BLO1105 Business Law

BLO1105 Business LawPRIVATE

Business Law Students Manual

2011 Edition

This Manual contains materials essential for all students undertaking Business Law, including:

Course Guide for Business Law;

Unit of Study Syllabus for Business Law:

Lecture Program for the Unit of Study;

Tutorial Programs and Questions;

Past Examination Papers; and

Other essential data regarding the Unit of Study.

Manual compiled by Gerry Box and Andy Schmulow

Tutorial Program compiled by Gerry Box (School of Law), Brendon Stewart (School of Law) and Helen Murphy (Teaching and Learning Services)

SCHOOL OF LAW

Faculty of Business & Law

PRIVATE VICTORIA UNIVERSITYtc \l 1 "VICTORIA UNIVERSITY OF TECHNOLOGY"

TABLE OF CONTENTS

ITEMDESCRIPTIONPAGE/S NUMBER

1.Table of Contents 1

2.Introduction 2

3.Assessment Criteria 3

4.Assignment instructions 3 -16

5. Assignment Topics for 201117 - 18

6.Tutorial attendance and Participation19

7.Final Examination19

8.Unit of Study Content20 21

9. Teaching Method21

10. Texts and References22

11. Plagiarism23

12. Student Support programs23

13.The Internet as a Research Tool 23 24

14.Lecture Guide25 35

15.Tutorial Programs36 73

16.Unit of Study Guide for Business Law74 79

17.Introduction to Past Examination Papers80

18.Past Examination Papers81 ff

Introduction to Business Law

This Manual is prepared for the use of students enrolled in the Unit of Study Business Law at Victoria University at all campuses where the Unit of Study is offered.

The Manual contains information required by students of Business Law, including the Unit of Study Course Guide, Tutorial Programs, a listing of books and references, and summaries by Topic of all components of the Business Law syllabus.

It is therefore necessary for all students of Business Law to acquire the Manual to enable them to adequately prepare for tutorials to be held during the Semester. The Manual is thus required reading for all Business Law students.

Preparation and Participation

The scope of the Unit of Study is large, but manageable if students maintain a constant level of application. On a weekly basis, this involves taking comprehensive lecture notes and attending and participating in a tutorial. If the prescribed work is read prior to these programs and the questions are attempted by students before tutorials, substantial benefit can be derived from attendance. Students often ask whether their lecture notes should be re-written and expanded after lectures. Although this is a time-consuming exercise, there is a case for doing so, given that the final examination is an open-book exam. Re-writing lecture notes is best done on a regular basis after each lecture, as the task will become impossible if too many lectures have to be re-written at one time.

In a nutshell, students should plan to take the following steps, commencing in the first week of the semester:

Attend all lectures and take comprehensive notes;

Consider the benefits of re-writing expanded lecture notes while memory is still fresh;

Read all set work for tutorials a week ahead;

Attempt to answer all set questions for tutorials;

Be prepared to participate in tutorial discussion to maximise the benefit of attendance;

Try to keep ahead of the lecture schedule by reading in the prescribed texts the topics to be covered in the next week. This will greatly improve the quality of the notes taken during lectures;

Start research early for the assignment question. Many assessment tasks will be due for completion in and around week 8 of semester. There are substantial benefits to be gained by getting assignment research under way at an early date to avoid being overtaken by many tasks requiring attention later in the semester.

Assessment Criteria

The prescribed assessment in this Unit of Study comprises: -

An online quiz in week 4 5 marks

An assignment of 2,000 to 2,500 words for submission in Week 825 marks

Tutorial attendance and participation10 marks

An open book three hour final examination60 marks

Participation.

STUDENTS MUST NOTE: TUTORIALS ARE COMPULSORY. IF YOU MISS MORE THAN TWO (2) TUTORIALS YOU WILL FAIL THE PARTICIPATION ASSESSMENT. STUDENTS WHO ATTEND A TUTORIAL WITHOUT THEIR TUTORIAL WORK PREPARED MAY BE MARKED AS ABSENT.

Assignment.

The Assignment topic will be available to students during the first week of semester, and must be completed and submitted to Tutors on the date specified in the instructions, usually week 8 of semester. Assignment preparation is a major task, and students are advised to commence research for the assignment early in the semester. The difficulties associated with completion of assignments by the due date are compounded by the fact that assignments may be due for submission in other Units of Study at about the same time. The objective of early distribution of the assignment topic is to minimise the possible problems resulting from this inevitable timing requirement. Instructions for students follow for assignment preparation, and students should ensure that they comply with these instructions.

Assignment work is an important component of student assessment, requiring students to complete an assignment of 2,000 to 2,500 words on a topic which will be available during the first week of semester. This will be a research assignment, based upon a selected topic and requiring students to undertake their own research of materials as a basis for their completed assignment project.

Practical guidelines for assignment work are as follow: -

The assignment must be submitted by the due date. Penalties are imposed for late submission. Extensions of time for submission of assignments will be entertained only if made in writing and with supporting evidence of any factor claimed to justify an extension of time.

Assignments must be accompanied by an assignment cover-sheet (obtainable from Faculty and School offices). The cover-sheet details must be completed by the student. The cover-sheet incorporates a receipt, which can be retained by the student as proof of lodgement.

A copy of the assignment must be retained by the student.

The assignment should typed on A4 paper, with double or equivalent spacing, using one side only of the paper and leaving a 5cm margin on the left-hand side of the page.

There are no inflexible rules regarding the format of the assignment, but time taken to present written work in an attractive, easily-read format is never time wasted. Students may use chapters and headings as they see fit to enhance the presentation of the work. The marking of a large number (sometimes hundreds) of assignments within a limited time-frame is a daunting task for examiners, and originality of approach, good (even novel) presentation and inspired (but not frivolous) humour is usually well rewarded.

The word range (2,000 to 2,500 words) should be observed. Strategies (such as relocating case summaries in appendices) can always be devised to bring the word count back to the upper limit, but nothing will save an assignment that is patently too short.

All pages should be sequentially numbered and the assignment securely stapled and submitted in an appropriate binding or folder. Resist the temptation to individually wrap each page of the assignment, as this makes the exercise of commenting on the work very tiresome and time consuming.

A synopsis is optional. A synopsis is not an introduction, but a (brief) summary of the assignment itself, explaining the direction which the assignment is taking. It is best prepared after completion of the assignment. A synopsis prepared beforehand is a statement of intention rather than a statement of achievement, and the two may be quite

different. Although prepared after completion of the assignment, it should appear at the beginning.

A bibliography is also required, listing all references used in the written work and in research conducted on the topic. The list will include details of all texts, articles in journals and magazines, newspaper articles from which information was obtained.

The assignment topic will be available to students in the first week of semester and the assignment is not due for submission until the 8th week, (the exact date for submission will be clearly announced in lectures). There is really no excuse for unacceptable work being submitted. Similarly, applications for extension of time are not likely to receive sympathetic consideration. An early start is recommended. As mentioned earlier, students are likely to be placed in the situation of having to submit a number of assignments or to complete a number of tests at about the same time during the Semester, since adequate time for preparation and for marking must be given and allowed. The topic of the assignment may not necessarily be covered in lectures or tutorials prior to the date upon which the assignment must be submitted. If this is the

case - and even if it isn't - there is no point in delaying commencement of research into the assignment topic.

If it is established that the whole or part of the work of one student has been copied and submitted as original work by another student, neither student will receive any mark for the relevant work. Inevitably, both students will fail the subject and may, at the discretion of the examiner, be subject to other disciplinary processes within the University. On the other hand, there is much to be said for joint or even group research and discussion of the topic, which can reduce the individual research commitment and enhance understanding of the issues. If students do undertake joint or team research with the intention of sharing the product of that research, this is quite acceptable so long as their written assignment work is original and exclusive. Sharing the research burden is acceptable. Sharing submitted assignment work is fatal. See and read carefully the notes on plagiarism that follow these instructions

Footnotes or end-notes must be used to acknowledge the source or sources of information contained in the assignment. Footnotes are preferred, but are more difficult to achieve than end-notes with some word processing programs. Either is acceptable. For more information about footnoting generally, see Summers and Smith (2006)

Your research essay (assignment) in Business Law focuses on a particular area of contract law. You are expected to read a number of texts on the topic, researching it thoroughly. Using this information, you are expected to present a detailed analysis of the topic in essay form, demonstrating that you have a good understanding of it.

Research topics may contain a quotation from a legal text. A first step is to locate the quotation in the relevant text. Because these quotations provide a context or background for the essay topic, it is useful to read the section of the text from which the quotation has been taken. In addition, it is important to consider the relevance of the quote to the question. You need to determine whether the quote is integral to the question and needs to be discussed in your response to the question. On the other hand, the quote may just provide background to the topic, which means that you wont need to incorporate it into your discussion of the topic.

What does researching the topic mean?

Researching the topic requires you to go to the library to locate texts on it. You are expected to read at least three or four texts and possibly some journal articles, researching the topic thoroughly and gathering the necessary information on the topic. As you read try to gain a real understanding of the topic rather than just copy down slabs of the material. You need to be selective in your reading, only taking notes on the material relevant to the topic. Do not be hesitant about asking library staff to help you locate texts and journal articles.

Elements of the essay

The essay should have an introduction, a body and a conclusion.

