Exam Preparation.doc

Exam PreparationBusiness Law exam is an open-book exam.How do you prepare for an open-book exam? Prepare a set of detailed revision notes which include materials from lectures, tutorials and textbooks These notes should include:- each topic of the law studied in the subject definitions of key concepts brief outline of the key principles/rules of law relevant cases (include key facts, decision and reasoning) past exam questions on each topic possible answers to these questions prepared by you under exam conditions flowcharts make sure your notes and text are easily accessible:* colour-code* tab each topic* use headings, sub-headings* index clearlyDuring the exam: read the questions carefully; make sure you understand what the questions are requiring you to do; check all marks allotted to each question and allocate your time accordingly; attempt to identify the issues in the questions; if you run out of time on a question, map out a plan of the answer.Example of Flow ChartAgreementDoes an agreement exist between the parties?Is this an invitationIs this an offer?To treat? (announcesavailability for saleto public at large)How was the offer made?By instantaneousIn writingcommunicationWas an offer made in response?Was offer communicated?Was the offer Was a counterWas it a mereaccepted?offer made?request forinformation?YesAgreementHow was acceptance to occur?NoNo agreementSame form as In writingoffer or as invoking Postalstipulated or in Rule*equally advantageousmannerWhen does acceptance occur?General RulePostal RuleOn receipt of At day, date andacceptance by offerer time of posting ofunless Notice of acceptance unlessRevocation received Notice ofbefore acceptance Revocation received before posting* Note that the Postal Rule only applies to acceptance. Offer, revocation of offer or rejection of offer all must be communicated.You should now add any relevant cases in support of agreement.An example of how your notes could look after summarising a topic ready for exams.page 5ELEMENTS OF CONTRACT - INTENTION (from Parker & Box)(After noting definitions of PRESUMPTION; REBUTTAL; DOMESTIC; COMMERCIAL)Aim: To take the cases as set out (in any textbook) and reclassify them so that your notes make a series of statements or law that you can apply / copy in an exam situation with the case names noted after each proposition of law. (In the exam it is rare that you will need to state the facts of the case.) However, you may wish to put a short reminder note in brackets to jog your own memory and understanding of the rule - as is done in square brackets below.A. DOMESTIC / SOCIAL AGREEMENTS:PRESUMPTION: THAT THE PARTIES DID NOT INTEND TO CREATE A LEGALLY ENFORCEABLE AGREEMENT - Domestic assumption applies in these circumstances:1.HUSBAND and WIFE - a) If living together in harmony at the time agreement made = Social presumption applied (Balfour v Balfour) holiday - money agreement - later separated (Cohen v Cohen) dress allowanceBUT b) If separated at time agreement made = Social presumption rebutted particularly maintenance agreements (Merritt v Merritt) 2.FAMILY ARRANGEMENTS - even in the use of family assets left under administration under a will (Murphy v Simpson) = Social presumption applied3.CLUBS; SOCIETIES; prises awarded = Social resumption appliedC/f. (means contrary result) (Clarke v Dunraven) Club Rules may be contractual.4.FRIENDS (agreements between) = Social presumption applies (Coward v Motor Insurers Bureau) lift to work and sharing expenses.page 6PRESUMPTION IS REBUTTED (In this context rebutted means that the usual presumption no longer applies and the alternative presumption applies) - A Domestic/Social presumption will usually be rebutted if the consequences of breaking the agreement create a hardship for one of the parties.A DOMESTIC/SOCIAL(i) FAMILY 1. HUSBAND/WIFE agreements where separated at time of agreement (particularly maintenance agreements) (Mc Gregor v Mc Gregor) wife compromised her rights (Merritt v Merritt) transfer of property; - Property arrangements (Popiw v Popiw)2. FAMILY SITUATIONS where one member has agreed, on request of another, to give up their established situation (i.e. jobs, house) and move (country to country) to look after a relative in return for property or inheritance. Then the arrangement breaks down after the move and promises not kept. (Wakeling v Ripley; Riches v Hogben; Todd v Nicol) also (Parker v Clarke) geriatric care arrangement.