(Ebook) Law in Commerce 6th Edition by Brendan Sweeney, Jennifer O Reilly, Andrew Coleman ISBN 0409342858 9780409342857

(Ebook) Law in Commerce 6th Edition by Brendan Sweeney, Jennifer O Reilly, Andrew Coleman ISBN 0409342858 9780409342857

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ISBN 10: 0409342858 
ISBN 13: 9780409342857
Author: Brendan Sweeney, Jennifer O Reilly, Andrew Coleman

Preface Law in Commerce is designed for students studying business law as part of a business degree. Many business students will complete only one law subject. Consequently, the dilemma confronting the subject designer is determining what material to exclude. This book reflects the idiosyncratic choice of those who designed the basic commercial law subject at the Caulfield campus of Monash University. The book covers topics such as liability for defective goods and services, liability for misrepresentation and deception, contract liability and business structures. The laws discussed include negligence, contract, relevant parts of the Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)), agency, partnership and aspects of corporations law, including directors’ duties. Rather than attempt to cover every aspect of the relevant laws, the authors have attempted to highlight the more important commercial applications. The book is structured to bring out some of the basic concepts of legal method — concepts which, in a law school, would warrant a separate subject. For example, Chapter 2 addresses non-contractual liability in the production and distribution of goods and services. The chapter is designed not only to present the law of negligence and product liability, but also to demonstrate the common law in operation and contrast it with the statutory developments. A recent important statutory development has been the creation of the Australian Consumer Law (ACL). Numerous case summaries are presented to show the law in action. The text of many of the relevant statutory provisions has been reproduced on the basis that this is the best way to get students accustomed to interpreting statutes. The sixth edition of Law in Commerce incorporates recent case law and legislative changes. It also includes additional detail on the structure of the Australian legal system, plus an expanded guide to the rules of statutory interpretation. Understanding how courts interpret statutes has

(Ebook) Law in Commerce 6th Table of contents:

CHAPTER 1 LAW AND THE AUSTRALIAN LEGAL SYSTEM
Objectives of this chapter
Introduction and outline of chapter
Why study business law?
What is meant by the rule of law?
Identifying the law
Sources of law: parliamentary law
A short history of government in Australia
Federalism: sharing power between parliaments
Changing the division of power between parliaments
Finding and referring to parliamentary law
The structure of parliaments in Australia
The process of creating parliamentary law
Administering the law: the doctrine of the separation of powers
Interpreting a statute: the role of the courts
Sources of law: case law (common law)
Distinction between common law systems and civil law systems
Doctrine of precedent (stare decisis)
Finding case law
Law reporting and the internet
Common law and equity
The process of extracting the law from a case
The primacy of parliamentary law over case law
An age of regulation
Private law and public law
Civil cases and criminal cases
Dispute resolution
Resolving disputes through the courts
A hypothetical case
Alternative dispute resolution
Law in commerce
Contracts
Torts and similar statutory obligations
Agency, partnerships, companies and trusts
Business, law and ethics
Introduction
The role of ethics in business
The psychology of ethical (or moral) behaviour
The importance of the workplace culture
Deciding what is the right or ethical thing to do
Developing an ethical culture in the firm
Risk management and the law
What is risk management?
What are the legal risks?
Strategies for dealing with legal risks
Compliance programs
Questions
CHAPTER 2 LIABILITY FOR DEFECTIVE PRODUCTS
Objectives of this chapter
Setting the scene: Could this happen in Australia?
Introduction and outline of chapter
Liability for negligence
History of the negligence action
Step 1: When is a duty of care owed?
Step 2: What standard of care is owed?
Step 3: Causation, remoteness of damage, amount of damages
Defences
Liability for another person’s acts
Class actions
Liability for safety defects under ACL Pt 3-5
What is the purpose of Pt 3-5?
What are the elements of a breach of Pt 3-5?
What is a ‘manufacturer’?
What is meant by the expressions ‘goods’ and ‘supply’?
What is the meaning of ‘safety defect’ in relation to goods?
Does Pt 3-5 compensate for all types of losses caused by a defective good?
Damage must be caused by the defective good
What are the defences under Pt 3-5?
Can a manufacturer exclude liability?
Other matters
Other product liability laws
Advice — Law in practice
Questions
CHAPTER 3 MISREPRESENTATION AND UNCONSCIONABLE CONDUCT: UPHOLDING THE BASIC NORMS OF COMMERCIAL CONDUCT
Objectives of this chapter
Setting the scene: Creative marketing or legal blunder?
Introduction and outline of chapter
Fraudulent misrepresentation
Step 1: Was the representation a false statement of fact?
