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Business law exam preparation Free essay! Download now

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Business law exam preparation

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Business law exam preparation

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An example of how your notes could look after summarising a topic ready for exams.

page 5
ELEMENTS OF CONTRACT -- INTENTION (from Parker & Box)

(After noting definitions of PRESUMPTION; REBUTTAL; DOMESTIC; COMMERCIAL)
[Aim: To take the cases as set out (in any textbook) and reclassify them so that your notes make a series of statements or law that you can apply / copy in an exam situation with the case names noted after each proposition of law. (In the exam it is rare that you will need to state the facts of the case.) However, you may wish to put a short reminder note in brackets to jog your own memory and understanding of the rule - as is done in square brackets below.]

A. DOMESTIC / SOCIAL AGREEMENTS:

PRESUMPTION: THAT THE PARTIES DID NOT INTEND TO CREATE A LEGALLY ENFORCEABLE AGREEMENT - Domestic assumption applies in these circumstances:

1. HUSBAND and WIFE --

a) If living together in harmony at the time agreement made
= Social presumption applied (Balfour v Balfour) [holiday - money agreement - later separated] (Cohen v Cohen) [dress allowance]

BUT b) If separated at time agreement made = Social presumption rebutted [particularly maintenance agreements] (Merritt v Merritt)

2. FAMILY ARRANGEMENTS -- [even in the use of family assets left under administration under a will] (Murphy v Simpson) = Social presumption applied

3. CLUBS; SOCIETIES; [prises awarded] = Social resumption applied
C/f. (means contrary result) (Clarke v Dunraven) [Club Rules may be contractual].

4. FRIENDS (agreements between) = Social presumption applies (Coward v Motor Insurers Bureau) [lift to work and sharing expenses].

page 6
PRESUMPTION IS REBUTTED (In this context rebutted means that the usual presumption no longer applies and the alternative presumption applies) - A Domestic/Social presumption will usually be rebutted if the consequences of breaking the agreement create a hardship for one of the parties.

A DOMESTIC/SOCIAL

(i) FAMILY

1. HUSBAND/WIFE agreements where separated at time of agreement (particularly maintenance agreements) (Mc Gregor v Mc Gregor) [wife compromised her rights] (Merritt v Merritt) [transfer of property];

- Property arrangements (Popiw v Popiw)

2. FAMILY SITUATIONS where one member has agreed, on request of another, to give up their established situation (i.e. jobs, house) and move (country to country) to look after a relative in return for property or inheritance. Then the arrangement breaks down after the move and promises not kept. (Wakeling v Ripley; Riches v Hogben; Todd v Nicol) also (Parker v Clarke) [geriatric care arrangement].

(ii) FRIENDS

3. Joint agreements to enter competitions, eg. TATS, footy pools - where one party purchases / applies for / enters - and all contribute financially - in some way (Simpkins v Pays)

B COMMERCIAL ARRANGEMENTS

PRESUMPTION IS THAT THE AGREEMENT IS TO BE LEGALLY BINDING ON BOTH PARTIES i.e. THAT A CONTRACT IS INTENDED

A) Commercial Presumption applied:

1. Advertisements offering a reward for failure of a product may not be just mere advertising “puff” but could be a legally binding contract - i.e. intention implied (Carlill v Carbolic Smoke Ball Co).

2. Offers made in jest or joke may be found to have no intention to be bound - if offer is commercially ridiculous (Keller v Holderman) [sell watch for little money]; c/f (however) a court could hold otherwise (Nyulasy v Rowan) [share offer at ridiculous price] - Held -Commercial nature, hence presumption (of intention) applies.

B) Commercial Presumption - REBUTTED

1. Agreements where “no intention to be legally bound” is stated in rules (Jones v Vernon Pools) [soccer pools case].

2. Honour Clauses = clause in agreement contains a clause -
“no intention to have legal consequences” (Rose and Frank v Crompton)

Note: It is against “Public Policy” (i.e. the law) to oust the jurisdiction of the court (an agreement cannot claim to be a contract and refuse the court the right of adjudication upon its terms - a court always has that right).

3. Government or Administrative offers / schemes for assistance / subsidies are not necessarily contracts unless an Act of Parliament eg (The Administration of the Territory of Papua and New Guiney v Leahy) [tick eradication scheme] (Australian Woollen Mills v Commonwealth) = wool subsidy.

4. “Ex Gratia” Payments [voluntary payment, not in return for work done]. May be enforceable if the promisee (person to whom monetary promise made) gave up a right or something of value in return (Edwards v Skyways) [premature retirements].

The following are the notes on INTENTION (above) written out with an index. This is how your indexed notes could look ready to take into the exam room.
(Imagine that the following is the index to your set of notes - But note also that the following is just the headings from the notes. The explanations and case references should be written out in full at the pages indicated in the margin.)
_______________________________________________________________
PAGE INTENTION

5 A DOMESTIC / SOCIAL AGREEMENTS :

PRESUMPTION : THAT THE PARTIES DID NOT INTEND TO CREATE A LEGALLY ENFORCEABLE AGREEMENT
1. HUSBAND and WIFE --
a) If living together in harmony
BUT b) If separated at time agreement = rebutted = intended to contract

2. FAMILY ARRANGEMENTS
3. CLUBS; SOCIETIES
4. FRIENDS

6 PRESUMPTION IS REBUTTED -

A DOMESTIC/SOCIAL
(i) FAMILY
1. HUSBAND/WIFE
- Property arrangements (Popiw v Popiw)
2. FAMILY SITUATIONS
(ii) FRIENDS
3. Joint agreements to enter competitions
...

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