tài liệu commercial law

Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) Contents INTRODUCTION TO LAW 1/ Definition of law 2/ Categories of law a Public law and Private law b Criminal law v Civil law 3/ Law, justice, politics and ethics a Law and justice b Law and politics c Law and morality (ethics) 4/ Types of legal systems a Common law legal system b Civil law legal system 5/ Court hierarchies 6/ The Doctrine (giáo lý, học thuyết) of Precedent 7/ Sources of Australian Law FORMS OF LEGAL LIABILTY Criminal liability Contractual liability Tortious (sai lầm, có hại) liability Vicarious liability 10 Statutory liability 10 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 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 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) d Adequate consideration (consideration must be sufficient, but don‟t have to be adequate) 14 3/ Intention to be legally bound (mong muốn kí kết hợp đồng) 14 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; cưỡng ép, ép buộc) 16 c Undue influence (sự ảnh hưởng đáng, 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 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 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 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 a CONDITION 1- Is the disclaimer part/ a term of the K 24 b CONDITION 2- Whether it will be interpreted as applying to the particular breach in question 24 4/ REMEDIES 24 a Rescission 24 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) b Damages = Monetary compensation 25 c Statutory remedies 25 5/ ENDING A CONTRACT (Frustration) 25 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 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 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 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 = 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)  In a criminal trial, the dispute is between the state and the individual Civil law = (similar to private law) deals with relationships between private citizens Purpose: To resolve private disputes To compensate the victims – not to punish the wrong doers  In a civil trial, the dispute is between private citizens Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 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 Law Law & morality Morality (conduct (n) = hạnh kiểm, cách cư xử Sự đạo, quản lý Cách xếp, bố cục) 4/ Types of legal systems main types: Common law legal system Civil law legal system Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 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) 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, 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 colonies In 1901, 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 arms of government: Government: Legislature  makes law Not covered 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 court hierarchies: court hierarchies for states courts hierarchies for territories for the whole country In a court hierarchy, different courts have different authority: The lower courts – hear (xét xử) minor/ less important cases 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 can thiệp vào cases mà lower xét xử) Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) Federal and State Court Hierarchy High Court of Australia (the highest court of state, territories and country) (State court hierarchy) Supreme court (Federal court hierarchy) Federal court Intermediate (trung gian) courts (country/ district courts) Family court Federal Magistrates Court Lower courts (Local/ Magistrates (quan tòa, quan hành chánh địa phương) court 6/ The Doctrine (giáo lý, học thuyết) of Precedent “Like cases should be decided alike”   In deciding cases involving similar issues or facts: Lower courts must follow decisions of higher courts in the same judicial hierarchy 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 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 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 Plaintiff (P)= ng kiện P1= party breached the contract  Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) Source of law:  Primary legal materials:  Legislation Case Law Secondary legal materials: Law textbooks Law journal articles Legal dictionaries Legal encyclopedias Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 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 chỉnh) by law, that person will incur