bl assignsem1.11presentation1

8/3/2019 BL assignSem1.11Presentation1

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VU COLLEGE

Learning Support Services

Presenter: Helen Murphy

BUSINESS LAW

WORKSHOPSemester 1 2011


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THE WORKSHOP WILL INCLUDE THEFOLLOWING SEGMENTS:

topic analysis of essay question anddevelopment of a plan

tackling a research essay in law (LouConnell, the law librarian at FP will assistwith library research)

understanding and using cases in a lawessay presentation of footnotes, synopsis &

bibliography


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Assignment Topic Semester One, 2011

In his judgment delivered in the case ofLewis vAvery[1972] 1 QB 198, Lord Denning MR makesthe following comments: There is no doubt that

Mr Lewis was mistaken as to the identity of theperson who handed him the cheque. It wasunder the influence of that mistake that Mr Lewislet the rogue have the car. What is the effect ofthis mistake? There are two cases in our bookswhich cannot, to my mind, be reconciled the onewith the other. One of them is Phillips v Brooks

Ltd[1919] 2 KB 243, where a jeweller had a ringfor sale. The other is Ingram v Little [1961] 1 QB31, where two ladies had a car for sale.

Explain why Lord Denning took the view thatthese two cases could not be reconciled. Also

explain how the apparent conflict between thesetwo cases was resolved by the decision in Lewis v


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NOTES FOR STUDENTS Two thousand to two and a half thousand

words One side only, A4, 1.5 or double spacing,

wide left-hand margin Assignment Cover Sheet Footnotes, Bibliography (Australian Guide

to Legal Citation) Thirty marks. Penalty for late submission. Lodged with your tutor at your scheduled

tutorial duringWeek 8 Do own research


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The first step in tackling any essayquestion is to analyse the topic. Thisassists you in understanding exactlywhat you are required to do and will

help you to frame your response. Fromthis topic analysis, you will also be ableto develop a plan which will focus yourreading on the topic.


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Topic Analysis

After receiving your essay topic, it is importantto analyse it to know exactly what you arerequired to do. You need to be clear aboutthe focus of the topic, that is, what it isabout. You need to understand how the topicshould be answered. Key process or directivewords in the question on the topic will inform

you of the direction you need to take torespond successfully. Be clear of themeanings of such words as `discuss',ànalyse', èvaluate', àssess', èxplain',

.òutline', èxamine' and `compare'.


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After doing your topic analysis, you shouldbe able to develop a plan of how you willanswer the question on the topic. Thisplan will only be general and may changeas you do detailed research on the topic.

After doing your topic analysis and plan,the following steps will be involved in the

process of writing your essay. Theseinclude:researching the topic.taking notes in your own words.sifting and selecting relevant materialfrom these notes to slot into differentsections of your plan.composing your essay.

writing your final draft.editin and checkin this final draft.


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Assignment Topic Semester One , 2011In his judgment delivered in the case ofLewis v

Avery[1972] 1 QB 198, Lord Denning MR makes thefollowing comments: There is no doubt that Mr

Lewis was mistaken as to the identity of the personwho handed him the cheque. It was under theinfluence of that mistake that Mr Lewis let the roguehave the car. What is the effect of this mistake?There are two cases in our books which cannot, tomy mind, be reconciled the one with the other. Oneof them is Phillips v Brooks Ltd[1919] 2 KB 243,

where a jeweller had a ring for sale. The other isIngram v Little [1961] 1 QB 31, where two ladies hada car for sale.

Explain why Lord Denning took the view that thesetwo cases could not be reconciled. Also explain how

the apparent conflict between these two cases wasresolved by the decision in Lewis vAvery.

Identify:

Content Words


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Assignment Guidelines

The assignment topic is set out onpage 17 of the Student Manual. Itcentres on a quote by Lord Denning

in a case ofLewis v Averayin1972.

He refers to two earlier cases of

Phillips v Brooks Ltdin 1919 andIngram v Little in 1961 which he

said could not be reconciled.