(ii) FRIENDS3. Joint agreements to enter competitions, eg. TATS, footy pools - where one party purchases / applies for / enters - and all contribute financially - in some way (Simpkins v Pays) B COMMERCIAL ARRANGEMENTS PRESUMPTION IS THAT THE AGREEMENT IS TO BE LEGALLY BINDING ON BOTH PARTIES i.e. THAT A CONTRACT IS INTENDED A) Commercial Presumption applied: 1. Advertisements offering a reward for failure of a product may not be just mere advertising “puff” but could be a legally binding contract - i.e. intention implied (Carlill v Carbolic Smoke Ball Co).2. Offers made in jest or joke may be found to have no intention to be bound - if offer is commercially ridiculous (Keller v Holderman) sell watch for little money; c/f (however) a court could hold otherwise (Nyulasy v Rowan) share offer at ridiculous price - Held -Commercial nature, hence presumption (of intention) applies.B)Commercial Presumption - REBUTTED1. Agreements where “no intention to be legally bound” is stated in rules (Jones v Vernon Pools) soccer pools case.2. Honour Clauses = clause in agreement contains a clause - “no intention to have legal consequences” (Rose and Frank v Crompton)Note: It is against “Public Policy” (i.e. the law) to oust the jurisdiction of the court (an agreement cannot claim to be a contract and refuse the court the right of adjudication upon its terms - a court always has that right).3.Government or Administrative offers / schemes for assistance / subsidies are not necessarily contracts unless an Act of Parliament eg (The Administration of the Territory of Papua and New Guiney v Leahy) tick eradication scheme (Australian Woollen Mills v Commonwealth) = wool subsidy.4.“Ex Gratia” Payments voluntary payment, not in return for work done. May be enforceable if the promisee (person to whom monetary promise made) gave up a right or something of value in return (Edwards v Skyways) premature retirements.The following are the notes on INTENTION (above) written out with an index. This is how your indexed notes could look ready to take into the exam room.(Imagine that the following is the index to your set of notes - But note also that the following is just the headings from the notes. The explanations and case references should be written out in full at the pages indicated in the margin.)_ PAGEINTENTION 5 A DOMESTIC / SOCIAL AGREEMENTS : PRESUMPTION : THAT THE PARTIES DID NOT INTEND TO CREATE A LEGALLY ENFORCEABLE AGREEMENT 1.HUSBAND and WIFE - a) If living together in harmony BUT b) If separated at time agreement = rebutted = intended to contract2.FAMILY ARRANGEMENTS 3.CLUBS; SOCIETIES 4.FRIENDS 6PRESUMPTION IS REBUTTED - A DOMESTIC/SOCIAL(i) FAMILY 1. HUSBAND/WIFE - Property arrangements (Popiw v Popiw)2. FAMILY SITUATIONS (ii) FRIENDS3. Joint agreements to enter competitions B COMMERCIAL ARRANGEMENTS 7PRESUMPTION IS THAT CONTRACT IS INTENDED in the following situations:-1. Advertisements 2. Offers made in jest or joke c/f (however) a court could hold otherwise (Nyulasy v Rowan)3. Agreements where “no intention to be legally bound” is stated 4. Honour Clauses The PaperThe paper comprises 6 questions. All are compulsory. QuestionsQuestions 1 - 5 are typical problem questions, similar in complexity and length to questions to be found in past examination papers.You should look at old exam papers to see what kind of questions have been asked in the past.Question 6 is the traditional “short answer” questionQuestions may be taken from all areas of the syllabus other than the above topics.FAQs Problem BasedThese include Formation of Contract, including offer, acceptance, revocation, counter-offer, postal rule of acceptance, and so on); Conditional Acceptance (preliminary agreements, requiring analysis of the case of Masters v Cameron); Intention (to create legal relations); Consideration (often, but not always, in the context of discharge of a contractual obligation); Exclusion clauses; Capacity to contract; Terms v Misrepresentations (as in Oscar Chess Ltd v Williams and related cases) Mistake; Misrepresentation; Discharge of contract, especially discharge by frustration; Remedies for Breach of Contract, especially damages.Examiners Exclusion ClauseThe above list of FAQs is a guide only.It is not necessarily an exhaustive list of the possibilities.It is important to apply the following format when answering a problem question:(a) decide what the issues are (that is, the matters over which there is or may be some dispute);(b) decide what rules of law are applicable to those issues;(c) cite the authority for the rule (that is, a case or statute);(d) apply the rule to the facts;(e) come to a conclusion;(f) state the remedy.A sample exam question:On 15 September, Arthur offers to sell his antique desk to Harry for $5,000. Harry subsequently inspects the desk and says to Arthur The desk is in excellent condition and Id like to have it. Theres no doubt that I could afford to buy this desk if I could pay for it in three installments. Nothing further is said concerning the desk. On 18 September, Harry sends a letter to Arthur in which he accepts Arthurs original offer. On 19 September, Harry learns that Arthur has sold the desk to Richard for $6,000 On 20 September Arthur receives Harrys letter of acceptance.Advise Harry whether he has an action against Arthur for breach of contract. Give detailed reasons for your answer.To get a clear picture of related events, it is useful to draw a diagram:AH1.A offerH2.A H will buy if canpay in instalments3.18 September H accepts offer4.19 September H learns A sold desk to R5.20 September A receivesHs acceptanceNext step: isolate areas of dispute which may occur these are the issues an issue is a fact of a situation that could have more than one legal interpretation. That is, more than one law could apply to it. The statement: Id like to have it (one fact) could be interpreted in more than one way legally. It could be:* an acceptance of the offer* a request for more information* a counter offer A questioning attitude is importantThe issues are indicated by elliptical circles in the following diagram:Areas of possible disputeAH1.A offerH2.Counter offer?A H will buy Request for moreif can pay in Information? instalments 3.18 September - H accepts offer4.Revocation of 19 September HOfferlearns A solddesk to R5. 