached Mrs Taylor who works for Taylor Smart Investments Pty Ltd, a well-known investment advisory company. Mr Bartholomew makes an appointment with Mrs STaylormith and during the meeting in her office, Mr Bartholomew asks Mrs Taylor whether she thinks Essette Airlines is a good investment. Mr Bartholomew made it very clear to Mrs Taylor that he will only be able to retire if the investment is successful. Due to having many other clients demanding her time, Mrs Taylor advised Mr Bartholomew in writing that Essette Airlines had good financial performance based on a newspaper article she had read and without doing further research. Mrs Taylor provided this advice with a disclaimer.A simple act of further research by Mrs Taylor would have indicated that Essette Airlines was not a good investment. Mr Bartholomewe was nervous and told Mrs Taylor that he was reluctant to invest the whole of $100,000 in one company. Mrs Taylor assures Mr Bartholomew that it is a good investment.Acting on this advice, Mr Bartholomew invested his inheritance in Essette Airlines. Soon after Mr Bartholomew invested, the share price of Essette Airlines fell significantly. As a result, Mr Bartholomew lost half of his inheritance money.Objective1. Advise Mr Bartholomew of all the elements he needs to establish to be successful in a negligence action against Taylor Smart Investments.Advise 2. Mr Bartholomew of any possible defences that Taylor Smart Investments may use. Please use IPAC to answer this question. (Issue/Principle/Application/Conclusion)
Running Head: ASPECTS OF CONTRACT
Aspects of Contract and Negligence for Business
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Aspects of Contract
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Aspects of Contract and Negligence for Business
Introduction
Aim of the unit
The purpose of this study is to understand the law and legal argument of
English system and to recognize the fundamental theories, practice of legislative
and interpretation according to the contracts. So, this study will help to understand
the problems of legal contracts, issues related to appeal, material facts etc. To
identify, evaluate and advice is the relevant point of the study discussed below.
English Legal System
In 1066, law system was developed in England and still everyone follow
that law. Legislation, common law, legal norms, the crown, judiciary are the
bodies of English law. U.S constitutions embody various concepts in English law.
Those ideas are the separation and delegation of power between all the branches
of government. English laws are made for giving the rights and benefits to all the
citizens. English laws were made by many of the organizations. Some of the
organizations are European Union, UK parliament and government, court,
regulatory bodies and international institutions.
Classification of the English legal system
English laws are classified as public and private laws, constitutional law,
administrative law, criminal law, civil law, legal law. Tort law, family law, labor
law, property law, contract law and company law Civil laws are made for
providing benefits to the common public and to save them from any harm. Civil
law is the law enforce when any person responsible for the wrong mistakes.
Criminal laws are enforced when any criminal activity is made in the
Aspects of Contract
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geographical location. Legal laws are made for contracts and agreements in the
business and daily life. Administrative laws were made in the 19th century, when
all the state was unhappy because of the unfair decisions. Then administration of
common law and equity laws are made separately.
Difference between Contract and Tort
A legal bind agreement is known as contract. In the contract agreement,
one party makes an offer while the other party must accept the offer. Both the
parties want to enter in an agreement while offer and acceptance should be in
agreement. Four requirements are needed for making an agreement and contract.
Those four requirements are offer, acceptance of offer, consideration between
both parties and legal relation in contract. Once the contract is made, both parties
are bound to honor the terms and conditions of the contract. The individual who
does not stick to the contract, then the contract is said to be the breach contract.
When one party breaches the contract then other party can follow the legal
remedies.
Tort is related to the civil and criminal mistakes. For the concern of the state,
some laws are enforced by the police. In case of any criminal activity, police have
rights to punish the criminal. But in case of tort, police does not have the right to
enforce any law and punish the criminal. It is the law made for the two parties; if
one party is not able to fulfill the agreement then other party has the right to first
party to court.
Meaning of contract law
Contract is an agreement between two parties and contract laws are those
laws related to the contract. If one party breach the contract then other has the
right to sue them. Contract laws are made for every aspects of contract whether
Aspects of Contract
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the contract is made in the business, in the social and domestic life, in the family
etc. English contract laws are made by the English government so that no party
breach or take advantage of other.
Essential elements of valid and tort negligence
The essential elements of valid and tort negligence are duty, breach of
duty, cause in fact, proximate cause and harm. Duty is the obligation from one
person to another. Breach is the misconduct of contract from one party. One party
does not fulfill the agreement of contract, misstatement or impose risk of harm to
the contract, then the contract is called breach contract. Problems attach with the
contracts whether that problems belongs to contract agreements or other nature
problem. Thus, all the problems are the cause in facts. Proximate cause is a link
with the cause in fact but both are the different terms use in the tort of negligence.
The last component of tort negligence is harm and damage suffers as a
defendant’s breach of duty.
Case Study 1 – Offer and Acceptance
Explanation of Contract
For advising Joseph in the legal relationship with Ben, Kevin and Daniela,
first examination should be made that either the contract between all parties are
valid or not. This contract is an agreement between Joseph and all three parties
who want to buy an antique vase. The case study requires investigation of the
problem according to law and rules related to threat, offers, counter offers, option
contract, and rule of acceptance. It involved three scenarios related to legal law. It
was not an invitation to treat because Joseph sign his wordings, which stated that
he will sell an antique vase on 500 £, which merely means that he ask everybody
to make an offer on that antique vase.
Aspects of Contract
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Bilateral and Unilateral contracts
The first component of case study is offer means an agreement is made
between two parties and both agrees on specified term. Offer can be subdivided
into unilateral contract and bilateral contract. In unilateral contract, offer is given
to many customers, person who met on those terms and then an agreement is
made between the offeror and offeree while in the bilateral contract, two parties
made an agreement without any conditions.
In case, Benedict notices design of vase and like it. There can be an offer and
acceptance between both parties but unfortunately he was late for meeting, so he
passes away. But as soon Benedict was free from the meeting, he wrote a letter to
Joseph at 11:30 am and agrees for stated price.
An offer between Joseph and Kevin is a unilateral contract as both parties are
involved in the agreement of an antique vase. Kevin offer Joseph 400£ but Joseph
agree to sell his vase on the price of £450. Both parties were not agreeing on the
specified terms. But on the way of his journey, Kevin realized that the price of the
vase is good enough, so he wrote a letter to Joseph about his interest for paying
450£ for n antique vase at 12:30 pm.
Expressed and Implied contracts
An agreement between Joseph and Daniela are expressed contract because
all elements of contracts are present in the agreement between both parties and in
case of cancellation of contract, Daniela has the right to sue Joseph. Joseph is an
offer; Daniela is an Offeree while mutual promises were made between them. But
an agreement between Joseph, Kevin and Ben are implied contracts because of
the absence of contracts elements.
Aspects of Contract
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Void and Voidable contracts
An agreement between Joseph and Benedict is not a contract because
Benedict does not communicate with Joseph about his interest in vase. Therefore,
an agreement between Joseph and Benedict are void contract. While an agreement
between Joseph and Kevin is the voidable contract as both of parties communicate
with each other but not agree on specific terms. An agreement between Joseph
and Daniela is perfect contract as both parties not only communicate each other
but also agrees on one term that is 450£ for an antique vase.
Advice to Joseph
In the legal relationship between Ben and Joseph, Joseph should have to
terminate the contract of Ben because Ben does not make a legal contract with
Joseph, so legal conditions are failed in this contract. An agreement between offer
and offeree will be lapsed if an offer is made with any medium because of the
urgency. Ben is not able to sue the Joseph because he did not know about Ben
interest and his message about vase. If an offer is communicated through the
proper process, then contact is said to be voidable contact. Also, Joseph got the
Ben message after contact with other parties, so the agreement between Ben and
Joseph can be revoke.
Joseph has right to accept Kevin contract as both parties communicate each other
all terms of contract, but an agreement is not made between two parties. So
Joseph has right to reject an offer of Kevin and he did not have the right to sue
Joseph. Because of lack of communication procedure between parties, the offer
will be terminate and revoke.
In case of Joseph and Diana, an agreement between both parties is valid and all
essential elements of contracts are present in this offer. According to agreement,
Aspects of Contract
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Joseph has to accept Diana offer. In case of termination, Diana has right to sue
Joseph for his disagreement (Sale of Goods Act 1979).
Case Study 2 – Sufficient Consideration
Explanation of Contract
Alexandra is an offeror while Christine is an offeree and the contract was
signed between them about software for the new system, which Alexandra was
buying from Ball Ltd. Both parties made a consideration and agree for the term of
the contract. But later on Christine force Alexandra for increasing the payment of
£1,000 for software. Alexandra agrees to pay the increasing payment. This
contract is about the promise which is not fulfilled by an offeror to offeree.
Consideration
It is the bilateral contract because both parties made an agreement with
certain conditions. But afterwards those conditions are not fulfilled by Christine
and Alexandra also refused to pay the £1, 000 extra for software. An agreement
between both parties is a voidable contract because Alexandra express all the
terms of contract to Christine. It is the counter offer as the new agreement and
terms are communicates between both parties.
Advice to Christine
Before giving any advice to Christine about contracts and promises made
in agreement, more focused should be given to the elements involved in contracts.
First, Alexander have to focused on promises that, whether extra amount should
have to give for software. Secondly, whether all terms are agreed by both parties.
It is the counter offer but both parties did not write the new term of contract in
paper. Only oral negotiation is done between Alexandra and Christine. This case
Aspects of Contract
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can be resolved in two ways.
Christine should accept the payment of £5,000 for the work done by him and sue
Alexandra for the extra £1000 (Stilk v Myrrick 1809). But court needs full proof
of the counter offer. This proof can be written agreement or the third person (the
person who listen the counter offer between both parties).