Introduction: - provides background information

- arouses interest in the topic

- offers a viewpoint

- defines terms

- indicates overall structure and key areas to be discussed

Body: - key areas of topic are presented in logical order

Conclusion: - summarises key points of body

- restates viewpoint

- future directions

It is acceptable to use headings, so you can break up your essay into sections with headings. You are required to write a logical and well-structured essay which includes a discussion of legal principles, relevant cases and, if required, statute law.

There is additional helpful information on writing the assignment on the website under the heading Research Essay.

When you commence work on the assignment (research essay) topic, the first step is to break it down into manageable parts. You need to understand exactly what the question on the topic is asking you to do. It is asking you to view the topic from a particular perspective. It is not

acceptable to just write everything you know about the topic without referring to the question. It is necessary to analyse the topic first and understand clearly what you are expected to do, otherwise, you will not be able to research the topic effectively, nor will you be able to write a successful essay on the topic.

To understand what the question is asking you to do, it is necessary to identify the key words and phrases which give you direction. It is also useful to underline them. These words and phrases are:

process or directive words and phrases

content words and phrases

limiting words and phrases

Process or directive words

These words indicate the way that the question should be answered. In essay questions, you could be asked to critically analyse, to assess, to compare, to discuss, to evaluate, to outline and so forth (for more examples of directive words, refer to Appendix A on p.229, Crosling

and Murphy, How to Study Business Law, 3rd edition). Students often overlook these words and end up not really answering the question.

Content words and phrases

These words and phrases identify the focus of the question. They tell you what the question is about and give information on the topic.

Limiting words and phrases

These words and phrases limit the aspects of the topic which you have to discuss when answering the question.

Note: Quite often, content words/phrases are also limiting words/phrases.

Furthermore, when you are reading and trying to understand what the question is asking you to do, make sure you check the meaning of any words you do not understand.

The following example is provided to illustrate the process which has been outlined above. Study it carefully.

Outline the historical evolution and current trends in the development of unconscionability in the law of contract.

Process or directive word - Outline (this means to give the main features or general principles of unconscionability).

Content words/phrases - historical evolution, current trends, unconscionability, law of contract.

Limiting words/phrases - historical evolution, current trends.

This question requires you to trace the history of and to describe the present trends in the area of unconscionability in contract law. If you are not sure what unconscionability means look it up in a legal dictionary.

Before reading on the topic of unconscionability, it is a useful procedure to develop a plan for the essay.

This helps: -

to clarify the issues which the question is asking you to focus on;

to create a structure for your response to the question; and

to focus your reading on the topic.

Of course, after reading on the topic, this plan may need to be modified.

A plan for a typical topic could be: -

Introduction:

define any terms or words used in the topic;

offer an opinion/viewpoint on the area of law covered by the topic and the direction in which the law is heading

indicate structure of discussion

Body:

Historical background;

discuss the development of the relevant law ;

Current trends in the relevant area of law (main focus)

Discussion would include recent developments in the common law (judge-made law) and provisions in relevant legislation (eg. Trade Practices Act).

Conclusion:

sum up key points

express opinion/viewpoint resulting from discussion

future directions

Incorporating cases into your essay

You will be incorporating cases into your discussion of the topic, so it is important that they are integrated into the flow of your writing. You can introduce case discussion with phrases such as:

Unconscionable behaviour is illustrated in the case of .v.where

.

An attempt to take unfair advantage of the other party is demonstrated in the case of v.

The case of v shows how one party might aim to unfairly disadvantage the other party. In this instance, .

For further information on topic analysis and developing a plan, refer to Chapter 8 in Crosling and Murphy, How to Study Business Law, 3rd edition.

For more detailed information on note taking techniques, see Chapter 7 of Crosling and Murphy, How to Study Business Law.

Taking Notes

When preparing to take notes, it is first necessary to read texts and journal articles to locate the relevant material for your essay topic. Strategies for reading for understanding and meaning have already been outlined in a previous tutorial. Notetaking is an essential part of the essay writing process. You will be expected to read a number of texts/articles on the topic and to document the relevant material from these sources. Your topic analysis of the essay question and your plan will assist you in locating and noting the relevant material for your task. Of course, you may adjust your plan as you read and take notes, because you will be learning more about the topic and will understand more fully the appropriate structure/plan which should be applied to the essay question.

In Business Law, your notetaking for the essay will focus on describing and explaining legal principles/concepts, and on the development and application of these in cases. You will be using a combination of direct quotes and paraphrasing to elicit this information.

Direct Quotations

These should be carefully selected and copied directly from the text/article. They should be used when:

giving a specific description or definition (for example, this may be a definition of a legal principle or concept).

expressing an important idea or argument (this may be a view of a legal principle and how it has been applied in a particular case).

the original words of the author are expressed so concisely and aptly that they add weight to the point being expressed (this could be a judges opinion of a legal principle as it has been applied in a case, or his/her assessment of the legal implications in a case).

It is important to limit the use of direct quotations because, if too many are used in your essay, it will fragment the flow of your writing and the essay will lack cohesion and unity.

Short quotations

A short quotation is one to three lines and should be integrated into the flow of your writing. It should be enclosed with quotation marks.

In the following example, notice how the student has integrated the quoted rule into the flow of her writing:

There have been several rules established in relation to acceptance and one of the most important rules is that [a]ny conditions as to the method of acceptance imposed by the offeror must be complied with.

Long quotations

A long quotation is more than three lines. It should be indented and no quotation marks are required. It is also important to introduce long quotations in the text of your essay. Study the following example:

Because there have been so many disputes in cases about whether acceptance has, in fact, occurred, several rules as to acceptance have been subsequently developed.

These rules are that:

a)acceptance must be absolute and unqualified;

b)any conditions as to the method of acceptance imposed by the offeror must be complied with;

c)acceptance must be made in reliance on the offer; and

d)except in cases where the offeror has dispensed with the need to be told of acceptance, acceptance must be communicated.

Referencing quotations

In your essay, it is always necessary to acknowledge the source of your direct quotations. In law, the preferred referencing style is footnoting.

When you use the ideas or words of another writer, you must acknowledge them by citing the article or text from which they came. If you do not acknowledge your source of this information and claim they are your own, then you will be guilty of plagiarism.

Paraphrasing

When taking notes in preparation for writing your essay in Business Law, most of the time you will be paraphrasing the relevant information from the texts/articles. You will be paraphrasing key legal principles and the relevant aspects of cases.

Paraphrasing is a technique where material from texts is rewritten in your own words without changing the original meaning. The paraphrase is usually as long as the original passage.

Strategies to assist your paraphrasing are:

(a) to read the passage several times to understand its meaning;

(b) to identify:

(i) the main idea;

(ii) the main supporting points; and

(iii) the supporting details to assist with your understanding of the passage;

(c) to check the dictionary for any words you do not understand;

(d) to use synonyms where possible, but remember you cannot replace important legal terms. They are essential to the meaning of the passage. You can only replace general words;

(e) to change the word order of sentences.

Following is an example of a paraphrase. Study it carefully.

Original passage on one of the rules of acceptance (from Khoury and Yamouni, p. 32)

(ii) Conditional acceptance. Acceptance must be unqualified - conditional acceptance is not adequate. It sometimes happens that the parties enter a written agreement which they express to be subject to contract or subject to a formal contract being prepared. What is the legal position with regard to such an agreement? The answer seems to be that, in the absence of strong evidence to the contrary, a legally binding agreement does not exist until such time as a formal contract has been prepared for and executed by the parties to it.

(Legal words which cannot be changed are emboldened; general words which can be changed are underlined.)

Paraphrase of passage

(ii) Conditional acceptance. Acceptance has to be unqualified - it is not sufficient to have conditional acceptance. A written agreement is occasionally negotiated by parties which they express as being subject to contract or subject to a formal contract being prepared. How is such an agreement interpreted legally? Without strong opposing evidence, the answer appears to be that a legally binding agreement does not occur until there has been the preparation of a formal agreement and it has been executed by the parties to it.

Notice the extensive use of synonyms and the changing of the word order in the paraphrase. Also, forms of words have been changed. For example, prepared for has been changed to preparation.

Composing your essay

Remember that helpful information for your assignment is also found on the website in the research essay section.

After taking notes on the relevant information for your essay, you will need to arrange these notes into a logical structure to answer the essay question. You will need to consider your selection and presentation of the relevant content.

Your topic analysis and plan will have assisted you in guiding your reading and note taking. During the process of reading and taking notes, you may well have refined and changed your plan, given that you would have done extensive reading on the topic. This final plan will also provide you with a basic structure for your essay, so your next step is to organise your notes into the different sections of this plan. This final plan will include the key aspects which you need to discuss in your essay. You will need to sift through your notes and be selective in your choice of material.

When composing your response to the question on the topic:

refer regularly to the question.

check that you have all the necessary material to answer the question fully and effectively.

do not just string together the notes you have selected to incorporate into your response to the question.

develop your own response to the question, supporting it with relevant arguments, including the relevant legal principles and cases, based on your research and notetaking.

select material which is relevant and appropriate to include in your introduction, body and conclusion; this will assist you in producing a well-organised, cohesive essay.

