Business Law & Ethics notes Lec Lecture topic Topic s covered Text book refs 1 law, morality and philosophical views of ch 1 meaning of eithics law 2 the source of laws governing constitution expansion of power interpreting power ch 1 ch3 3 legal literacy for professionals 4 types of es 5 contract the keystone of legal professions ADR common law V equity companies partnerships joint ventures choosing a intention agreement 6 3 c s and an L Consideration (promissory estoppel) capacity consent legality of object 7 contract contempt and catastrophe terms of a contract exclusion clauses remedies for breach of contract ch2 3 equity maximums ch27 companies and incorporated assos 28 partnership & JV ch29 choose Ch-11 intro to contracts Ch 12 intention Ch13 agreement Ch18 construction of contract Ch19- rights of parties and discharge Ch20 breach contract 8 the law protecting consumer and small es 9 fairness and ethics in relationships 10 Measures to avoid liability in genuine consent manufactures liability TPA & FTA misleading and deceptive conduct ethical character, and practices Negligence Defamation Manufactures liability (product liability) 11 risk negligence in agency insurance 12 going global convention countries and rules Ch16 genuine consent Ch 23 consumer protection legislation Ch 3 companion text Ch 7 negligence Ch 8 applications of negligence Ch9 defamation Ch23 manufacturers liability ch 8 negligence ch26 agency ch 10 insurance Ch4 supplementary text application rules for tort and contract 1
Lecture 5 Contract: a legally binding agreement Formal contract Validity= from FORM alone - no consideration required e.g. contracts of record court records Simple contract Validity= from 3 elements being present Page 245 1. intention 2. agreement 3. consideration e.g. money/deposit Classification of contracts page 247 Classification type of contract Note By promise Bilateral - both parties have to perform their promise Enforceability a)valid b) Voidable c) Unenforceable d) Illegal Performance a) executed b) executory A contract entered into by way of promise a promise for a promise a) all elements are satisfied and enforced by either party b) only the injured party can enforce the contract or rescind c)no legal rights or obligations so neither party can enforce it d) the purpose of the contract is contrary to statue or common law a) performance at the time of making b) both parties still have obligations Formation a) Expressly b) impliedly c) Quasi contract d) formal e) simple a) the contract is created by express words ie by writing, orally or combination b) created by conduct of parties c) an agreement imposed by law d) a contract that requires a special form or method of creations by does not require consideration e) a contract that does not require a special form but must have consideration present Essential elements of a contract 1. Intention Intend to be legally bound presumptions: - Social domestic and voluntary: intention NOT to be legally Page 256 bound. Onus on P to rebut e.g. Balfour V Balfour (page 257) e.g. Merritt V Merritt (page 258) 2
2. Agreement Page 266 - Business or commercial agreements: intention to be legally bound. Onus on D to rebut e.g Rose Frank V Compton Bros (page 260) Objective test: what would a reasonable person draw from the parties actions and words e.g. Carlill V Carbolic Smoke ball (page 262) OFFER Rules as to offer 1. there must be an intention or willingness to be bound or it may be an invitation to treat 2. it must be a firm promise or it may be a request for information e.g Havey V Facey p.271 3. it must be communicated to the offeree 4. it may be made to one person, a group or the world at large 5. it may be kept open if supported by consideration e.g. Goldsborough Mort & Co V Quinn (page 272) 6. all terms must be bought to the notice of the offeree and followed exactly 7. it may be terminated Methods to Terminate an offer (page 273) * must take place before acceptance unless condition subsequent or revocaiton a) Revocation (withdrawal) - notice of revocation has been sent to the offeree - the offeree has been made aware of the revocation e.g. Dickson V Dodds (Page 274) e.g. Byrne V Leon Van Teinhoven (page 274) b) Rejection / counter offer e.g. Hyde V Wrench (page 275) c) Lapse of time where no time is specified lapse of offer occurs within a reasonable time d) Death depends on; the nature of the contract e.g. personal and knowledge of the other party e) Failure of condition - Subject to condition - Condition precedent (before contract) a clause or term that states that the agreement does not become a contract until the happening of a specific event - Condition subsequent (after contract formed) clause in contract that parties have stated that if occurs terminates the contract. 3
INVITATION TO TREAT or offer? invitation to treat a statement that encourages others to make and offer The following are generally considered to be invitations - actions - with reserve set min price = invitation - without reserve = offer - the advertisements of tenders - exact need = offer e.g. will require - required needs/ may require = conditional offer. - catalogues - price lists - goods placed in shop window and on shop shelf e.g. Pharmaceutical Society V Boots Cash Chemist (page 268) ACCEPTANCE p.227 Rules as to acceptance 1. must be made in reliance of the offer e.g. R V Clark (p.277) 2. must be strcikly in accordance with the terms of the offer 3. must be communicated to the offeror by words or conduct some positive act must be performed. e.g. Felthouse V Bindley (p.278) 4. cannot be cross offer 5. can only be accepted by the party to whom the offer was made 6. must be absolute and unqualified and 7. cannot be revoked without assent of offeror 8. Exclusion clauses are valid when: - brought to attention before contract made - cannot ous the jurisdiction of the court - how strict or harsh (contra proferentum rule) Postal Rule: 1. an offer made by letter is not effective until received by the offeree 2. Acceptance is effective as soon as it is posted. 3. Withdrawal of the offer is only effective if it is received by the offeree before they post their letter of acceptance. 3. consideration The price of the promise 4. capacity The legal ability to enter a contract 5. consent 6. Legality of object 4
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