Case Study 3 – Intention to Create Legal Relations
Explanation of Contract
In the intention to create legal contracts, the aim of the parties are to shift
contract to court action which are not legally appropriate. Every contract is not a
binding contract and not liable for court action. Only person have the moral duty
to perform that action. It depend on the mood of the party whether to fulfill the
agreement or not. Both parties just honor the agreement because of the social
relationship between them.
a) Pamela offer her brother Joe that if he will help in her assignment, then she will
pay him. This is the social contract between siblings. It is neither contract nor
consideration, just an offer and offeree is present in the agreement.
b) Aisha and Juliet made an agreement that whichever party won above 200£ will
be liable to share an amount, but Aisha broke an agreement. This case is also
neither contract nor consideration as the elements of contracts are not present in it.
c) An agreement is made between Michael and Makenzie. Michael paid the full
amount to the driver but refuse to take him back because of his match. This case is
Aspects of Contract
8
neither contract, not consideration, just an agreement is made. But both parties do
not agree to make the contract.
Validity of Contract
All the above contracts are not valid because of the lack of legal laws.
According to the English law (Jones v Padavatton 1969), legal binding will be in
the contract if both parties made a written contract and signed the agreement. That
the contract should have the clause that if a party does not fulfill its duty then
liable for the payment or else other party will have the right to sue him. So, none
of the above party has the rights to sue anyone because of lack of elements of the
contract.
Case Study 4 – Validity of Office Supplies
Explanation of Contract
An agreement is made between Mrs. Joel and Office Supplies about the
payroll system. But Mrs. Joel does not pay attention to the clause that office
supplies will not be responsible for any negligence or damage happen with
system. In this case, Office Supplies is not liable for the damages occur by them.
It is the mistake of Mrs. Joel. According to Law, before signing any contract, both
parties are liable for reading and understanding the terms and clauses of the
contract.
But as there is the contract between Mrs. Joel and Expansion LTD., SO Mrs. Joel
is liable for the loss occurs in the company and the company has the right to
refuse the contract.
Aspects of Contract
9
Advice to Mrs. Joel
According to English law, Mrs. Joel does not have right to take any step
against Office Supplies LTD. as it was her fault. She should have to see terms of
contract correctly. No one is liable to pay the loss bear by her. Office Supplies
already accept their mistake for negligence, but Mrs. Joel does not have the right
to sue them to the court because the company has proof which shows that they are
not liable for any loss (Smith v Eric S Bush 1990).
Case Study 5 – Tortuous liability v/s Contractual Liability
Difference between Tortuous and Contractual liability
The tortuous liability is something which is related to the care duty while
there is no contract between two persons. For example the person is not able to
maintain his property and suddenly an accident occurs, so the person is liable to
pay the damages occur because of his property. The contractual liability is
between two or more persons and parties. This type of contract occurs when both
parties promise each other for certain things. For example: if a person hires
someone for house work and agreement is made between them. So, if one party
neglects the contract then many legal remedies are available for the injured party.
Tort law covers many aspects of life while contract law is similarly very wide.
Law is regulated in every business activity. High court decides after hearing the
arguments between both parties. Tortuous liability and tort of negligence is the
important aspects to be considered in the common law module. While other torts
includes the following such as: negligent misstatement, nuisance, trespass,
defamation liability.
Explanation of Contract
This case study is the typical problem like seminar negligence case, Donoghue v
Aspects of Contract
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Stevenson (1932). Before deciding about the remedies took by Sean and Jane
against Italian restaurant, it is very important to make a restaurant liability.
According to the Consumer Protection Act 1987, for establishing the liability
against the restaurant, some point should be cleared:
The restaurant owed Jane a duty of care
Gino (an Italian restaurant) breach the duty
Nervous shock and gastroenteritis was caused by the breach (restaurant)
Above points clear that the restaurant owes Jane as a duty of care. Negligence
need to be proven, in order to determine that Gino has breached this duty.
According to the human rights, Gino is responsible for breaching the duty. The
restaurant should have to provide customers an insect free piece of cake.
Advice to Sean and Jane
Jane has a very strong for making the Italian restaurant liable for the cake,
injury and the damages. She can sue the restaurant and claim the monetary
damages because of an injury. She faces the monetary remedies so restaurant has
to compensate her. Jane can use “Consumer Protection Act 1987” for filing the
case of negligence against restaurant. Section 5 of this act allows the claimer to
claim against death or personal injury. This case is like Donoghue V Stevenson
(1932), so the principles used in this case study is taken from the English Law.
Case Study 6 – Professional Negligence Misstatement
Explanation of contract
Negligent misstatement in the law means relates to that fact which is
carelessly made and other party get the disadvantage. Recently, this area is much
Aspects of Contract
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developed in relation to the duty of care. This liability happens because of
careless decision made by any party. While vicarious liability is applied when
only one party is liable for the action happens in the joint and collective activity.
Brad and his employer Christian are not liable for the negligent statement because
Angelina did not have to rely on the advice of brad and Christian, as both of the
parties were not an expert in painting. She should have to take advice of the some
professional person for her act.
Advice to Angelina
If the Angelina takes the case in court, then court will consider this case
with Capro V Dickman (1990), for finding that whether it is fair to impose
liability on brad and Christian. As Brad is primarily liable for the loss but
unfortunately he did not have much money to give Angelina for satisfying her
claim. So Angelina should have to make Christian liable for the loss, as he is the
vicariously liable. He is liable for all the negligence done by his employee Brad
(Employers’ Act 1969).
Christian is also liable because he gave instruction to his employee about not to
give advice in any field. Brad has to follow the rules and regulation of his
employee, so he is not responsible for this act. According to the law, Christian and
brad are not liable for any negligence misstatement and Angelina have to bear the
economic loss.
Conclusion
Above all case studies are about negligent misstatement, duty of care,
offeror and offeree, personal negligent misstatement, English laws and contracts,
Tortuous liability v/s Contractual Liability, validity of office supplies, intention to
Aspects of Contract
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create legal relations, sufficient consideration and bilateral v/s unilateral contract.
The case studies are based on the English legal system and laws, which are made
for criminal, general, public, administrative, company, domestic, legal, property
etc. these all laws were made for the protection of rights to the individual party.
Aspects of Contract
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References
Aust, A. (2000). Modern treaty law and practice. Cambridge University Press.
Chloros, A. G. (1958). Comparative Aspects of the Intention to Create Legal
Relations in Contract. Tul. L. Rev., 33, 607.
collection=&handle=hein.journals/tulr33&div=49&id=&page=
Feinman, J. M. (1982). Critical approaches to contract law. UCLA L. Rev., 30,
829.
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Goodhart, A. L. (1964). Liability for Innocent but Negligent Misrepresentations.
Yale LJ, 74, 286.
collection=&handle=hein.journals/ylr74&div=26&id=&page=
Hart, H. L. A. (2012). The concept of law. Oxford University Press.
Hepple, B. A. (1970). Intention to create legal relations. CAMBRIDGE LJ, 28,
122-134.
66B6CBF5DDE6A118D754438C.journals?
fromPage=online&aid=2855108
Holdsworth, W. S. (1922). A history of English law (Vol. 1). Methuen.
Aspects of Contract
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Lando, O., & Beale, H. G. (Eds.). (1999). Principles of European contract law.
Kluwer Law International.
hl=en&lr=&id=pQQCQRIEGokC&oi=fnd&pg=PR11&dq=relation+to+co
ntract+law&ots=BCO8WHTHuq&sig=2lcQ05CP6Whvke1cQVT92r9VhU#v=onepage&q=relation%20to%20contract
%20law&f=false
Llewellyn, K. N. (1938). On Our Case-Law of Contract: Offer and Acceptance, I.
The Yale Law Journal, 48(1), 1-36.
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Marshall, D. (1975). Liability for Pure Economic Loss Negligently Caused—
French and English Law Compared. Int’l & Comp. LQ, 24, 748.
fromPage=online&aid=1500164
Pound, R. (1924). Classification of law. Harvard Law Review, 37(8), 933-969.
uid=3738832&uid=2&uid=4&sid=21102808876501
Winfield, P. H. (1926). History of Negligence in the Law of Torts, The. LQ Rev.,
42, 184.
collection=&handle=hein.journals/lqr42&div=20&id=&page=
Tort of Negligence
“Tort” = “wrong” (French)
Civil wrong
Rights are given by law to individuals
Purpose of tort: Compensation
Concept of negligence
The omission to do something which a reasonable person would do, or doing
something which a reasonable person would not do
Failure to exercise reasonable care and skill
4 elements: Duty of care /Breach of duty/ Causation/ Remoteness
Notes:
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(must follow in order)
Significance of Donoghue v Stevenson:
Established tort of negligence
Court discussed when a duty of care arises
Developed the ‘neighbour principle’
Types of Harm:
Physical injury
Psychiatric damage
Property damage
Economic loss
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Pure economic loss
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Tort of Negligence
Neighbour principle: You must
take reasonable care to avoid acts
or omissions which you can
reasonably foresee would be likely
to injure your neighbour
Neighbour: persons who are so
closely and directly affected by my
conduct
sh
case
Failure to meet a reasonable
standard of care (The standard of
care required is that of a reasonable
person)
Section 5B of the Civil Liability Act 2002
(NSW)
(1) A person is not negligent in failing to
take precautions against a risk of harm
unless:
(a) the risk was foreseeable (that is, it is a
risk of which the person knew or ought to
have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable
person in the person’s position would have
taken those precautions.