Linking words and phrases

In Tutorial 1, linking/signalling words and phrases are discussed in relation to assisting in the understanding of the meaning of information provided in cases. These words and phrases can also give your essay cohesion and unity. They provide important links between sentences in a paragraph and between paragraphs in an essay. The appropriate use of linking words and phrases allows a smooth transition from one paragraph to the next, linking together the aspects being discussed. As has been suggested in Tutorial 1, pp.26-27 in Crosling and Murphy, How to Study Business Law, have a comprehensive list of these linking words. Do refer to them when you are writing your essay. A few examples of these words are: therefore, consequently, however, furthermore, thus, hence, also and as well. These are commonly used linking words and phrases but there are many more, so do use them in your writing. The linking words and phrases on pp.26-27 refer specifically to those most commonly used in legal texts.

When referring to legal principles and particular aspects of cases in your essay, you can use the following signalling words and phrases. These words and phrases introduce or signal to the reader what is happening in the different aspects of your essay.

For example, if you are discussing a legal principle, you may introduce this discussion with:

The law in this area states that

The law states that

The law requires/stipulates that

When discussing cases/precedents, you may introduce the discussion with:

In Smith v Jones (1981), the judge concluded/indicated/ stated that

It was held in the case of ..v.. that

The case of v demonstrates/clarified/highlights/shows/explains/ manifests/exhibits/exemplifies

Brown v Anderson (1980) established the precedent that

It was held that

Smith J upheld that

In the course of his judgment

In the view of

More phrases for introducing case discussion are provided in Tutorial 3. In addition, there is a comprehensive list of signalling words, phrases and sentences in Appendix D, pp.234-235, Crosling and Murphy, How to Study Business Law.

Your discussion of a case in your essay may resemble the following. (The case of Central London Property Trust Ltd. v High Trees House Ltd [1947] KB 130 is used for this purpose.)

The doctrine of estoppel, in its traditional form, would not assist the debtor, since it was always limited by the courts to apply to representations of existing or past fact, and did not apply to representations of future intention. That position was changed in the landmark case of Central London Property Trust Ltd. v High Trees House Ltd [1947] KB 130. In this case, High Trees, which leased a block of flats from Central London in 1939, had difficulty in filling the flats because of the outbreak of war. In 1940, the parties agreed that the rent would be reduced by half. High Trees paid the rent at a reduced rate for five years and in 1945 the flats began to fill again. Central London sued for the payment of the full rental when the flats became full. Denning J stated that Central London was entitled to the full rental when the flats filled again. However, he argued that they would have been estopped from going back on their promise had they attempted to sue for the arrears for the years 1940-45 because it would have been detrimental to High Trees, despite the fact that there had been no consideration from High Trees in exchange for the promise. Consequently, Denning J extended the doctrine of estoppel so that it did apply to representations of future intention, or to promises, as a result of which promissory estoppel was established, so long as the promisee has acted to his or her detriment in the particular case.

Synopsis

You will be asked to write a synopsis (abstract or summary) for your Business Law essay. This should only be a summary of the key areas you have covered (not the details) and the general conclusions you have reached. The synopsis is approximately 5 to 10 percent of the length of your essay, so, if your essay is 2000 words, your synopsis will be 150 to 200 words. It should be written as one paragraph. The synopsis is presented after the title page and before the essay itself. This way the reader can see, in advance, the key areas which have been covered in the essay and the essence of your argument.

You should write your synopsis after you have written your essay. It is a summary of what you have written, not an indication of what you intend to write. Hence, it is usual to write the synopsis in the present or past tense, not in the future tense.

Using footnotes in your essay

As has already been stated, this is the preferred referencing style in Business Law. You put a raised number at the end of the information you are citing. These numbers run in order throughout the essay: 1,2,3

When footnoting, the details of the origin of each of the numbered references are given at the foot of each page. Alternatives to footnotes, such as endnotes or Harvard System notes are no longer acceptable in law essays and assignments and footnotes as described above must be used.

What information is required in the footnote?

first name and/or initials and surname of author

full title of book (underlined or italicised)

edition number (if applicable)

date of publication*

publisher*

place of publication*

page number of reference

The order of this information can vary, but choose an order to present it and use it consistently.

For example:

1.R. B. Vermeesch and K. B. Lindgren, Business Law of Australia, 11th Edition, 2005, Butterworths, Sydney, p. 233.

You can shorten the information when you are citing the same author(s) on subsequent occasions.

For example:

2. Vermeesch and Lindgren, Business Law, p.224.

When citing journal articles, use the following format:

first name and/or initials and surname of author

title of article

name of journal

volume number

issue number (if applicable)

date of issue

page number/s

Note that the article title can be in inverted commas, while the journal title is underlined or italicised.

For example:

D. Khoury, Promissory estoppel: a sword unsheathed, Law Institute Journal, Vol. 64, November 1990, pp. 1054-6.

When citing sources from electronic media, similar conventions apply as for traditional texts. Use the following format:

authors name

date electronic resource was published

title of the material

version (if applicable)

the medium (eg. CD Rom, internet)

name of the publishing company

date the site visited (if it is an internet document)

(adapted from Student Learning Unit /Study Skills site published by Teresa de Fazio)

If you are accessing cases from an internet website, for example, from Austlii (http://www.austlii.edu.au) your citation would read as follows:

FCTv Henderson (1943) 68 CLR 29,

http: //www.law.flinders.edu.au/tax/caselaw/taxacc.htm (July 19, 1999).

Citation of cases

You can cite the case details in full in the text of your essay, or in a footnote.

Case details should include:

date caseset of law

reportedreports

Legione v Hateley (1983) 57 ALJR 292

parties volume no. page no.

Italicise or underline parties names.

Bibliography

This is on the last page of your essay. It is an alphabetical list of all the sources of material which you have used in your essay, as well as the material which have you have read in preparation for the essay. Choose a format for ordering the texts/articles you have used or referred to and use it consistently.

You need to include the following information:

authors surname followed by initials or first name

title of book underlined or in italics

edition number

year of publication

name of publisher and place of publication

For further information on these aspects of your essay, please refer to Crosling, G. and Murphy, H., (2000), How to Study Business Law, Chapter 8, 3nd edition, Butterworths, Sydney.

Assignment Topic Semester One, 2011

In his judgment delivered in the case of Lewis v Averay [1972] 1 QB 198, Lord Denning MR makes the following comments: - There is no doubt that Mr Lewis was mistaken as to the identity of the person who handed him the cheque...... It was under the influence of that mistake that Mr Lewis let the rogue have the car...... What is the effect of this mistake? There are two cases in our books which cannot, to my mind, be reconciled the one with the other. One of them is Phillips v Brooks Ltd [1919] 2 KB 243, where a jeweller had a ring for sale. The other is Ingram v Little [1961] 1 QB 31, where two ladies had a car for sale.

Explain why Lord Denning took the view that these two cases could not be reconciled. Also explain how the apparent conflict between these two cases was resolved by the decision in Lewis v Averay.

NOTES FOR STUDENTS

1. You are required by week 4 of Semester to prepare a Plan of your assignment, which must be submitted to your Tutor at your Tutorial in Week 4. The plan must be of approximately 500 words, and it must detail how you propose to address the assignment topic. The plan may be in point form if desired, and will be allocated a mark out of a possible 5 marks. A copy of the plan must be retained by you and attached to your completed assignment when submitted in Week 8.

2. The assignment must be of 2,000 to 2,500 words in length.

3. The assignment must be typed or printed on one side only of A4 paper with 1.5 or double spacing and leaving a left-hand margin wide enough for examiners comments and corrections.

4. The completed assignment must be submitted with an Assignment Cover Sheet available from School of Law and Faculty of Business and Law Offices and duly completed in all respects, including Tutors name and day and time of tutorial.

5. The assignment must include footnotes, a bibliography and may include a synopsis.

6. Students are advised to study the notes on assignment preparation and the notes on plagiarism contained in the Business Law Students Manual.

7. Assignments will be marked out of a possible 30 marks.

8. Assignments submitted after the due date will incur a penalty for late submission of one mark for each day by which the assignment is overdue, unless an extension of time has been obtained from the subject lecturer or tutor prior to the due date. Any application for extension of time must be lodged on the appropriate form obtainable from the Faculty office and must be accompanied by any supporting evidence of the facts upon which the application is based.

9. The completed assignment must be lodged with your tutor at your scheduled tutorial during Week 8 of semester.

10. The assignment topic may not be covered in lectures or tutorials prior to the due date for submission. Students should accordingly commence their own research into the assignment topic.

Andy Schmulow

Business Law Co-ordinator.February, 2011.

Assignment Topic Semester Two, 2011.

The terms of a contract detail the promises made by each party to the contract to the other party. The terms can be classified as conditions, warranties or intermediate terms. Intermediate terms are sometimes referred to as innominate terms.

Explain the distinction between these three different categories or kinds of term in a contract, using decided cases to illustrate such difference.

Explain also the remedies available for the breach of each category or kind of term in a contract.

.

NOTES FOR STUDENTS

1. You are required by week 4 of Semester to prepare a Plan of your assignment, which must be submitted to your Tutor at your Tutorial in Week 4. The plan must be of approximately 500 words, and it must detail how you propose to address the assignment topic. The plan may be in point form if desired, and will be allocated a mark out of a possible 5 marks. A copy of the plan must be retained by you and attached to your completed assignment when submitted in Week 8.

