 Good Law – Certainty, Flexibility, Fairness, Accessibility BURDEN OF

CLAW – WEEK 1-3 Summary The Constitution

 Good Law – Certainty, Flexibility, Fairness, Accessibility BURDEN OF

PROOF

STANDARD OF PROOF CRIMINAL the prosecution beyond all reasonable

doubts CIVIL TRIALS the plaintiff

(accuser)

on the balance of probabilities

 Separation of powers: Judiciary (interpret and enforce law), Executive government (has governing power), Parliament (the legislature- makes law)

 legislation – statutory law (delegated legislation: made under authority of an Act)

 common law – judge-made law based on traditions, procedures, rules.

 civil law – made by parliament, governs disputes such as contracts, family law.

 terra nullis – land of no one Statutory Interpretation

 Noscitor a sociis – meaning of a word is to be derived from its context

 Ejusdem generis – general words at end of list to be read down in the light of the meaning of the specific words

 Ultra Vires – act without authority or literally beyond powers

 literal interpretation – give words their natural, ordinary and grammatical meaning

 liberal interpretation - produces broader coverage or more inclusive application of statutory concepts

 purposive interpretation – an approach to statutory and constitutional interpretation The Doctrine of Precedent

 material facts – distinguished from an insignificant trivial or unimportant detail (appellant)

 persuasive precedent – may be followed but is not binding

 overruling – As a judge, to reject a courtroom objection.

 distinguishing – an authority should not be applied because of the different circumstances

 stare decisis – follow decisions of higher courts

 obiter dicta – by the way – not binding but may be persuasive



ratio decidendi – the reason for a decision

Week 4-7

Law of contract: agreement and intention

 contract – agreement enforceable by law

 bilateral contract – need communication of offer and acceptance

 Unilateral contract (Carlill v Carbolic Smokeball) – not looking for a communication of acceptance. Offer made to public and not just merely an advertising puff

 Deeds – do not need consideration, need special words

 Formalities – some agreements evidenced in writing, some have to be in writing (e.g.

cheques)

 elements of a standard form contract:

1. Agreement - offer and acceptance

2. intention to create legal relation (domestic / commercial?) 3. consideration (if no, promissory estoppel?)

4. genuine consent

5. legal capacity (minor, mental illness) 6. legality

 OFFER: must be communicated to offeree, may be made to one person, a group or world, must be distinguished from invitation to treat and may be revoked before accepted (Goldsborough)

 NOT AN OFFER: a request for information (Harvey v Facey) or Invitation to treat (Fisher v Bell)

 Termination of offer: lapse of time, condition in offer not fulfilled, death of a party

 ACCEPTANCE: must be final, unqualified and communicated to the offeror in the way the offeror specifies (Felthouse v Bindley)

 silence in not an acceptance

 Offeree's response:

1. seek more information (Stevenson Jacques & Co v McLean)

2. make a counter offer (Hyde v Wrench) - swaps original parties and Hyde is now the Offeror -> if Wrench rejects it -> no agreement -> no contract

3. reject offer 4. accept offer

5. ignore offer - do nothing

 postal acceptance rule – acceptance is completed when the letter is posted

 conditional acceptance – acceptance made 'subject to' or conditional upon the

occurrence of a specified event, not a final and unqualified acceptance. (Masters v

Cameron)

 INTENTION TO CREATE LEGAL RELATIONS

BUSINESS AGREEMENT (Merritt v Merritt) SOCIAL AGREEMENT (Balfour v Balfour) Presumption that parties DID intend to create

a legally enforceable agreement

Presumption that parties DID NOT intend to create a legally enforceable agreement Onus of providing a contrary intention:

1. circumstances in which agreement was reached

2. the express terms of the agreement

 Commercial agreement:

1. Need clear expression not to be bound: (Jones v Vernon Pools)

2. Document needs to be interpreted in context: (Edwards v Skyways Ltd)

3.

Letters of comfort – just what is being promised (Kleinwort Benson v Malaysia Mining)

Law of Contracts: components of a valid contract

 contract types: simple contract, deeds or contract under seal (formal contract) - 'signed, sealed and delivered' - including dealings in land

 CONSIDERATION: can take the form of either: 1) a benefit to the promisor, 2) a detriment to the promisee incurred at the promisor's request

1. must move from the promisee, to a third party 2. must not be past

3. must not be illusory 4. must be sufficient

 cannot enforce promise to increase pay for work already done: Anderson v Glass



CONSIDERATION CANNOT BE PAST: Roscorla v Thomas

Plaintiff purchased a horse from defendant, defendant promised the horse is 'sound and vibe', however the horse proved to be rather vicious, plaintiff sued defendant for breach of promise.

Held: the post-transactional promise was past consideration, so no consideration.