(2) In determining whether a reasonable
person would have taken precautions
against a risk of harm, the court is to
consider the following (amongst other
relevant things):
(a) the probability that the harm would
occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to
avoid the risk of harm,
(d) the social utility of the activity that
creates the risk of harm.
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Principle
The plaintiff must show that at the
term of the incident it was
reasonably foreseeable that the
defendant’s conduct (act or
omission) could cause harm to
someone in the plaintiff’s position
Breach of duty
The defendant did not meet the
standard or level of care under that
duty
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Definition
Duty of Care
The defendant owed plaintiff a
duty of care
Donoghue v Stevenson
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Bolton v Stone (5B 2a)
Paris v Stepney Borough Council (5B 2b)
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Tort of Negligence
Causation
The plaintiff suffered loss,
damage or injury that was
caused by the breach
The breach of duty was a
necessary condition of the
occurrence of the harm.
The loss, damage or injury was not
too remote
Defendant will not be liable for
damage that the court considers
to be too remote
Section 5D of the Civil Liability Act 2002
(NSW)
(1) A determination that negligence
caused particular harm comprises the
following elements:
(b) that it is appropriate for the scope of
the negligent person’s liability to extend
to the harm so caused (“scope of
liability”).
‘But for’ test: “Would the harm have
occurred but for (without) the
defendant’s conduct?”
Foreseeability test: Whether a reasonable
person could foresee the possibility of the
specific damage as a consequence of their
carelessness?
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Section 5D of the Civil Liability Act
2002 (NSW)
(1) A determination that negligence
caused particular harm comprises the
following elements:
(a) that the negligence was a necessary
condition of the occurrence of the harm
(“factual causation”)
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Test
Principle
Definition
Remoteness
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Negligent Misstatement
The giving of careless advice that leads to economic loss
Must prove ALL 4 elements of negligence
Notes:
Courts were reluctant to extend negligence to cover negligent misstatements until Hedley
Byrne & Co Ltd v Heller and Partners Ltd
Negligent Misstatement
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Cases
Barwick test (Mutual Life Assurance v Evatt)
“Special relationship” exists when the following four
steps are satisfied:
Defendant must realise that the plaintiff placed trust
and reliance in the defendant’s advice
The subject matter of the advice must be of a serious
or business nature
Defendant knew or ought to know that the plaintiff
intends to act upon the advice
It was reasonable for the plaintiff to rely on the advice
Hedley Byrne & Co Ltd v
Heller & Partners Ltd
Shaddock v Parramatta
City Council
(application of the neighbour principle &Reasonable
foreseeability)
Section 5B of the Civil Liability Act 2002 (NSW) (1) A person is not negligent in failing to
take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have
known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken
those precautions.
sh
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Breach of Duty
Duty of Care
Principle
Section 5O of the Civil Liability Act 2002 (NSW): What a reasonable professional in the
defendant’s position would have done in the circumstances
( Standard of care – Professional: Greater care when giving advice than the average
person)
Other two elements see Unit 7
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Notes:
Reasonable Reliance
Reasonably relies upon advice or information
Court will look at the circumstances justifying reasonable reliance, e.g.
Capacity of parties
Nature of subject matter
Remedies
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Occasion when the advice was given
Legal solution
Corrects a wrong
Damages:
most common
Monetary compensation
$ by the plaintiff to make up for pure economic loss
Defences
Legally acceptable excuse for one’s actions
3 Types:
Contributory Negligence
Damage caused in part by plaintiff
Shared responsibility
Th
Partial defence
Voluntary Assumption of Risk
Plaintiff had full knowledge and appreciation of the risk
sh
Plaintiff freely and willingly agreed to the risk
Complete defence
Disclaimer
A statement that no responsibility is taken for the advice
Remove or reduce liability
Hedley Byrne & Co Ltd v Heller & Partners Ltd
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Vicarious Liability
Vicarious Liability
Liability of one person for actions of another …
Employer responsible for employee’s carelessness †
Employee must be carrying out their duties within their scope of employment …
Shaddock v Parramatta City Council
Notes:
Significance of Shaddock
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A public body has duty of care to give correct information if:
advice is sought for a specific purpose (a particular request for information)
advisee may reasonably act upon advice for serious purposes
advisee may suffer loss if advice is wrong or inaccurate
sh
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even if the plaintiff did not pay for the advice
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F O U N DAT I O N S T U D I E S
Business Law
Tutorial Program and Workbook
2020
UNSW Foundation Studies
UNSW Global Pty Limited
UNSW Sydney NSW 2052 Australia
Copyright 2019
All rights reserved. Except under
the conditions described in the
Copyright Act 1968 of Australia
and subsequent amendments,
this publication may not be
reproduced, in part or whole,
without the permission of the
copyright owner.
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BUSINESS LAW
Course Overview
Student’s name:
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UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
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UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
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Course
Overview
Business Law
Course Summary
Business Law is a one-semester course that introduces students to the Australian constitutional
and legal framework. It assumes no previous knowledge. The course examines some of the major
topic areas that students can expect to encounter at an undergraduate level. Students will gain a
clear awareness of the Australian legal environment of commerce and be exposed to current legal
issues. Students will also become familiar with the use of a legal problem-solving framework to
assist them in their study of Business Law course at an undergraduate level.
Student Learning Outcomes
At the end of the course, successful students should be able to do the following:
Student Learning Outcomes
1. Communicate in a logical and clear manner in both oral
and written format.
2. Understand and deconstruct legal problems.
3. Solve legal problems using a structured methodology.
Course Assessment Item
• Tutorial Performance
• Written Assignment
• Final Examination
• Tutorial Performance
• Written Assignment
• Final Examination
• Tutorial Performance
• Written Assignment
• Final Examination
4. Work in groups and teams.
•
Tutorial Performance
5. Have a familiarity with teaching and learning styles at
Australian universities.
•
Tutorial Performance
6. Effectively manage time and tasks.
•
•
Tutorial Performance
Final Examination
7. Knowledge of substantive areas of law relevant to
undergraduate commerce and business.
•
•
•
Tutorial Performance
Written Assignment
Final Examination
8. Ability and confidence to make meaningful contributions
to tutorials.
•
Tutorial Performance
To achieve these outcomes students will need to fully participate in specified learning activities
and have successfully completed the assessment tasks.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
4
Readings
The required readings from the prescribed textbook and Supplementary Materials for each week
are shown in the Business Law Course Outline and Reading Guide on pp 12-13. This is also
found in the Supplementary Materials on page 2. These are compulsory readings.
Students should also use their legal dictionary, Supplementary Materials, textbook and lecture
notes to collect explanations of relevant terms and concepts. Students need to understand these
explanations and incorporate them into the relevant tutorial answer.
Lectures
Lectures will commence in Week 1 and conclude in Week 13. Each week will consist of one
lecture which will be 1 hour in duration.
Lectures cover most topic areas. Lectures are designed to introduce concepts and units of study,
to provide an overview of important areas to be covered and to give advice on how to approach
the readings and tutorial exercises. Students will be required to listen and to take appropriate
summary notes. Additional handouts may be distributed during some lectures to provide additional
guidance and readings.
Tutorials
Tutorials will commence in Week 1 and conclude in Week 13. Each week will consist of one
tutorial which will be 1.5 hours in duration.
Each tutorial will focus on topics from the previous week’s lecture. For example, in Week 2 the
tutorial will discuss the topic covered in the lecture for Week 1.
Tutorials provide an opportunity to reinforce concepts, ask questions and participate in discussion
of the various topics presented in the lectures. Prior preparation is essential and assumed as
tutorials are not occasions for mini-lectures. Students should ask their tutor if they are having
difficulty with any areas of topic related to the tutorial questions.
Tutorial participation and attendance is compulsory.
Structure of the Tutorial
Tutorials will vary depending on the topic focus and areas of emphasis identified by the tutor. This
may include:
Terms and Concepts
The relevant terms and concepts in each Unit must be understood in the context of the tutorial.
Students must provide written explanations of these terms and concepts prior to attending the
tutorial.
This will assist students in expanding their legal vocabulary and allow students to better
understand the materials.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
5
Questions
Students must prepare detailed answers to these questions at home before the tutorial and
bring their answers to the tutorial for discussion. When appropriate, answers must be in
paragraph form and include any relevant explanations of key terms and concepts.
Students are required to actively participate in discussion of their prepared answers to the
tutorial questions. This may involve individual responses, small group work and/or class
discussions.
Feedback will be provided by the tutor to guide the depth, accuracy and expression of answers.
In-Class Activities
In-Class activities may sometimes be included to extend the student’s understanding of key
concepts. Generally, students are not required to prepare for these activities before the
tutorial. They are designed to provide active discussion in small groups, with an opportunity
for feedback to the class. However, students should read the given materials prior to attending
the tutorial.
Writing Tasks
During some tutorials students will be asked to write short and/or long written response on a
topic nominated by the tutor. Appropriate time will be allocated for these tasks. Some writing
tasks may be done at home at the discretion of the tutor.
Preparation for Tutorials
In the tutorials, students are expected to:
•
Actively participate and ask questions, ensuring they communicate in English at all times.
•
Complete any required readings.
•
Complete formal written answers to tutorial questions. This will allow the student to find
out how much of the material they understand and provide them with the opportunity to
practise in responding to questions in the correct format. This will be a requirement at
university.
o
When completing these questions students must use the required readings and
lecture materials, as well as any given frameworks for solving problems.
Students’ preparation for their tutorials is essential to their success. If they do not come to
tutorials prepared, and do not contribute to the class they will risk failing the course.