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Factual Background

A common criminal practice in the20th century was for a thief to find (orsteal?) a personal cheque bookbelonging to another, and then useone of the other persons cheques tobuy some valuable object. Havingobtained possession of the valuable

object, the thief would then quicklysell it to an unsuspecting buyer (athird party) for cash before the

cheque was dishonoured by the


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Who legally owns the article?

When the deception is discovered bythe true owner because the chequeis dishonoured, he wants to retrieve

the article. But the third party haspaid cash for it and wants to keep it.A dispute then arises between the

true owner and the thirdparty.

Such was the situation in the three

cases mentioned in the assignment


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Legal Title to the Article

The legal issue in these cases is whogets legal title to the asset?

Does title revert to the true owner(1stparty) , from whom the assethas effectively been stolen? Ordoes title pass to the third party

(2ndparty) who has paid goodmoney to buy it, and usually is notaware that the seller(2ndparty)

does not have title (because he has


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The Mistake Argument

The true owner will argue that he wasmistaken as to the identity of his

buyer.

At law, mistake makes a contractvoid, which means that there was

never any contract at all. Because

the contract is null and void fromthe outset, the arrangementcannot achieve any legal

outcome, such as transferring


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The Mistake Argument [cont.]

Under this argument, the true ownerwill keep title, and is therefore legallyentitled to have the article returned

to him. This was the outcome in thecase ofIngram v Little, where the

judge concluded that the ladies who

sold their car to the conman weremistaken as to his identity becausehe said that he was the person who

owned the cheque, but he had in fact


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Alternative Argument

In these cases, there is analternative argument based onfraudulent misrepresentation ofidentity by the thief. This argumentwill be put by the third party, whowill say that it is a preferableargument to mistake when parties

are dealing face-to-face.Misrepresentation does not make acontract void it makes is

voidable, meaning that it can be


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Alternative Argument [cont.]

This argument, which succeeded in thefirst and third cases ofPhillips v

Brooks Ltdin 1919 and in Lewis v

Averayin 1972, results in the thirdparty keeping title to the article if:

-

The first contract has not beenavoided by the true owner when the

second sale occurs and

the second buyer is a bona fide


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Alternative Argument [cont.]

So the result in such cases dependssolely on which of the two competing

arguments the court adopts.

Mistake will give victory to the trueowner.

Misrepresentation will give victoryto the third party. The loser is left

only with the right to chase the thieffor his loss, which is a very doubtful

remedy.


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The Assignment Task

Your challenge is to:

research the three casesmentioned in the topic;

analyse the two competingarguments; and

form a conclusion as to how suchcases will be dealt with by the courtsshould they occur again.


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The Assignment Task [cont.]

The starting point for your researchis the area of Unilateral mistakein the relevant texts. Note that this

contest between mistake andmisrepresentation is limited to caseswhere the first sale is negotiated

face-to-face, not bycorrespondence. On this point, seeCundy v Lindsaywhere the mistake

argument did succeed where the


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Developing a PlanAfter analysing the topic, you can develop a plan

for your essay.

This is a useful procedure before you begin yourreading.

It helps you to:1. clarify the issues which the question is asking

you to examine.2. form a structure for your answer.3. focus your reading on the topic.


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What does `Research' mean?

When you are asked to research an essaytopic/assignment, you will need: to analyse your topic carefully, so you understand

exactly what you are required to do. to go to the library and locate primary and secondary

sources of material which are relevant to your topic. Youwill be expected to read a number of these. You need tobe selective in your reading.

to skim through these materials, to identify and selectthe material which is directly relevant to your topic.

to take notes in your own words from these varioussources, noting down bibliographical details. to demonstrate, from your research, that you have a

thorough understanding of the topic. to incorporate the notes from your research into a well-

structured, coherently argued essay/assignment.


