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CLAW5001_Legal Environment of Business_2009 Semester 1_Final exam preparation_topic 6

CLAW5001_Legal Environment of Business_2009 Semester 1_Final exam preparation_topic 6
CLAW5001_Legal Environment of Business_2009 Semester 1_Final exam preparation_topic 6

Topic 6: Contracts and Legislation I - conditions and warranties in consumer transactions and manufacturers liability

(a) Statutory Implied Terms

What is and is not a sale - definition

? A contract of sale of goods is a contract whereby seller transfers or agrees to transfer

property in goods to the buyer for a money consideration called the price: SGA s 6(1)

? 3 limitations

?Sale:

-Applies only to contracts of sale: s 6(1)

-Includes a promise to buy and sell where the transfer of ownership is postponed (for example until payment)

-Includes an outright sale and purchase

-Does not include a lease, hire or hire-purchase of goods because there is in such transactions neither a purchase nor a promise to buy

?Goods

-Goods include all chattels personal other than things in action and money

-tangible (touchable) physical property that is not real property (ie land) : SGA s

5(1))

-Excludes service contracts eg dry cleaning of goods

-Also excludes some “mixed” contracts involving the supply of goods and a service element where the service element predominates

?Money Consideration

-Need for a price in the form of a “money consideration”: s6(1)

-No consideration:A contract for barter or exchange -Eg: 2 persons agree to

exchange motor cars

A gift is not a sale because there is no price paid

-If payment in goods & partly money, as in the case of "trade-in" on new goods? In Chappell v Nestle [1960] AC 87 House of Lords held where price of a record was ls 6d and 3 chocolate bar wrappers transaction not within SGA

Goods - mixed contracts

What happens if the work involves the actual creation of something produced (work) with materials supplied by the creator (materials)?

In Lee v Griffin (1861) the Court held that the test was whether the contract was intended to pass property. If it was, then the contract was a contract for sale. According to this view a contract for both services and goods is classified according to its dominant element

Helby v Matthews [1895] AC 471[s9]

Robertson v Graves [1935] 1 KB 579[s10-11]

Examples

Contracts within SGA

?supply of medicine as prescription

?supply of meal in a restaurant

?manufacture of jacket to order

Contracts not within SGA

?Printing

?Supply of veterinary medicine

?Supply of building materials by builder

SGA applies to consumer Consumer under TPA s 4B

?Under the SGA a consumer sale is

? a sale by a business seller of

?goods commonly bought for private use or consumption and which are

?sold to a person who does not buy or hold herself out as buying goods in the

course of a business ?Where price of goods is not greater than $40,000 if acquired from a corporation, OR

?Where goods >$40,000 of a kind ordinarily acquired for personal, domestic or household use or consumption AND ?provided the person does not acquire (or hold himself or herself out as acquiring) for the purpose of resupply or using them up in trade or commerce

purchase of a coffee percolator for $50 from a sole trader would be a consumer sale only under the SGA (not within TPA because no sale by corporation) Purchase of a sophisticated piece of commercial machinery from a corporation for $39,000 might be a consumer purchase, but only within the TPA (not within SGA because this is not private or consumer goods)

Implied terms of contract

TPA SGA

S69 s17 Title

S70 s18 Description

S71 s19 Quality

S72 s20 Sale by sample

SGA and TPA (Part V Division 2) imply certain terms into certain types of contracts: Title and quiet possession: SGA s 17, TPA s 69

Rowland v Divall (1922) 2 KB 500[s13-14]

Correspondence with description: SGA s18, TPA s 70

?Implied condition in every contract for the sale of goods by description that the goods correspond to that description (s 18)

? 2 Requirements

Circumstances: Sale by description

Operation: goods must correspond with description

?No definition of sale by description

Ashington Piggeries v Christopher Hill [1972] AC 441[s21]

Fitness for purpose: SGA s 19(1), TPA s 71

?General rule is that there is no implied condition of fitness for purpose - caveat emptor(出门不换)

?An implied condition that the goods will be reasonably fit for the purpose of which they are required is only available where the requirements of s 19 (1) are met

Summary of s 19(1) requirements

Implied condition of fitness for purpose if following circumstances are satisfied: 1.Making known purpose to seller

2.Actual reliance on seller’s skill or judgment

3.Sale in course of seller’s business

4.Generic relationship 种属关系

Ashford Shire Council v Dependable Motors (1960) SR NSW 27 (Privy Council) [s25-26]

*Grant v Australian Knitting Mills (1935) 54 CLR 49; [1936] AC 85 (PC) BLRM pp211-216[s32]

Are inherent or latent defects caught?

