tài liệu commercial law

rules tell us what we should/ should not do = includes social rules and legal rules  Social rules are defined conversely compared to legal rules as defined in law  The purpose of law:

Contents

1 INTRODUCTION TO LAW 4

1/ Definition of law 4

2/ Categories of law 4

a Public law and Private law 4

b Criminal law v Civil law 4

3/ Law, justice, politics and ethics 5

a Law and justice 5

b Law and politics 5

c Law and morality (ethics) 5

4/ Types of legal systems 5

a Common law legal system 6

b Civil law legal system 6

5/ Court hierarchies 6

6/ The Doctrine (giáo lý, học thuyết) of Precedent 7

7/ Sources of Australian Law 7

2 FORMS OF LEGAL LIABILTY 9

1 Criminal liability 9

2 Contractual liability 9

3 Tortious (sai lầm, có hại) liability 9

4 Vicarious liability 10

5 Statutory liability 10

3 TORT OF NEGLIGENCE 11

1/ Requirement 1: The Defendant(D) owed the Plaintiff(P) a Duty of Care (D.O.C) 11

2/ Requirement 2: Breach of D.O.C 11

3/ Requirement 3: Harm caused by breach 12

4 CONTRACT FORMATION 13

1/ Agreement 13

a Offer 13

b Acceptance 13

2/ Consideration 13

a Valid consideration 13

b Past consideration (consideration CANNOT be past) 14

c Sufficient consideration (must be sufficient) 14

d Adequate consideration (consideration must be sufficient, but don‟t have to be adequate) 14

3/ Intention to be legally bound (mong muốn được kí kết hợp đồng) 14

5 NEGATING A CONTRACT 15

1/ LACK OF COSENT (THIẾU SỰ ĐỒNG Ý/ƯNG THUẬN) 15

a Mistake 15

b Duress (the use of violence or threats to force P2 to enter into a K; sự cưỡng ép, ép buộc) 16

c Undue influence (sự ảnh hưởng quá đáng, quá mức, không xứng đáng) 16

d Unconscionability = unfairness (sự không hợp lí) 16

e Misrepresentation 17

2/ LACK OF CAPACITY (THIẾU TƯ CÁCH/QUYỀN HẠN) 17

a Minors (people under 18) 17

b Person lacking intellectual capacity 17

3/ LACK OF LEGALITY 18

a Common law illegality 18

b Statutory illegality 18

6 CONTENTS OF A CONTRACT 19

1/ EXPRESS TERMS (Rõ ràng) 19

a In a signed and written contract 19

b Incorporation of a term into a K by Reasonable Notice 20

2/ IMPLIED TERMS (Ngụ ý, ám chỉ) 21

a Terms implied by courts 21

b Terms implied by statute (Laws made by parliaments) 21

3/ TERMS: CONDITION V WARRANTY 21

7 CONTENTS OF A CONTRACT: PAROL EVIDENCE RULE v ACL 22

1/ PAROL EVIDENCE RULE (PER) 22

2/ GOING AROUND PER (NẾU OUTSIDE STATEMENT KHÔNG THỂ THÔNG QUA 3 EXCEPTIONS CỦA PER, THÌ CÒN CÁCH NÀO KHÁC?) 22

a Collateral contract 23

b Misrepresentation 23

c Breach of ALC (following topics) 24

3/ DISCLAIMERS 24

b Damages = Monetary compensation 25

c Statutory remedies 25

5/ ENDING A CONTRACT (Frustration) 25

8 AUSTRALIA CONSUMER LAW (ACL): GENERAL PROTECTIONS 26

1/ Misleading and deceptive conduct (section 18) 26

2/ Unconscionable conduct (s20 and s21) 27

3/ Unfair terms (s23) 27

9 AUSTRALIA CONSUMER LAW (ACL): SPECIFIC PROTECTIONS 28

1/ CONSUMER GUARANTEES (STATUTORY IMPLIED TERMS) 28

a Consumer goods K 28

b Consumer services K 28

2/ REMEDIES 28

a Remedies for breach of general protections (sections: 18, 20, 21 and 23) 28

b Remedies for breach of consumer guarantees 29

1 INTRODUCTION TO LAW 1/ Definition of law

 Law is a set of rules made by the state and enforceable by prosecution or litigation (Law is a set of rules made by the state enforced by the state and must by complied with by members of society [book])