legal liability forms of legal liability: Criminal liability Tortious liability Statutory liability Vicarious lability Contractual liability 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 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 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 Plaintiff (P)= ng kiện P1= party breached the contract  Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) Tort ≠ a Crime Tort - Tort= a wrongful act that violates an individual‟s person or property - Tort= civil wrong which allows the victim to sue for damages - Tort law is primarily concerned with resolution of private disputes and remedies Crime - Crime= is a wrongful act that violates the interest of society - Crime= criminal wrong (breach of criminal law) will be prosecuted and punished by the state - Criminal law is primarily concerned with punishment & repression of crimes  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 Breach of a contract - Breach of rights and obligations created by the contracting parties - Contractual liability can only arise if there is a contract Vicarious liability    Liability for the harm caused by others (chịu trách nhiêm pháp lý harm 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 hđ tổn thương làm việc khoảng thời gian employee đg có trọng trách, employer phải chịu trách nhiệm cho employee)  Employer người có cấp bậc cao 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) 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 10 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) NEGATING A CONTRACT Mistake Lack of consent (sự đồng ý, ưng thuận) Một hợp đồng thành lập bị vô hiệu (unenforceable) có Lack of capacity (tư cách, quyền hạn) Lack of legality (phạm vi pháp luật) Duress Undue influence Unconscionability Misrepresentation Minors Persons lacking of intellectual capacity Common law illegality Statutory law illegality Lack of formality (hình thức, thủ tục) 1/ LACK OF COSENT (THIẾU SỰ ĐỒNG Ý/ƯNG THUẬN) a Mistake  Unilateral mistake: - party make the unilateral mistake (the innocent one) - The mistake is about a fundamental aspect of the K - P1 knows/should have known of that mistake, but the seek to take advantage of that mistake  VOIDABLE K (the K is still effective until the P2 (innocent party/ party made unilateral mistake) terminates the K)  Common mistake: - Both parties make the same mistake when forming the K - The mistake must exist at the same time the K was formed - About a fundamental aspect  K IS VOID (no effective K at the beginning; parties are restored to their original positions before the K was made)  Mutual mistake: - Both parties make mistakes, but each party has made a different mistake - Parties are at cross-purposes “no meeting of minds”  K IS VOID 15 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) b Duress (the use of violence or threats to force P2 to enter into a K; cưỡng ép, ép buộc)  Duress exists when P1: - Has expressly or impliedly threatened the other with harm - The threat with harm contributed to P2‟s decision to enter the K  A duress can be made to cause harm to P2‟s: - Personal safety - Goods or property - Economic interests - Loved ones VOIDABLE -Barton v Armstrong (1973)-  c Undue influence (sự ảnh hưởng đáng, mức, không xứng đáng)  Undue influence will arise when: “The stronger party uses the influence/ dominance to force the weaker party to enter into an unfair contract” -Johnson v Buttress (1936) types of undue influence: special relationship v non special relationship Special relationship Doctor – patient Lawyer – client Trustee – beneficiary Parent/guardian – child Religious leader – follower  VOIDABLE No special relationship exists It is up to the weaker party (P2) to establish that the stronger party has used influence to force them to enter into the K d Unconscionability = unfairness (sự không hợp lí)  Courts usually don‟t inquire into (care about) the “fairness” of the K, except: P2 has a special weakness/ disadvantage P1 is aware/should be aware of that special weakness/ disadvantage P1 takes unfair advantage of that special weakness/ advantage -Commercial Bank of Australia Ltd v Amadio (1983) Special weakness/ disadvantage: An inability to speak/ read/ write English Illiteracy Lack of education Poverty Sickness  VOIDABLE Age/youth Lack of intellectual capacity Ignorance of important facts Intoxication 16 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) e Misrepresentation   False statement About material facts [a statement of fact (can be verified by a 3rd party), not mere opinion/puffery]  Addressed to the P2 (phải communicate trực tiếp)  Induces P2 to enter into the K (người khác không kí hđ P1 nói thật/nếu false statement chưa đề xuất)  VOIDABLE 2/ LACK OF CAPACITY (THIẾU TƯ CÁCH/QUYỀN HẠN) Một hđ có hiệu lực parites có quyền hạn hợp pháp (legal capacity) Ở cân nhắc đến minors and person lacking intellectual capacity a Minors (people under 18)   Theo thường luật, minors enter hđ làm vô hiệu hóa hđ (void) mà không cần đến can thiệp người lớn.