...Structure for Dealing with Parol Evidence/term /term/representation/condition/warranty questions (1) Decide whether the parol evidence rule applies. The rule only applies if we have a document that seems like it is a complete contract (containing all necessary terms) between the parties, and someone is trying to introduce new oral statements as terms. The court will not do this (the new statements are not contractually enforceable- they are not part of the written contract) unless one of the following exceptions applies: (i) an error is made (mistake) in the written document that needs correcting (Pukallus v. Cameron) (ii) the term was VERY important ( see the white ant case, Van den Esschert v. Chappell) or (iii) there is a collateral contract (2) If the parol evidence rule applies and there are no exceptions, then the oral statement is not a term. End of analysis (unless something like negligent misstatement applies). If either the parol evidence rule applies but there is an exception OR the parol evidence rule does not apply (for example, because the written agreement does not appear on its face to be a complete agreement), then you need to move on to discuss whether something is a term or a representation. (3) to determine whether a statement is a term or representation, you need to consider the three-part test set out in Handbury v. Nolan, where something is considered a term if the following 3 conditions are met: (a) we can verify the truth of the statement...
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...sufficiently so serious as to make him criminally liable. The case of Bateman states gross negligence was the basis of the offence: “does the conduct of the accused show such disregard for the life and safety of others as to amount to a crime?” Modern case of Gross negligence Adomako: Defendant was the anaesthetist during an eye operation on a patient. In the course of the operation the tube from the ventilator supplying oxygen to the patient became disconnected, the defendant failed to notice it for 6 minutes. The patient suffered a cardiac arrest, from which he died. The defendant was guilty of manslaughter. Duty of Care Lord Mackay said in Adomako that the normal principles of negligence (Donohue V Stevenson) in civil law should apply when finding a duty and breach. It can be an act or omission, however has to be shown that defendant did do something negligent. Duties apply: * Contractual Duty: Pitwood * Special relationship: Stone V Dobinson * Parental: Gibbins V Proctor * Dangerous situation: Miller Litchfied: The defendant sailed knowing that engine failure was likely, as the fuel was contaminated. The crew members died when the boat was driven onto rocks. It was held that the owner and master of a sailing owed a duty to the crew. Wacker: Defendant...
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...somebody etc. Sale of Goods Act - condition and warranties. Consumer protection - Basic Overview of Procurement forms Sarah Mamoser Procurement - when company goes and buys smth; not legal obligation to procur. Tendering cases - construction projects; Contract A procurement stage contract forms when materially compliant bid is submitted there can be multiple Contract A if the owner receives multiple compliant bids -act in good faith (can’t use undisclosed material) -they must accept the lowest qualified bid - can use privilege clause (the owner has privilege to not accept the lowest bid) Various forms in procurement: (request for expression of interest (RFEOI) Request for proposal - now frequently for construction law (RFP) - owner choose to cancel RFP anytime (e.g. too expensive etc). RFP less risk, but less certainty, b/e it’s not bound by a contract. Tenders/Request for quotation (RFQ) - process set out to be TRANSPARENT - be in trouble if say we wanted to choose u, but it was too expensive. How damages determined - Expectation damages - difference between price to do the work, and the price between.... Procurement process - procedures fair and transparent. Things u want to do when working with the lawyer: Consider objectives and expectations, be prepared to talk about what ur concerns, what needs to be done. Giving instructions - agreement, letter. Learn risk factors. Raise concerns. Deadline(timeliness). - budget concerns. Wherever...
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...Chapter One: The Legal Environment 1. Business activities and the legal environment 2. Sources of American law 1) Primary sources of law * Constitutional law (The U.S. Constitution, state constitutions) * Statutory law ( federal statutes, state statutes, ordinances; uniform laws) * Administrative law (administrative agencies: federal, state, local) * Case law 2) Secondary sources of law * Books , articles 3. The common law tradition 1) Stare decisis * Two aspects * Controlling precedents (binding authorities) * Departures * Persuasive authorities 2) Equity * Remedy, courts of law(king’s courts), remedies at law(legal remedies) * Equity, chancellor, courts of equity(chancery courts), remedies in equity(equitable remedies) * Plaintiffs, defendant * Action at law, action in equity * Merging * Equitable principles and maxims 3) Schools of legal though Jurisprudence * The natural law school * Legal positivism * The historical school * Legal realism, sociological school 4. Classifications of law 1) Substantive law & Procedural law 2) Civil law & Criminal law 3) National law & International law Chapter Two: Constitutional Law 1. The constitutional powers of government 1) Federal form of government: national government and the states share sovereign power. 2) Separation of powers: a system of checks and balances * Legislative...