?Implied condition must be applicable at time of delivery of goods supplied

?This limitation does not prevent inherent or latent defects from being caught by s 19(1) in certain circumstances

Crowther v Shannon Motors [s34]

Proviso附属条款to s 19(1)

?S 19(1) is not satisfied where specific goods are bought under patent or other trade name

?Provision applies only where buyer orders goods under a trade name in such a way that she does not rely on the seller’s skill or judgment. In these circumstances buyer gets the distinct thing selected & takes her chances as to its fitness for her purpose: Baldry v Marshall [1975] 1 KB 260 Merchantable quality: SGA s 19(2), TPA s 71

S 19(2) – Implied condition that goods are of merchantable quality where: ?Goods are bought by description

?From a seller who deals with goods

?Buyer has not examined goods or if has examined defect of goods not discoverable on examination

-Whether goods of the same general description and character are commercially saleable, taking into account the elements of description, purpose, condition and price

-Commercial acceptability - acceptable in the marketplace as goods of that description

-Commercial usefulness - reasonably useful for the purpose of goods of that description

Grant v Australian Knitting Mills [1936] AC 85 (PC)[s38]

Cammel Laird v. Manganese Bronze and Brass Co Ltd (1934) AC 402[s39-S40] Correspondence with sample for the goods: SGA s 29, TPA s 72

A sale is by sample where there is a term in the contract to that effect, in which case there is an implied condition that the bulk shall correspond with the sample in quality. There is also an implied condition that the buyer will have a reasonable opportunity of comparing the bulk with the sample, and that the goods are free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample

Seller’s duty in relation to the supply of services: TPA s74

Crawford v Mayne Nickless Ltd (1992) ATPR (Digest) 46-091

Exclusion of selle r’s liability:

Sale of Goods Act s 64(1)

S 64(1) of SGA invalidates a clause which purports to exclude, restrict or modify the rights or liabilities of a supplied in respect of a “consumer sale” (as defined under SGA)

Trade Practices Act 1974 (Cth) ss 4B, 68

S 68(1) of TPA renders invalid any attempt to exclude terms implied by that Act in respect of goods and services supplied to a “consumer”

Remedies under SGA – terminate contract

?Principal rights are termination of performance of the contract and damages ?In ss17-20 the right to terminate arises only in relation to breach of condition ?Where breach of implied condition, buyer has right to reject, that is return, the goods and get money back

?In order to keep her right to reject for breach of a condition intact, he must not do anything to indicate that she has waived this right, or accepted the goods in performance of the contract

Remedy when acceptance of goods

?S 16(3) provides that if the buyer has accepted the goods, she can only treat the breach of condition as a breach of warranty. Her remedy is then limited to damages

?Acceptance is defined in s 38. S 38 mentions three ways in which the buyer can accept, that is, manifest an intention to give up her right to reject Acceptance - technical meaning

?Intimation Buyer use words to manifest intention eg tell seller that insists on repairs or compensation for breach, but not going to return goods

?Lapse of time. If buyer keeps goods for unreasonable length of time, she will be treated as having accepted goods. Reasonableness depends on how long buyer needs to examine goods to see if comply with contract

?Conduct inconsistent with seller’s ownership- this conduct will only constitute acceptance if it takes place after delivery, that is, after possession has passed to buyer

?

(b) Manufacturer’s Liability under statute

Recall common law:

topic 2: tort of negligence - Donoghue v Stevenson [1932] AC 562

topic 4: privity of contract

Trade Practices Act 1974

Part V – Consumer Protection

?Division 1 Unfair Practices

-misleading/deceptive conduct; false representations other unfair practices

?Division 1 A Product Safety and Product Information

?Division 2A Actions against Manufacturers and Importers of Goods

Part VA – Liability of Manufacturers and Importers of Defective Goods

TPA imposes a range of obligation on manufacturers and importers of goods in

certain circumstances

TPA: Who is a manufacturer? Who is an importer?