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The Structure of an Essay1. Introduction introduces topic provides background information lists main points to be covered in each

paragraph (may indicate method of

development to be used)2. Body develops main points from the introduction

3. Conclusion summarises or restates main points, provides

final comment


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The Structure of a Paragraph1.Topic Sentence states the main idea

limits the topic to one or two specific areas to bediscussed (neither too general nor too specific)2. Supporting Sentences expand, explain, describe

illustrate byexamples/facts/statistics/details/cases/statutes use quotations (from judgements)3. Concluding sentence (the nature of the concluding

sentencevaries depending on where the paragraph lies within theessay)

signals end of paragraph summarises important elements ,

may provide a link with the next paragraph


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Transition signals

Transition signals are importantwithin paragraphs and betweenparagraphs. They are used to ensurethat your ideas flow well from one toanother and that your ideas andthemes are linked.


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Transition signals betweenparagraphs

It is useful to think of transition signalsbetween paragraphs as the links in thechain. The links of the chain connect thechain and hold it together. Similarly, atransition signal between two

paragraphs links your ideas together.The link may be placed at the end of theparagraph, or at the beginning of aparagraph.

Sometimes it consists of a group of


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Synopsis (abstract or summary)(optional)

This should be a summary outline of the key

areas you have covered and the generalconclusions you have reached.

Approximately 5 to 10% of the length ofyour essay

It should be written as one paragraph Presented after title page and before

essay itself Reader can see in advance key areas

covered and essence of your argument Write synopsis after you have written your

essay It is usual to write it in past or present

tense


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Using Cases in Research Essays

The most important information you need to

extract from cases is: Court's decision Reasons for decision (ratio decidendi) Material facts of case

You will use this information whendemonstrating how cases illustrate theapplication and development of legal principlesin your research essay.

You will need to summarise the important

information you extract from cases inpreparation for writing your research essay.


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You can use the following steps to write asummary:

1. Identify the material facts. Underline ortake notes on these facts.

2. Identify the decision, the ratio decidendi(and the obiter). Underline or take notes onthese two/three elements.

3. Compose a summary from your notes orfrom the elements you have underlined.

4. Eliminate unnecessary words or points. 5. Try and write a cohesive summary which

flows logically. Linking and signalling wordsand phrases will assist this process.


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Using signalling word and phrases in casesummariesWhen referring to legal principles and particularaspects of cases in your essay, you can use thefollowing signalling words and phrases. These wordsand phrases introduce or signal to the reader what ishappening in the different aspects of your essay.

For example, if you are discussing a legal principle, youmay introduce this discussion with:

The law in this area states that

The law states that

The law requires/stipulates that


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When discussing cases/precedents, you mayintroduce the discussion with:

In the case of Lewis v Avery [1971] 3 All ER 907,

Lord Denning concluded/indicated/stated that

It was held in the case of ..v.. that

The case of vdemonstrates/clarified/highlights/shows/explains/ manifests/exhibits/exemplifies


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Fraudulent misrepresentation as to identity was argued inthe case ofPhillips v Brooks[1919] 2 KB 243. This law wasupheld until 1961 when a complication occurred because of

the decision in IngramvLittle[1961] 1 QB 31. In this case,

It was held that

Lord Denning argued thatIn the course of his judgmentIn the view of

There is a list of signalling words, phrases and

sentences in Appendix D, pp.226-227, Crosling andMurphy, How to Study Business Law 4th edition.


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Common linking words and phrases:

Further

Furthermore In addition

Moreover

However Consequently

Finally

Also As well

Subsequently


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Citation of casesCase details should include: parties names: Ingram v Little (italics)

date case reported: [1961]

volume number of the law report: 1

abbreviation of the law report: QB starting page number of the case in the report: 31

pinpoint page number: 42 (use when referring to aspecific point in the judgement) name of judge/s (only where appropriate)


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Citation of cases

You can cite the parties names in the bodyof your work (Ingram v Little)and the otherdetails of the case can be cited in a footnote

at the bottom of the page([1961] 1 QB 31).