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...My interpretation of law is that these are legally-backed rules of action and conduct that have been created to promote and protect the moral and ethical expectations of society. The primary sources of law are constitutional, statutory, administrative, and common---are found at federal, state, and local levels. Constitutional law is the foundation for all other law in the United States and is the supreme law of the land. Statutory law is created by a legislative body and approved or disapproved by the executive branch of government. Administrative law is the source of law that authorizes the exercise of authority by executive branch agencies and independent government agencies. Common law is essentially law made by the courts and that has not been specifically passed by legislature, and is based on the fundamentals of previous cases that had similar facts. There are also secondary sources of law which are intended to increase the level of uniformity and fairness across courts in all 50 states. Secondary sources of law have no independent authority of legally binding effect. The categories of law are as follows: Civil laws are designed to compensate parties for losses as a result of another's conduct. Criminal laws are a protection of society, and the violation of criminal laws results in penalties to the violator such as fines and imprisonment. Substantive laws provide individuals with the rights to create certain duties. s Public laws are those derived by...
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...Week 1- Law 122 : Why study law 1. Business decisions have legal consequences which affect profits and losses: * Some decisions impose liability, others create opportunities * Negative: dumping pollutants into environment * Positive: binding contractual party to promise 2. Risk mgmt. tool: Law sets the framework for risk, it gives you tools to manage the risk * Ex. Insurance, exclusion and limitation clauses, incorporation Dimensions of course 1. 2. Risk mgmt. 3. Legal reasoning: rules and analysis 4. Law/ moral dimensions What is law? * A set of principle and rules that courts will enforce * A way of thinking (or reasoning) about these principles and rules better description. Process determines legal reasoning * It is not just the result of a case that matters. The reasons for the result are where law happens. Law is bound up in the reasoning. So it is important to ask “why” and “how” not just “who won”. Law vs. Mortality Law: formally sanctioned, illegal behaviour Morality: informally sanctioned, moral behaviour 1. 2. Immoral but not illegal * Lying to friends 3. Immoral and illegal * murder 4. Moral but illegal Ethical perspective 1.1 pg.6 Can I watch someone drop without incurring legal liability? If I can legally do it,should i? Ethically is it okay? Ethical reasoning: * Focus on why something is ethically right or wrong...
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...Ch5 Formation of a Contract: Offer and Acceptance An invitation is not an offer; a merchant is not obligated to sell to everyone who reads an ad (its supply may be limited) he is the offeree Both parties must be aware of the offer and counter offers, else any coincidental acceptance under the same terms still don’t qualify as an acceptance Protection against Standard Form Contracts 1. If business is regulated by govt board, its terms are subject to approval 2. Some segments of the public are offered special protection i.e. consumers 3. For unregulated activity, the public receives as much protection as the courts can find in contract laws All terms binding?- if offeree convinces courts that she wasn’t aware of a certain term, then the offerer must prove that it made sufficient efforts to make the offeree aware of it, else the offeree is not bound by it Contract terms on a sign must be evident to offeree AT the time of making contract How an offer may lapse: 1. Not accepted within specified time 2. Not accepted within reasonable time (if not specified) 3. Either party dies or becomes insane prior to acceptance Revocation Offeror may revoke an offer any time before acceptance, even if he promised elsewise. He must provide notice to make it effective Must revoke before it is accepted If offeree has sufficient reason to believe that the offer may have been revoked even without notice, the courts will consider it revoked Offeree Powers Can bind offeror...