Section 74 A : A corporation that -

?manufactures the goods

?holds itself out as manufacturer

?uses its own name or brand or mark on the goods

?permits another person to promote the goods as goods manufactured by it

?imports goods into Australia and actual manufacturer has no place of business in Australia

Manufactured includes grown, extracted, produced, processed and assembled : s 74A (1)

-Goods:goods of a kind ordinarily acquired for personal, domestic or household use or consumption : s 74A (2)(a)

Jillawarra Grazing Co v John Shearer Ltd (1984)

Crago v Multiquip Pty Ltd (1998)

Graham Barclay Oysters Pty Ltd v Ryan (2000)

A person is taken to have acquired goods as a consumer if

?price of the goods did not exceed $40,000 or

?If price is more than $40,000 but goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the good consisted of a commercial road ve hicle…(s 4B)

Does not include a person who acquires goods for purposes of resupply

?eg used car dealer who buys a car from a consumer

TPA Part V, Division 2A: actions with respect to

?Unsuitable goods: s 74B p567

?False description: s 74C p567

?Unmerchantable quality : s74D p566

?Non correspondence with sample: s 74 E p567

?Failure to provide facilities for repair: s 74 F p567

?Non compliance with express warranty: s 74 G p568

Rasell v Garden City [1991] 2 Qd R 323 or (1991) ATPR 41-152 [S11-12]

TPA Part VA: liability of manufactures and importers for defective goods

- TPA Part VA imposes a strict liability regime on manufacturers and importers

so that if defective product causes personal injury or property damage to a person, then that person has a right to statutory compensation without the need to prove negligence

- Basis of liability

s 75AC(1) : goods have a defect if their safety is not such as persons generally are entitled to expect

Glendale Chemical Products Pty Ltd v ACCC (1999) ATPR 41-672[S17-20]

Medtel v Courtney (2003) ATPR 41-939[S21-24]

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英语口语课自我介绍 篇一:高中英语口语自我介绍范文 高中英语口语自我介绍范文高中英语自我介绍口语 Hello ,everyone , my name is xxx, and i come from xxx,I like studing foreign language , because its not just a modern communication methods ,but also a school of art 。I ‘m a young boy(girl)full of enegy and eager to become a member of modern sciety ,so I will do my best to get this goal ,and i hope everyone can give me this chance , thank you , that ‘ s 大all家. 好 ,我的名字叫 xxx,我来自 xxx,我喜欢学习外语 ,不仅因为它的现代交流方法 ,而且是学校的课程 .我是个年轻的男孩 (女孩 ),充满能量和渴望成为集体中的一员 ,所以我将尽我所能 ,让这一目标 ,我 希望大家能给我这个机会 ,谢谢你 ,就这样。 高中英语自我介绍口语 Good morning\Good afternoon, ladies and gentlemen. My name is Yu Chen. It is really a great honor to get this opportunity for an interview. I'd like to answer whatever you may raise, and I hope I can make a good performance today, eventually I would be employed by this prestigious company as soon as possible. Now I'll introduce myself briefly. I'm 27 years old in September of this year. I was born and grew up in Beijing. I have engaged in some jobs in different fields, for example, estate agents, front desk attendant, telephone sales, course consultant, and part-job as a translator. I started my career in the second year of my college in 2004. While I graduated from the Beijing Foreign Study University in January, 2008, I had a lot of experiences of society and jobs, especially the course consultant. I have introduced our courses to my customers, and have signed about five contacts per month. I have took in some compats and checked them in our hotel during the 2008 Beijing Olympic Games. I have translated some files and tables of business and some social comments. All of them, which are not only my achievements of jobs in the past years, but also the valuable experiences of my life. Today, I'm here, ladies and gentlemen. I'm glad to see you; I'm glad to share my experiences of jobs and society with you; I'm glad to receive your informing to have this interview; and I also glad to get your employment notice in the following days as soon as possible. Shall we stop here? Thank you for your time and listening. 高中英语自我介绍口语 Today, I will introduce myself, a lovely and clever boy to you.I am 15 years old. I live in a very beautiful city in Southern China. It called *****. There are three people in my family. They are my father, my mother and me. I like my family very much. I am 165 centimetres high. Not very tall, and also not very short. My eyes are very small. When I smile, my eyes are like two lines. Interesting, isn ' t it? On my nose, there is a pair of glasses. Someone says, glasses show a person is clever. But I think gla sses show a person didn ' t protect his eyes well. I also have a small mouth. I am kind of shy. So I usually keep my mouth closed. My ears are a little big. And I hear everything clearly. I was study at ******* School. There are many friends of mine. We study together for six years.