==> hđ hiệu lực minors Hđ có hiệu lực với minors khi: Contracts for necessaries (những vật quan trọng, tất yếu, cần dung đời sống) -Bojczuk v Gregorcewicz (1961)2 Beneficial contracts of service (những hđ có lợi cho phát triển minors) -Hamilton v Lethbridge (1912)3 Contracts where the minor acquires a continuing interest/ undertakes a continuing obligation - Thông thường, hđ bị hủy minors, lúc ngưới lớn 18t mà chưa hủy hđ, hđ có hiệu lực (NOT COVER) b Person lacking intellectual capacity     A person may lack intellectual capacity as a result of: - Intellectual disability (down syndrome…) - Insanity (illness: madness, craziness, …) - Intoxication Contracts for necessaries are enforceable against person lacking intellectual capacity người bị khiếm khuyết KHÔNG terminate K If the K is not for necessaries, the K will still be enforceable However, there are conditions where the person lacking intellectual capacity can terminate the K (voidable): Người khiếm khuyết khả hiểu rõ làm Người khác biết/nên biết tình trạng người khiếm khuyết  Nói cách khác, điều kiện thỏa mãn, K is voidable and the contract is not enforceable against person lacking intellectual capacity 17 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 3/ LACK OF LEGALITY a Common law illegality  Contracts are illegal and unenforceable under common law when the contracts are related to criminal actions (trốn thuế, tham nhũng, giết người, trốn xét sử tư pháp) b Statutory illegality   Breaching a statutory provision = illegal agreement Hậu việc vi phạm điều khoản luật pháp quy định tùy vào lời lẽ diễn đạt luật lệ The statute may: - Penalize the conduct of that person but not invalidate (phế bỏ, làm hiệu lực) the agreement - Not penalize the conduct of that person but invalidate the agreement - Penalize the conduct of the person and invalidate the agreement 18 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) CONTENTS OF A CONTRACT Term Puffery A term is: A puffery is not verifiable It is: - A promise (with guarantee) - Exaggerated sale talk (salesmanship) - Verifiable /có thể xác nhận (statement of facts) - Statement of opinions - Made during the formation of the K - Words of encouragement == > A reasonable person would NOT take it seriously - Inteneded to be legally binding  Enforceable  Unenforceable NOTE: Term and Puffery are both statements made during negotiation Terms: express term v implied term Inside a signed and written K Express terms Outside but incorporated by Reasonable Notice Implied terms Implied terms by courts Terms Implied terms by statute 1/ EXPRESS TERMS (Rõ ràng)   Express terms are terms that parties have expressly agreed upon, either verbally or in writing A statement can be an express term of the K in ways: By being included in a signed and written K By being incorporated by Reasonable Notice a In a signed and written contract   If a term is included in a written K that has been signed by the parties, it is an express term of the K  a binding and enforceable term of the K This remains true if one of the parties has NOT ACUTALLY read and understood the written K - L’Estrange v Graucob (1934) You are bound by what you signed 19 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) b Incorporation of a term into a K by Reasonable Notice  A party can incorporate an outside statement into a K if it can be proven that: Reasonable notice of the term was given to the other party  Reasonable steps have been taken to bring the statement to the attention of the other party  A reasonable person would have been aware of the term Before the K was formed A sign: - The sign must be prominently displayed/ clearly visible for a reasonable person to see  R.N is given - Would a reasonable person have it? (không cần biết người case có nhìn thấy không) - R.N given before the contract was formed An outside statement can be: A document: - A