Students should think carefully about their answers and write clear responses using appropriate
legal terms. Students must pay attention to their spelling, punctuation and expression. They will
be asked to read and discuss their answers and where appropriate will be guided by the tutor as
to how to improve their written work.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
6
To prepare for tutorials, students will be required to combine information from a variety of
sources. This may include lecture notes, prescribed reading from textbooks as well as
Supplementary Materials. Students will not simply be able to copy out information from these
sources, instead students will be required to understand and apply the legal principles they have
learnt to legal problems.
Students must NOT COPY from their peers. Students’ success in the course will be
enhanced if they progressively build up their knowledge and skills through ongoing reading, writing
and thinking in the course.
The tutorial exercises are a guide to what the students are expected to know to succeed in the
exam at the end of the course.
Guide to Grades
During some tutorials students will complete writing tasks that will provide them with an
opportunity to improve their academic writing skills. This will include the tutor marking completed
tasks. Grades will be allocated to give students an idea of how they are progressing in the course
based on the following criteria*.
I
Identify the relevant legal issue/s.
Explain the relevant legal principles.
P
Identify the legislation provisions associated with the relevant legal principles.
Identify the case law associated with the relevant legal principles.
Explain what the legal principles mean to the given facts.
A
Explain the effect of legal principles have on the rights and obligations of the parties.
Consider the merits of one party’s case and also consider the arguments of the other side.
C
Structure
Arrive at a conclusion with legal reasoning.
Present answer using the IPAC method accurately to make distinct and logical legal
arguments.
Organise materials into a coherent structure, including appropriate paragraphs, accurate
spelling, clear sentence construction and punctuation.
* Only applicable to problem-based Writing Tasks
Grade
A
Description
Demonstrates comprehensive knowledge and understanding. Legal information is
communicated in a logical, clear manner. Response exhibits a high level of analysis.
B
Demonstrates thorough knowledge and understanding. Legal information is
communicated in a logical manner. Response exhibits sound analysis.
C
Demonstrates some knowledge and understanding. Legal information is
communicated in a descriptive manner. Response exhibits some analysis.
D
Demonstrates basic knowledge and understanding. Response exhibits limited
communication and analysis.
F
Indicates a failure or a non-serious attempt.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
7
Consultations
Students will also be able to consult with tutors. Times are set aside each week for students to
attend consultations. Consultations are opportunities for students to receive more personal
assistance with specific questions and areas of difficulty they may be having in the course. Students
are encouraged to attend consultations for extra assistance as often as they feel the need.
Consultations are not designed to be mini-lectures and therefore students should only attend
consultations if they have specific questions and/or genuine concerns. Generally, a consultation
should not be used to seek answers to the current week’s tutorial questions. Such enquiries are
best covered in the tutorials.
Assessment Details
Standard and Standard Plus Program
Assessment Task
Students Learning
Outcomes Assessed
Due
Weighting
Tutorial Performance
1, 2, 3, 4, 5, 6, 7, 8
Ongoing – Full semester
10%
Written Assignment
1, 2, 3, 7
Friday of Week 8, 5pm
15%
Final Examination
1, 2, 3, 6, 7
Examination period
75%
Transition Program
Assessment Task
Students Learning
Outcomes Assessed
Due
Weighting
Tutorial Performance
1, 2, 3, 4, 5, 6, 7, 8
Ongoing – Full semester
10%
Written Assignment
1, 2, 3, 7
Friday of Week 8, 5pm
15%
Mid-Program Examination
1, 2, 3, 6, 7
Examination period
15%
Final Examination
1, 2, 3, 6, 7
Examination period
60%
Tutorial Performance
Students will be allocated a mark at the end of the semester by their tutor. This will be a
combination of the student’s individual performance, and performance in some of the In-Class
Activities.
Some of the individual criteria may include:
• Quality of written answers prepared for tutorials.
• Quality of graded writing tasks.
• Evidence of completion of the required and additional reading.
• Co-operation and willingness to participate in and at times lead discussion on particular
tutorial questions as nominated by the tutor.
• Punctuality and attendance.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
8
Some of the In-Class Activities in the Tutorial Program and Workbook will be used to help assess
the student’s Tutorial Performance. This will both be an opportunity for students to develop their
presentation and group work skills, as well as the accuracy of their responses with the assistance
of their peers. The student’s performance in the In-Class Activities will be marked against a
marking rubric across a series of factors. The rubric is shown below for student’s reference.
Marking Criteria
Quality of delivery
Ability to work as a team
/15
/5
/5
5
Students worked expertly
as a team. All group
members made significant
contributions and the
group discussion was
meaningful.
4
Students worked
proficiently as a team. All
group members made
good contributions and
the group discussion was
constructive.
3
Students worked
competently as a team. All
group members made
contributions and the
group discussion was
useful.
13-15
Students presented their
answer using the IPAC
method accurately to
make distinct and logical
arguments.
5
Excellent presentation
skills to maintain audience
engagement in terms and
concepts, pace, volume
and eye contact
16-20
Students applied the legal
principles relevant to the
question with minimal
errors.
10-12
Students presented their
answer using the IPAC
method using the method
with minimal errors to
make logical arguments.
4
Good presentation skills
to maintain audience
engagement in terms and
concepts, pace, volume
and eye contact
11-15
Students identified and
explained the legal
principles relevant to the
question.
7-9
Students used the IPAC
method with minimal
errors.
3
Adequate presentation
skills to maintain audience
engagement in terms and
concepts, pace, volume
and eye contact
6-10
Students identified and
explained legal principles
relevant to the unit
generally.
4-6
Students showed some
awareness of the IPAC
method.
2
Inadequate presentation
skills in terms and
concepts, pace, volume
and eye contact
2
Students were inefficient
in their team. Not all
group members made
contributions.
1-5
Students identified the
legal principles relevant to
the Unit generally.
1-3
Students did not use the
IPAC method.
1
Poor attempt. Mainly
reading directly from
notes. No attempt at
audience engagement.
1
Students wasted time and
discussions were
irrelevant to the question
topics.
Elementary
Basic
Outstanding
21-25
Students applied the legal
principles relevant to the
question accurately.
Superior
Use of IPAC method
/25
Sound
Accuracy of the response
Non attempt
Non attempt
Non attempt
Marks
Non attempt
Overall mark:
Grade:
/50
Mark Range
Grade
41-50
31-40
21-30
11-20
0-10
A
B
C
D
F
The mark will then be converted into a grade. The grade will be recorded by the tutor. At the
end of the semester, the tutor will use these results to award an overall Tutorial Performance
mark.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
9
Written Assignment
During the semester, students will be required to complete one Written Assignment. The Written
Assignment will relate to the work students have been undertaking in the tutorials. The Written
Assignment will comprise a legal problem which students will be required to give advice on.
Throughout this course students will be taught a method to solve these types of question (See
IPAC). Students will be expected to use this method in this assessment.
All students will receive the same question for consistency and fairness. These tasks will be handed
out in lectures (and also available on Moodle).
To ensure the authenticity of student’s work, students will be required to submit their work online
through Turnitin. Details on the Turnitin system are provided below. Written Assignments must
be submitted to Turnitin via Moodle for Business Law by 5.00pm Sydney time on the day they are
due.
Late Submission
Marks may be deducted at the rate of 10% of the total mark available for each day late up to
10 working days. Normal Illness / Misadventure Affecting Assessment procedures will apply.
Extensions of time for submission of assignments may be granted only in the most unusual
circumstances and must be applied for prior to the due date. (Refer to Student Handbook)
Turnitin
Turnitin is a program which checks students’ work for improper referencing or potential
plagiarism by comparing the student’s submitted work against any other student’s submitted
work and other academic database. Turnitin shows how much of the student’s submission
matches content from other sources and allows the teacher to determine how much content
is unoriginal. Students caught with plagiarised work (the student/s who copied and the student/s
whose work was copied) will be penalised accordingly.
Mid-Program Examination (Transition Program only)
This examination covers units 1-5 and will comprise of multiple choice questions and short
written responses. Students will be provided with a sample examination for revision before the
examination.
Final Examination (Transition, Standard and Standard Plus Program)
This examination covers all units and will comprise of multiple choice questions, short and long
written responses. Students will be provided with sample examinations for revision before the
examination.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
10
Assessment Timeline
Standard and Standard Plus Program
Week
1
2
3
4
5
6
7
Written
Assignment
Question
released in
lecture
Assessment
8
9
10
11
12
13
Final Exam period
Written Assignment
Final Exam
(75%)
Due: Friday, 5pm
(15%)
Tutorial Performance (on-going – all semester) (10%)
Transition Program
Week
1
Assessment
2
3
4
5
6
Mid-Program
Written
Assignment
Question
released in
lecture
Mid-Program
exam
(15%)
7
8
9
10
Written
Assignment
Due: Friday, 5pm
(15%)
Tutorial Performance (on-going – all semester) (10%)
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
11
12
13
Final Exam
period
Final Exam
(60%)
11
Course Resources
Prescribed Materials
Charles YC Chew, Business Law Guidebook (OUP: Melbourne, 2nd edition, 2014).
UNSW Foundation Studies, Business Law: Supplementary Materials.
UNSW Foundation Studies, Business Law: Tutorial Program and Workbook.
Recommended Materials
P Alderson, Legal Dictionary for Australians (Cengage Learning Australia, 3rd edition, 2014).
Moodle Learning Management System
Course administration and ongoing academic support for Business Law is provided through UNSW
eLearning system, Moodle. Students can access Moodle on the Student Intranet
( and/or the UNSW TELT Gateway.