环境类--雅思范文Environmental-problems

环境类--雅思范文 1. Environmental problems are too big for individual countries and individual people to address. We have reached the stage where the only way to protect the environment is to address it at an international level. To what extent do you agree or disagree? Nowadays, environmental problem has been the focus of a debate. Among these related problems, the issue of international efforts in combating environmental pollution is an extremely acute one. It is firmly believed that the benefits of large scale groups have remarkable impact on our society, especially on environment and animals aspects. First and foremost, environmental pollution is a problem that beyond national borders. This is because the destructive effects that it brought cannot be solved without the co-operation of all the countries in the world. A case in point is the occurrence of extreme weather condition, like La Nina in terms of heavy flood and drought; in addition to, global warming, acid rain that happen in many parts of the world. Due to its chronic and perpetual environment effect, it is necessary for the countries on the earth to form an association and join hands to protect our land from further environment deterioration. Another reason is that it is urgent to set up international alliance to prevent the shrinking space of animals' habitat. It is due to the fact that, local ecosystem has gradually been destroyed all over the world. For instance, Mountain Gorilla has loss its natural habitat to human beings, for being continually developing housing estate deep into the forest. Thus, the breaking down of ecosystem has pushed species closer to the brink of extinction. Hence, it is cleared that the prevention of declining the numbers of rare animals need the joint efforts from many administrative agencies in the world. In conclusion, I totally agree with the idea that international collaboration and cooperation in tackling environmental pollution is positively affects the sustainable development on earth. It is expected that environmental preservation can be greatly enhanced through cultivating environmental awareness around the people in every countries in the foreseeable future.

2016.12.17雅思真题大作文7分范文

Task:Some people think getting old is entirely bad. However, others think that life of the elderly in modern world is much easier than in the past. Discuss both views and give your own opinion. 思路解析: 2016年雅思收官之战的作文来了一道新题,问当今社会老年人的生活是不是很 糟糕?说是新题,因为本题以前从未原题出现过,但关于年龄的话题却不缺少。 比如2010年7月10日“年轻人是否适合担任政府要职”,2012年3月10日“老 龄化现象的原因及解决方法”,2012年3月31日“年轻人和老年人谁的价值更 高?”,2013年6月8日“政府是否应该对老年人养老提供财政支持?”,2015 年1月1日“年轻人当领导,行不行?”,2015年4月11日“老年人与年轻人 争夺工作职位,怎么办?”等等。 本题需要论证的对立观点是:年老很糟糕 vs. 当今社会年老没有那么糟糕。那 么,变老有哪些坏处呢?首先,当然是身体条件没有以前好了,甚至可能出现多 种疾病(物质层面);其次,不工作了,与人的联系少了,心里可能会感觉孤单, 甚至感觉没有价值了(精神层面);最后,变老后对社会的依赖程度更高,给社会 增加了压力(社会层面)。那么,这些问题在当今社会是不是得到了解决呢?首先, 医疗条件的改善有助于保持老年人的身体状况;互联网的出现有助于缓解老年人 的心理孤单问题;物质水平的提高也降低了老年人给社会造成的压力。如此观之, 现代社会老年人的生活的确容易多了,但我的观点是:外部条件只是改善老年人 生活的一个方面,最重要的还是老年人自己要积极调整心态,努力适应退休后的 生活,从而过一个更幸福更祥和的晚年。 Sample answer: Getting old is a natural process that nobody really likes. When you reach a certain age, your physical conditions will inevitably deteriorate, and you may suffer from various kinds of diseases. When you retire, you will feel isolated because your previous work contacts may be all gone, then you may feel useless to the world. Furthermore, when you get too old, you’ ll have to rely heavily on the support from others, either physically or emotionally, and your life will become a great pressure to your family and the whole society as well. For all these bad things about getting old, many people argue that the life of the elderly today is much easier than in the past. In the first place, medical advances nowadays have made it possible for the old people to stay sound and healthy for quite a long while even after they retire. Diseases such as diabetes, hypertension and heart attack which might have

英语作文范文-雅思写作高分范文:环境保护

英语作文范文 雅思写作高分范文:环境保护 Environmental hazards are often too great for particular countries or individuals to tackle. We have arrived at a point in time where the only way to lessen environmental problems is at an international level. Environmental problems have reached such proportions that people feel international organizations must be set up to intervene in world affairs to resolve these problems. Whether this will resolve the problem is very unlikely as international organizations are just an extension of human behavior. That is, if human conflicts cannot be resolved at home, then they are unlikely to be resolved at the international level. Nevertheless, international organizations do attract attention to the growing problem of aims of the international community to resolve the issue of environmental pollution and support their cause, I do not believe it is the best or only way to protect the environment; in fact, it is only a small part of what is needed in a global initiative.

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