reasonable person would expect to find contractual terms in it  R.N is given (e.g supplementary agreement, a notice of terms and conditions, tickets) - NOTE: survey form, advt leaflet, brochure, receipts are not R.N A verbal statement: - Parties discussed the term  R.N is given - R.N given before K formation SUMMARY OF REASONABLE NOTICE Outside statement: Can be incorporated, if: - sign Reasonable Notice is given to the other party - document Given before the K was formed Contract - verbal statement 20 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 2/ IMPLIED TERMS (Ngụ ý, ám chỉ) a Terms implied by courts  Terms that were never negotiated or even discussed by parties  They are created and inserted into K by courts so that K can work NOTE: Nếu K mơ hồ, không rõ  dung implied terms  Courts may imply a term into a settled K if the term is:  Reasonable and fair  Necessary to make the K workable for parties  So obvious that it “goes without saying”  Able to be clearly expressed  Consistent with the express terms b Terms implied by statute (Laws made by parliaments) ACL law 3/ TERMS: CONDITION V WARRANTY Condition Warranty  A condition is a term that is vital/ extremely fundamental to the K.It goes to the “root”/” heart” of the K  A warranty is a term that is less important than condition and not central to the K  Breach of a condition  make the K meaningless  Breach of a warranty không ảnh hưởng đến K  Entitles the innocent party to:  Terminate K (rescind)  Claim damages  Entitles the innocent party to:  Claim damages only -Poussard v Spiers and Pond (1876)- Phân biệt condition warranty Essentiality Test: “Would a party still enter into the K if he/she knew that the term would be breached?”  If he would still enter  warranty  If he would NOT enter  condition -Tramways Advertising v Luna Park- 21 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) CONTENTS OF A CONTRACT: PAROL EVIDENCE RULE v ACL 1/ PAROL EVIDENCE RULE (PER)  Where K is in writing and appears to be a complete record of the agreement, parties are not able to use oral or other outside evidence to subtract from, add to, vary or contradict the language of the written instrument -SkyWest Aviation Pty Ltd v Commonwealth of Australia PER only applies if the written K appears to be a complete record of the agreement If court puts implied terms, PER is not applied NOTE: PER không tương hợp với Reasonable Notice PER không cho phép statement vào Reasonable Notice hoàn toàn ngược lại (cho phép outside statements vào) Tuy nhiên có trường hợp ngoại lệ outside statements vào Ex Can be incorporated, if: PER Contract Outside statement: Ex Reasonable Notice is given to the other party - sign Ex Given before the K was formed - document - verbal statement  Exception 1: the statement is very important Even if a written K appears complete, if the outside statement is very important to the agreement, the court may conclude that the outside statement is a term of the K -Van den Esschert v Chapell (1960) Exception 2: the statement can be used to clarify an unclear/ vague term External evidence can be used to clarify ambiguities in the written document  Exception 3: the statement can be used to fix an error External evidence can be used to correct errors (often clerical/ vấn đề biên chép) -Abram v AV Jennings (2002)- 2/ GOING AROUND PER (NẾU OUTSIDE STATEMENT KHÔNG THỂ THÔNG QUA EXCEPTIONS CỦA PER, THÌ CÒN CÁCH NÀO KHÁC?)  An outside statement may still be enforceable if it constitutes:  A breach of collateral contract  A misrepresentation 22 Plaintiff (P)= ng kiện P1= party breached the contract   Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) A breach of ACL Unilateral mistake (lack of consent) Ex Can be incorporated, if: PER Contract Ex Outside statement: - sign Reasonable Notice is given to the other party - document Given before the K was formed Ex - verbal statement  Nếu outside statement thông qua PER để vào K, incorporate nếu: - collateral contract - misrepresentation -ACL - unilateral mistake a Collateral contract  Collateral contract is a secondary/ subordinate K, existing independently to the main K e.g “if you buy BMW for $40,000, I will give you a bike as well.” main K: BMW= $40,000 collateral K: bikes= entering into K  In return for/ To exchange for the representation/ promise of P1, the P2 has entered into the main K If the promise (representation) turns out to be untrue/ broken  P2 can sue for breach of collateral K  -De Laselle v Guildford (1901)NOTE: Collateral contract usually takes the form of P1 promising P2: “if you enter into the main K, I will promise you … (collateral contract)” b Misrepresentation   An outside statement can still be enforceable as a misrepresentation Elements: - False statement - Material facts (verifiable by 3rd party) - Addressed to other party (P2) 23 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) - Inducement (P2 không kí hđ P1 nói thật/không xui khiến, không nói sai) c Breach of ALC (following topics) 3/ DISCLAIMERS   A disclaimer is a statement which attempts to exclude one contracting party from liability (trách nhiệm) for something Disclaimer = exclusion clause = exemption clause = waiver = limitation of liability clause  A disclaimer can effectively protect a party from contractual liability if it satisfies conditions: Whether the disclaimer is a term of the K How will the disclaimer be interpreted a CONDITION 1- Is the disclaimer part/ a term of the K  A disclaimer is a term if:  It is included in a signed and written K ==> Parties are generally bound by the disclaimer even though that person has not read or understood the clause -L’Estrange v F Graucob Ltd It‟s outside of the K, but incorporated into the K by R.N before the K was formed ==> A disclaimer can be a: sign, document, verbal statement  It is implied into the K as a result of prior dealings ==> Previous dealings may mean sufficient notice (nếu parties tương tác/ trao đổi với qua nhiều lần, họ cho nhận thức điều luật đó) -Balmain New Ferry Co v Robertson (1906)b CONDITION 2- Whether it will be interpreted as applying to the particular breach in question  The court will interpret the disclaimer strictly against the interests of the party seeking to rely upon it -White v John Warwick & Co Ltd (1953)NOTE: details of scope of K  disclaimer ghi …, issue/ problem lại không trùng với disclaimer  phải ghi rõ quan trọng phân tích ==> KQ: không sue disclaimer không match với issue 4/ REMEDIES a Rescission   An order of the court to terminate a K Rescission is possible where there is a: Complete non-performance 24 Plaintiff (P)= ng kiện P1= party breached the contract    Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) Breach of a condition Unilateral mistake, duress, undue influence, unconscionability Misrepresentation (court cố số case giúp restore the Ps to their original positions) b Damages = Monetary compensation   The innocent party will be entitled (cho quyền) to damages where there is:  A breach of K (breach of a term)  A breach of a collateral K  A misrepresentation The purpose of damages is to restore the P2 (innocent party) to the position where he/she would have been in if the breach or misrepresentation had not occurred P1 is under an obligation to mitigate (làm dịu, giảm nhẹ) their loss c Statutory remedies ACL remedies 5/ ENDING A CONTRACT (Frustration)   Both parties can agree to end the K by:  P1 who has already fully performed their own obligations can promise to release P2 from performing his/her obligations  The parties can mutually agree to replace the existing agreement with a new agreement on different terms A contract will be terminated as a result of frustration:  When K is already formed  Supervening events (sự kiện ý muốn) happen.vd: vật thể bị hủy, hỏng,…  However, both parties have no intention to damage/ interfere the K  K is VOID NOTE: - Frustration occurs after K formation - Common mistake occurs before K formation 25 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) AUSTRALIA CONSUMER LAW (ACL): GENERAL PROTECTIONS Consumers are protected by ACL against: Misleading (đánh lừa) and deceptive (lừa dối) conduct (hạnh kiểm, hướng dẫn) (s18) Unconscionable conduct (s20 and s21) Unfair terms in standard form consumer contracts (s23-28) Who is a ‘consumer’? (ACL section 3)  A person is a consumer if he/she requires goods or services:  For $40,000 or less,  OR if the price is more than $40,000, the goods or services were of a kind ordinarily acquired for personal, domestic or household use or consumption  The goods consisted of a vehicle or trailer acquired for principally in the transport of goods on public roads  The goods/ services are:  NOT acquired for re-supply/ resale  NOT acquired for using or transforming them, in trade or commerce: in a process of production or manufacture, or in repairing or treating other goods NOTE: a company can also be a consumer 1/ Misleading