All course documents, as well as current teaching materials and sample examinations, can be
located within this online course area. Students are encouraged to regularly access the Business
Law Moodle homepage to keep up to date with:
•
•
•
Announcements
Assessment advice
Subject content
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
12
Course Outline and Reading Guide
The following table sets out the reading requirements for each class in Business Law. Readings are
to be found in two sources, namely the prescribed textbook 1 and in the Supplementary
Materials. Additional materials may be provided for some Units in the lectures and tutorials.
Students are expected to read any such materials. Additional materials are examinable unless
otherwise indicated.
To prepare for each class, students must read the specified pages from the textbook,
Supplementary Materials and any additional handout that may be given during the lectures and
tutorials.
Students will see a list of questions (“Test your Knowledge”) at the end of each chapter in the
textbook. Students should use them appropriately to guide their reading, thinking and notes.
Unit
Unit 1
Unit 2
Unit 3
Unit 4
1
Topic and Topic Information
Introduction
• Introduction to the course
• Introduction to solving legal problem
questions
Prescribed Readings
Chew: p xi-xii
The Australian Legal System
• The nature of law
• The purpose of law
• The Australian legal system
o Common law legal system
o Australian court hierarchy
o Sources of law
o Doctrine of precedent
• Recognising cases and legislation
Chew: pp 3-8
The Australian Legal System (continued)
• Meanings of “common law” and “civil law”
• Federation of Australia
• The Australian Constitution
o Division of powers
o Separation of powers
• Introduction of the IPAC method
Chew: pp 10-15
Choice of Business Structure
• Unincorporated business organisations
o Sole trader
o Partnerships
• Incorporated business structures
o Companies
o Concept of separate legal entity
o Concept of corporate veil
o Lifting of the corporate veil
Chew: pp 145-148, 160164
Contract Law
• Introduction to contract law
• What is a contract
• Formation of a contract
o Offer
o Acceptance
Chew: pp 25-36
Lecture
Tutorial
Week 1
Week 1
Week 2
Week 2
Week 3
Week 3
Week 4
Week 4
Week 5
SM: No reading
SM: pp 5-7
SM: pp 9-13
SM: pp 15-23
SM: pp 25-33
Charles YC Chew, Business Law Guidebook (OUP: Melbourne, 2nd edition, 2014).
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
13
Unit
Unit 5
Unit 6
Unit 7
Unit 8
Unit 9
Unit 10
Unit 11
Unit 12
Unit 13
Topic and Topic Information
Contract Law (continued)
• Formation of a contract (continued)
o Intention to create legal relations
o Consideration
• Using the IPAC method to answer
contract problem questions
Prescribed Readings
Chew: pp 39-47
Contract Law (continued)
• Terms
• Breach
• Remedies
Chew: pp 59-60, 62, 6568, 73, 77
Tort of Negligence
• Introduction to tort law
• Tort of negligence
o Civil Liability Act 2002 (NSW)
o Elements of negligence
Duty of care
Breach of duty of care
Causation
Remoteness
Chew: pp 127-132
Negligent Misstatement
• Types of harm
• Negligent words and advice
• Duty of care
o “Special relationship”
• Revision: Breach of Duty of Care,
Causation and Remoteness
• Vicarious liability
• Defences
Chew: pp 132-135
Negligence in Action
• Using the IPAC method to answer
negligence problem questions
Chew: Revise pp 127-132
Consumer Protection Law
• Competition and Consumer Act 2010 (Cth)
o Australian Consumer Law (ACL)
• Misleading or deceptive conduct
• Consumer guarantees
• Using the IPAC method to answer
consumer protection problem questions
Intellectual Property Law
• Concept of property
• Types of property
o Introduction to intellectual
property
• Using the IPAC method to answer
intellectual property problem questions
Revision
Revision
UNSW Foundation Studies
Business Law
Lecture
Week 5
Tutorial
Week 6
Week 6
Week 7
Week 7
Week 8
Week 8
Week 9
Week 9
Week 10
Week 10
Week 11
Week 11
Week 12
Week 12
Week 13
Week 13
SM: pp 35-40
SM: p 41
SM: pp 43-53
SM: pp 55-63
SM: Revise pp 43-53; pp
55-63
Chew: pp 19-20, 81-91,
135-138
SM: p 65
Chew: No reading
SM: pp 67-77
Tutorial Program and Workbook
(Revised 22-Nov-18)
14
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UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
15
BUSINESS LAW
Tutorial Program and Workbook
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
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Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
17
Preface
The tutorial exercises and in-class activities in the Tutorial Program and Workbook have been
specifically developed in response to both student and teacher requests for more engaging legal
studies classes. Law, by its nature, is a discipline that uses language intensively. The teachers at
Foundation Studies recognise the diversity of the student cohort. It is also recognised that students
find it particularly difficult to adapt to law’s specialised use of language and ways of thinking. The
legal vocabulary is a considerable obstacle to student learning. This, coupled with the subject’s
technical nature and formality, creates considerable difficulties for students who have not been
exposed to law subjects and also for students who come to law subjects from other disciplines.
The Tutorial Program and Workbook has been written and designed to guide Foundation Studies
students in their legal studies. This workbook assists the student in demystifying the legal language
and way of thinking which is central to legal studies. It provides a structured approach to materials
in which students’ learning outcomes can be improved.
Acknowledgements
Special thanks to the Commerce Department for their contributions during the consultation in
the course design process.
The precursor to this course (Australian Legal Studies) was written by Angela Langton in 1991. The
course was restructured in 1997 by Angela Langton and Tess McDonald.
In 2007, the Transition Program course was devised from existing materials and with further
additions made by Angela Langton.
In 2008, the course was reconfigured to suit a two-semester structure by Angela Langton, Tess
McDonald and Madeline Shaw.
In 2014-15, the course underwent a major restructure where elements of the original course
outline were retained. In this restructure the course was substantially rewritten and new materials
introduced. The current Tutorial Program and Workbook was written in 2014-15 by Hui Thong and
Matthew Robson. All materials were formatted by Hui Thong. The lecture slides were prepared
in 2014-15 by Hui Thong. In November 2015, June 2016, October/November 2016 and
May/June/November 2017 and 2018 further amendments and additions to the course materials
were made by Hui Thong. In May 2017, a new Teachers Guide was written by Hui Thong to
accompany the Information and Suggested Answers to the Tutorial Program.
Every effort has been made to acknowledge the ownership of copyright materials. Information
that will enable the rectification of any error or omission in future editions is welcome.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
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UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
19
Introductory
Tutorial
Introduction
Week 1
Outcomes
At the end of this tutorial, student should be able to:
•
Understand course outcomes and aims.
•
Explain what is law.
•
Explain the function of law in society.
•
Recognise an approach to solving legal
problems.
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
20
Tutorial
The tutorial for this first week of the course is an introductory tutorial.
Course Overview
Your tutor will guide you through the course outline and assessment requirements.
Record any important information below.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
21
Introduction to Law
Question 1
Read the following scenarios. Do you think any laws have been broken? Justify your answer.
a) Mr Lee is running late for class and he forgets to pay when he travels on the bus. Has Mr Lee
broken any laws?
b) Mr Lee sees a guitar for sale in a store that he likes very much and he takes it home without
paying. Has Mr Lee broken any laws?
c) Mr Lee goes to a casino in Sydney and plays poker for 2 hours. Has Mr Lee broken any laws?
d) Based on your answers to all of the above scenarios, what is law and why is law necessary in
society?
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
22
Introduction to Legal Problem-Solving
Students are required to use a particular method when solving legal problems in this course. The
tutor will guide students through this method with the below scenario.
The basic steps involve identifying the issue/s, identifying the relevant rules, applying the rules to
the problem and coming to a conclusion.
Question 2
Hyun is 17, and is an international student from South Korea. He has been studying in Australia
on a student visa. He has recently started going out with a girl and his attendance has been falling
and his attendance is currently 70%. However his grades are still at an A+ level.
One of the visa conditions states that all international students under 18 must meet an attendance
requirement of at least 80% or they may be deported.
Can Hyun be deported?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
What is the rule?
Apply the rule to the facts:
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
23
Question 3
The Law Faculty had an examination on Tuesday. Sharon was enrolled in the course. However
she became very sick the day before the examination and was in hospital on the day of the
examination. One of the university’s assessment rules states that when a student is absent and
misses an examination, they must produce a medical certificate within 3 days of the examination
to remain eligible to undertake the examination.
Sharon produces her medical certificate 5 days after the exam. Can Sharon sit for the examination?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
What is the rule?
Apply the rule to the facts:
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
24
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UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
25
Unit
The Australian Legal System
1
Week 2
Outcomes
At the end of this tutorial, student should be able to:
•
Explain the operation of the Australian legal
system.
•
Distinguish between the two sources of law.
•
Understand the basic layout of the Australian
court hierarchy.
•
Explain and apply the doctrine of precedent.
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
26
Tutorial
Terms and Concepts
The following terms and concepts must be understood in the context of the tutorial.
Provide written explanations of these terms and concepts in the space provided.
Terms/Concepts
Explanation
Court hierarchy
Sources of law
Common law
Binding precedent
Persuasive precedent
Ratio decidendi
Obiter dicta
Statute law
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
27
Sources of Law
Question 1
Categorise the following by placing your answer in the appropriate boxes and answer the relevant
questions.
The 2 Sources of Law
Law
Statute Law
Who is the legislature?
Case Law
Who is the plaintiff?
Who is the defendant?
Harvey v Facey [1893] AC 552
Competition and Consumer Act 2010 (Cth)
Carlill v Carbolic Smoke Ball Co. [1893]
1 QB 256
Mutual Life and Citizens Assurance
Company Ltd v Evatt (1968) 122 CLR 55
Civil Liability Act 2002 (NSW)
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
28
Doctrine of Precedent
Question 2
Outline the ‘doctrine of precedent’. How does it operate in Australia?