2. The assignment must be of 2,000 to 2,500 words in length.

3. The assignment must be typed or printed on one side only of A4 paper with 1.5 or double spacing and leaving a left-hand margin wide enough for examiners comments and corrections.

4. The completed assignment must be submitted with an Assignment Cover Sheet available from School of Law and Faculty of Business and Law Offices and duly completed in all respects, including Tutors name and time and day of tutorial.

5. The assignment must include footnotes, a bibliography and may include a synopsis.

6. Students are advised to study the notes on assignment preparation and the notes on plagiarism contained in the Business Law Students Manual.

7. Assignments will be marked out of a possible 25 marks.

8. Assignments submitted after the due date will incur a penalty for late submission of one mark for each day by which the assignment is overdue, unless an extension of time has been obtained from the subject lecturer or tutor prior to the due date. Any application for extension of time must be lodged on the appropriate form obtainable from the Faculty office and must be accompanied by any supporting evidence of the facts upon which the application is based.

9. The completed assignment must be lodged with your tutor at your scheduled tutorial during Week 8 of semester.

10. The assignment topic may not be covered in lectures or tutorials prior to the due date for submission. Students should accordingly commence their own research into the assignment topic.

Andy Schmulow

Business Law Co-ordinator.February, 2011.

Tutorial Attendance and Participation.

Tutors will monitor the attendance and participation of students at weekly Tutorial classes . Students will be allocated a mark (out of 10 marks) for this component of assessment. Weekly tutorial classes are structured in such a way that they provide the opportunity for exchange of ideas among students, and between students and Tutor. They are the ideal forum for reviewing material covered in lectures and questioning of the concepts dealt with in lectures and covered by individual student's reading in the subject.

Tutorials are a vital component of the student learning process in all Units of Study studied at tertiary level, but this applies even more emphatically in the study of law in a common law legal system, where problems are resolved by the application of an adversarial approach.

Final Examination.

The Final Examination, of three hours duration, is an "open-book" examination. This means that students may take into the examination and have access to any written or printed materials, including text books, lecture notes and any notes of their own choosing . The only exception is that students may not take Victoria University library texts into the examination room. Whilst open-book examinations mean that students do not have to rely upon their memory for case details and other information (since they can access this information whilst the examination is in progress), a higher standard of work is expected from students. The material which is most beneficial to students in open-book examinations is a comprehensive set of the student's own notes and materials, properly collated for ready access. Students should keep this in mind in the early stages of the semester, since there is a strong case for creating and maintaining a detailed set of lecture notes, and tutorial materials.

Marking Criteria.

In order to obtain a pass in the subject, all aspects of assessment must be completed to a satisfactory standard of competence. Accordingly, students who fail to attempt all assessment components will fail the subject. The examiners retain the discretion to award a pass in the

subject to a student who, having attempted all assessment components, fails to complete one of such components to a pass standard. Students should note that this discretion cannot be exercised in favour of any student who attains a mark of less than 25 (out of 60) in the Final Examination.

Unit of Study Content

There are two components in the Business Law Syllabus. The first is the Australian Legal System, and the second is Contract Law. The first week of lectures and tutorials will relate to aspects of the Australian Legal System, with the remainder being concerned with a detailed examination of the Law of Contract.

The first component of the subject addresses briefly topics chosen from the following: -

Australian Legal System

An Introduction to the Australian Legal System

The sources of law in Australia

Common law and the Doctrine of Precedent

The adversary system

The court system

Tribunals

The Commonwealth of Australia Constitution

The origins and structure of the Constitution

Parliament

The Executive

The Judiciary

Division of power between States and Commonwealth

Amending the Constitution.

Legislation and Statutory Interpretation

Legislation

Statutory Interpretation

Statutory Intervention

Students who have undertaken Legal Studies at VCE level will find that this component of the syllabus will to some extent be a revision of aspects of the VCE subject. Other students should consult the "Reading Guide" for information concerning recommended sources of information to provide suitable background material.

A detailed examination of the Law of Contract will follow, with concentration upon the following topics:-

Introduction to Contract Law

Intention to Create a Contract

Offer

Acceptance

Consideration

Contents of the Contract

Exclusion Clauses

Implied Terms

Formalities

Capacity to Contract

Mistake

Misrepresentation

Duress, Undue Influence and Unconscionable Conduct

Discharge of Contract

Remedies for Breach of Contract.

A detailed summary of lecture content appears later in this Manual. Lectures will follow the sequence detailed in that summary.

Teaching Method

Students are required to attend two hours of lectures each week. Some lecture streams are structured to have two one-hour lectures, and others have one two-hour lecture. Check the timetable for relevant details of your chosen Lecture Stream.

All students will attend a one-hour tutorial each week.

Lectures

During lectures, students should attempt to take detailed notes. These notes will form the basis of the student's Unit of Study materials and, if properly collated and indexed, will be a useful source of reference during the final open-book examination. As lecture group sizes are large, the opportunity for students to ask questions during lectures is inevitably restricted, and tutorials provide a much better forum for questions.

Tutorials

Tutorial groups comprise approximately 20 students, and the objective of tutorials is to enable students to participate actively and ask questions about any relevant matters being discussed. The tutorial programs have been devised to promote discussion on important aspects of the subject, and it is essential that students read the tutorial materials before the tutorial is attended, and be prepared to become involved in discussion about issues. Tutorials are extremely important in the process of learning law, and the importance of preparation and attendance cannot be over-emphasised. Students will benefit from tutorials in direct proportion to their individual preparation for them.

Students are reminded that 10% of the marks in the subject will be allocated for attendance at and for participation in tutorials.

Texts and References

Students are required to purchase the Business Law Manual, which is available from VUT Bookshops. Students are encouraged to purchase the prescribed texts listed below, which are also available from the Bookshops. In addition, students may wish to purchase the preliminary reading text or texts from among the listed recommended texts.

Prescribed Texts

Business Law for Business Students, David Parker and Gerry Box, Thomson Custom Publishing, 2nd Edition, 2008.

BL0 1105 Business Law, Compiled by Andy Schmulow from Andy Gibson and Douglas Fraser Business Law 5th edition, Pearson Choices, 2010

Recommended Texts

An Introduction to the Law of Contract, Stephen Graw, Law Book Company, 6th Edition, 2008. Thomson Legal & Regulatory

How to Study Business Law, Crosling & Murphy, 3rd Edition, Butterworths, 2000. This book introduces students to the methods of study that are required for the completion of law units. It is especially useful to students who have not undertaken legal studies before and those for whom English is a second language. It develops skills for coping with legal vocabulary, effective reading of texts, note taking skills and methods of writing assignments and answers to problem questions.

Understanding Contract Law, Khoury & Yamouni, Butterworths, 6th Ed., 2003

Australian Business Law, Latimer, CCH, 29th Ed., 2010

Business Law of Australia, Vermeesch & Lindgren, Butterworths, 11th Ed., 2005

Contract Law, Australian Black Letter Law Series, Clarke, Butterworths, 1993

Concise Contract Law, Gillies, The Federation Press, 1995.

Business and the Law, Terry & Giugni, Thomson Legal & Regulatory, 2005

Cheshire and Fifoot's Law of Contract, 8th Australian Edition, Butterworths, 2002

Australian Commercial Law, Turner, Law Book Co., 24th Ed., 2003

Understanding Business Law, Pentony, Graw, Lennard & Parker, Butterworths, 3rd Ed., 2003

Note:There are numerous texts on the subject of contract law, or which include contract law as part of a broader analysis of business or commercial law. Any recognised text dealing with contract law will be useful to students. Care should be taken when reading English texts to note that only those Australian cases which were appealed to the Privy Council might be noted. This could therefore exclude recent Australian cases of consequence.

Plagiarism

Plagiarism is the act of plagiarising the work of another. Plagiarism, as defined by Victoria University is:

A practice that involves the using of another persons intellectual output and presenting it as ones own.

It is acceptable to quote directly from a written and published work, but the source must be acknowledged when we do so. Failure to do so implies that we are trying to pass off as our own original work and ideas the work and ideas of someone else. This is not acceptable.

When researching for an assignment, for example, it is inevitable that many ideas will be extracted from other people's work. This is quite acceptable, so long as appropriate acknowledgment is given in footnotes or end-notes to the assignment. Failure to do so will result in loss of marks.

Student Support Programs

On some campuses, support programs are offered by Teaching and Learning Services. These programs are open to all students from all campuses where the subject is offered, but presentation of the programs will usually occur only at the Footscray Park campus. Details will be available to students from other campuses. The programs are assessment-specific, concentrating upon preparation for assignment and final examination at appropriate times during the semester.

The Internet as a Research Tool

All students now have access to the Internet - at least through the University's internal facilities, and should regularly visit the websites maintained by the Faculty of Business and Law and by webct.

These sites contain much useful information for students of Business Law. For example, answers to tutorial questions are placed on this site progressively during the Semester, and various strategies to assist students are outlined. Students are also reminded of deadlines applicable to various aspects of their necessary work in the subject.

