讲义教程分析al

1、ADVISE CHARLESFACTS 1. Charles wants to buy a house owned by Rachael.2. Charles can see the house is not in good repair.3. Rachael says the house was owned by Patrick White & he did a lot of his writing there. Charles wants to be a writer.4. Charles asks Rachael Are there termites in the house 5. Ra

2、chael says I have not seen evidence of them.6. Charles signs the K.7. Charles discovers White never wrote in the house but did own it.8. Charles discovers termites in a shed on the property.1LEGAL PROBLEM Charles & Alistair p10 - contents of the K.LEGAL PROBLEM Charles & Alistair p10 - contents of t

3、he K.2. LEGAL ISSUES Was Rachaels statement re White a representation or a term? 3. LEGAL PRINCIPLE + AUTHORITYA mere representation is not a term of the contract: Oscar Chess v Williams4. APPLY THE LAW TO THE FACTSRachael made a representation re White and this was an inducement to the K not a prom

4、ise that was part of K. In Oscar Chess a representation was made re age of a car. Court held the representation was made in good faith and it was not a term of the K. (We do not know if lack of good faith was an issue here.) 5. CONCLUSION The statement was not part of the K. LEGAL PROBLEM2. LEGAL IS

5、SUEIs the written K the whole K? What about the parole evidence? 3. LEGAL PRINCIPLE + AUTHORITY Where a K is reduced to writing and the K appears to contain the whole agreement, no parole evidence will be admitted to add to or vary the K: Mercantile Bank of Sydney v Taylor (1891) 12 LR(NSW) 252. NB

6、K for sale of house are always in writing and usually all terms are in the written document. If it can be shown the written document was not intended to be the complete record of the agreement, evidence of this may be admitted: Van den Esschert v ChappellLEGAL PROBLEM4. APPLY LAW TO FACTS Rachael st

7、atement re termites. Is this a promise? Is it part of the K? This is an important statement but not a condition. A house with termites is one that has serious problems as they are expensive to eradicate. In Chappell case as in our case the purchaser asked about termites and was assured there were no

8、ne. The purchaser then signed the K. (In our case the statement made was close to an assurance.). In Chappell the Court held the statement was a term of the K even though it was not mentioned in the written document. The purchaser was able to sue for his loss but was bound by the K. 5. CONLUSION Cha

9、rles is bound by the K but can sue forcost of eradicating termites.4LEGAL PROBLEMADVISE ALISTAIR1. FACTS1. Rachael buys a sporty red car.2. She asks Will the car get 150 km per tank of petrol?3. Alister: Im sure it will.4. Rachael I should get you to put this in K but your assurance is good enough5.

10、 After a few weeks Rachael found car travelled 80 km per tank of petrol.6. She wants a refund.7. Alister says that this statement is not part of the K.5LEGAL PROBLEM2. LEGAL ISSUEIs Alisters statement part of the K? Is it a promise?3. LEGAL PRINCIPLE + AUTHORITYWhere one party has particular knowled

11、ge or skill on which the other relies, this may e a term in the K: Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd 4. APPLY LAW TO FACTSRachael asked about the performance of the car and was given assurance of 150 km per tank of petrol. This was important to Rachael as she suggested the ass

12、urance be part of the K but then indicated she would rely on the statement. 6LEGAL PROBLEM4. APPLY LAW TO FACTS In Bently case that statement also concerned performance in re a new engine being put in to car. The Court held the statement was misleading and it had been incorporated in the K. The maker of the statement had special knowledge and it was obvious the purchaser was relying on it. In our case Rachael said I sh