Business law 100 Curtin University – Flashcards
Unlock all answers in this set
Unlock answersquestion
TOPIC 5
answer
Exclusion Clauses and Implied Terms
question
Causer v browne
answer
Terms excluding liability F:A dress was left for dry cleaning and a docket was given. After having been asked to take care of it, the assistant said, "it will come back alright, don't worry." The dress came back with a stain on it. I: Was this a breach of contract and negligence. D:A clause on the face of the ticket said that there would be no responsibility for loss or damage.
question
Exclusion clause must be brought to attention prior to agreement
answer
Olley v Marlborough
question
Olley v Marlborough court case
answer
F: Olley booked into a hotel, fur and jewelery was stolen. Couple sought comepensation, hotel relied on exlusion clause on back of door I: Was the clause incorporated into the original contract D: No, was only bought to attention after contract formed
question
Court will interpret against interest of the preferred party
answer
Syd city council v west
question
Syd city council v west case
answer
F: Parked in carpark, car was stolen by a third party who claimed to loose the ticket. Attendant delivered car West sought to sue for damages, Council denied on the basis of exclusion clause I: Did the statement on the ticket exclude liability in this case D: No, it did not apply to a situation where the attendant was at fault and delivered car
question
Contra Preferentum
answer
Will interpret exclusion clause against the interest of the party seeking to reply
question
officious bystander test
answer
" what would the parties have replied if an officious bystander had asked them at the time of their agreement whether the suggested term was part of their contract" If OF COURSE then it was an implied term
question
courts imply facts to give contracts commercial meaning
answer
courts imply facts to give contracts commercial meaning
question
Coldelfa v nsw rail authority case (implied terms)
answer
F: contract to build railway within set period of time. work was so noisy that residents got an injunction to stop work being done 24/7. coldelfa wanted to sue due to additional costs imposed due to changed working hours I: Could coldelfa claim for additional costs due to injunction? D: There was no implied term as to the working hours. agreement was to get job done
question
For a term to be implied it must be:
answer
Reasonable and equitable, needed to give business efficacy, "goes without saying". clearly expressed, must not contradict the contract
question
Terms implied in all contracts
answer
To cooperate and do what is reasonable To act in accordance to good faith
question
terms implied by sales of goods act
answer
sales by description implied conditions as to quality fit stated purpose
question
sale by sample
answer
Bulk must match need opportunity to inspect
question
Generic terms inserted into specific contracts (doctor, lawyer, accountant)
answer
Breen v Williams
question
Breen v Williams
answer
F: patient had a problematic breast implant that saw them removed. Patient sought to join law suit and requested med records I:Did the doctor have to provide the medical records D: No, the terms of the contract reflected what each party would do and was paid to do. This did not extend to provide medical records
question
TOPIC 6
answer
BREACH OF CONTRACT
question
Determining required performance
answer
Hide and skin v oceanic meat traders Aus broad casting v performing assocation
question
Hide and skin v oceanic meat traders
answer
F: H&S exported animal products and buyers often paid 6 months after purchase. To finance their business needed a 3rd party to provide advance payments for goods sold, not yet paid for. Oceanic facilitated for 2 years, was subject to a 6-month termination notice. When terminating they argued not obliged to give payments for money. H&S argued for payments be given up to the end of the period of notice. I: Were they obliged to continue paying? D: Even though Oceanic may not have intended the meaning, the objective (reasonable third party) test on the contract means as H&S argued.
question
Aus broad casting v performing assocation
answer
F: ABC to pay APRA annual fee for certain musical works, contract laid down formula for fee calculation. After some years APRA disputed the formula didn't account for inflation, arguing for different interpretation of the formula. I: Could they increase the price? D: not the function of court to attribute parties intentions of their express words. The contract was clear meaning the court must give effect to it.
question
Contract is discharged when
answer
Obligations are performed
question
Frustration
answer
External event outside the control of either party occurs performance is excluded as it is impossible
question
frustration case authorities
answer
Maritime national fish v ocean trawlers Coldelfa v state rail authority
question
Maritime national fish v ocean trawlers
answer
F:Leased boat for fishing on assumption would receive licences. Received some licences & distributed them to own boats. I: Was the contract frustrated? D: Contract not frustrated, as self-caused by not giving licence to hired boat.