There are many other useful internet sites available for student access, and many of these sites are of special benefit to students of law subjects. For example, the site conducted by the

Australasian Legal Information Institute (http://www.austlii.edu.au) includes all Acts of the Commonwealth Parliament in full and detailed reports of all reported decisions of the High Court and the other Federal Courts. The Acts and court decisions of all of the States are also being added to this website. The States are also establishing websites to enable access to State Acts of Parliament and State Court decisions. The relevant website to access to see Acts of the Victorian Parliament and decisions of Victorian State Courts is http://dms.dpc.vic.gov.au.

Legal publishers, such as Thomson Legal, Butterworths and CCH also maintain sites containing useful information for law students, and students are encouraged to access these sites to facilitate their research. Add a reference here to MY LAW LAB OR OTHER PEARSON SITES?

The Internet is a rapidly-growing source of information for tertiary students in general and for law students in particular. Students who fail to familiarise themselves with the Internet as a research facility will be disadvantaged in their studies. Care should be taken, however, when using the internet for assignment research. If using global searching facilities you may obtain access to significant amounts of information that appears to be relevant to the topic, but if it sourced in America or Canada (for example) it may not be relevant to Australian law.

A good starting point for information is to contact the University Library staff, who are fully conversant with developments with the Internet, and are keen to share their knowledge with students. Students are strongly advised to learn about this convenient source of information and knowledge and maximise its use in their individual study programs.

Lecturers in the School of Law are also familiar with Internet access facilities for Law Students, and will be happy to assist students requiring further information in this area. Students are reminded that all Law lecturers have defined student consulting hours, which are detailed on individual lecturer's timetables posted on their office doors. Consulting hours are times when Law lecturers are available for student consultation. They may well also be available at other times when not conducting lectures or tutorials or visiting other campuses, but they are available during specified consulting hours.

If you are experiencing difficulty contacting your lecturer or tutor personally, the email is a valuable asset in facilitating communication between students and staff. It is much more efficient than telephone contact and staff will usually be in a position to respond to email enquiries from students within 24 hours. (The word lecturer given lower case l for consistency)

BLO1105 Business Law Lecture Guide

Textbook Referencing Guide

GF = Andy Gibson and Douglas Fraser, BL0 1105 Business Law, Compiled by Andy Schmulow, (5th edition, 2010, Pearson Choices)

P = David Parker & Gerry Box, Business Law for Business Students (3rd edition, 2008, Thomson Custom Publishing)

T = Clive Turner, Australian Commercial Law (24th Edition Thomson Lawbook Co)

1. Introduction to the Australian Legal System (Weeks 1 and 2 of lectures)

The sources of Australian Law [G 1 - 10] [P1]

A brief history of the development of Australian Law [G 1 - 10] [P2]

Common Law and Precedent [G13] [P5]

Law Reports [P11]

The State and Federal Court Systems [G 18 - 23] [P11]

Court Hierarchy in Australia [G18][P16]

High Court [GF 3] [P21] www.hcourt.gov.au

Supreme Court [GF 54] [P20]

County Court [GF 54] [P19]

Magistrates Court [GF 50] [P17]

Federal Court [GF 58] [P21] www.federalcourt.gov.au

Family Court [GF 57] [P22] www.familycourt.gov.au

Privy Council [GF 30] [P16]

Federal Magistrates Court [GF 57] [P23] http://www.fma.gov.au

Tribunals [GF 64] [P23]

Alternative Dispute Resolution (ADR) [GF 61]

The Doctrine of Precedent [GF 94][P7]

Example the myth of terra nullius [GF21] [P3, 42]

Cooper v Stuart (1889) 14 App Cas 286 [GF22] [P2]

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Gove Land Rights)

Mabo v State of Queensland (Mabo no 2) (1992) 175 CLR 1 [GF23] [P3, 42]

Classifying the different branches of the law

Criminal Law [P26] [T43]

Civil Law [P28]

Tort [P28] [T24]

Contract Law [P31] [T55]

Constitutional Law [P31]

Administrative Law [P31]

The Rules of Equity [GF15] [P32]

The Constitution of the Commonwealth of Australia

The origins and structure of the Constitution [P39]

The division of legislative power between Commonwealth and States [P43]

Amending the Constitution [P47]

Rights and Guarantees under the Constitution [P49]

The Adversary System [P13][T44]

Onus of proof [P26][T24]

Standard of proof [P26]

Legislation and statutory interpretation [GF102] [P47]

Statutory Interpretation [GF102] [P52]

Re Sigsworth: Bedford v Bedford [P54]

Introduction to the Law of Contract.

What is a contract? [GF305] [P59]

2. Intention to Create Legal Relations (Week 3 of lectures)

[G97][P69] [T72]

Domestic Agreements

Balfour v Balfour [1920] AC 445 [GF99] [P71]

Cohen v Cohen (1929) 42 CLR 91 [GF99] [P72]

Murphy v Simpson [1957] VLR 598 [GF99] [P72]

Social Agreements

Coward v Motor Insurers Bureau [1962] 1 All ER 531 [GF100] [P73]

Cameron v Hogan (1934) 51 CLR 358 [G101] NOT IN GF[footnote 9 P73]

Ermogenous v Greek Orthodox Community [2001] 209 CLR 95 [G329]

Rebutting the Presumption of Intention

McGregor v McGregor (1898) 21 QBD 424 [P75]

Merritt v Merritt [1970] 1 WLR 1211 [P75]

Wakeling v Ripely (1951) 51 SR (NSW) 183 [GF327] [P75]

Riches v Hogben [1986] 1 Qd R 315 [GF327] [P76]

Todd v Nicol [1957] SASR 72 [GF327] [P76]

Simpkins v Pays [1955] 1 WLR 975 [GF324] [P78]

Carlill v Carbolic Smoke Ball Co [1892] 1 QB 256 [G335] [P78]

Leonard v Pepsico Inc 88 F Supp 2d (SDNY 1999), affd 210 F 3d 88 (2nd Cir 2000) [footnote 7 P88]

Expressly Excluding the Intention to be Legally Bound

Jones v Vernons Pools Ltd [1938] 2 All ER 626 [GF320, 332]

Honour clauses

Rose & Frank Co v JR Crompton Bros Ltd [1925] AC 445 [GF320,332] [P80]

Letters of Comfort [P80]

Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 [P81] [GF333] Kleinwort Benson Ltd v Malaysia Mining Corporation Berhad [1989] 1 WLR 379 [P81]

Administrative arrangements

Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 [GF334] [P83]

Ambiguous language

Edwards v Skyways [1964] 1 WLR 349; 1 All ER 494 [GF331] [P74]

3. Offer to Contract (Week 4 of lectures)

[G39][P85] [T62]

Harvey v Facey [1893] AC 552 [GF353] [footnote 1 P85]

Invitations to Treat or Invitations to Deal

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 [G43] [P75][T63]

Fisher v Bell [1961] 1 QB 394 [GF105] [P76]

Partridge v Crittenden [1968] 2 All ER 421 [GF349] [footnote 5 P87]

Grainger and Sons v Gough [1896] AC 325 [[P76][T63]

Offers to the World at Large

Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 [GF350] [P69] [T64]

Revocation of offer [GF356] [P92][T64]

Byrne v Leon Van Tienhoven & Co (1880) 5 CPD 344 [GF357] [P111] [T65]

Ramsgate Victoria Hotel Co v Montefiore (1866) LR 1 Exch 109 [P94] [T67]

Routledge v Grant (1823) 4 Bing 653; 130 ER 920

Goldsborough Mort & Co Ltd v Quinn (1910) 10 CLR 674 [GF355] [footnote 36 P111][T65]

Cross offers [GF364] [P89]

Tinn v Hoffman (1873) 29 LT 271 [GF364] [P90]

Counter offers and Requests for information [GF358] [P90]

Hyde v Wrench (1840) 3 Beav 334 [GF358] [P91]

Stevenson Jacques & Co v McLean (1880) 5 QBD 346 [GF358] [P91]

Death of Offeror or offeree[G65] [P94]

Reynolds v Atherton (1921) 125 LT 690 [G66]

Carter v Hyde (1923) 33 CLR 115 [GF360]

Fong v Chili (1968) 11 FLR 495 [G65]

Acceptance of Offer (Week 4 of lectures)

[GF340] [P93] [T66]

Acceptance must be clear, unambiguous, unequivocal and is not complete until communicated.

Latec Finance v Knight [1969] NSWLR 79

Acceptance must be unconditional

Masters v Cameron (1954) 91 CLR 353 [GF365] [P95] [T68]

Souter v Shyamba Pty Ltd [2002] NSWSC 929 [P96]

First Church of Christ, Scientist, Brisbane as Trustee under Instrument7020202154 v Ormlie Trading Pty Ltd [2003] QSC 351 [P97]

Teviot Downs EstatePty Ltd and Anor v MTAA Superannuation Fund Property Pty Ltd [2003] QSC 403 [P98]

Offerors requirements must be met

Eliason v Henshaw (1819) 4 Wheaton 225 [G87] DOES NOT APPEAR IN GF [P99]

Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 [G91] [P100]

Leach Nominees Pty Ltd v Walter Wright Pty Ltd [1986] WAR 244 [P100]

Postal rule of acceptance [GF366] [P101] [T69]

Adams v Lindsell (1818) 1 B & Ald 681; 106 ER 250 [GF366] [footnote 13 P101 ][T69]

Henthorn v Fraser [1892] 2 Ch 27 [note G88] [footnote 16 P102] [T69]

Brinkibon Ltd v StahagStahl und Stahlhandelsgesellschaft mbH [1983] 2 AC 34 [ [footnote 18 P102][T67].