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...duties, and privileges that are consistent with the values and beliefs of a society or its ruling group. 2. Primary sources of the Law include: The U.s. Constitution of the various states. Statues, or laws, passed by Congress and by state legislatures. Regulations created by administrative agencies, such as the Federal Trade Commission and the U.S. Food and Drug Administration. Case law (court decisions) 3. Common Law: the body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature. Precedent: a court decision that furnished an example or authority for deciding subsequent cases involving identical or similar legal principles or facts. 5. State decisis( two aspects: Decisions made by a higher court are binding on lower courts A court should not overturn its own precedents unless there is a strong reason to do so *Precendents may be dropped because of social or technological changes. *Brown vs. Board of Education: white and blacks did not have equal education opportunities. Separate educational facilities- conclusion 10. preemption: Congress chooses to act exclusively in a concurrent area. 11. federal forms of government: national government and states share sovereign power. *Police powers-fire and building codes, antidiscrimination laws, parking regulations, zoning regulations, licensing requirements 12. Article I, Section 8 of the U.S. Constitution permits Congress...
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...International Humanitarian Law – jus in bello 1. Geneva Conventions The law in this area is covered by the four Geneva Conventions, signed in 1949 after the atrocities of WW2 and two additional protocols signed in 1977. 1. Geneva Convention on the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I) 2. Geneva Convention on the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II) 3. Geneva Convention on the Treatment of Prisoners of War (GC III) 4. Geneva Convention on the Protection of Civilian Persons in Time of War (GC IV) Protocols of 1977 – in response to the conflict in Vietnam 1. Protection of Victims of International Armed Conflicts (Additional Protocol I) 2. Protection of Victims of Non-International Armed Conflicts (Additional Protocol II) 2. International Armed Conflict – application of the GC’s • International Committee of the Red Cross (ICRC) states that an armed conflict within the meaning of the Geneva Conventions is any difference of opinion between two states that leads to intervention or action by the members of their armed forces • Common Article 2 of GC (ie in all of them) states that it will apply: o To all cases of war, and armed conflict between two or more parties to the treaty (even if “the state of war” is not recognised by one of them) o To all cases of partial or total occupation of the territory...
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...reasonably foresee would be likely to injure your neighbour”? (Donoghue v Stevenson). Incremental Approach: 1. type of relationship between the parties; a) the vulnerability of the plantiff, b) degree of control of defendant, c) special knowledge of the defendant of the plaintiff’s situation. 2. the type of loss or injury (physical, psychiatric, economic) 3. policy and; 4. physical, casual and circumstantial proximity may still be used (Kirby, Modbury triangle shopping centre pty ltd v Anzil) “proximity is the best notion yet devised by the law to delineate the relationship of negibour” Proximity test involves a notion of nearness in the relationship between the parties. as a principle stated in Rylands v Flectcher, “identifying the categories of case…rather than a test for determining whether the circumstances of a particular case bring it within such a category, either established or developing”. Sullivan v Moody applied tradtional common law approach “…although not determinative, is instructive”. Where duty of care will fail Policy(whether a duty of care exists. Public policy does not allow the following area, 1. legal practitioners in the performance of court work...
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...individual by using the concept of “indirect effect” Von Colson v Land Nordrhein-Westfahlen [1984] ECJ Article 5 EC requires Member States to "take all appropriate measures" to ensure fulfilment of Community obligations. And this means that courts must interpret national law so as to ensure the objectives of Directive are achieved. This requires an effective remedy that has a deterrent effect and is adequate in relation to the damage sustained. A Directive cannot of itself impose obligations on private partiesMarleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECJ Therefore, national courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive. This obligation applies whether the national provisions in question were adopted before or after the Directive; national courts were 'required' to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved. So, courts must do everything possible to interpret domestic law to comply with Community law. State Liability when there is no domestic law on a matter to which a Directive relates or domestic law is totally contrary to EC lawFrancovich v Italy [1991] ECJ Sometimes referred to as the 'Francovich Doctrine' or the 'Francovich Principle'....
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...Consideration – the value (such as cash) given in return for a promise or performance Promissory Estoppel – when the promisor is prevented from asserting the lack of consideration as a defense (promise still enforced) Chapter 16 Statute of Frauds – stipulates what type of contracts must be in writing Collateral promise – made by a third party to assume debts of a primary party to a contract if that party does not perform, must be in writing Prenuptial agreements – made before marriage to define each partner’s ownership right in the other’s property, must be in writing Parol evidence rule – if a court finds that a written contract represents the complete and final statements of the parties’ agreement, it will not allow either party to present “parol evidence,” testimony between the parties that is not contained in the contract itself Integrated contract – written contract intended to be complete and final in terms of agreement, extraneous evidence excluded Chapter 17 Privity of contract – only the parties that entered into the agreement have rights and liabilities under the contract Assignment – transfer of contractual rights to a third party, Assignor assigns right, Assignee receives rights Delegation – transfer of contractual duties to a third party, Obligee is owed duties, Obligor/Delegator obligated to perform the duty can delegate to Delegatee Alienation – assignments of rights in real estate (transfer of land ownership) often cannot be prohibited...