question
Coldelfa v state rail authority (frustration)
answer
F: A contract was made to build railway day & night. Local residents got an injunction to stop building at night and on weekends. I: Was the contract frustrated D:The contract was 'frustrated' as Codelfa could not build on schedule with injunction enforcements and all parties excused from further performance
question
breach can be
answer
warranty(less serious) condition (serious)
question
3 types of breach of contract
answer
non performance partial performance substantial performance
question
non performance
answer
where one party has completely failed to perform
question
Partial performance
answer
where some level of performance has been rendered. will still count as incomplete performance. can terminate and claim damages
question
substantial performance
answer
breach is minor (warranty) and the innocent party still receives the expected benefit. Innocent person is entitled to claim damages.
question
Associate newspaper v banks
answer
F: The contract was for Banck's cartoons to be displayed full-page on the front page of the comic section, weekly, for 3 weeks it was on page 3. This was a deciding term for Bancks when the contract was entered. I: Was this a breach of condition or warranty D: Given termination of performance due to less than substantial performance of a condition.
question
Bettini v guy
answer
F: Bettini in contract to perform opera events. A term was "must arrive 6 days before first engagements for rehearsals", arrived 4 days late (Royal Opera House) due to sickness. Opera house attempted to terminate, claiming it was a condition. I:Bettini claimed it was only a warranty, as it wasn't a necessary part of the contract D: Damages were entitled, but not termination.
question
Good must correspond to their description
answer
Varley and whip
question
Hoenig v Isaacs
answer
F: Contract to paint and furnish the room. Once job completed, required correction due to paint missed and furniture was in a state of repair. I: What degree of performance was conducted D: Substantial performance of the contract as gave expected benefit, claim damages for the cost of correction.
question
Varley v whip case
answer
F: Sought to buy a 'near new' reaping machine and made agreement I: did the provision of the used harvester meet the agreement D: no, the goods did not correspond to their description
question
Steele v tardiani
answer
F:Contract to split wood to 6 inches, however much was left thicker. Steele agreed to accept at time of work I: what type of performance occurs? D: partial performance and only damages payable.
question
later performance
answer
takes place after the time that is specficed innocent party can terminate and claim for damages in extreme situations
question
Holland v Wiltshire
answer
F:Sale of land with time as the condition. Did not pay within the time frame, land later resold at a lower price. I: Was the seller able to revieve comp for this D: Damages payable for the difference in price due to late performance breach. Was told of intention not to pay. Allowable to extend contract before termination
question
Anticipatory breach
answer
occurs after contract is made but before it is ended may go back on contract and claim damages
question
Mahoney v Lindsey
answer
F: Sale of land. Seller refused to honour contract prior to the due date. Waited until the due date before suing for breach of contract. This is acceptable. I: Was this an anticipatory breach D: This was an anticipatory breach when the seller notified of not honouring the contract (need 'hard' evidence for this).
question
TOPIC 7
answer
REMEDIES
question
common law remedies
answer
termination of the contract damages to compensate for loss
question
termination of performance abilites
answer
reject the attempted performance put an end to performance obligations
question
equitable remedies
answer
specific performance injuctions
question
termination of performance
answer
mcdonald v denny lascelles
question
Mcdonald v Denny lascelles
answer
F: wanted to pay by installments and the agreed so long as McDonald (a third party) acted as a guarantor. I: Could the seller sue to recover lossfor debt D: Court held that for failure to pay for the purchase of land, it can only sue for specific performance or damages for loss (not debt)
question
If seeking to terminate must prove a breach of
answer
condition (serious). Innocent party must prove breach of condition
question
breach of condition case authorities
answer
Associated news paper v banks Holland v Wiltshire
question
Associated news paper v banks
answer
F:Contract was for Banck's cartoons to be displayed full-page on the front page of the comic section, weekly, for 3 weeks it was on page 3. I: Was this a breach of condition? D: This was a deciding term for Bancks when the contract was entered. Given termination of performance due to less than substantial performance of a condition.
question
Holland v Wiltshire
answer
F:Sale of land with time as the condition. Did not pay within the time frame, land later resold at a lower price. I: Was the seller able to revive comp for this D: Damages payable for the difference in price due to late performance breach. Was told of intention not to pay. Allowable to extend contract before termination
question
aim of damages
answer
are a substitute for actual performance put the innocent party in the position they would have been had the contract been properly performed
question
Redford v defroberville
answer
Radford sold property on condition of building a wall. Purchaser resold the property and had not built the wall. Original purchaser tried to claim the damages was the difference in the value of the property, it was found that damages were for the COST of the wall, not the value difference. Legal Principle: Damages to compensate for loss (Common law remedy)
question
Tabcorp v Bowen investments
answer
F:Property leased on condition no renovations would be made. Foyer was rebuilt. I:Was bowen entitled to recover full cost or reduced cost? D:Owner entitled to damages equal to full cost to restore to original condition, not just value difference (was attained upon appeal of original property value decision).
