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49 Cards in this Set
- Front
- Back
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Sources of Law (4) |
Common Law (judgments) Statue Law (parliaments) International Law (treaties) Other laws (Native) |
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Common Law |
Based on previous outcomes of judges' decisions in trials "Judge made law" |
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Statute Law |
State and Federal constitutions Parliamentary legislation |
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Federal Statute (4) |
Defense Trade and commerce External affairs Telecommunications
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State Statute |
Everything that federal law does not cover |
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International Law (3) |
Human Rights International sale of goods International commercial arbitration |
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State Courts in Australia (4) |
Magistrates Court District Court Supreme Court High Court (appeals only) |
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Federal Courts in Australia (3) |
Federal Magistrates Court Federal Court Family Court High Court |
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Percentage of legal cases that are resolved/settled before they reach court |
Up to 90% |
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Why do parties resolve/settle before they reach court? |
Ensures that both parties have control over the outcome |
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Contracts |
A legally binding agreement between two or more people or organisations The terms of a contract may be expressed in writing or speech, implied by conduct, industry custom and law |
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Standard Terms of a Contract (8) |
A clear identification of the parties of the transaction A description of any goods or services to be supplied The price, delivery and payment terms Warranties, liability, insurance and dispute resolution How orders are to be placed and accepted Record Keeping, audit trails and evidence Security, format and authentication of messages (online) Responsibility for lost, incomplete or garbled messages (online) |
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Requirements for a Binding Contract (3) |
Agreement to contract Intention to create a legal contract Consideration |
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Requirements for a Binding Contract: Agreement to contract (2) |
Commonly needs: offer and acceptance A counter offer is not an acceptance. It is a rejection |
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Requirements for a Binding Contract:
Intention to create a legal contract (2) |
Assumed to be true in business dealings/commercial environment
Assumed to be not true in family dealings/domestic environment |
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Requirements for a Binding Contract: Consideration (2) |
Is paid by the promise in return for goods/service Can be money or a service. Does not need to be valuable |
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Un-enforceable Contracts
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All parties in the transaction must have the legal capacity to effect the transaction
Parties to the contract must not be of diminished mental capacity |
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Forms and Execution of Contract |
There is no general requirement under Australian law that a contract be signed or executed in a particular form e.g. email exchanges or "click through" agreements |
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Benefits of a written contract (3) |
Less risk of terms to be implied into the contract by a court Once signed it is difficult for either party to deny the existence of the written contract When properly drafted the parties should know with certainty with their respective obligations |
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Governing law of the contract |
several international conventions and treaties allow traders to select the law of a particular jurisdiction as the governing law |
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Grounds for Rescinding a Contract (6) |
Misrepresentation (may be innocent, negligent or fraudulent) Unconscionable conduct Undue influence Duress Mistake Illegality |
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Grounds for Rescinding a Contract:
Misrepresentation (2) |
A false statement made by one party to another, before or when the contract was made as an inducement to make the contract
Exaggeration in advertisements do not constitute as misrepresentation |
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Grounds for Rescinding a Contract: Unconscionable conduct |
A strong party takes advantage of a weak one |
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Grounds for Rescinding a Contract: Undue influence |
One party unfairly influences the other |
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Grounds for Rescinding a Contract: Duress |
Threats of violence or some other negative action |
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Grounds for Rescinding a Contract: Mistake |
Mistaken belief by one party normally has no effect on the contract Must not be exploited using unconscionable contact (a party remains silent of the mistake while being aware of it) |
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Grounds for Rescinding a Contract: Illegality |
The law does not recognize contracts that provide for illegal acts |
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Breach of Contract (2) |
One party does not perform what he/she has agreed to do The non performed act must be essential to the contract |
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Compensation |
Normally payable that put the plaintiff in the position that he/she would have been if the contract had been completed or up until the time of the breach |
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Negligence |
One of a group of wrongdoings called "torts" (civil wrong) |
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Negligence must prove (2) |
The defendant owed a duty of care and breached that duty By reason of that breach the plaintiff suffered injury, loss or damage which could have been foreseen by a reasonable person in the position of the defendant |
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Damages (2) |
Monetary compensation to restore the plaintiff to his/her original position Damages may be reduced if the plaintiff contributed to his/her injury ("contributory negligence") |
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Competition and Consumer Act 2010 "CCA" (Formerly known as Trade Practices Act) (2) |
Prohibits misleading and deceptive conduct in trade or commerce and offers a range of remedies beyond those of the common law Enhances the welfare of the public through the promotion of competition and fair trading and provision for consumer protection |
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CCA |
Competition and Consumer Act 2010 (Formerly known as Trade Practices Act) |
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CCA Scope (5) |
Federal and State acts Regulate business to business, and business to consumer transaction Covers both goods and services Controls restrictive trade practices Consumer protection |
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Who does Competition and Consumer Act 2010 (CCA) apply to? |
Whoever breaches the competition and consumer legislation |
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What happens if you breach the Competition and Consumer Act 2010 (CCA) ? |
Significant fines In some cases criminal liability |
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Misleading and Deceptive Conduct (3) |
No intent is needed Deliberate silence can be deceptive but the customer must have relied on the representation Key question is, "has the customer been misled?" |
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ISPs liability for misleading and deceptive information (3) |
Generally any organisation which relays misleading or deceptive information may be found liable May be liable if it has some knowledge of the misleading or deceptive information Must clearly state in a disclaimer that is a mere conduit of the information to avoid any liability |
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Australian Competition and Consumer Commission (ACCC) (2) |
Ensures that anti-competitive conduct and unfair market practices by the various organisations are not allowed Ensures that mergers and acquisitions of various players are not detrimental to the consumers access to fairly priced, high quality services |
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ACCC |
Australian Competitor and Consumer Commission |
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Australian Securities and Investments Commission (ASIC) |
Registers each company with a unique number Records the company's number, names, directors and other information on a public register Grants or refuses their requests for relief from the law Receives prospectuses before money is raised Inspects and takes action against misconduct |
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E-commerce Online contracts (4) |
The identity of the consumer is property ascertained The consumer has properly understood the terms and conditions of the contract The consumer has undeniably accepted the terms and conditions The consumer has undeniably received copies or notices where the credit code requires these to be given |
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SPAM Act (6) |
Came into effect on 10 April 2004 Makes it illegal to send commercial electronic messages without consent Covers electronic messages: emails, SMS, MMS does not cover voice calls or fax messages Applies to commercial messages sent by corporations Does not apply to government bodies, political parties, charities or education institutions |
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An organisation can send commercial electronic messages if: (3) |
Consent: It has explicit or implicit consent from the intended recipient Identification: The message clearly identifies the sender Unsubscribe: The message contains a facility to unsubscribe from future messages |
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Do Not Call Register Act (DNCR) |
Came into effect 31 May 2007 Launched by the government in response to concerns about the increasing levels of unsolicited telemarketing calls Once a number is registered it will be prohibited for telemarketers to contact that number It is a serious offense to call anyone on the register and penalties apply to companies who breach the law |
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DNCR |
Do Not Call Register |
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Internet Jurisdiction |
Activities which occur on the internet by their nature are worldwide |
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When starting a business, take out insurances: (5) |
General Public Liability Worker's compensation Professional Indemnity Loss of Income |
