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Lecture 3

12001 Lecture Notes - Lecture 3: Ratio Decidendi, Halloween, Australian Consumer Law

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Business law lecturer 3
A bil only has to pass through one house of parliament before it becomes legislation -false, two
house parliaments unless you are in queensland.
Margestic court-district court-supreme court-Court you appear- High court (has 7 justices in the high
court, can hear original cases and appeals about any subject)
Judges talking about how the law apply, have authority to make law.
Procedure for a civil case: - lawyers examine witnesses, parties collect evidence from each other via
interrogatories and discovery, plaintiff launches an action via a writ.
Doctrine of precedent-
Ratio decidendi is the reason for the decision.
Under the doctrine of precedent, decisions from a different judicial hierarchy are not binding on the
court but may be considered persuasive.
how the doctrine of precedent work?
Sarah has been asked to find a precedent (blinding) case which can be used in the District Court of
WA. She should consider cases from the Supreme Court of WA.
*2nd Assignment focus
Making contract everytime (eg public transport)
Under 18 can make a contract
For a contract to come into existence the following three elements must be established:
Intention 意图 to be legally bound (2 key presumption, - he the parties dot ited to reate a
legally binding contract)
Agreement (offer plus acceptance, an offer must be sufficiently complete or promissory, must be
more than a mere expression of interest/ ads may be an invitation to treat.)
consideration (an exchange of promises, must move from the promise, VALUE, just must be
suffiiet, a e euse ut at e past
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Lecture 4
A contract is an enforceable agreement between two or more parties.
The essential element that must be required for a contract to exists are intention, agreement and
Ho is a itetio to e legall oud asertaied? It is an OBJECTIVE test assisted by
A person who wants to treat an agreement with a close family relation as legally binding will need to
prove additional circumstances from which an intention to be legally bound can be inferred.
Agreement is analysed by determining whether there has been offer and acceptance.
Which of the following is an invitation to treat?
a stateet I at to purhase our ike for $
An advertisement
An email responding to a request for purchase from an online store.
What case authority did you rely on in making this choice? Partridge v Crittenden
What case gives an example of the exceptional circumstance when an offer can be addressed to the
whole world? Carlill v Carbolic Smoke Ball Co
What is the exception to the general rule that acceptance is effective when it is communicated? The
postal acceptance rule
What is the result if acceptance does not coincide exactly with the term of the offer? The offer
lapses as it is likely to be seen as a counter offer.
Apart from intention and agreement, Consideration is required for an informal contract to exists.
Consideration is something given in exchange for a promise received.
Consideration doest have to be commercially valuable.
Court no rewrite contract, just look for the agreement of each parties.
Terms of contract can be express, implied or incorporated
Terms are important because they provided the points of the agreement, provide the rights and
obligation at the time, provided the content of the contract
Anything reduce to the contract, it refers to a contract.
Parol evidence rule- a written document that expresses the whole contract.
LG Thorne & Co v Thomas Borthwick & Sons (provide a sample and check it, order when u happy
with that, expected that the order product is same as the saple, ut it ist sae ith the saple.
Van den Esschert v Chappell (allow an exception if obvious importance) (written or verbal contract)
Content of the contract- pre-contractual statements (promise) puffs (no become a part of
contract) / opinions (statement that express people views or beliefs) / representations ( not part of
contract, but could be actionable if someone is negligent
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Lecturer 5
A term of contract is an undertaking made in circumstances from which it can be inferred that it was
intended to be legally binding.
Term agreed between the parties are determined by working out what the parties intended. They
can be either express or implied term. Do you agree? Yes
The case authority for this rule is LEstrage v Graucob
Term can be incorporated into a contract by reference on a ticket or notice, but it must be a
document expected to contain contractual terms or attention is drawn to that fact. Yes
The case authority for this rule is Causer v Brown.
Whether a statement is a term or a representation depends on what can be reasonably inferred
from the circumstances? Yes
When explaining this rule I would cite both Handbury v Nolan and Oscar Chess v Williams as
authority? True
A warranty is a term that is fundamental importance in the contract? No
Upon a breach of a condition an injured party can either terminate the contract and sue for
damages, or keep the contract on foot (affirm) and sue for damages. Yes
Upon a breach of a warranty an injured party can ONLY sue for damages. They cannot terminate the
contract and must continue to perform their contractual obligations. Yes
Contra proferentem-
Term that exclude liability: Olley v Marlborough Court Ltd (1949), Sydney City Council v West (1965)
Term implied by fact- oral contracts.
David Jones Ltd v Willis (1933)- seller is obliged to deliver the goods that are at merchantable
quality, unless the buyer has examined the good
Perri v Coolangatta Investments Pty Ltd (1982)- cooperate and do what is reasonable
To act in accordance with GOOD FAITH.
- Hughes Aircraft Systems International v Airservices Australia (1997)
- Burger Kig Corp  Hugr Jaks Pt Ltd 
Terms put by law into specific kinds of contracts : Breen v Williams (1995)
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