Step 2: Did the representation induce the plaintiff to act in some way?
Step 3: Did the representor know the misrepresentation was false?
Step 4: Did the misrepresentation cause the plaintiff to suffer a loss?
Negligent misrepresentation
Step 1: When is a duty of care owed?
Step 2: What standard of care is owed?
Step 3: Remoteness of damage
Misleading or deceptive conduct
Outline of ACL s 18
Conduct of directors, employees and agents
Conduct must be ‘in trade or commerce’
When is conduct misleading or deceptive?
The role of exclusion clauses and disclaimers
Remedies for breach of s 18
Australian Securities and Investments Commission Act
Corporations Act
Unconscionable conduct
Unconscionable conduct as part of judge-made law
Unconscionable business transactions under the ACL
Other unfair conduct
Advice — Law in practice
Questions
CHAPTER 4 MAKING THE CONTRACT: OFFER AND ACCEPTANCE
Objectives of this chapter
Setting the scene: Pepsi loyalty rewards
Introduction and outline of chapter
The importance of contracts to business
What is a contract?
Standard of conduct expected when negotiating a contract
Does a contract have to be in writing?
The meaning of ‘intention’ in contract law
Contractual remedies
Termination of the contract
Damages
Specific performance
Injunction
Recovery of the contract price
Agreed damages clauses
Making the offer
Meaning of ‘offer’
An offer, or merely an indication of a present intention?
An offer or an invitation to treat?
Auctions: Who makes the offer?
Tenders: Who makes the offer?
Internet transactions: Who makes the offer?
An offer, or merely part of the negotiations?
The fate of the offer
Withdrawing the offer
Can an offer be revoked after acceptance?
Can an offer be revoked before acceptance?
Is it necessary to tell the offeree about the revocation?
Who must tell the offeree that the offer has been revoked?
Is it possible to revoke a unilateral offer?
Options: offers that cannot be revoked
Rejecting an offer
What is the effect of rejecting an offer?
Offeree’s conduct may indicate rejection
Counter offer amounts to a rejection
Asking for clarification of the terms of the offer is not a counter offer
Accepting the offer
Only the offeree may accept
Acceptance must be final and unqualified
Acceptance completes the contract
Acceptance must be communicated to the offeror
Communicating acceptance to a large company
Communicating acceptance over the internet
When is express communication of acceptance not necessary?
Acceptance and the postal acceptance rule
The method and timing of the acceptance
Can acceptance be communicated by someone other than the offeree?
Lapse of offer
Lapse of an offer due to the death of offeror or offeree
Lapse of an offer due to time
Lapse of an offer due to the failure of a condition precedent
The agreement must be ‘certain’
Is an ‘agreement to agree’ binding?
Is an ‘agreement to negotiate’ binding?
Is an agreement made ‘subject to contract’ binding?
Other conditional agreements
Overview of offer and acceptance
Advice — Law in practice
Questions
CHAPTER 5 MAKING THE CONTRACT: INTENTION AND CONSIDERATION
Objectives of this chapter
Setting the scene: Young love and ‘good’ intentions ….
Introduction and outline of chapter
Did the parties intend to contract?
Social or domestic agreements
Commercial agreements
Have the parties provided consideration?
What is a Deed?
Consideration is required in all simple contracts
What is consideration?
Examples of consideration
Only parties to the contract can sue for breach of contract
Consideration may not be past
Consideration may be of nominal value
Consideration must be sufficient
Illusory promises are not consideration
Settling disputes: giving up a legal claim may be consideration
Renegotiating contracts: new consideration necessary
Renegotiating contracts: merely promising to perform an existing contract is generally not good (valid) consideration
Terminating a contract by agreement
Renegotiating a debt: special problems
Is promising to perform a contractual duty owing to a third party good consideration?
Is performing a public duty good consideration?
Promissory estoppel
The rules of contract law can lead to unfair results
How did promissory estoppel develop?
Promissory estoppel and contract law
When is promissory estoppel important?
What are the elements of promissory estoppel?
The leading case: Waltons Stores (Interstate) Ltd v Maher
The remedy in cases of estoppel
Minors
Persons with mental disabilities; intoxicated persons
Agents
Partnerships
Corporations
Assignment of contractual rights
Advice — Law in practice
Questions
CHAPTER 6 EXPRESS TERMS OF THE CONTRACT
Objectives of this chapter
Setting the scene: A Faustian plot
Introduction and outline of chapter
Ascertaining the relevant evidence
The critical importance of the facts
How courts approach different types of evidence
Statements made after the contract is formed are not terms
The importance of a signed document
General rule: a person is bound by the contents of a document they sign
When is a person not bound by a document they signed?