question
direct and consequential loss
answer
can only claim for direct loss
question
consequential loss is
answer
losses that are remote, unforseen and unable to be claimed UNLESS such a loss was made known to the other party
question
consequential loss examples
answer
hadley v baxendale victoria laundry v newman industries
question
Hadley v baxendale
answer
F: Essential part for their mill broke. Gave to courier to carry to the maker for a replacement, they knew that P was the owner of the mill.and that they were carrying a broken mill shaft. Not sent for repair for 7 days and could not work in this time. I: could the mill owner claim for damages D: Not entitled to damages of lost productivity as courier was not aware of the urgency of request (too remote).
question
Victoria laundry v Newman industry
answer
F: bought boiler for immediate use. Delay meant contract was breached, meaning loss of profit and special contracts. I: Could the indirect loss be claimed for special contract D: Direct loss was claimable, though P hadn't told D of the special contracts and therefore couldn't claim as too remote, not consequential
question
disaapointment and stress
answer
baltic shipping co v dillon
question
Baltic shipping v dillon
answer
Dillon went on a cruise with the intention of enjoyment and relaxation, the ship sunk during the trip. Cruise ship sinking caused mental distress and disappointment, can claim as it was for "enjoyment, relaxation, or peace of mind". Legal Principle: Damages to compensate for loss (Common law remedy)
question
mitigation of damages
answer
plaintiff cannot recover any loss that could have been avoided by the exercise of reasonable care THINK concert and get beyonce instead of pub band
question
Burns v man automotive
answer
F: MAN supplied commercial vehicle to Burns, which was defective. Defects became apparent after a year, continued to use it and accumulated operating losses. sued to compensate for lost profits over the vehicles expected operating life of 4 years. I: had burns taken all reasonable steps to mitigate D: Case decision was that all reasonable steps are to be taken to mitigate loss. Not required to take steps to mitigate loss if the P does not have the means to do so.
question
two equitable remedies
answer
specific performance injunction
question
specific performance
answer
ordered to perform as promised used when damages are inadequate
question
specific performance is not for
answer
contracts of personal service if continual supervision is required
question
specific performance cases
answer
lumley v wagner (siner) dougan v ley (vehicle and taxi)
question
Lumley v Wagner
answer
DWagner was contracted to sing in Lumley's theatre for fixed period, and nowhere else. Specific performance was requested but could not be ordered as it's difficult to ensure it would be carried out in the absence of genuine goodwill (personal services).
question
Dugan v ley
answer
F:Sold vehicle plus a taxi licence. Refused to provide the goods. I: Can specific performance be orderd D:As the taxi licence was not readily available, specific performance was ordered, as damages are not an adequate remedy (rare item to obtain).
question
define injuction
answer
equitable remedy for a person who can show a breach is imminent. acts to restrain the breach
question
injunction cases
answer
Buckenara v hawthorn footy club Coldelfa v state rail authority
question
Buckenara v hawthorn footy club
answer
Football player contracted to play for Hawthorn and promised not to play for anyone else. Though Buckenara was interested in leaving Hawthorn to play for another club, Hawthorn asked for an injunction. Courts provided injunction against player playing for other clubs, though modified it to be in competition with Hawthorn (Victoria Football League clubs) as to not indirectly force specific performance. Legal Principle: Injunction (Equity law remedy)
question
Coldelfa v state rail authority
answer
Contract made to build railway day & night. Local residents got injunction to stop building at night and on weekends. An injunction was the most appropriate way to limit construction times by the local residents and council. Legal Principle: Injunction (Equity law remedy)
question
TOPIC 9
answer
Negligence
question
define tort
answer
a civil wrong against individual
question
define crime
answer
a wrong against the whole community
question
tortfeaser
answer
person who performs the tort
question
tort compensation aim
answer
put the person in the position they would have been had the tort not been committed
question
torts recognised in Australia
answer
trespass, assault. battery, nuisance, deceit, defamation, negligence
question
types of negligence
answer
a positive act, a failure to act, making or giving advice or failing to do so
question
tort of negligence
answer
failure to take reasonable care to prevent loss, injury or damage to other who reasonably foreseeable would be injured if care had been taken
question
3 types of harms
answer
physical injury to person physical damage to property purely economic loss
question
Rogers v whitaker
answer
F: Whitaker suffered injury when young causing blindness in one eye. she consulted an eye surgeon (Rogers) who advised of an operation which would improve appearance/ restore significant sight to the blind eye. Rogers didn't inform Whitaker of any risks, the operation went ahead and failed to improve sight in the blind eye, it also caused a rare condition that eventually caused to blindness in the other eye. I: Was this negligence on doctors behalf D:Whitaker sued for breach of duty of care from Rogers, as he did not warn of the possible risks he failed to meet his duty as a specialist ophthalmic surgeon.