Section 14 Electronic Transactions Act 1999 (Cth) [P102] [T322]

Section 13 Electronic Transactions Act 2000 (Vic) [P102] [T322]

Acceptance in reliance upon offer [GF262] [P103]

R v Clarke (1927) 40 CLR 227 [GF362] [P103] [T66]

Acceptance must be communicated [GF363] [P105]

Felthouse v Bindley (1862) 11 CB(NS) 869 [GF363] [P105]

Implied acceptance [P106] Brogden v Metropolitan Railway Company (1887) 2 App Cas 666 [G85] P106]

Communication of acceptance by Agent [GF364] [P107]

Powell v Lee (1908) 99 LT 284 [GF364] [P107]

5. Consideration (Week 5 of lectures)[GF371- 388] [P115 - 137] [T79-84]

Currie v Misa (1875) LR 10 Exch 153 at 162. [G115] [T79]

Eastwood v Kenyon (1840)11 Ad& E 438 [GF384] [P117]

Roscorla v Thomas (1842) 3 QB 234 [GF375] [P117]

Anderson v Glass (1868) 5 WW & A'b 152 [G376] [P118] [T82]

Lampleigh v Braithwait (1615) Hob 105 [GF376] [P118]

Re Casey's Patents: Stewart v Casey [1892] 1 Ch 104 [G117] [P119]

Doctrine of privity of contract [GF498-500] [P119] [T169]

Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 [GF498] [P119] [T170]

Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460 [GF499] [P120] [T170]

Beswick v Beswick [1968] AC 58 [T170]

Consideration can be Nominal

Thomas v Thomas (1842) 2 QB 851 [P121p2]

Chappell & Co v Nestl Co Ltd [1960] AC 87 [G378] [P122] [T80]

Consideration must be tangible

White v Bluett (1853) 23 LJ Ex 36 [GF384] [P123]

Hamer v Sidway 124 NY 538; 27 NE 256 (1891)

Consideration must be legally sufficient

Wigan v Edwards (1973) 47 ALJR 586 [G121] [P124] [note T81]

Consideration in the context of an existing legal or contractual obligation

Collins v Godefroy (1831) 109 ER 1040 [GF379] [P125] [T81]

Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270 [G379] [P126]

Stilk v Myrick (1809) 2 Camp 317 [GF380] [P126]

Hartley v Ponsonby (1857) 7 El&Bl 872 [G380] [P127]

Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1; 1 All ER 512 [G381] [P127]

Consideration in the context of the variation or the discharge of an obligation

The Rule in Pinnel's Case and Exceptions to it [G127] [P129]

Pinnel's case (1602) 77 ER 237 [P129]

Foakes v Beer (1884) 9 App Cas 605 [GF382] [P129] [T81]

Hirachand Punamchand v Temple [1911] 2 KB 330 [G383] [P130]

6. Promissory Estoppel (Week 6 of lectures)

[G385] [P131] [T84]

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 [GF385] [P132] [T84]

Combe v Combe [1951] 2 KB 215 [P133]

Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101 [P133-134] [T85]

Legione v Hateley (1983) 57 ALJR 292 [note GF386] [P134]

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 [G387] [P135] [T86]

Commonwealth of Australia v Verwayen (1990) 170 CLR 394 [G388] [note T87]

7. Terms of a Contract (Week 7 of lectures)

[GF462-481] [P139][T154]

Buckenara v Hawthorn Football Club Ltd [1988] VR 39 [GF455] [P125]

Parol Evidence Rule [GF467] [P140] [T155]

L`Estrange v Graucob [1934] 2 KB 394 [GF482] [P159] [T163]

Exceptions to the parole evidence rule: -

Evidence of custom or commercial usage

Hutton v Warren (1836) 1 M & W 466 [G203] [P141]

Contract not yet operational/Suspension of operation

Pym v Campbell (1856) 6 E & B 370; 119 ER 903 [GF465] [P141][T157]

Where the contract is partly in writing and partly oral

Van Den Esschert v Chappell [1960] WAR 114 [GF467] [P141][T156]

Analysis of Statements [G206] [P142][T156]

Oscar Chess Ltd v Williams [1957] 1 WLR 370; [1957] 1 All ER 325 [GF466] [P143] [T156]

Collateral Contracts [GF468] [P144] [T157]

De Lasalle v Guildford [1911] 2 KB 215 [GF468] [P145] [T157]

Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133 [GF470] [P146] [T157]

J Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 2 All ER 930 [G214] [P146]

JJ Savage & Son Pty Ltd v Blakney (1979) 119 CLR 435 [GF469] [P147] [T158]

Meaning of Terms

CNW Oil (Australasia) Pty Ltd v Australian Occidental Pty Ltd (1984) 55 ALR 599 [P148]

G Scammel and Nephew Ltd v HC and JG Ouston [1941] AC 251 [GF479] [P148]

Fitzgerald v Masters (1956) 95 CLR 420 [GF479] [P149]

Conditions, Warranties and Intermediate Terms [GF471] [P150] [T158]

Bettini v Gye (1876) 1 QBD 183 [GF473] [P151] [T159]

Poussard v Spiers & Pond (1876) 1 QBD 410 [G217] [P151]

Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 [P151] [T159] [GF 472]

Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 641-2 [T184]

Intermediate (or Innominate) terms [GF474] [P152] [T159]

Consequences test

Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 [GF474] [P152] [T185]

Conditions Precedent and Subsequent [GF474-476] [P152] [T180]

Head v Tattersall (1871) LR 7 Exch 7 [GF476] [P153]

Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 [GF475] [T180]

Exclusion ClausesThe Signature Rule

LEstrange v Graucob Ltd [1934] 2KB 394 [GF482] [P159 [T163]

Curtis v Chemical Cleaning & Dyeing Co Ltd [1951] 1KB 805 [GF483] [P159] [T166]

Gallie v Lee [1971] AC 1004 [P161]

Unsigned Documents (Ticket cases).

Adler v Dickson [1955] 1 QB 158; [1954] 3 All ER 21 [note GF491]

Thompson v London Midland & Scottish Railway [1930] 1 KB 31; [1930] 1 KB 41 [G234] [P168] [T259]

Chapleton v Barry Urban District Council [1940] 1 KB 532 [GF482] [P164]

Causer v Browne [1952] VLR 1 [GF484] [P163] [T166

J Spurling Ltd v Bradshaw [1956] 1 WLR 461; 2 All ER 121

Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 [GF485] [P169] [T165]

Olley v Marlborough Court Ltd [1949] 1 KB 532 [GF487] [P171] [T165]

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 545 [note G236]

Previous Dealings

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 [GF487] [P171] [note T813]

Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 [GF478] [P181]

Hollier v Rambler Motors (AMC) [1972] 1 WLR 399 [P172]

Walter H Wright Pty Ltd v DJ Hill & Co Pty Ltd [1971] VR 749 [P165]

Contra proferentem

White v John Warwick & Co Ltd [1953] 1 WLR 1285 [P173] [GF 487][ Note T167] Council of the City of Sydney v West (1965) 114 CLR 481; [1966] ALR 538 [note GF488] [P176] [T167]

Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 [GF489] [P174]

Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Aust) Pty Ltd (1966) 115 CLR 353 [note G248] [P176] [ T499]

Interfoto Picture Library Ltd v Stilleto Visual Programmes Ltd [1988] 1 QB 433; 2 WLR 615 [GF486]

Le Mans Grand Prix Circuits Pty Ltd v Iliadis [1998] 4 VR 649 [GF483] [P166]

Doctrine of fundamental breach

Suisse Atlantique Societe D'armenent Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 [P175] [T167]

Photo Production Ltd v Securicor Transport Pty Ltd [1980] 2 WLR 283; [1980] 1 All ER 556 [GF489] [P175] [T167]

8. Implied Terms (Week 8 of lectures)

[GF476] [P 181] [T160]

Terms implied under the common law

Industry Convention British Crane Hire Corporation v Ipswich Plant Hire Ltd [1974] 2 WLR 856 [P182]

Summers v Commonwealth of Australia (1918) 25 CLR 144

Past Dealings

Hillas & Co Ltd v Arcos (1932) 147 LT 503 [GF478] [P171]

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 [GF487] [P171]

Hollier v Rambler Motors (AMC) [1972] 1 WLR 399 [P172]

Business Efficacy

The Moorcock (1889) 14 PD 64; [1886-1890] All ER 530 [GF478] [P184]

Codelpha Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; 56 ALJR 459 [GF514] [P185]

M'Alister (Donoghue) v Stevenson [1932] AC 530 [P6] [T791].