Court Hierarchy and the Operation of the Doctrine of Precedent
Question 3
Complete the following table.
Court #1
Court #2
a)
Supreme Court
of NSW
Supreme Court
of Victoria
b)
High Court of
Australia
Supreme Court
of WA
c)
Supreme Court
of South
Australia
District Court
of South
Australia
d)
Supreme Court
of Queensland
District Court
of NSW
e)
Supreme Court
of NSW
High Court of
Australia
f)
UK Supreme
Court
Supreme Court
of Victoria
UNSW Foundation Studies
Business Law
Are the courts in
the same judiciary
hierarchy?
Which court is
higher up in the
Australian judiciary
hierarchy?
Impact of Court
#1’s decision has
on later decisions
by Court #2.
Binding? Persuasive?
Tutorial Program and Workbook
(Revised 22-Nov-18)
29
Court Hierarchy and the Operation of the Doctrine of Precedent
Question 4
A decision has been handed down by the Supreme Court of NSW.
a) Explain the impact the decision by the Supreme Court of NSW has on later decisions by the
Supreme Court of Queensland.
b) Explain the impact the decision by the Supreme Court of NSW has on later decisions by the
District Court of NSW.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
30
In-Class Activities
Students must read the following questions before coming to class.
Court Hierarchy and the Operation of the Doctrine of Precedent
Question 5
A decision has been handed down by the Supreme Court of NSW.
a) Explain the impact the decision by the Supreme Court of NSW has on later decisions by the
High Court of Australia.
b) Explain the impact the decision by the Supreme Court of NSW has on later decisions by the
Supreme Court of NSW.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
31
The Australian Legal System
Unit
2
(continued)
Week 3
Outcomes
At the end of this tutorial, student should be able to:
•
Explain the role of the Australian Constitution
within the Australian legal system.
•
Explain the concept of division of power.
•
Explain the doctrine of separation of power.
•
Understand the different meanings of common
law and civil law.
•
Understand the IPAC method.
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
32
Tutorial
Terms and Concepts
The following terms and concepts must be understood in the context of the tutorial.
Provide written explanations of these terms and concepts in the space provided.
Terms/Concepts Explanation
Federation of
Australia
Division of power
Exclusive powers
Concurrent
powers
Residual powers
Separation of
powers
Executive
Legislature
Judiciary
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
33
Division of Power
Question 1
Complete the following table.
Identify the
3 categories of
legislative (lawmaking) powers?
Identify the
parliament/s which
can exercised these
powers.
Division of Power
Examples:
Section 109 of the
Australian
Constitution:
Use the information from the table above to explain the concept of division of power.
Explain what is meant by division of power.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
34
Separation of Powers
Question 2
Complete the following table.
Separation of Powers
What are the 3 arms
of government?
Who are they?
What is their
function?
Use the information from the table above to explain the doctrine of separation of powers.
Explain the doctrine of separation of powers. How does the doctrine of separation of powers
operate in Australia?
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
35
In-Class Activities
Students must read the following before coming to class.
Sources and Classification of Law
Question 3
Fill in the boxes below with ‘Common law’, ’Civil law’ or ‘Statute law’. You may use these options more than once.
System of Law
Sources of Law
Equity
Branches of Law
Criminal law
UNSW Foundation Studies
Business Law
Civil law
Tutorial Program and Workbook
(Revised 22-Nov-18)
36
IPAC
Question 4
Complete the table below.
IPAC
How each step works
Issue/s
Principle/s
Application
Conclusion
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
37
Unit
Choice of Business Structure
3
Week 4
Outcomes
At the end of this tutorial, student should be able to:
•
Define sole trader and identify its key features.
•
Define partnership and identify its key features.
•
Define company and identify its key features.
•
Understand the doctrine of separate legal
entity.
•
Understand the concept of the corporate veil
and how it can be lifted.
•
Use the IPAC method to solve a legal problem
(with assistance).
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
38
Tutorial
Terms and Concepts
The following terms and concepts must be understood in the context of the tutorial.
Provide written explanations of these terms and concepts in the space provided.
Terms/Concepts Explanation
Incorporation
Separate legal
entity
Corporate veil
Unlimited liability
Limited liability
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
39
Advantages and Disadvantages of Different Types of Business Structures
Question 1
Complete the table below.
Business
Structure
Advantages
Disadvantages
Sole trader
Partnership
Company
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
40
Separate Legal Entity and the Corporation Veil
Question 2
Explain the concept of the ‘corporate veil’. Explain the circumstances under which the corporate
veil could be lifted.
In your answer, discuss Salomon v Salomon & Co. Ltd [1897] AC 22 and Gilford Motors v Horne
[1933] Ch 93.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
41
Separate Legal Entity and the Corporation Veil
Question 3
Mr Lee previously worked for Kenny’s Fried Chicken. When Mr Lee left the company he signed
an agreement not to use or reveal the secret recipe ‘Kenny’s’ used for its fried chicken.
Mr Lee soon started his own company, Lee’s Famous Chicken Pty Ltd, and used the recipe from
Kenny’s Fried Chicken.
Kenny’s Fried Chicken has found out about this and has taken legal action against Mr Lee.
Advise Mr Lee on his legal rights.
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s:
Hint: What
advice does the
scenario
require?
Hint: What is
the corporate
veil? What is
the relevant
legal authority
(case)?
When can the
corporate veil
be lifted? What
is the relevant
legal authority
(case)?
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
42
Application:
Hint: Apply the
concept of the
corporate veil
and lifting the
veil to the
material facts.
Explain why the
corporate veil
should or
should not be
lifted in this
case.
Conclusion:
UNSW Foundation Studies
Business Law
Hint: Based on
your
application,
what are Mr
Lee’s rights?
Tutorial Program and Workbook
(Revised 22-Nov-18)
43
In-Class Activities
Students must read the following question before coming to class.
Choosing the Appropriate Business Structure
Question 4
(a) Mr Lee has a lawn-mowing business that he owns and operates personally. Explain what form
of business this appears to be, and the advantages and disadvantages of this type of business
structure.
(b) Mr Lee, who owns the above mowing business, decides to bring his two brothers into the
business as a co-owners. Explain what form/s of business this would now be, and the
advantages and disadvantages of this type of business structure/s. In your answer explain any
potential changes to Mr Lee’s personal liability.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
44
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
45
Unit
Contract Law
4
Week 5
Outcomes
At the end of this tutorial, student should be able to:
•
Define a contract.
•
Distinguish between a simple and a formal
contract.
•
Distinguish between a unilateral and a bilateral
contract.
•
Explain and apply the rules as to offer.
•
Explain and apply the rules as to acceptance.
•
Use the IPAC method to solve a legal problem
(with and without assistance).
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
46
Tutorial
Terms and Concepts
The following terms and concepts must be understood in the context of the tutorial.
Provide written explanations of these terms and concepts in the space provided.
Terms/Concepts Explanation
Contract
Offer
Rejection of offer
Revocation of offer
Invitation to treat
Acceptance
Agreement
Counter-offer
Unilateral contract
Bilateral contract
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
47
Rules as to Offer and Acceptance
Question 1
a) Match the hypothetical facts to the relevant term and legal principle below.
b) Match the legal principle to the relevant case below.
c) Apply the principle to the given facts.
Cases
Partridge v Crittenden
Grainger and Sons v Gough
R v Clarke
Carlill v Carbolic Smoke Ball Co.
Harvey v Facey
Hyde v Wrench
Pharmaceutical Society of Great Britain v Boots Cash Chemist (Southern) Ltd
Hypothetical facts
A
X advertised in the Sydney Morning Paper, “Piano, excellent condition, $5,000, interested
please call 0400 123 456”.
B
X offered to sell his guitar to Y for $200. Y said it’s a deal.
C
X offered to sell Y two tickets to a live rock concert for $300 but was told by Y that
she did not want them.
D
X offered to sell her necklace to Y for $350. Y replied that she would pay $300.
E
X sent an email to Y enquiring, “Will you be willing to sell me your car? Let me know
your lowest price”. Y replied, “Lowest price for my car is $2,000” to which X replied,
“I agree to buy your car for the sum of $2,000 asked by you”.
F
X returns Y’s lost cat, and later sees that there was a $50 reward offered for the return
of the cat.
G
X displayed a dress in his shop’s display window with the price tag clearly attached and
a sign that says “One week offer!”.
H
Company X published an advertisement in the Sydney Morning Paper claiming that
anyone who used its ‘curing cubes’ according to instructions would not develop cancer.
If they did the company would pay them $200. As a sign of good faith, the company
deposited $200,000 in a special bank account.
I
X circulated a catalogue which contained a price list for its beer. Y ordered ten bottles
of beer from the catalogue. X refused to deliver these at the stated price.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
48
(a)
Facts
Term
Relevant principle
Invitation
to treat
Good on display is an
invitation to treat and not
an offer.
Invitation
to treat
Advertisement is an
invitation to treat and not
an offer.
Invitation
to treat
Posting catalogues of items
for sale to people did not
constitute an offer but
invitation to treat.
Offer
Advertisements which
come under the category
of unilateral contracts are
considered as offers rather
than invitations to treat.
Rejection
Rejection terminates the
offer.
Supply of
information
Supplying information
when requested is not an
offer.
Counter
offer
Counter offer is a new
offer, it destroys the
previous offer and the offer
cannot be revived.
Acceptance
Acceptance must be
absolute, unqualified and
unconditional.