question
Perre v apand
answer
F: Apand trialled seed potatoes infected with bacterial wilt on properties in SA. Due to this, the Perres' could no longer sell their potatoes in WA because of WA law prohibiting the importation of potatoes grown on or within 20km of land affected by the wilt. I: was there a breach of duty of care D:The harm suffered was reasonably foreseeable and Apand owed a duty of care. Perre was vulnerable and had not been in a position where they could protect themselves against the wilt. Damages flowed directly from activities within Apand's control.
question
elements required for the tort of negligence
answer
1.duty of care owed, 2. breach of duty of care 3. loss/damage or injury as a result of breach
question
duty of care
answer
must show that harm was foreseeable (not far-fetched) it was not unreasonable to impose a duty on the defendant
question
neighbour
answer
Neighbor being those who are so closely and directly affected by the act that they ought to have been in contemplation of being affected.
question
Donogue v stevenson
answer
F: friend bought her a bottle of ginger beer. After drinking some, and pouring it into a dish the decomposed remains of a snail floated out of the bottle. later suffered severe gastroenteritis. I: could she sue the manufacturer for negligence D: The manufacturer was found to have a general duty to the entire consuming public to ensure that their products do not contain potentially dangerous defects that cannot be discovered on reasonable inspection.
question
maker of a statement assumes responsibility
answer
shaddock and associates v paramatta
question
Shaddock associate v parramatta
answer
F:Developer asked the city council whether the land they attended to acquire was affected by road-widening proposal, council advised it was not. I: Was The council was liable. D: Special relationship has arisen when the council gave the developer the information or advice in a situation which it should have realized that it was being trusted to give it accurately. Therefore was a duty of care.
question
breach of duty of the duty of care
answer
risk was foreseeable risk was not insignificant reasonable person would have taken precautions owed a duty of care
question
a person would taken precautions one must consider
answer
likelihood of harm occurring, seriousness of harm, burden of taking precautions, consider risk of harm
question
Romeo v conservation commission of NT
answer
F: Romeo went to cliff with friends, after drinking alcohol she and a friend wandered near the un fenced edge of the cliffs, which Romeo fell from the top of and was badly injured. I: could Romeo sued the government authority D: Duty of care was owed to Romeo, though the circumstances of risk of harm was so unlikely that by failing to take action to avoid it, the commission had not breached its duty of care. "Risk of mishap was so remote that a reasonable man would neglect it."
question
law will not recognize damages
answer
criminal activity damage is too vague cannot prove loss or damage was suffered greif or sorrow
question
"but for..."
answer
Adeels palace v moubarak
question
Adeels palace v moubarak
answer
F: Function held restaurant, a fight broke out in which a patron who was hit left and returned with a gun. The patron shot 2 customers, who whom hit him. There was no security personnel on premises I: Could injured patrons sued the restaurant for failing to employ security and breaching duty of care. D:Even if duty of care was breached, plaintiffs had not shown that 'but for' security guards not being there, the shootings would not have occurred. The injury may have occurred anyway.
question
defences to negligence
answer
contributory negligence voluntary assumption of risk
question
contributory negligence
answer
breach a duty owed to the defendant failed to excercise reasonable care ie: alcohol reduces claim
question
Overseas tank ship v miller steamship
answer
F: Appellants negligently allowed a large qty of oil to escape into the Sydney Harbour. It drifted to a wharf where two ships were undergoing repairs, the repair work caused the oil to ignite and damage the respondent's ships. I:Were the appellants negligent D: A reasonable person in the ship's chief engineer's position should have known that there was a real risk of the oil catching on fire and causing some time of damage, and should have taken steps to prevent it from happening.