 Rules = standards of behavior; e.g rules tell us what we should/ should not do

= includes social rules and legal rules

 Social rules are defined conversely compared to legal rules (as defined in law)

 The purpose of law:

 To resolve disputes

 To maintain social order

 To preserve and enforce community values

 To protect the disadvantages

 To stabilize the economy

 To prevent the misuse of power

2/ Categories of law

Mainly focus on classifying law into: - Public law v Private law

- Civil law v Criminal law

a Public law and Private law

 Public law = deals with the interests of the public and the relationship between the citizens and the state

 Sub categories: Constructional law

Administrative law Criminal law Taxation law

 Private law = deals more with individual right and the relationships between private citizens

= includes: Tort law

Contract law Competition v Consumer law Property law

Commercial law Employment law Company v partnership law

b Criminal law v Civil law

 Criminal law = establishes criminal offenses (murder, robbery, kidnapping, …) and the penalties for persons who commit these criminal offenses

Purpose: To maintain the safety of society by punishing offenders (người phạm tội)

To deter (ngăn chặn) them and others from offending (phạm tội)

Law

&

morality

3/ Law, justice, politics and ethics

a Law and justice

 Justice roughly means fairness (e.g a fair allocation of resources and burdens, fair punishment)

 Desirable if law and justice are the same

 However, in reality, law may not coincide with justice (e.g unjust law)

b Law and politics

 Politics = activities associated with governance (sự thống trị/ cai quản, nhiệm vụ cai quản) of a

country or area

 The law is more than mere politics Law is the outcome of historical development, tradition, cultural and community values

 However, law is shaped and influenced by politics:

 Particular laws are the expression of a political ideology (hệ tư tưởng); e.g liberal, democratic (dân chủ) or communist (cộng sản, người cộng sản) ideology

 Legislation is made by politicians to achieve political objectives

 Case law is made by judges with political opinions and values

c Law and morality (ethics)

 Law and morality (overlapping areas):

A moral choice = a legal choice

e.g keeping promise/ contract

 Law = A conduct may be legal but immoral:

e.g -cheating, selfishness, abortion

-providing gaming service, producing cigarettes

-death sentence (án tử hình)

 Morality = A conduct may be illegal but moral:

e.g -stealing bread to feed a starving child

-crossing red lights to bring someone to hospital

(conduct (n) = hạnh kiểm, cách cư xử Sự chỉ đạo, quản lý Cách sắp xếp, bố cục)

4/ Types of legal systems

2 main types: Common law legal system

Civil law legal system

Not covered

a Common law legal system

 Common law legal system is a type of legal system based upon the British legal system (the USA, Canada, Australia and New Zealand)

 2 main sources of law are: - Case law  the primary source

- Legislation (Statute [đạo luật, điều lệ, quy chế])

 Common law legal systems normally have a well-established system of precedent (tiền lệ); e.g similar cases should be decided similarly

b Civil law legal system

 Civil law legal systems are based on a written codified body of laws such as codes, statutes and constitutions (hiến pháp, thành phần, sự cấu tạo)

 Source of law: Legislation (statute)

 Civil law legal systems vastly outnumber common law legal systems (e.g France, Germany, Russia, Japan, Thailand, Korea, and VN)

5/ Court hierarchies

 Prior to 1901, Australia was divided into 6 colonies

 In 1901, 6 colonies came together to form a national government

 Northern Territory joined the Federal in 1911

 The Australian Capital Territory (ACT) was also established in 1911

 Australia is a federal (liên bang) state

 The 3 arms of government:

Government: Legislature  makes law

Executive  administers law Judiciary  interprets law

 A hierarchy is a structure/ system in which different parts are ranked or ordered depending on their importance

 Australia has 9 court hierarchies: 6 court hierarchies for 6 states

2 courts hierarchies for 2 territories

1 for the whole country

 In a court hierarchy, different courts have different authority:

1 The lower courts – hear (xét xử) minor/ less important cases

2 The higher courts – adjudicate (xét xử, phân xử) more serious cases

 Higher courts can also hear appeals against (appeals against: kháng cáo, phản đối) decisions made in lower courts (higher courts có thể can thiệp vào cases mà lower đang xét xử)