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...1.0 Jenis Modal Modal Dibenarkan/ Nominal Modal yang membenarkan ssb syarikat boleh didaftarkan dan dibenarkan beroperasi S62(1) AK 1965: Modal nominal boleh ditambahkan asalkan dibenarkan dalam artikel syarikat dan melalui resolusi biasa. Modal Dikeluarkan Sebahagian modal nominal dikeluarkan kepada pemegang syer. Modal nominal tidak perlu dikeluarkan semua secara serentak. Cth: Modal nominal 2m Modal dikeluarkan 1.7m Modal Berbayar Modal dikeluarkan yang telah dibayar secara tunai oleh pemegang syer. Cth: Modal nominal 2m Modal dikeluarkan 1.7m Modal berbayar 1.36m (80 sen per syer) Modal belum bayar Baki modal dikeluarkan yang belum dibayar oleh pemegang syer. Cth: Modal belum bayar 0.34m (20 sen per syer) 2.0 Prinsip Pembayaran Dividen 1. Dividen tidak boleh dibayar kecuali syarikat mengalami keuntungan semasa pengisythiran dividen. Ini bermaksud keuntngan hanya perlu apabila pengisythiran dividen dibuat dan bukan semasa pembayaran dividen dibuat. Jika syarikat mengalami kerugian semasa pembayaran dividen, syarikat masih perlu membayar dividen kepada ahli-ahli syer syarikat. Kes Marra Developments Ltd Developments mengiystiharkan dividen. Pada tiba masa pembayaran dividen, pengarah enggan membuat bayaran dengan alasan keuntungan tidak wujud. Mahkamah membuat keputusan bahawa keuntungan hanya perlu apabila pengisythiran dividen dibuat dan bukan semasa pembayaran dividen dibuat. Oleh kerana dividen telah diisytiharkan dan ia merupakan satu hutang...
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...Those notes can only be sequenced so many times before they are repeated by a new musician and called “original”. Intellectual property has been protected in the courts systems, but has favored personal interest over creativity and borrowing. In the case of Weber vs. Repp for example, Repp was claiming to be the owner of the copied Catholic folk music stolen to create music by Weber. With help from a lawyer, it is proven that Weber wrote a song previous to the music and songs by Repp. It was demonstrated that Weber wrote a song, Repp wrote another song sounding similar, and then Weber wrote the song in question. This showing that Weber borrowed from himself and Repp borrowed from him. The musical notes played in the same sequence were copied by both composers and therefore the courts dismissed the case, musical notes are not owned by any one composer. It does not matter what you copy but how much you choose to take. The idea behind Gladwell’s argument is that borrowing some to be creative is and needs to be acceptable in the eyes of “plagiarism...
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... • Literal Rule There are three (3) principles of law that can be applied to interpret the law, where the Literal rule can be applied and if absurdity exist either the Golden or the Mischief rule can be used. The Literal rule considers the law as what it says where the natural meaning of the words are used for interpretation; this can be depicted in the case Regina v Barrymore where the defendant was charged with the offence of wounding with the intent to murder, however the learned magistrate of St John’s Magistrate’s court committed the defendant to stand trial on a charge of wounding with intent to do grievous bodily harm. The court however had no power to commit the defendant for any offence other than the offence with which he had been charged. • Golden Rule The Golden rule is an extension of the literal rule, giving either narrow or wide meaning to the law; the Narrow meaning can be exemplified in the case of Marilyn Spenser v the Attorney General (AG), where the appellants, members of the Executive of the Committee of the Hallelujah Square Tabernacle church submitted to the Attorney General (AG) articles of incorporation of the church as a religious non- profit organization. However, the AG rejected the request stating that a nonprofit company must be a commercial enterprise which is to be carried out without financial gain to its members. Wide Meaning on the other hand is used to give law a wider meaning, such as in the case of William Chaitam and Winston...
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