See www.vu.edu.au/library- underInformation Resources (on right) click

Referencing & Styles under Style GuidesclickAustralian Guide to Legal Citation(AGLC) (VU).
http://www.vu.edu.au/libraryhttp://www.vu.edu.au/libraryhttp://www.vu.edu.au/library


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Incorporating Cases into your Discussion

The law regarding fraudulent mistake as to identity wasestablished in the case ofPhillips v Brooks[1919] 2 KB 243.In this instance,

However, the case ofIngramvLittle[1961] 1 QB 31created a state of uncertainty in regard to this lawbecause

In his judgment ofLewis vAvery[1972] 1 QB 198, Lord

Denning stated that the decision in IngramvLittle[1961] 1QB 31 was bad law. He argued that

Study carefully pages 209- 213 in Parker and Box.Provides a very good discussion of the issues inthese cases.


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Paraphrasing

Paraphrasing is a technique wherematerial from texts is rewritten inyour own words without changing theoriginal meaning. The paraphrase is

usually as long as the originalpassage. This is the most commontechnique you will use in your

notetaking.


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Strategies to assist your paraphrasing are:

Read the passage several times to understandthe meaning.

Identify:

the main idea; the main supporting points; and

supporting details to assist with your understandingof the passage.

Check the dictionary for any words you do notunderstand.

Use synonyms where possible, but rememberyou cannot substitute importantlegal terms.

They are essential to the meaning of a passage.You can only substitute general words.

Change the word order of sentences


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Example of Paraphrase

(Original Parker and Box, 2004, pp.210-211)

As mentioned, it is difficult to proveunilateral mistake as to identity in caseswhere negotiations take place face-to-face,since the law presumes that the mistakenparty

intendedto make the actual contract

that he has entered into in fact. This isconfirmed by the case ofPhillips vBrooks[1919] 2 KB 243.(210) The court,again faced with the unattractive task ofhaving to choose between two relativelyinnocent parties, accepted the argumentbased on misrepresentation, preferring itto the argument based on mistake. (211)


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Paraphrase

As has already been stated, unilateral mistakeas to identity is hard to prove in cases wherenegotiations are organised face-to-face. Inthese situations, the law presumes that theparty who has made the mistake actually

intendedto ratify the contract he enteredinto. The case ofPhillips v Brooks[1919] 2KB 243 established this. In this particularcase, the court, once again faced with the

difficult task of having to decide betweentwo innocent parties, accepted the

fraudulent misrepresentation as to identityargument rather than the argument based

on mistake.


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EXAMPLE OF SYNOPSIS(optional for Business Law)

Acceptance of a contract, when utilizing the post as a means of

communication, occurs when the acceptance letter is placed in thepost by the offeree. This is known as the postal rule of acceptance.Introduced for commercial convenience, the postal rule ofacceptance has been a component of contract law since 1818.Nearly 200 years later the rule has become relatively unimportant.

This can partly be attributed to the introduction of instantaneousand near instantaneous methods of communication, such as thetelephone, fax machine and, email systems, which are currentlygoverned by the general rule of acceptance. However, anotherimpact on the postal rules decline is the somewhat standarddeclaration and intention of many businesses that acceptance of acontract occurs upon receipt of an acceptance letter; avoiding thepostal rule. In response, the courts have taken a strict view topostal rules application, and if there is any ambiguity as to themethod of acceptance, the courts are likely to repudiate the rule.

These issues are examined in detail together with relevant cases,throughout the essay. Also discussed is the proposed and soon tobe introduced change in legislation in relation to electroniccommunication. However, it is the suggestion of this essay that thepost remains a major communication tool in relation to theformation of contracts and abandonment of the post rule, at thispoint in time, may disadvantage the community at large.


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Example of definition of concept in IntroductionThe postal rule of acceptance is unique. Within

the rules of acceptance in contract law, thepostal rule has the distinction of establishing acontract prior to the knowledge of the offeror.In essence, the rule stipulates that when thepostal service is contemplated as the medium

of exchange for acceptance of an offer,acceptance is deemed to occur the moment theletter of acceptance is posted not when theacceptance is communicated to the offeror, asper the general rule of acceptance. Limited to

the agency of the post and telegrams, thepostal rules use must be warranted to be valid.Considered contentious, the rule is rarelyimposed by the courts. Nevertheless, the issueof the rules relevance needs to bereconsidered, as does the viability of the rulesexpansion into the realm of instantaneous


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Examples of Case Discussion(with footnotes)

.........cases where the postal rule is the expected mode of communication, and that

"notice .... to the intending vendor", meant that uncommunicated notice was no

notice; thus, displacing the use of the postal rule. It was therefore held thatactual communication was required and since it had never been received, therewas no contract1.

