MLL215 Lecture Notes - Lecture 1: Legal Positivism, Oral Contract, Restorative Justice

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0 Introduction
Encompasses financial law, banking law, international commercial law, commercial
arbitration. Facilitates interaction and makes exchange more efficient.
SOURCES OF LAW (JURISPRUDENCE)
Legal positivism: The law must be backed by some absolute authority (eg.
Government)
Customary law: Custom and practice gives rise to expectations which in turn guide
peoples action, so those practices that people have come to count on observing are what
often are recognised as law.
LEX MERCATORIA
Now, largely made by the merchant community despite gov efforts to take over. CL
develops directly from the market exchange process at business practice and custom
evolves.
Laws commanded merchants to do what they had agreed to do (derive from contract law).
Kept simple to facilitate exchanges. People followed law for fear of ostracism by the
merchant community.
Legal innovations that became customary among the merchant community:
- Oral contract
- Credit instruments
- Mortgages
- Negotiable instruments
LEGISLATION:
Goods Act 1958 (Vic) Competition and Consumer Act 2010 (Cth)
Personal Property Securities Act 2009 (Cth) Commercial Arbitration Act 2011 (Vic)
COMMERCIAL/ARBITRATION (LONDON, PARIS, HONG KONG, ICC) COURTS
- State law differed from merchant therefore required
- Expert judges
- Speed, informality and flexibility (lack of extensive evidence rules did not want to
disrupt commerce)
- Legislation and case law did not adapt fast enough
These courts were recognised by common law later as judges were paid out of litigation fees
and appeal became possible.
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Document Summary

The law must be backed by some absolute authority (eg. encompasses financial law, banking law, international commercial law, commercial arbitration. Custom and practice gives rise to expectations which in turn guide peoples action, so those practices that people have come to count on observing are what often are recognised as law. Now, largely made by the merchant community despite gov efforts to take over. Cl develops directly from the market exchange process at business practice and custom evolves. Laws commanded merchants to do what they had agreed to do (derive from contract law). People followed law for fear of ostracism by the merchant community. Legal innovations that became customary among the merchant community: Goods act 1958 (vic) competition and consumer act 2010 (cth) Personal property securities act 2009 (cth) commercial arbitration act 2011 (vic) State law differed from merchant therefore required. Speed, informality and flexibility (lack of extensive evidence rules did not want to disrupt commerce)

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