6/ The Doctrine (giáo lý, học thuyết) of Precedent

“Like cases should be decided alike”

 In deciding cases involving similar issues or facts:

1 Lower courts must follow decisions of higher courts in the same judicial hierarchy

2 A judge does not have to follow the decisions of the other judges at the same level in the same hierarchy These decisions will however be highly persuasive in the interests of consistency

3 A judge does not have to follow the decisions of higher courts in a different hierarchy,

although such decisions may be persuasive

 Precedent: ratio dencidendi (the binding part of a precedent)

Obiter dictum (the persuasive part of a precedent)

7/ Sources of Australian Law

 Australian law originates from 2 main sources:

 Law made by parliament (quốc hội)  statute (statutory law/ legislation/ Acts)

 Judge-made law  Common law/ Case law

Statute/ Legislation = the judge cannot make new law The decisions of the judge have to be made based

on the statute

Case law/ Common law= the judge can make new laws based on what they decided to solve the case

Federal and State Court Hierarchy

High Court of Australia (the highest court of state, territories

and country)

Intermediate

(trung gian) courts

(country/ district courts)

Lower courts

(Local/ Magistrates (quan tòa,

quan hành chánh địa phương)

court

Federal Magistrates Court

 Source of law:

 Primary legal materials: Legislation

Case Law

 Secondary legal materials: Law textbooks

Law journal articles Legal dictionaries Legal encyclopedias

2 FORMS OF LEGAL LIABILTY

Harms can be caused in many ways:

 Intentionally (NOT COVERED) = killing, punching, damaging property, threatening, disturbing, …

 Carelessly = driving carelessly, spilling water on the floor, gibing careless advice, …

When a person cause harm to another person that is not justified (được căn chỉnh) by law, that person will incur legal liability

5 forms of legal liability: Criminal liability

Tortious liability Statutory liability Vicarious lability Contractual liability

1 Criminal liability

 The person cause harm to another person and the harmful act is specified by the state in criminal law

as a crime, that person will incur (chịu) CRIMINAL LIABILITY

 A crime = is a highly dangerous activity that violate (vi phạm, xâm phạm) the interest (quyền lợi) of society (e.g murder, rape, kidnapping…)

= specified by state in criminal law as a criminal offense

( A dangerous activity is NOT a crime if it IS NOT PROVIDED in criminal law as a crime)

= leads to prosecution (sự khởi tố) and punishment by the state (e.g life imprisonment, term imprisonment or a fine)

 In a criminal trial, the relationship is between the state and the individual

 Criminal is thus concerned with punishment and repression (sự kiềm chế) of crimes

2 Contractual liability

 Contractual liability is the liability incurred from breaching a contract

e.g a mutually agreed agreement between contracting parties

e.g a nurse breaches a contract to take care of an old lady  she will incur contractual liability

3 Tortious (sai lầm, có hại) liability

 A tort is a civil wrong

 A tort violates an interest of other individuals

 A tort is a harmful act, other than a breach of contract, giving the victim a right to sue for

compensation

- Tort law is primarily concerned with resolution

of private disputes and remedies

 Tort ≠ a breach of contract

Both are civil wrong  a violation of an interest of other individuals

 the harmed person can sue for damages

 no criminal penalties Tort

- Breach of a duty or obligation imposed by law

(e.g duty of care)

- Tortious liability can arise in the absence of a

contract, even between complete strangers

 Liability for the harm caused by others (chịu trách nhiêm pháp lý về harm do người khác gây ra)

 Mainly happens in employer-employee context

 If the harmful act was done within the scope of their employment by the employee, the employer will

be vicariously liable (nếu employee gây ra hđ tổn thương đó trong giờ làm việc hoặc trong khoảng thời gian employee đg có trọng trách, thì employer sẽ phải chịu trách nhiệm cho employee)

 Employer là người có cấp bậc cao hơn employee (e.g manager, CEO, …)

 The Scope of their employment: doing an authorized task

For the benefit of the employer

 An employer is NOT vicariously liable for the conduct of an independent contractor, a person who is contracted to provide services, but NOT an employee)

5 Statutory liability

 Liability incurred from the breach of statutory law other than criminal legislation

e.g breaching - Australian Consumer Law

- Traffic Law

- Intellectual Property Law

3 TORT OF NEGLIGENCE 1/ Requirement 1: The Defendant(D) owed the Plaintiff(P) a Duty of Care (D.O.C)

Not recognized D.O.C (Neighbor Test -Lord Atkin-)

1 It must be shown that at the time of incident, it was reasonably foreseeable that the conduct of D:

 could harm the others

 Is potentially harmful to others

2 The P is the “neighbor” of the D

 He/she only owes a D.O.C to those who are so closely and directly affected by his/her conduct

-Donoghue v Stevenson (1932) AC 562-

2/ Requirement 2: Breach of D.O.C

Reasonable Person Test: “What would a person have done in the same situation?”

