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VBE1006 Business Law

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This custom edition is published for Victoria University.

Table of content

Preface xiii
Acknowledgments xv
About the authors xv
What is compliance? xvi
List of abbreviations xix
How to use your textbook xx
How to study law xxii

PART 1 LEGAL FOUNDATIONS
1 The legal system: legal foundations, the Constitution and statute law 1
What are laws? 2
The major sources and categories of law 2
What is business law? 3
The development of British law 4
Was Australia settled legally? 6
Landmark developments in native title 7
From penal colony to independent nation 10
Three levels of government 11
Separation of powers under the Australian Constitution 11
Division of powers: a refl ection of State and Federal tensions 13
Human Rights Acts—Australian Capital Territory and Victoria 16
How can the Constitution be changed? 16
How can federal powers be increased without constitutional
change? 17
How is legislation passed? 19
Understanding an Act of Parliament 20
How to interpret an Act 21
Common law rules of statutory interpretation 22
Delegated legislation 25
International law 26
Summary 28
Guidance questions 30
Review questions 31
Compliance activities 32
Answers to self quiz 33

2 The legal system: the courts, case law and dispute resolution 34
Court system in the states and territories 35
State and federal tribunals 40
Federal court system 40
Appeal system 41
Cross-vesting: when can federal courts hear state cases? 43
Precedent 44
How to use a law report 47
Adversary system of trial 49
Main participants in the adversary system 50
The standard of proof in criminal and civil trials 53
Class actions in Australia 53
Typical stages in a civil trial 54
Alternatives to courts 54
Government tribunals and related bodies 54
Tribunals for investigation and enforcement 56
Arbitration 58
Mediation 58
Government ombudsman 58
Industry dispute resolution schemes 59
Summary 60
Guidance questions 62
Review questions 63
Compliance activities 64
Answers to self quiz 65

PART 4 CONTRACT LAW
8 Introduction to contracts 191
Tips for studying contract law 192
What is a contract? 192
Formal contracts 192
Simple contracts 193
What are the differences between formal and simple
contracts? 195
Essential elements of a valid contract 196
What happens when a contract is invalid? 196
Different types of contracts 198
Quasi-contracts 199
Summary 200
Guidance question 201
Review questions 201
Answers to self quiz 202

9 Intention to create legal relations 203
Essential element no. 1: intention 204
Objective test for legal intention 204
Two presumptions about legal intentions 204
Domestic and social agreements 204
Business agreements 206
Summary 208
Guidance question 208
Review questions 209
Answers to self quiz 209

10 Agreement 210
Essential element no. 2: agreement 211
Rules regarding offers 211
Rules of acceptance 217
Rules of offer and acceptance by post 221
Rules of revocation of offers 222
Rejection of offers 223
When will an offer lapse? 223
Alternatives to the offer and acceptance approach 223
Summary 225
Guidance questions 226
Review questions 227
Answers to self quiz 228

11 Consideration 229
Essential element no. 3: consideration 230
What is consideration? 230
Three main categories of consideration 230
Rules of consideration 232
Part payment of debts 235
Promissory or equitable estoppel 236
Summary 239
Guidance questions 240
Review questions 241
Answers to self quiz 242

12 Capacity 243
Essential element no. 4: capacity 244
Minors under common law 244
What types of contracts with minors lack capacity? 244
Valid contracts 244
Voidable contracts with minors 246
Void contracts with minors 247
Minors under New South Wales legislation 248
Minors under South Australian legislation 249
Mentally unsound and intoxicated persons 251
Companies (corporations) 252
Bankrupts 252
Summary 253
Guidance question 254
Review questions 255
Answers to self quiz 256

13 Genuine consent 257
Essential element no. 5: genuine consent 258
Mistake 258
Misrepresentation 263
Duress 265
Undue infl uence 266
Unconscionable (unjust) conduct 267
Summary 270
Guidance questions 272
Review questions 273
Answers to self quiz 273

14 Legality 274
Essential element no. 6: legality 275
What are the effects of illegal and void contracts? 275
Four types of unlawful contracts 275
Restraint of trade 276
Summary 281
Guidance question 282
Review questions 282
Answers to self quiz 283