and deceptive conduct (section 18)  A business has engaged in (tiến hành) misleading and deceptive conduct if: The business has engaged in conduct - making a statement, claim, promise - performing an action - silence is also a conduct The conduct was in trade or commerce (ongoing business) - it is part of an ongoing business (private or one-off sales are NOT ongoing business) - involving selling/ buying, particularly for profit The conduct is misleading and deceptive - the conduct is likely to lead a significant number of people into error - the conduct causes them to believe in what is false - misleading S.O = lying, making false claims, creating false impression, leading to a wrong conclusion, omitting important info  The court decides whether the conduct is misleading or deceptive by using an objective test: “If a significant number of people were led into error or caused to believe in what is false, then the conduct is misleading and deceptive (the intention/ ý định of the business is irrelevant)” -Taco Company of Australia v Taco Bell Pty Ltd (1982)- 26 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) NOTE: - A true statement can still be misleading or deceptive (e.g organic food, misleading=pesticides) - An untrue statement may not be misl or decep (e.g „redbull gives you wings‟, = puffery) - section 18 can be used by anyone, either consumer or non-consumers -Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (2000)- Disclaimers hiệu ACL 2/ Unconscionable conduct (s20 and s21)  Section 20 prohibits:  Unconscionable conduct generally unconscionable under common law = under ACL  The business has a conduct,  The business is in trade or commerce,  The conduct is unconscionable (concept y common law) S20 can be used by both consumers and non-consumers 3/ Unfair terms (s23)  Under ACL section 23, a term of a consumer contract will be void if:  The term is “unfair”,  The contract is a standard form contract  The term is “unfair” if:  The term causes a significant imbalance in the parties‟ rights and obligations,  The term is not necessary (không hợp lí) to protect the interests of the business,  The term would cause detriment (loss, damage, disadvantage or injury) to the consumer,  The term that allows only the business (but not the consumer) to: terminate the K, limit or avoid the responsibilities, renew the K, limit one‟s liability from breaching the K, change prices of goods and services without allowing the consumer to terminate the K  A standard form contract is:  Not negotiated by the parties but provided by the business to the consumer on the basis of „take it or leave it‟ (mua hang trực tiếp, trao đổi hay thương lượng)  Can be both written and verbal form under ACL ==> An unfair term in a standard form consumer contract is “VOID” ==> It is treated as if it had never come into existence 27 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) AUSTRALIA CONSUMER LAW (ACL): SPECIFIC PROTECTIONS 1/ CONSUMER GUARANTEES (STATUTORY IMPLIED TERMS) a Consumer goods K  For a consumer guarantee to be applied, there must be a consumer good contract requirements: The business is in trade or commerce (ongoing business), The business supplies goods to consumers, The good is a consumer good: - $40,000 or less, OR - more than $40,000 and ordinarily acquired for domestic, household or personal use, OR - a vehicle or trailer NOTE: THE CONSUMER GUARANTEE CAN ONLY BE USED IF THAT PERSON IS A CONSUMER  PROVE THAT PERSON A „CONSUMER‟ FIRST  Guarantees for consumer goods contracts:  Goods must be of acceptable quality -s54 ==>unsafe= unacceptable,  Goods must be fit for any disclosed purpose -s55,  Goods must match the description -s56 ==> lời miêu tả, giới thiệu, chưa nhìn thấy sp,  Goods must match the sample or demonstration model -s57 ==> nhìn thấy mẫu b Consumer services K  requirements to be a consumer services K: The business is in trade or commerce (ongoing business), The business supplies services to consumers (e.g babysitting, cleaning carpets, painting house, …) The service is a consumer service: - $40,000 or less, OR - ordinarily acquired for domestic, household or personal use  Guarantees for consumer services contracts guarantee that:  The service will be carried out with due (hợp lí) care and skill -s60,  The service will be fit for any disclosed purpose -s61,  The service will be supplied to the consumer within a reasonable time -s62 2/ REMEDIES a Remedies for breach of