Terms implied by operation of [P185]

Fair Trading Act 1999 (Vic)

Australian Competition and Consumer Act 2010 (formerly the Trade Practices Act 1974 (Cth)). [P189]

Carpet Call Pty Ltd v Chan (1987) ATPR 46-025 [P191]

Part 2A Fair Trading Act 1999 (Vic), formerly Part IV Goods Act 1958 (Vic). [P192]

9. Capacity to Contract (Week 8 of lectures)

[GF314-175] [P199 205] [T91 99]

Mentally ill

O'Connor v Hart [1985] 1 NZLR 159; [1985] 1 AC 1000 [GF404]

York Glass Co Ltd v Jubb [1925] All ER 285; (1925) 134 LT 36 [P172]

Gibbons v Wright (1954) 91 CLR 423 [G169]

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Intoxication

Blomley v Ryan (1956) 99 CLR 362 [GF403] [P172]

Contracts with Minors [Infants]

(a) for necessaries [necessary goods and services]; or

(b) beneficial contracts of service

Chapple v Cooper (1844) 153 ER 105 at 107 [P203]

Nash v Inman [1908] 2 KB 1 [P204]

Ryder v Wombwell (1868) 4 LR Exch 32 [P203]

Scarborough v Sturzaker (1905) 1 Tas LR 117 [GF396]

Beneficial contracts of service

McLaughlin v Darcy (1918) 18 SR (NSW) 585 [GF396]

Doyle v White City Stadium Ltd [1935] 1 KB 110

Convicts [171g5] [167g4] [182p4].

Dugan v Mirror Newspapers Ltd (1979) 53 ALJR 166 [G171]

Bankrupts [s.133 Bankruptcy Act 1966 (Cth)] [G173] - s.269 Bankruptcy Act 1966 (Cth)

10 . Mistake (Week 9 of lectures)

[GF409] [P187]

There are 3 categories of mistake

1. Common Mistake

Scott v Coulson [1903] 2 Ch 249 [182]

McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 [GF412] [P209]

Leaf v International Galleries [1950] 2 KB 86 [GF411] [P209]

Svanosio v McNamara (1956) 96 CLR 186 [P210]

Bell v Lever Brothers Ltd [1932] AC 161 [note GF4132] [P210]

Common Mistake in Equity

Solle v Butcher [1950] 1 KB 671 [GF414] [P211]

2. Mutual Mistake

Raffles v Wichelhaus (1864) 2 H&C 906; 1569 ER 375 [GF414] [P192]

3. Unilateral Mistake

Cundy v Lindsay (1878) 3 App Cas 459 [GF418] [P213]

Phillips v Brooks Ltd [1919] 2 KB 243 [GF416] [P214]

Ingram v Little [1961] 1 QB 31 [G272] [P215] Lewis v Averay [1972] 1 QB 198; [1971] 3 All ER 907 [GF417] [P216]

Hartog v Colin & Shields [1939] 3 All ER 566 [GF418] [P217]

Gallie v Lee [1971] AC 1004 [P161]

Petelin v Cullin (1975) 49 ALJR 239 [GF420] [P161]

Taylor v Johnson (1983) 57 ALJR 197 [G419] [P217]

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 [GF410]

11. Misrepresentation (Week 9 of lectures)

[G279-310] [P221-240] [T112]

Offending Statement must be one of fact not law

Eaglesfield v Marquis of Londonderry (1876) 5 Ch D 693 [P228]

Solle v Butcher [1950] 1 KB 671 [GF414] [P207]

Offending Statement must be one of fact not opinion

Bisset v Wilkinson [1927] AC 177 [P229]

Smith v Land & House Property Corporation (1884) 28 ChD 7 [note G280] [P229]

A half truth can be treated as a misrepresentation.

R v Kylsant [1932] 1 KB 442 [P231p2]

Correcting positive distortions

Krakowski v Eurolynx Properties Ltd (1994-5) 183 CLR 563 [GF424]

Lockhart v Osman [1981] VR 57 [G282]

Jones v Dumbrell [1981] VR 199 [P231]

Inducement to Contract

Attwood v Small (1838) 6 Cl&Fin 232; 7 ER 684 [P232]

Redgrave v Hurd (1881) 20 Ch D 1 [P232]

Remedies for Misrepresentation - Rescission

Newbiggin v Adam (1886) 34 Ch D 582 [P232]

Bars to rescission

Bona fide purchaser for value without notice

Leason Pty Ltd v Princes Farm Pty Ltd [1983] 2 NSWLR 381 [P300] [P235]

Negligent Misrepresentation

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1965] AC 465 [GF427] [P236]

Mutual Life and Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 [P235]

L Shaddock & Associates Pty Ltd v City of Parramatta (1981) 150 CLR 225: 55 ALJR 713

Esso Petroleum Company Ltd v Mardon [1976] 1 QB 801 [GF427] [P238]

12. Duress, Undue Influence & Unconscionable Conduct

(Week 10 of lectures)

[G313] [P241 - 254]

Duress

Barton v Armstrong [1976] AC 104 (PC) [note GF430] [P241][T125]

Economic Duress

Universe Tankships of Monrovia v International transport Workers Federation [1983] 1 AC 366 [P243]

North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] 1 QB 705; [1978] 3 All ER 1170 [T126]

Smith v William Charlick Ltd (1924) 34 CLR 38 [P238]

Crescendo Management Pty Ltd v Westpac Banking Corporation Ltd (1988) 19 NSWLR 40 at 46 [ [P237] [T126]

Pao On v Lau Yiu Long [1979] 3 WLR 435; [1980] AC 614 (PC) [note G117] DOES NOT APPEAR IN GF [T82]

News Ltd v Australian Rugby League Ltd (1996) 58 FCR 447 [GF777]

Undue Influence

Johnson v Buttress (1936) 56 CLR 113 [GF434] [T127]

Mutual Finance Ltd v John Wetton & Sons Ltd [1937] 2 KB 389 [P219]

Lloyds Bank Limited v Bundy [1975] QB 326 [P245] [T1284]

Westmelton (Vic) Pty Ltd v Archer and Schulman [1982] VR 305 [P245]

Tate v Williamson (1866) 2 Ch App 55 [P246]

Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 [T127]

Yerkey v Jones (1939) 63 CLR 649 [P246]

Bank of Victoria v Mueller [1925] VLR 642 [P247]

Barclays Bank Plc v OBrien [1994] AC 180 [P247]

Garcia v National Australia Bank Ltd 1998 155 ALR 614 [P248]

Royal Bank of Scotland v Etridge [2001] 4 All ER 449 [P248]

Fiduciary Relationships

Hospital Products International Pty Ltd v United States Surgical Corporation (1984) 156 CLR 41 [T315]

James v ANZ (1986) 62 CLR 339; 64 ALR 347 [T129]

Unconscionable conduct

South Australian Railways Commissioner v Egan (1973) 130 CLR 506 [

Blomley v Ryan (1956) 99 CLR 362 [GF403] [P196][T132]

Hart v O'Connor [1985] 1 AC 1000 [GF404]

Clifford Davis Management v WEA Records Ltd [1975] 1 WLR 61

Commercial Bank of Australia v Amadio (1983) 151 CLR 447 [GF435] [P250][T131]

Nolan v Westpac Banking Corporation (1989) 98 FLR 226 [P251]

Louth v Diprose (1992) 175 CLR 621; 110 ALR 1 [GF436][T132]

Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 [G340] [T482]

13. Discharge of contract. (Week 12 of lectures)

Discharge by Performance

Sumpter v Hedges [1898] 1 QB 673 [GF528] [P266]

Planche v Colburn (1831) 8 Bing 14; 131 ER 305 [T211]

Hoenig v Isaacs [1952] 2 All ER 176 [GF505] [P267]

Cutter v Powell (1795) 6 TR 320 [GF505] [P265]

Re Moore & Co v Landauer [1921] 2 KB 519 [P260]

Discharge by Agreement

Pearl Mill Co v Ivy Tannery Co [1919] 1 KB 78

Discharge by a Term in the Contract

Head v Tattersall (1871) LR 7 Exch 7 [GF476] [P153]

Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 [G475]

Discharge by Operation of Law [GF 517] [P269]

Discharge by Breach of the Contract [GF517-518] [P269]

Discharge by Acceptance of Breach [GF517-518] [P270]

Anticipatory breach [GF518] [P270].