Similarly the courts will not apply the postal rule if they believe that its practice willmanifest inconvenience or absurdity, as remarked by Lord Bramwell in British &American Telegraph Co vColson (1871)2. His Lordship asserted that, "if a manproposed marriage, and the woman was to consult her friends and let himknow, would it be enough if she wrote and posted a letter which never reached

him? ... [That] would be wholly unjust and unreasonable".In the context of discussion of the postal rule, I believe it is also important to note

that withdrawing ones acceptance, after a letter of acceptance has beenposted, is contrary to the postal rule. However, Australian Postal By-law 543enables a person who has posted a letter to recover it, provided that AustraliaPost considers the reasons for recovery are satisfactory.4 This by-law is yet tobe tried in court; yet it illustrates the legal systems reluctance to maintain thepostal rule of acceptance.

1. J W Carter and D J Harland Contract Law in Australia (Butterworths: 2nd ed,1991) 48.

2. British & American Telegraph Co v Colson (1871) LR 6 Exch Id 119.3. Postal By-Law 54 ( Refer to Post Office Guide :paras 131-138)4. J G Stark, N C Seddon and M F Ellinghaus, Cheshire and Fifoots Law of

Contract(Butterworths:6th ed,1992) 87.


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Example of discussion in body of textReferring to this precedent in Brinkibon Ltd v Stahag Stahl undStahlwarenhandelsgesellschaft6, Lord Wilderforce said "it appears logical that ...even where there is not mutual presence at the same place and at the same

time, if communication is instantaneous for example by telephone or radiocommunication . . . this should be at the place where acceptance iscommunicated to the offeror . . . ". This supports the concern that if a suddenpower failure breaks contact before acceptance has been adequatelyconveyed, the offeror is not disadvantaged7.

However, in April 1998, the Attorney General's E-Commerce Expert Groupreleased a report recommending the enactment of legislation, deeming thatunless parties agreed otherwise, acceptance occurs at the offeror's place ofbusiness, and thatthe country in which the offeror conducts business willtherefore govern the contract. Possibly in response to this report, on 1September, the Electronic Transactions Act 2000 (Vic) came into effect8.Although somewhat confusing, this legislation states that when correspondingby electronic communication "the person to whom the information is requiredto be given consent to the information being given by means of an electroniccommunication" and ". .. the time of receipt of the electronic communication isthe time when the electronic communication enters that information system".

Thus, reiterating the current application in regard to email which stipulatesthat, a message is mailed when sent, but the offeree's acceptance by email isnot received until the offeror has logged into the system (deeming it a form ofinstantaneous communication)9. More importantly, this legislation will now

apply this concept to facsimile and telex machines.

6. Brinkibon Ltd v Stahag Stahl und Stahwarenhandelsgesellschaft mbH [1983]2 AC 34,4.7. David Alan and Mary Hiscock, Law of Contract in Australia (CCH:c1987)197.8. Electronic TransactionsAct2000 (Vic)http://www.dms.dpc.vic.gov.au/pdocs/bms/B00333/B003331. html .

9. Paul Latimer,Australian Business Law (CCH:19thed, 2000) 228.
http://www.dms.dpc.vic.gov.au/pdocs/bms/B00333/B003331.%20htmlhttp://www.dms.dpc.vic.gov.au/pdocs/bms/B00333/B003331.%20html


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Example of Conclusion

In today's world of alternative lifestyles andhigh tech gadgets, there are numerous waysin which people chose to live and tocommunicate with others. Yet even thepeople in the forests of the Amazon are able

to participate in the exchange of information,goods and services. This is not because theworld's electronic networks are vastlyexpansive and never break down, because

when there is no fax machine or computerhandy, we can always use the post.Obviously if some important deal is beingnegotiated, then all precautions should be

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