general protections (sections: 18, 20, 21 and 23)  A consumer may sue the business before the court and require the court to:  Award damages (money compensations),  Grant injunctions (ban lệnh tòa),  Terminate the K, (most common, for s18, 20, 21)  Void the K (for s23) 28 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) b Remedies for breach of consumer guarantees  Remedies depend on whether the breach is a minor or a major failure 1) Major failure A major failure occurs where: “a reasonable consumer who is fully aware of the nature and extent of the failure would not buy the goods.” (section 260)  If it is a major failure, the consumer may immediately: - reject the goods and require a refund, and/ or - sue the supplier to recover any reasonable loss 2) Minor failure If the failure is a minor one: - The consumer may require the supplier to remedy the failure within a reasonable time ==> The supplier can remedy the failure by repairing the goods, replacing the goods or providing a refund - If the supplier does not so within a reasonable time, the consumer may: + Reject the goods, + Require a refund, and/ or + Sue the business before the court to recover all reasonable loss NOTE: phân biệt major với minor failure essentiality test condition v warranty 29 [...]... 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... Lack of capacity (tư cách, quyền hạn) Lack of legality (phạm vi pháp luật) Duress Undue influence Unconscionability Misrepresentation Minors Persons lacking of intellectual capacity Common law illegality Statutory law illegality Lack of formality (hình thức, thủ tục) 1/ LACK OF COSENT (THIẾU SỰ ĐỒNG Ý/ƯNG THUẬN) a Mistake  Unilateral mistake: - 1 party make the unilateral mistake (the innocent one)... intellectual capacity 17 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 3/ LACK OF LEGALITY a Common law illegality  Contracts are illegal and unenforceable under common law when the contracts are related to criminal actions (trốn thuế, tham nhũng, giết người, trốn xét sử tư pháp) b Statutory illegality   Breaching a statutory provision...  Necessary to make the K workable for parties  So obvious that it “goes without saying”  Able to be clearly expressed  Consistent with the express terms b Terms implied by statute (Laws made by parliaments) ACL law 3/ TERMS: CONDITION V WARRANTY Condition Warranty  A condition is a term that is vital/ extremely fundamental to the K.It goes to the “root”/” heart” of the K  A warranty is a term... 2/ Unconscionable conduct (s20 and s21)  Section 20 prohibits:  Unconscionable conduct generally unconscionable under common law = under ACL  The business has a conduct,  The business is in trade or commerce,  The conduct is unconscionable (concept y như của common law) S20 can be used by both consumers and non-consumers 3/ Unfair terms (s23)  Under ACL section 23, a term of a consumer contract... “fairness” of the K, except: 1 P2 has a special weakness/ disadvantage 2 P1 is aware/should be aware of that special weakness/ disadvantage 3 P1 takes unfair advantage of that special weakness/ advantage -Commercial Bank of Australia Ltd v Amadio (1983) Special weakness/ disadvantage: An inability to speak/ read/ write English Illiteracy Lack of education Poverty Sickness  VOIDABLE Age/youth Lack of intellectual... after K formation - Common mistake occurs before K formation 25 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 8 AUSTRALIA CONSUMER LAW (ACL): GENERAL PROTECTIONS Consumers are protected by ACL against: 1 Misleading (đánh lừa) and deceptive (lừa dối) conduct (hạnh kiểm, hướng dẫn) (s18) 2 Unconscionable conduct (s20 and s21) 3 Unfair... to force the weaker party to enter into an unfair contract” -Johnson v Buttress (1936) 2 types of undue influence: special relationship v non special relationship Special relationship Doctor – patient Lawyer – client Trustee – beneficiary Parent/guardian – child Religious leader – follower  VOIDABLE No special relationship exists It is up to the weaker party (P2) to establish that the stronger party... ==> It is treated as if it had never come into existence 27 Plaintiff (P)= ng kiện P1= party breached the contract Defendant (D)= ng bị kiện P2= the innocent party (người vô tội) 9 AUSTRALIA CONSUMER LAW (ACL): SPECIFIC PROTECTIONS 1/ CONSUMER GUARANTEES (STATUTORY IMPLIED TERMS) a Consumer goods K  For a consumer guarantee to be applied, there must be a consumer good contract 3 requirements: 1 The