Incorporating unsigned terms into the contract by notice
The reasonable notice test
What constitutes reasonable notice?
Incorporating ‘terms and conditions’ by notice
When are oral statements or representations binding?
The statement must be promissory in nature
Determining which oral statements are promissory: the reasonable bystander test
Applying the reasonable bystander test: some guidelines
Collateral contracts
Meaning of a term
Reasonable person test
Courts must interpret the words of the contract as written
Interpreting exemption clauses
What is an exemption clause?
What are the rules for interpreting exemption clauses?
Unenforceable contracts
In general
Unenforceable terms in standard form consumer contracts
Terms that involve an unreasonable restraint of trade
The importance of a term
Advice — Law in practice
Appendix: Sample of a written contract
Questions
CHAPTER 7 IMPLIED TERMS IN CONTRACTS
Objectives of this chapter
Setting the scene: The not-so-burglar-proof door
Introduction and outline of chapter
Implied terms of cooperation and good faith
Implied term of cooperation
Implied term of good faith
Terms implied into specific types of contracts
Contracts between professional persons and their clients
Contracts for work and materials
Other service contracts
Hire contracts
Employment contracts
Landlord/tenant
Terms implied as a matter of fact
Terms implied on the basis of a course of past dealings
Terms implied as a result of custom or trade usage
Terms implied in order to make the contract effective
Sales of goods contracts
Background to sale of goods legislation
Consumers have special protections under the Australian Consumer Law
What terms are implied by the sale of goods legislation?
Correspondence with description
Fitness for purpose
Merchantable quality
Correspondence with sample
Excluding, or limiting liability for breach of, the implied terms
Remedies
Other matters affecting sales of goods
Advice — Law in practice
Appendix: Comparative table of sale of goods legislation
Questions
CHAPTER 8 REMEDIES IN CONTRACT CASES
Objectives of this chapter
Setting the scene: The sensitive side of heavy metal
Introduction and outline of chapter
Terminating the contract
Termination by performance
Termination by agreement
Termination by a term of the contract
Termination by frustration
Termination for breach of a condition of the contract
Termination for serious breach of an intermediate term
Termination for repudiation
Termination for anticipatory breach
Termination: process and consequences
Recovery of the contract price
In general
Sale of goods
Damages
What is the purpose of damages?
Losses must be caused by a breach of the contract
Agreed damages
Plaintiff has a duty to mitigate losses
Damages must not be too remote: the rule in Hadley v Baxendale
Calculating the amount of damages
Contributory negligence
Specific performance
Injunction
Rectification of the contract
Restitution
Quantum meruit and partially performed contracts
Rescission
Introduction to rescission
Grounds for rescission in equity
The nature of rescission in equity
Statutory rescission
Advice — Law in practice
Questions
CHAPTER 9 CONSUMERS’ RIGHTS AND THE SUPPLY OF GOODS AND SERVICES
Objectives of this chapter
Setting the scene: A timely lesson
Introduction and outline of chapter
Consumers’ rights against the suppliers of goods
Introduction
Supply to a ‘consumer’
What are the statutory guarantees relating to the supply of goods?
When is a supply in trade or commerce?
Supply by way of sale by auction
Guarantee of acceptable quality
Guarantee of fitness for any disclosed purpose
Guarantee that goods correspond with description
Guarantee that goods correspond with sample
Guarantees may not be excluded
Liability may be limited in certain circumstances
Remedies for breach of statutory guarantees relating to goods
Retailers’ right of indemnity against the manufacturer
Consumers’ rights against the manufacturers of goods
The manufacturers’ obligations to the consumer
Defences available to the manufacturer
Manufacturer may repair or replace goods provided it has given an express warranty to that effect
Measuring the amount of damages
Consumers’ rights against the suppliers of services
Supply of services must be to a ‘consumer’
Supply must be in trade or commerce
Meaning of ‘services’
Services not covered by the ACL
Distinguishing services from sales of goods
What are the statutory guarantees relating to the supply of services?
Guarantees may not be excluded
Limiting liability
Terms that limit or exclude liability in recreational services contracts
Remedies for breach of statutory guarantees relating to services
Advice — Law in practice
Questions
CHAPTER 10 AGENCY
Objectives of this chapter
Setting the scene: Stuck with an unwanted contract
Introduction and outline of chapter
What is an agent?
What are the indicators of an agency relationship?
The functions of an agent
An agent may make contracts on behalf of the principal
An agent may receive moneys on behalf of the principal
An agent may pay moneys on behalf of the principal
An agent may make representations on behalf of the principal
An agent may receive representations on behalf of the principal
Some common commercial relationships and agency
Employer–employee
Independent contractor
Bailor–bailee
Supplier–buyer
Franchisor–franchisee
How is an agency created?