Acceptance
Acceptance must be made
in reliance on the offer.
UNSW Foundation Studies
Business Law
(b)
Relevant
case
(c)
Application
No relevant
case in this
course
No relevant
case in this
course
Tutorial Program and Workbook
(Revised 22-Nov-18)
49
Question 2
X offers to sell his scooter to Y for $2,000. X says Y has a week to think about it and let him
know her decision. Two days later X rings Y to say he has changed his mind and decided to keep
the scooter. Y had been planning to accept the offer.
Is there an agreement between X and Y for the sale of the scooter?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s:
Hint: What
advice does the
scenario aim to
discover?
Hint: What are
the relevant
contract rules?
Are there any
relevant legal
authority
(case)?
Application:
Conclusion:
UNSW Foundation Studies
Business Law
Hint: Apply
the rule to the
facts.
Hint: Based on
your application,
is there an
agreement?
Tutorial Program and Workbook
(Revised 22-Nov-18)
50
Question 3
X makes an offer to sell his bicycle to Y for $100. Y tells X that he will pay $90. X does not
respond. Y tells X that he now accepts the price of $100.
Is there an agreement between X and Y for the sale of the bicycle?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s:
Application:
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
51
In-Class Activities
Students must read the following question before coming to class.
Rules as to Offer and Acceptance
Question 4
Underline or highlight relevant facts
Mr Lee has advertised a bicycle for sale. Mrs Smith has seen the
advertisement and contacted Mr Lee. They arrange a meeting to
see if they can reach an agreement on the sale.
Mrs Smith:
“Hello. I see you have advertised a bicycle for sale.”
Mr Lee:
“Yes, it is over there. Have a look if you are
interested.”
Mrs Smith:
“Okay, thanks. How much are you expecting to
get?”
Mr Lee:
“I’m looking for $200, but I will consider reasonable
offers around that price.”
Mrs Smith:
$200 seems a bit high to me, would you accept
$180?”
Mr Lee:
“How about $190?”
Mrs Smith:
“Okay, that’s good. It’s a deal.”
Has an agreement been reached between Mr Lee and Mrs Smith
in the above scenario?
Plan your answer here in class:
(I) Issue
(P) Relevant legal principle/s
and precedent/s
(C) Conclusion
Read the question twice.
During the second time identify the material/relevant facts as you read.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
(A) Application
52
Using your plan on the previous page and IPAC, write a formal response to the problem question.
Issue/s:
Principle 1:
Application 1:
Principle 2:
Application 2:
UNSW Foundation Studies
Business Law
Hint: What
advice does
the scenario
require?
Hint: What
does the law
say about an
advertisement?
What is the
relevant legal
authority
(case)?
Hint: how
does this
principle (rule)
apply to the
facts?
Hint: What
does the law
say about a
request for
information?
What is the
relevant legal
authority
(case)?
Hint: How
does this
principle (rule)
apply to the
facts?
Tutorial Program and Workbook
(Revised 22-Nov-18)
53
Principle 3:
Application 3:
Principle 4:
Application 4:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
54
Principle 5:
Application 5:
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
55
Contract Law
Unit
5
(continued)
Week 6
Outcomes
At the end of this tutorial, student should be able to:
•
Explain and apply the rules as to intention to
create legal relations.
•
Explain and apply the rules as to consideration.
•
Use the IPAC method to solve a legal problem
(with and without assistance).
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
56
Tutorial
Consideration
Question 1
Match each of the following terms and concepts with the correct short explanation.
Terms and concepts
Short explanation
Consideration
A promise for a promise
Executed consideration
Consideration of some legal value
Executory consideration
Consideration of equal value
Past consideration
The price paid for a promise
Sufficient consideration
A promise for an act that has been done
Adequate consideration
An act for a promise
Intention to Create Legal Relations
Question 2
For a contract to exist the parties to an agreement must intend to create legal relations. Discuss
the different approaches courts use to determine whether parties have intention to create legal
relations.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
57
Rules as to Intention to Create Legal Relations and Consideration
Question 3
Match the case to the relevant legal principle.
Cases
Principles (Legal rules)
Roscorla v Thomas (1842) 3 QB
234
There is a presumption in law that
parties to a domestic arrangement
do not intend to create legal
relations.
Stilk v Myrick (1809) 170 ER 1168
Domestic/Social presumption may
be rebutted if the consequences
for the parties were very serious.
Balfour v Balfour [1919] 2 KB 571
Parties doing what they were
already contractually bound to do
is not sufficient consideration.
Merritt v Merritt [1970] 2 All ER
760
Past consideration is not valid
consideration.
Wakeling v Ripley (1951) 51 SR
(NSW) 183
Where spouses have separated it
is generally considered that they
do intend to be bound by their
agreements.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
58
Question 4
X and Y are sisters. X promises Y she will pay Y $40,000 in return for Y’s promise to work on
X’s farm for one year. Y gives up completing her university degree in order to carry out her
promise.
Do the parties have an intention to create legal relations?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
59
Question 5
X gives Y a lift home in his car. On arrival Y promises to give X $10 for the petrol. However, the
payment was not made.
Was Y’s promise to pay $10 enforceable?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
Hint: What
advice does the
scenario aim to
discover?
Hint: What is
the relevant
contract rule?
What is the
relevant legal
authority
(case)?
Hint: Apply
the rule to the
facts
Conclusion:
UNSW Foundation Studies
Business Law
Hint: Based on
your
application, is
the response an
offer?
Tutorial Program and Workbook
(Revised 22-Nov-18)
60
Question 6
Mrs Smith’s jewellery shop has been broken into many times over the past few months. Finally,
after a robbery last week, Mrs Smith rang the local police station and explained what had happened.
The police station sent Mr Lee, a police officer, to Mrs Smith’s jewellery shop to make the
necessary investigations. Mrs Smith said to Mr Lee “If you can find the thief and have the thief
arrested I will reward you with $2,000.”
Mr Lee worked very hard on the case. After 2 weeks of work, he found the thief and had him
arrested. Mr Lee asked Mrs Smith for the $2,000 reward. Mrs Smith refused to give Mr Lee the
money.
Advise Mr Lee as to his contractual rights.
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
61
In-Class Activities
Students must read the following question before coming to class.
Contract Rules
Question 7
Mr Lee wants to sell his guitar, so he places an advertisement in the local newspaper for $1,500.
Mr Lee’s son, Prince, responds to the advertisement and asks to buy the guitar for $1,300. Mr Lee
refuses, but informs his son he will accept $1,400. Prince will only pay $1,400 if Mr Lee includes a
guitar stand. Mr Lee agrees to these terms.
Mr Lee’s daughter, Princess, has just offered Mr Lee $1,450 for the guitar. Is he able to accept this
offer and sell the guitar to Princess?
Advise Mr Lee as to his contractual rights.
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
62
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
63
Contract Law
Unit
6
(continued)
Week 7
Outcomes
At the end of this tutorial, student should be able to:
•
Distinguish between conditions and warranties.
•
Define the concept of breach of contract.
•
Define and identify the main types of remedies.
•
Use the IPAC method to solve a legal problem.
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
64
Tutorial
Terms and Concepts
The following terms and concepts must be understood in the context of the tutorial.
Provide written explanations of these terms and concepts in the space provided.
Terms/Concepts Explanation
Terms
Express terms
Implied terms
Conditions
Warranties
Breach of contract
Damages
Rescission
Injunction
Specific
performance
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
65
Contract Law
Question 1
Complete the flowchart below.
+
Agreement
+
+
=
Simple contract
Terms of a contract
Perform
Breach
Contract comes to an end
Remedies
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
66
Breach of Contract
Question 2
X has a contract with Y where X will cater for Y’s wedding. It is agreed that X will deliver a three
course meal for 50 people on Y’s wedding day. The wedding day arrived and no food was delivered.
Food arrived on the next day.
Advise Y as to his contractual rights. In your answer, discuss what remedies may be available to
Y, if any.
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
67
Remedies
Question 3
X enters into a contract to buy a very rare and antique piece of pottery from Y. Y has a change
of heart, and wants to keep the pottery. X is devastated.
Advise X of an appropriate remedy for breach of contract in these circumstances.
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
68
In-Class Activities
Students must read the following question before coming to class.
Breach of Contract and Remedies
Question 4
Mr Lee runs a café that is very popular and has recently been attracting a lot of customers. Mr Lee
only has one coffee machine and his day-to-day business depends on the operation of the coffee
machine. The coffee machine breaks and Mr Lee sends it for repairs to Karl’s Coffee Corrections
(KCC). Mr Lee told KCC he only has one coffee machine.
The contract states that the coffee machine will be repaired and delivered within 2 days. The due
date arrives and the machine is not delivered. KCC apologises and delivers a machine 2 days late.
However, a different machine has been delivered and is unusable to Mr Lee. Mr Lee calls KCC
and its manager advises Mr Lee that his machine has been repaired but delivered to Queensland
by mistake. KCC also tells Mr Lee that he has to pay an additional $100 for the delivery fee which
was not stated in the contract.
Advise Mr Lee as to his contractual rights. In your answer, discuss what remedies may be available
to Mr Lee, if any.
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
69
Conclusion:
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
70
BLANK PAGE
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
71
Unit
Tort of Negligence
7
Week 8
Outcomes
At the end of this tutorial, student should be able to:
•
Define negligence.
•
Understand the relevant provisions of the Civil
Liability Act 2002 (NSW).
•
Identify and explain the elements of negligence.
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
UNSW Foundation Studies
Business Law
Tutorial Program and Workbook
(Revised 22-Nov-18)
72
Tutorial
Terms and Concepts
The following terms and concepts must be understood in the context of the tutorial.