1.The probability of harm

 How likely (có thể xảy ra)

is the harm?

“The higher the probability of harm, the higher the Standard of Care (S.O.C), which means the more careful measures are required”

-Bolton v Stone (1951)-

2 The likely seriousness of harm

 How serious could the harm

be?

“The higher the likely seriousness of harm, the higher the S.O.C, which means the more careful measures are required”

-Paris v Stephen Borough Council (1951)-

3 Burden / Costs of precautions

 How difficult and expensive

for the D to avoid causing

harm?

“If the D could have avoided causing harm by taking cheap and easy measures, failing to take these measures is likely a breach of D.O.C

If the harm could only have been avoided by taking very expensive and difficult measures, failing to take these measures is less likely a breach of D.O.C”

-Latimer v AEC (1953)-

4 Social utility

 Did the D have other

conflicting priorities that

prevented it from causing

3/ Requirement 3: Harm caused by breach

1 Causation: - have to prove there is an actual damage/ injury/ loss

- “But For Test”  “But for (without) the D‟s carelessness, would the P have still

2 Remoteness

“Is the specific type of harm suffered by the P reasonably foreseeable/ predictable from the

carelessness?” Yes, then D owed P

No, then D did not owed P

 Some cases may have “but for test” satisfied, but MAY NOT be reasonably

foreseeable (too remote).

4 CONTRACT FORMATION 1/ Agreement

a Offer

An offer is rejected with a new offer by the offeree counter offer

Offer ≠ - Supply/request of information

- Invitation to treat (advertisement, goods displayed in shops, auctions …)

 An advertisement can be an offer  Unilateral offer

 1 person offers to many

 Accepted by performance

RULES OF OFFER

1 Must be clear and complete (subject matter/ parties/ price/ quantity)

2 Only the offeree can accept

3 Can be revoked before acceptance

[To keep an offer open, MUST PAY DEPOSIT (option contract)]

4 Must be communicated

5 Revocation must be communicated

 Revocation can be communicated through a 3rd party

 Postal Rule= Revocation only valid when is communicated /RECEIVED

b Acceptance

RULES OF ACCEPTANCE

1 “Mirror image rule”

2 An acceptance must be unconditional (otherwise counter offer)

3 Must be clear and certain (subject matter/ parties/ price/ quantity)

4 Must be immediate (otherwise option contract, must pay deposit)

5 The offeror can require a certain method(conditions) of acceptance (if the offeree does not follow

 not valid)

6 Acceptance must be communicated

Silence ≠ Acceptance (ngoại trừ unilateral offer)

 Postal Rule= acceptance is valid when the letter is SEND

2/ Consideration

a Valid consideration

Both parties must give up something that has legal value or suffer some detriments If A gives up

something and B gives up nothing mere promise (no consideration)

-Carlill v Carbolic Smoke Ball Co (1893)-

b Past consideration (consideration CANNOT be past)

If 1 part gives something that was done in the past in exchange for other‟s …

Past consideration

Not enforceable under Contract Law

c Sufficient consideration (must be sufficient)

Insufficient = Invalid, when: -Vague promise

-Duty imposed by law

-Duty imposed by contract (nếu đã có 1 hợp đồng trước đó, offer 1 hợp đồng mới = insufficient)

d Adequate consideration (consideration must be sufficient, but don’t have to be adequate)

A consideration không cần phải đúng giá trị fair/market value, nhưng thứ đó phải là hợp pháp (legal value)

3/ Intention to be legally bound (mong muốn được kí kết hợp đồng)

 In social/ domestic context (family members, friends,…) thường được cho là không có quan hệ pháp lí  parties do not intend to create legal relations