Agency may be created by express agreement
Agency may be created by implied agreement
Agency may be created by estoppel
Agency may be created in cases of necessity
Agency may be created by cohabitation
The agent’s authority
The agent’s actual authority
The agent’s ostensible authority
Principal may ratify agent’s unauthorised acts
Meaning of ratification
Rules applying to ratification
Who can sue whom?
When can the third party sue the principal?
When can the principal sue the third party?
When can the third party sue the agent?
The undisclosed principal rule
Duties of an agent
General duties
Fiduciary duties
Duties of the principal
Termination of agency
Advice — Law in practice
Questions
CHAPTER 11 PARTNERSHIPS
Objectives of this chapter
Setting the scene: Choose your partner carefully
Introduction and outline of chapter
Choosing the appropriate business structure
Types of business organisations
Factors that determine the choice of business organisation
Naming the business
Creation of a partnership
Are any formalities required to create a partnership?
Definition of a partnership
Carrying on business
Carrying on a business in common
Carrying on business in common with a view of profit
Partnerships are contractual relationships
Rules governing partners’ relationship with each other
The contract between the partners
Partnership Act 1958 (Vic)
Partners’ duties of good faith
Partnership property
What is partnership property?
What right does each partner have to the partnership property?
Liability of partners to third parties
Limited partnerships
Joint liability for a firm’s debts and obligations
Joint and several liability for wrongful acts
Joint and several liability for misapplication of money or property
Liability by holding out (estoppel)
Assignment of a partnership interest
Termination of a partnership
Termination by the partners
Termination by operation of law
Termination by supervening illegality
Termination by the courts
Partners remain jointly liable for debts even after dissolution of a partnership
Distribution of assets on dissolution
Advice — Law in practice
Appendix: Comparative table of Partnership Acts
Questions
CHAPTER 12 INTRODUCTION TO COMPANY LAW
Objectives of this chapter
Setting the scene: Understanding the nature of your debtors
Introduction and outline of chapter
Sources of companies
The nature of a company
The powers of a company
Types of companies: general classification
Types of companies which may be registered
Consequences of the principle of separate identity
Registering a company
Steps for registration of a company
The company’s constitution and rules
Implications of the certificate of registration
Managing a company
Comparison of companies and partnerships
How does a company create contracts?
How does a company sign a contract?
When is a company bound by the actions of its agents?
People having dealings with a company may make certain assumptions
When do the assumptions not apply?
Advice — Law in practice
Questions
CHAPTER 13 DUTIES OF COMPANY DIRECTORS AND OTHER OFFICERS
Objectives of this chapter
Setting the scene: Directorships can be a burdensome role
Introduction and outline of chapter
What are the functions of a director?
The source of directors’ duties
Duties also owed by officers
Reasonable care and diligence
The business judgment rule
Is any particular level of skill required of a director?
The level of attendance required
The importance of being informed
The role of reliance
The duty to act in good faith and for a proper purpose
The duty to act in good faith
Directors’ duty to exercise power for proper purposes
The duty not to misuse the position
Contracts with the company
The duty imposed on directors to disclose certain interests
The duty not to use information improperly
What kind of information must not be used?
The consequences of a breach of statutory duty
Civil consequences
Criminal consequences: s 184
Directors’ duties at common law
The insolvent trading rule
When is a company insolvent?
What remedies or sanctions may apply?
Defences to s 588G
Sections 588G and 588H in action
Complying with the rules of the company
Further statutory obligations
Who will sue the directors for a breach of duty?
Exceptions to the rule in Foss v Harbottle
A shareholder’s right to take personal action
Advice — Law in practice
Questions
CHAPTER 14 INTRODUCTION TO TRUSTS
Objectives of this chapter
Setting the scene: Conducting business through a trading trust
Introduction and outline of chapter
What is a trust?
Definition
The essential elements of a trust
Parties to the creation of an express trust
Duration of a trust
Trusts compared with other entities
Types of trusts
Discretionary trusts
Fixed trusts
Operation of a trading trust
Trustees’ powers
Express powers
Implied powers
Statutory powers
Trustees’ duties, rights and liabilities
Duty of prudence, diligence and honesty
Personal liability for debts
The right of indemnity
Insolvent trading by corporate trustee: directors’ liability
Beneficiaries’ rights and liabilities
Personal right of action against the trustee (‘right in personam’)
Proprietary right of action in respect of the trust property (‘right in rem’)
Beneficiaries’ liability to creditors
The position of creditors in regard to a trading trust
Termination of a trust
Advice — Law in practice
Questions
Index

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