15 Terms of a contract 284
What are terms? 285
When does a representation qualify as a term? 285
Collateral contracts 286
Extrinsic documents are not usually valid 286
Parol evidence rule 287
Is a term a condition or a warranty? 288
Intermediate terms 289
Implied terms 290
Uncertain terms 291
Meaningless terms 292
Condition precedent 292
Condition subsequent 292
Exclusion clauses 293
Summary 298
Guidance questions 299
Review questions 300
Answers to self quiz 302

16 Transfer and termination 303
Privity of contract 304
Assignment 304
Transfer of rights in personal property 306
Discharge of a contract 306
Summary 311
Guidance questions 312
Review questions 313
Answers to self quiz 314

17 Remedies for breach of contract 315
Main types of remedies 316
Damages 316
What types of damages are available? 319
Equitable remedies 321
Summary 325
Guidance question 326
Review questions 327
Compliance activities for contracts 327
Answers to self quiz 330

PART 7 CONSUMER PROTECTION AND COMPETITION LAW
23 Sale of goods 431

What are Sale of Goods Acts? 432
What are goods? 432
Can the supply of work and materials be a sale of goods? 432
Sales and agreements to sell covered by SOG Acts 433
Types of goods 433
When does ownership pass from seller to buyer? 433
Nemo dat rule: a non-owner cannot transfer good title 434
Duties of sellers and buyers 437
Implied terms 438
Implied warranties 441
Remedies for breach of contract 442
Summary 444
Guidance questions 446
Review questions 447
Compliance activities 448
Answers to self quiz 448

24 Consumer protection 449
Why do we need consumer protection legislation? 450
New Australian Consumer Law 450
Australian Competition and Consumer Commission 451
Australian Competition Tribunal 451
Consumer regulators in states and territories 451
Which courts hear consumer protection disputes? 452
Who is a consumer? 452
What are the main consumer protection provisions? 453
Misleading or deceptive conduct—s 18 Part 2-1 454
Unconscionable conduct—ss 20–22 Part 2-2 459
Unfair contract terms—Part 2-3 462
Unfair practices—s 29 false or misleading
representations 463
Other unfair practices—ss 39–50 Part 3-1 468
Unsolicited consumer agreements: door-to-door and
telemarketing—Part 3-2 469
Proof of transaction and itemised bills—ss 101–102 471
Consumer guarantees for goods and services—Part 3-2
Div 1 ACL 471
Lay-by agreements—ss 96–99 477
Liability of manufacturers and importers for breaches of
consumer guarantees—Part 5-4 478
Liability of manufacturers and importers for goods with
safety defects—Part 3-5 479
ACL national safety system—Part 3-3 480
Industry codes—mandatory and voluntary 482
Remedies, penalties and enforcement 482
Small claims/consumer claims tribunals 485
Summary 487
Guidance questions 492
Review questions 494
Compliance activities 496
Answers to self quiz 497

25 Anti-competitive conduct 498
Part IV prohibits conduct that restricts competition 499
Access to essential services under Part IIIA 499
What is meant by ‘market’ and ‘competition’? 499
Major practices prohibited under Part IV 501
1. Anti-competitive contracts, arrangements or
understandings—s 45 501
2. Anti-competitive cartels—ss 44ZZRA–44ZZRV 502
3. Primary boycotts—ss 4D, 45(2) 503
4. Secondary or indirect boycotts—ss 45D–45E 503
5. Misuse of market power—s 46 504
6. Exclusive dealing—s 47 505
7. Resale price maintenance—s 48 506
8. Mergers and takeovers—s 50 506
Statutory exceptions 507
Authorisations—s 88 507
Notification—s 47 507
Civil remedies and enforcement 508
Criminal penalties for individuals 508
Guidance questions 509
Review questions 510
Compliance activity 511
Answers to self quiz 511

Glossary 640
Table of Cases 648
Table of Statutes 654
Acts of the British Parliament 656
Index 657

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