20 Septemberwhich occurredA receives Hsfirst acceptance acceptanceor revocation? Plan of AnswerA offered H desk ($5000)Hs replyCounter offer?Request for more(Hyde v Wrench)information?(Stevenson, Jaques vMcLean)H rejected As offeropenAs offer still,(H intended to addcould be acceptednew terms)therefore no contract/no breachAcceptance occurredwhen?Postal rule apply?YesNoacceptance beforeacceptance afterrevocationrevocationcontract exists/no contract/breachtherefore no breachAnswerAn offer has clearly been made by Arthur to sell his antique desk to Harry for $5000. TheIssue 1 first question is whether Harrys reply was a counter offer or a request for further information. IfImplications it was a counter offer then, as was held in Hyde v Wrench, it amounted to a rejection of Arthurs offer. Arthurs offer would therefore have terminated, and hence could not be accepted, and there would have been no contract. If it was a request for further information, as in Stevenson, Jacques v McLean, the offer was still open and could have been accepted.ToLAW be an offer (whether an original offer or a counter offer), a statement must contain a promise or promises and not just a fact or information, asCase was indicated in Harvey v Facey. So the question becomes did Harry intend his statement to be a promise to buy the desk on condition that he could pay for it in three instalments? IfLAW he did, then it was a counter offer and he could not sue for breach of contract.AlternativelyImplications, Harry could just have been commenting on his own ability to pay thereby seeking further information from Arthur about what method of payment would be acceptable to him. InYour opinion my opinion, Harrys statement contained no promises. He did not promise to buy it on condition he could pay by instalments. He merely stated a fact about his financial circumstances and the method of payment he could manage. He was talking around the offer, perhaps seeking a response from Arthur, before deciding how to respond to Arthurs offer. Therefore Harry made no counter offer and Arthurs offer remained open.ItIssue 2 is now necessary to determine if and when Harry accepted the offer. IfImplications the Postal Rule applied then acceptance occurred on the 18th (thatLAW & Case is at the time of posting Nunin Holdings Pty Ltd v Tullamarine Estates Pty Ltd). ThereImplications is probably not sufficient evidence to decide the issue absolutely. It is not disclosed how Arthurs offer was made. WhetherLAW the Postal Rule applies depends on whether the offeror has contemplated and expressly or impliedly approved the post as a mode of acceptance. IfImplications the offer was made verbally, then probably the Postal Rule did not apply. Therefore acceptance did not occur until the 20th, when Arthur received the letter. If the offer was made by post then acceptance would probably have occurred on the 18th (that is when Harry posted the letter). If the latter applies then Harry has an action for breach of contract. If the former applies then the result depends on whether Arthur revoked his offer prior to the 20th.By selling the desk to Richard, Arthur clearlyYour opinion intended to revoke his offer. However, as decided in ByrneCase v Van Tienhoven, the revocation must be communicated to the offeree. HoweverLAW the revocation does not have to be communicated by the offeror in person. It may be made by any other person provided it is reasonable in the circumstances for the offeree to rely upon that other person. InCase Dickinson v Dodds the court decided that revocation is effective if it is communicated to the offeree by a reasonably reliable source. ItYour opinion seems clear that this has happened in this case, and hence, Harry cannot accept Arthurs offer because it no longer exists.InCONCLUSION my opinion Harry has little chance of success because either:a) there was a counter offer, orb) the Postal Rule does not apply and revocation occurred prior to acceptance.Introductory SentencesIssueThis question raises two issues, firstly . and secondly, .The issues raised in this question are .,.,.,. There are two issues raised in this question. They are .Two issues are evident in this question. They are .,.Two issues need to be addressed in this question. They are .Two issues require discussion in this question. They are .LawThe law in this area states that .,., In this area the law states that .,.,.,.The law states that . The law requires that ., The law stipulates that . The law says that .We can say that the relevant law is .CasesIt was held in the case of . v . that .The case of ., v . demonstrates this area of law,The law is demonstrated in the case of . v .,.,.,.,.,In the case of . v . the law is upheld.The law is refuted in the case of ,.,.,. vThe case of .,.,v .demonstrates, illustrates, clarified, highlights, shows, explains, manifests, exhibits, exemplifies .This (the law) has occurr