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19 Cards in this Set
- Front
- Back
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Four Step Process |
Identify Principle or Issue of the Law
Explain the rule of law with reference to authority
Apply law to facts of the question
Draw Conclusions |
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Requirements for a legally binding contract |
Agreement,
Intention,
Consideration |
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Agreement |
Offer
Acceptance |
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Offer |
Promissory
Sufficiently Complete
Intention to be bound if accepted
Addressed to a specific person or group
Valid offers may expire, can be withdrawn, and lapses if counter-offer is made |
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Acceptance |
Must be in same terms as offer
Accepted while offer is valid
Be made by people offer was made to
and in an acceptable form |
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Negligence |
Duty of Care Breach of that Care Damage resulting from the breach. |
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res ipsa loquitur |
the thing speaks for itself |
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Duty of Care |
Was injury Reasonably Forseeable?
Was the defendant in sufficient relationship of "neighbourhood" to the innocent party?
Is is Fair and Reasonable to impose liability? |
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What makes up a Trust Relationship |
Settlor: place funds with trustee (investors)
Trustee: Manages the trust and proceeds
Beneficiary: original investors who recieve dividends |
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Three required certainties of express trust |
Certainty of intention to create a trust, Certainty of Subject Matter Certainty of Object |
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Statutory Rules - When are associated persons NOT partners |
If two people share profits and have a business in common they are partners UNLESS - Can prove they only share profits because they're a widow/child of a deceased partner - were being repaid a loan, or for the sale of the biz (Their share of profits is not related to being a partner) |
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Statutory Duties owed by one partner to others |
Partners are liable for each other's actions within usual business and manner of partnership (unless outsider concern was aware of lack of authority on behalf of a partner) Liable for contracts made on behalf of the partnership, any wrong doing, and any representations of the partnership made by partners.
If partner does something not related to partnershipbiz, or completes an obviously unusual transaction/is suspicious then others can claim this put an outsider to the partnership on notice something was wrong (if claim is successful others will not be liable) |
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Partnerships - Limited Liability? |
All states in Aus allow LLP - must be at least one general partner who has unlimited liability. The system allows for partners who don't own partnership, or who are just investors, to limit exposure to potential liability |
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Incorporated Association - Clubs |
If they are incorporated they can have a bank account, own property, enter into contracts. Managers are less likely to be personally liable for contracts. |
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How do Trusts arise? |
Expressly Created: deliberately created, usually written out in trust deed
By Operation of the Law: - when a sale of property takes place, the signing of the contract note means that the occupier holds the property in trust for the purchaser. -Where a person is bankrupt, the trustee in bankruptcy takes control of their property in trust. |
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Trustee vs Incorporated Trustee |
Trustee: personally liable for obligations of the trust (any shortfall would fall on them), may write into contract that they will be compensated for out-of-pocket expenses.
Incorporated: means the problems fall on the "company" instead of the trustee him/herself |
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Remedies concerning trust |
Compensation,Directions Inspection of trust records, Action against trustee.
Beneficiaries are entitled to view any information held by the trust |
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End of a trust |
Trust reaches end of time period Beneficiaries mutually request an end to the trust Court order - trustee has retired/died |
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Setting up a trust for kids, father owning a business |
Jeff should set up an express trust. He may need legal advice to do this. Probably Jeff would want to establish a family trust, whereby family property (perhaps a family business) is held by a trust and managed by a trustee. Jeff will need to transfer property into the trust; a trustee will need to be appointed; and a trust deed expressly setting out the terms of the trust should be drawn up. Jeff should think carefully about the terms of the trust. He will need to determine a life to the trust, determine who the beneficiaries are, and decide what happens should the trustee or any of the beneficiaries die or leave dependants. Jeff may choose to appoint himself as the trustee (and as a beneficiary as well). The powers of the trustee need to be designated: will they have discretion in their management of the trust, or will their powers be fixed? How much will be distributed to the beneficiaries? The trustee might be incorporated, given that it is a business that is being held in the trust, and the trustee will be personally liable for any shortfall. Jeff should be aware that there are tax implications for a trust; for example, any undistributed profits will be taxed in the hands of the trustee. |