Provide written explanations of these terms and concepts in the space provided.
Terms/Concepts Explanation
Tort
Negligence
Duty of Care (DOC)
Question 1
What is
duty of
care?
Requirements that must be satisfied
for a DOC to arise
UNSW Foundation Studies
Business Law
Common law
Is/Are there any relevant case/s?
Identify and outline the
significance of the case/s.
Tutorial Program and Workbook
(Revised 22-Nov-18)
73
Breach of DOC
Question 2
What is
breach of
DOC?
Requirements that must be satisfied to establish a breach of DOC
Legislation
and statutory
provision/s
Civil Liability Act
2002 (NSW)
Legal principle/s
Section 5B(1)
(a)
(b)
(c)
Legislation
and statutory
provision
Civil Liability Act
2002 (NSW)
Section 5B(2)
Legal principle/s
Common law
(Case law)
In determining whether a reasonable person would have
taken precautions against a risk of harm, the court is to
consider the following (amongst other relevant things):
Reasonable person test
(Standard of care)
(a)
UNSW Foundation Studies
Business Law
(b)
(c)
No relevant case in this
course
(d)
No relevant case in this
course
Tutorial Program and Workbook
(Revised 22-Nov-18)
74
Causation
Question 3
What is
causation?
Requirements that must be satisfied to establish causation
Legislation and
statutory
provision/s
Legal principle in the
legislation provision
Explain what the legal
principle means
Test in common law
Explain what the test means
Civil Liability Act
2002 (NSW)
Section 5D(1)(a)
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Remoteness
Question 4
What is
remoteness?
Requirements that must be satisfied to establish remoteness
Legislation and
statutory
provision/s
Legal principle in the
legislation provision
Explain what the legal
principle means
Test in common law
Explain what the test means
Civil Liability Act
2002 (NSW)
Section 5D(1)(b)
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Tort of Negligence Summary
Question 5
Prepare a summary of the elements of the tort of negligence by filling in the blank boxes below.
Statutory provisions
Common law
Duty of care
Breach of DOC
Causation
Remoteness
=
A successful action of
Negligence
Consider
Defences
(See Unit 9)
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Unit
Negligent Misstatement
8
Week 9
Outcomes
At the end of this tutorial, student should be able to:
•
Recognise the different types of harm.
•
Understand the “Neighbour principle” when
applied to negligent words or statements.
•
Understand and apply the concept of vicarious
liability.
•
Understand and apply defences to a negligent
action.
Have I achieved this?
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
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Tutorial
Terms and Concepts
The following terms and concepts must be understood in the context of the tutorial.
Provide written explanations of these terms and concepts in the space provided.
Terms/Concepts Explanation
Harm
Physical injury
Property damage
Economic loss
Pure economic
loss
Negligent
Misstatement
Vicarious liability
Contributory
negligence
Voluntary
assumption of risk
Disclaimer
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Tutorial
Recognising Different Types of Harm
Question 1
Mr Lee slipped on a spilled bottle of oil while shopping at the supermarket. Mr Lee’s leg is now
broken.
What kind of harm has been suffered by Mr Lee?
Question 2
Mr Lee lives next to a golf course. One of the players hit a golf ball and broke his window.
What kind of harm has been suffered by Mr Lee?
Question 3
Mr Lee has bought $10,000 worth of shares. The share price dropped heavily and Mr Lee lost
$5,000 of his investment.
What kind of harm has been suffered by Mr Lee?
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Negligent Misstatement – Duty of Care (DOC)
Question 4
(Revision)
What is
duty of
care?
Requirements that must be satisfied for a DOC
to arise
Common law
Is/Are there any relevant case/s?
Identify and outline the significance
of the case/s.
The “Neighbour principle” extends to negligent
words and statements.
Requirements that must be satisfied for a DOC
to arise for a negligent misstatement?
The defendant will owe a DOC to the plaintiff if there is
a “special relationship” between the parties. The
“special relationship” is established through the
“Barwick test”.
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Outline the 4 steps in the “Barwick test”
(Legal principle/s)
Reasonable reliance
In considering whether it is
reasonable for a plaintiff to rely
Explain what the
on advice, the court considers a
legal principle/s
range of factors within the
means
situation, e.g.:
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Legal authorities
(Common law)
Is/Are there any relevant case/s?
Identify and outline the significance
of the case/s.
Legal authorities
(Common law)
Is/Are there any relevant case/s?
Identify and outline the significance
of the case/s.
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Vicarious Liability
Question 5
Mr Lee has been given advice by his tax accountant, Mrs Smith, who works for Jones & Jones
Taxation Accountants. Mrs Smith negligently advised Mr Lee on a complex tax issue.
Can Mr Lee sue Jones & Jones Taxation Accountants?
Defences
Question 6
Mrs Smith is at a party. She accepts the offer of a ride home in a car with Mr Lee. She knows that
Mr Lee has been drinking a lot of alcohol at the party. While driving home, there is a serious
accident and Mrs Smith is injured. Mrs Smith is suing Mr Lee for compensation of medical expenses
under tort of negligence.
What possible defences could Mr Lee use?
Question 7
Mrs Smith is riding a bicycle at night on a freeway. She is wearing black clothing and there is no
light on the back of her bicycle. Mr Lee is driving a truck next to Mrs Smith. Mr Lee is on his
mobile phone. Mrs Smith is hit by Mr Lee’s truck. Mrs Smith is suing Mr Lee for compensation
under tort of negligence.
What possible defences could Mr Lee use?
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Unit
Negligence in Action
9
Week 10
Outcomes
At the end of this tutorial, student should be able to:
•
Have I achieved this?
Use the IPAC method to solve legal problems.
If, by the end of the tutorial, you are unable to achieve any of the above outcomes, you should
consider attending one of the scheduled consultations and attempt to resolve any questions that
you have as soon as possible.
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Elements of Negligence – Duty of Care
Question 1
Mr Lee is driving his car along a road at night and Mrs Smith is cycling on the side of the road next
to Mr Lee’s car. Mr Lee is on his mobile phone to his girlfriend and is distracted. Mr Lee did not
see Mrs Smith and his car hits her bicycle and Mrs Smith is injured.
Does Mr Lee owe Mrs Smith a duty of care?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
Conclusion:
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Elements of Negligence – Breach of DOC
Question 2
Mr Lee lives a few streets away from the Smith Golf Course which is the largest golf course in
Sydney. While washing his car in his driveway Mr Lee was hit on the head by a golf ball from the
Smith Golf Course. Mr Lee wants to sue the Smith Golf Course for compensation for his head
injuries. Mr Lee argues that Smith Golf Course should have built a higher fence.
The height of the fence surrounding the golf course was fifteen metres. Witnesses testified that
over a ten-year period since the construction of the fence only five to ten golf balls have been hit
over it. To build a higher fence, Smith Golf Course would require a large amount of time, effort
and money.
Assuming that the Smith Golf Course owed a duty of care to Mr Lee, has the Smith Golf Course
breached its duty of care to Mr Lee?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
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Conclusion:
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Elements of Negligence – Causation
Question 3
Mr Lee is driving his car along a road at night. He has his headlights on and is travelling in a straight
line within the speed limit. Mrs Smith is driving her car in the opposite direction. Mrs Smith is on
her mobile phone to her husband. Mrs Smith did not see the markings on the road because she is
distracted. Mrs Smith drives across the centre of the road and collides head on with Mr Lee’s car.
Assuming that Mrs Smith has breached the duty of care owed to Mr Lee, has causation been
established?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
Conclusion:
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Elements of Negligence – Remoteness
Question 4
Mr Lee was negligently driving his car and crashed into Mrs Smith’s house resulting in $50,000
worth of damage to it. Consequently Mrs Smith was temporarily relocated to another house. On
the first night in the new house, she was robbed. The burglar shot her in the leg. Mrs Smith has
incurred medical bills and she is unable to work for a month while she recovers.
Which of the above losses is within Mr Lee’s scope of liability?
Read the question twice.
During the second time identify the material/relevant facts as you read.
Issue/s:
Principle/s and Application (combined):
Conclusion:
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Negligent Misstatement
Question 5
Mr Lee is 54 years old and has, for many years, worked in construction. Mr Lee has recently
inherited a sum of $100,000 from his deceased father. Mr Lee has no other significant assets. He
is planning his retirement and he decided to invest in some shares using the inheritance. Mr Lee
has no prior experience in shares investment.
Mr Lee approached Mrs Smith who works for Smart Investments Pty Ltd, which is a well-known
investment advisory company. Mr Lee makes an appointment with Mrs Smith. During the meeting
in her office, Mr Lee asks Mrs Smith whether she thinks Essette Airlines is a good investment. Mr
Lee made it very clear to Mrs Smith that he will only be able to retire if the investment is successful.
Due to having many other clients demanding her time, Mrs Smith advised Mr Lee in writing that
Essette Airlines was a good investment based on a newspaper paper article she read on the
weekend, without doing further research. Mrs Smith provided this advice with a disclaimer.
A simple further research by Mrs Smith would have shown that Essette Airlines is not a good
investment. Mr Lee was nervous and told Mrs Smith that he was reluctant to invest the whole of
$100,000 in one company. Mrs Smith assures Mr Lee that it is a good investment.
Acting on this advice, Mr Lee invested his inheritance in Essette Airlines. Soon after Mr Lee
invested, the share price of Essette Airlines fell heavily. As a result, Mr Lee lost half of his
investment.
Discuss Mr Lee’s case in terms of all the elements he needs to establish to be successful in a
negligence action against Smart Investments.
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