Avery v Bowden (1855) 119 ER 647

White & Carter (Councils) Ltd v McGregor [1962] AC 413 [G412]

Discharge by Frustration [GF510-516] [P270]

Paradine v Jane (1647) Aleyn 26 [P270]

Taylor v Caldwell (1863) III B and S 826: 122 ER 309 [GF512] [P271]

Esposito v Bowden (1857) 119 ER 1430; 7 EB 763 [P273]

Horlock v Beal [1916] 1 AC 486 [P273]

Krell v Henry [1903] 2 KB 740 [GF513] [P273]

Metropolitan Water Board v Dick Kerr & Co [1918] AC 119 [G399] [P273]

Wong Lai Ying v Chinachem Investment Co Ltd (1979) 13 Building LR 86 [P274]

Bank Line Ltd v Capel & Co [1919] AC 435 [P274]

Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93[P274]

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; 56 ALJR 459 [GF514] [P274]

Frustrated Contracts Act 1959 (Vic) [P275]

14. Remedies for breach of contract (Week 12 of lectures)

Specific Performance

Beswick v Beswick [1968] AC 58 [T170]

Specific performance is not appropriate if it requires constant supervision

Ryan v Mutual Tontine Westminster Chambers Assoc [1893] 1 Ch 116 [ [T204]

JC Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282 [GF542]

Injunction [P278] [T205]

Page One Records Ltd v Britton [1968] 1 WLR 157 [T205]

Damages

Liesbosch Dredger v SS Edison [1933] AC 449 [P280]

Hadley v Baxendale (1854) 9 Exch 341 [GF529] [P280] [T197]

Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 [GF531] [P281] [T198]

Koufos v Czarnikou Ltd (The Herron II) [1969] 1 AC 350 [note GF531] [P283]

Measure of Damage [P284]

Bellgrove v Eldridge (1954) 90 CLR 613

Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 [GF533] [P285]

Mitigation of Damages [T199] [GF536] [P286]

White & Carter (Councils) Ltd v McGregor [1962] AC 413

Damages for Injured Feelings [GF535] [P286] [T200]

Addis v Gramophone Co Ltd [1909] AC 488 [P287]

Stedman v Swan Tours Ltd (1951) 95 SJ 727 [

Jarvis v Swan Tours Ltd [1972] QB 233 [T201][P287]

Jackson v Horizon Holidays [1975] 3 All ER 92 [GF535] [P287] [T201T24]

Baltic Shipping Co v Dillon [The Mikhail Lermontov] (1993) 176 CLR 344 [GF535] [P288] [T200]

Liquidated Damages and Penalties

Dunlop v New Garage and Motor Co Ltd [1915] AC 79 [GF539] [T202]

Esanda Finance Corp Ltd v Plessnig (1988) 166 CLR 131; 84 ALR 99 [P289] [T204]

Tutorial Program

Notes to Students

These materials comprise a tutorial program that is designed to incorporate the language and learning program developed by Helen Murphy from Teaching and Learning Services at VU, into the original Business Law Tutorial Program. The program assists students in the unique requirements of law subjects, providing strategies and approaches for them to enhance their success in law studies.

Students are directed to a web-site created for this subject at http://webct.vu.edu.au (this address may change, so students should confirm the correct address with their tutors). See also http://ceds.vu.edu.au/buslaw, a website that contains much useful information about Business Law. This site is maintained by Helen Murphy from the Student Learning Services Unit, which is in turn part of Teaching and Learning Services. Apart from containing important information for students about the subject, this site also contains practical exercises and strategies for understanding cases, writing assignments and preparing for examinations. Up-to-date information concerning the subject will also be posted on the site during the semester.

CONSEQUENTLY, STUDENTS ARE ENCOURAGED TO VISIT THE SITE REGULARLY, PREFERABLY ON A WEEKLY BASIS.

Introductory Notes

Historical background

In 1901, the colonies of Australia (namely Victoria, New South Wales, Tasmania, South Australia, Queensland and Western Australia) united to form a new nation, the Commonwealth of Australia. This event is what is referred to as federation. It was decided then that the States (formerly the colonies) would continue on and keep some of their legislative (law-making) powers, and would hand over or share some of their other powers with the newly-created Commonwealth (federal) government.

At present, the Commonwealth government has a handful of powers granted exclusively to them (Exclusive Powers), for example, posts, telegraphs and telephones, defence, immigration, currency control, customs and excise and bankruptcy. The powers that are shared are called Concurrent Powers and these involve services such as education and health. If there is a conflict between legislation passed by a State government and the Commonwealth government in the area of the Concurrent Powers, the Commonwealth government legislation overrides the States legislation. State governments retain exclusive

control or power (called residual powers) to legislate over many areas including their police, land ownership and roads. Therefore, as Australian citizens we are affected by two sets of laws, State laws and Federal laws.

The Australian legal system follows the English system of common law, which contrasts with the civil law system that operates in mainland Europe and other countries following the European tradition.

A detailed overview of the Australian legal system can be found on the webct website under the heading Introductory Module. All students are expected to be familiar with this information. Students who have not studied law subjects before will find this information particularly helpful. The website also contains a Glossary where students will find definitions of legal words and phrases.

What is a Case?

When two people have a dispute and one of them takes legal action, the dispute may end up being heard and decided by a court of law. The dispute is now called a case and the hearing of the case by the court is called a trial. Because it is a dispute between two ordinary people (or corporations), it is called a civil action (as opposed to a criminal action). The two people in dispute are called the parties; the party who commenced the legal action (ie. the one suing) being the plaintiff and the other party in the dispute (ie. the one being sued) being the defendant. In lower courts, like the Magistrates Court, the word trial is usually replaced by another more general word such as hearing, and the plaintiff is called the complainant.

At this trial or hearing the parties concentrate most of their efforts on trying to prove facts helpful to their own cases. Some time will be spent on establishing what rules of law should apply given the particular area of dispute between the parties (eg. what are the legal rules about what constitutes a contract and what legal rights does a contract give to the parties?). It is the judge who decides what rules of law apply and tells (directs) the jury (if there is one) as to what they are.

At the end of the trial, the jury (or the judge if the case does not involve a jury, because, in some cases, the parties can choose not to have a jury) will look at all the evidence. They will decide which facts to believe and then decide which party wins and what type of recompense (or remedy), if any, the winner is entitled to receive from the loser. Either of the parties may not be prepared to accept all or part of this decision and may request a higher court (eg. Supreme Court of Victoria) to hear the case and make a different decision. This is called an appeal.

There are usually two reasons (or grounds) on which the unhappy party, now called the appellant (the other party now being the respondent), can base an appeal. First, the appellant can claim that the jury (or judge) made a mistake in deciding which of the facts presented by the parties to believe. This is a very hard argument to win because appeal courts usually take the attitude that because the trial jury (or judge) saw and heard the evidence

being given, it is in a much better position to decide which parts of the evidence to believe in and to rely upon. It must be kept in mind that at most appeals the witnesses are not called to

give evidence again and there is no jury. The judges just read the written record (or transcript) of what was presented at the trial and listen to arguments put forward by the lawyers for each party. There are few cases appealed on this ground that the jury made a mistake about the facts.

The second (and most common) ground for appeal is that the trial judge made a mistake in applying the law, by using a wrong rule, misinterpreting the meaning of the appropriate legal rules or applying a correct rule in an inappropriate manner. In this type of appeal there is no dispute about the facts as decided at the original hearing and the court accepts those facts as being true. The argument is centred on what the correct rules of law are and how they should be applied to the agreed facts of the case.

It is this type of appeal case that is important in setting out what the law is. They are often collected and published in law reports and referred to in law books, articles in law journals etc. They are the cases that students learn about in law subjects. Therefore in the cases referred to in classes, students need not be concerned about whether the facts as stated are true. Students, like professional lawyers, should concentrate on how these cases explain the law with respect to the particular area of dispute between the parties. Students should do this because they are required to use these rules of law to decide the outcome of new similar disputes. This is exactly what lawyers do.

Further reading:

Parker and Box Chapters 1-3

Crosling and Murphy Chapter 1

Turner Chapter 1

Latimer Chapter 1

For full details of these books, and others mentioned in these materials, students are referred to page 22 of this Manual.

Tutorial One - Reading and Understanding Cases

The purpose of this tutorial is to introduce the concept of a case and to learn:

- how to use cases in the study of law.

- how to read cases and elicit the necessary information, to be able to apply it to other fact situations (ie. to decide new cases).

- how to practically apply the principle of precedent.

In Business Law, most of the cases you will be expected to read and understand will be summaries of the cases rather than the full court judgment that is recorded in law reports (please note that the cases reported in the law reports are primary sources, whereas, the case summaries are secondary sources). In your assessment tasks, you will be required to discuss the details of cases to illustrate the application of legal principles and to cite them as an authority for these principles in your legal arguments when you are answering problem questions.

In legal argument, whenever you state a legal principle you are expected to also state (ie. cite) your authority for that principle. Such authority usually is a case or a piece of legislation (laws made by parliament). As has been outlined in the introductory notes, cases explain the law as it has been interpreted and applied in disputes between parties. Students need to study the important elements of cases because they are required to apply the rules of law that have been used in these cases to decide the outcome of new similar disputes given in problem questions.

Reading a Case Study

The following exercise contains a case summary from which students are required to extract important information. Students may find the language used difficult to understand. Students should attempt the tasks, after which the tutor will go through the exercise and give assistance with respect to the language used and the requirements of the tasks.

In De Jong v Carpenter (1982) 2 BPR 9524, the Supreme Court of New South Wales was asked to determine whether a contract existed between the parties in the following circumstances:

The plaintiff wished to purchase certain land from the defendant. To this end, the defendants solicitor prepared a contract which provided that the sale was subject to the purchaser obtaining finance from a particular source within 28 days. He retained a copy of this agreement and sent a counterpart to the purchasers solicitor. The defendant later instructed his solicitor to insert a further condition in the contract which rendered completion

by a certain date of the essence of the contract. This amendment was duly inserted by the defendants solicitor in his copy of the contract, but the purchasers solicitor was not notified of this alteration. Accordingly, it was not recorded in the purchasers copy. Subsequently, both solicitors agreed to change the period of time referred to in the finance clause from 28 days to 14 days. No evidence was presented to show that the purchaser had agreed to such a change. Signed contracts were exchanged in due course, but before completion the defendant purported to rescind the contract. The purchaser sought specific performance. It was held that there was no contract between the parties because they had in effect failed to reach agreement on two terms which were ma