 CONSIDERATION CANNOT BE ILLUSORY: Sheils v Drysdale

A promise was given by a married woman to care for her parents for as long as they lived in return for an interest in their land. Held: agreement was void for uncertainty because it did not apply to any particular land.

White v Bluett: the son's promise to 'stop complaining' was too vague

 CONSIDERATION TO BE SUFFICIENT- of value/forming part of consideration

considerations may not be sufficient where:

1. Performance of a public duty: Glasbrook Bros v Glamorgan County Council – going beyond public duty to serve and protect

2. performance of an existing contractual duty: Stilk v Myrick – crew performing existing duty. Hartley v Ponsonby – where crew got paid more because it was dangerous.

3. part payment of an existing debt – Pinnel's case – full payment required

 Promissory Estoppel – 1) the assumption, 2) promisor responsible for the assumption, 3) the reliance, 4) promisor's intent, 5) the detriment, 6) loss

 Contractual capacity – minors, corporations, incapacitated: mentally impaired, intoxicated, bankrupts

 void – contract has no effect, never existed

 voidable – capable of operation until one party decides to bring it to an end. can terminate or rescind

 legality – statutory or common law

 factors affecting consent: mistake, misrepresentation, duress, undue influence, unconscionable conduct.

 Mistake

1. Mutual Mistake: both parties make a different mistake as to the terms of the contract (contract is void ab intio) (Raffles v Wichelhaus) - two ships case 2. common mistake: both parties make the same mistake (void ab initio) - Scott v

Coulson (both believed the patient is alive but was dead when signed insurance) 3. unilateral mistake: only one party is mistaken and the other party is aware of the

mistake and tries to take advantage of that mistake (contract is voidable) – read slides for details - Taylor v Johnson, Petelin v Cullen (couldn’t understand English)

 non est factum – unilateral mistake – document signed by plaintiff where it is radically different in character from that which the plaintiff believed was being signed

 Misrepresentation – a false statement made by the representor to the representee during pre-contractual negotiations which induces the representee to enter into contract

 Misrepresentation - 3 ELEMENTS: statement of fact, statement is false, statement induces innocent party to enter contract

 different types of misrepresentations

1. Fraudulent – tort – an injury or wrong that is not criminal in nature 2. Negligent – tort for negligent misstatement

3. Innocence – no remedy in tort law

4. Statutory – misleading or deceptive conduct

 Undue Influence: Stronger party abuses the influence he or she has over the will of the weaker party to obtain some undue benefits – presumed special relationships existed proven otherwise – high degree of trust and confidence developed – contract voidable

 Unconscionable conduct s20 – 1) one party has a special disadvantage, 2) the other party knew or ought to have known of that special disability, 3) conduct was in the

circumstances not consistent with good conscience – contract voidable (Blomley v Ryan)

 Duress: illegitimate pressure to contract against their will, contract voidable

 duress of person – Barton v Armstrong – threat to injure the person

 economic duress – North Ocean v Hyundai – threat to break contract

Law of contract: Contents and interpretation of the contract

 form of contract – oral, written, partly oral / partly written

 terms = obligations of each party under contract – express + implied terms

 Express terms: Statement (meant to be obligations under the contract) or representations (made to induce entry into the contract)

 cannot get damage for innocent misrepresentation, cannot sue for a representation

 Pre-contractual statement may be terms depends on intentions- use OBJECTIVE TEST

 Objective test - would a reasonable person consider that the statement was intended to become part of the contractual obligation? factors include:

1. importance of statement

2. time between statement and contract

3. special knowledge/skill or access to truth of one party 4. inclusion of statement in any subsequent document objective test + special knowledge of one party

 Subject matter: statement of belief (representation) or promise that it is true (term)

 Oscar Chess Ltd v Williams – W sold car to O – not the same year model, but statement was not a term cuz W does not have specialist knowledge

 Parol Evidence Rule – Any verbal agreement will not be effective to the agreement that is perceived in writing in the contract. (Mercantile Bank of Sydney v Taylor)

 exceptions of PER – ambiguity of words, whether terms can be implied, contract is not entire, theres a prior collateral contract, common mistake, etc.

 Collateral contract: = warranty, oral contract subsidiary to the main written contract 1. statement is a promise

2. promisee enters main contract on the basis of the collateral promise (Van der Esschert v Chappel – white ants case)

3. must not be inconsistent with the main contract (Hoyts v Spencer)

 Good Faith – uncertain and incomplete agreements will not be enforced

 'genuine anf good faith', 'honest and genuine commitment to bargain' - enforceable

 Implied terms – terms deemed to be in a contract by courts 1. previous consistent court of dealings (Hillas v Arcos) 2. business efficacy (Codelfa v State Rail)

3. Custom / trade usage 4. Statut