VU COLLEGE Learning Support Services Presenter: Helen Murphy

BUSINESS LAW WORKSHOP Semester 1 2011

THE WORKSHOP WILL INCLUDE THE FOLLOWING SEGMENTS: topic analysis of essay question and development of a plan tackling a research essay in law (Lou Connell, the law librarian at FP will assist with library research) understanding and using cases in a law essay presentation of footnotes, synopsis & bibliography

Assignment Topic Semester One, 2011 In his judgment delivered in the case of Lewis v Avery [1972] 1 QB 198, Lord Denning MR makes the following comments: There is no doubt that Mr Lewis was mistaken as to the identity of the person who handed him the cheque. It was under the influence of that mistake that Mr Lewis let the rogue have the car. What is the effect of this mistake? There are two cases in our books which cannot, to my mind, be reconciled the one with the other. One of them is Phillips v Brooks Ltd [1919] 2 KB 243, where a jeweller had a ring for sale. The other is Ingram v Little [1961] 1 QB 31, where two ladies had a car for sale. Explain why Lord Denning took the view that these two cases could not be reconciled. Also explain how the apparent conflict between these two cases was resolved by the decision in Lewis v

NOTES FOR STUDENTS Two thousand to two and a half thousand words One side only, A4, 1.5 or double spacing, wide left-hand margin Assignment Cover Sheet Footnotes, Bibliography (Australian Guide to Legal Citation) Thirty marks. Penalty for late submission. Lodged with your tutor at your scheduled tutorial during Week 8 Do own research

The first step in tackling any essay question is to analyse the topic. This assists you in understanding exactly what you are required to do and will help you to frame your response. From this topic analysis, you will also be able to develop a plan which will focus your reading on the topic.

Topic Analysis After receiving your essay topic, it is important to analyse it to know exactly what you are required to do. You need to be clear about the focus of the topic, that is, what it is about. You need to understand how the topic should be answered. Key process or directive words in the question on the topic will inform you of the direction you need to take to respond successfully. Be clear of the meanings of such words as `discuss', `analyse', `evaluate', `assess', `explain', .`outline', `examine' and `compare'.

After doing your topic analysis, you should be able to develop a plan of how you will answer the question on the topic. This plan will only be general and may change as you do detailed research on the topic. After doing your topic analysis and plan, the following steps will be involved in the process of writing your essay. These include: researching the topic. taking notes in your own words. sifting and selecting relevant material from these notes to slot into different sections of your plan. composing your essay. writing your final draft. editing and checking this final draft.

Assignment Topic Semester One , 2011 In his judgment delivered in the case of Lewis v Avery [1972] 1 QB 198, Lord Denning MR makes the following comments: There is no doubt that Mr Lewis was mistaken as to the identity of the person who handed him the cheque. It was under the influence of that mistake that Mr Lewis let the rogue have the car. What is the effect of this mistake? There are two cases in our books which cannot, to my mind, be reconciled the one with the other. One of them is Phillips v Brooks Ltd [1919] 2 KB 243, where a jeweller had a ring for sale. The other is Ingram v Little [1961] 1 QB 31, where two ladies had a car for sale. Explain why Lord Denning took the view that these two cases could not be reconciled. Also explain how the apparent conflict between these two cases was resolved by the decision in Lewis v Avery. Identify: Content Words

Assignment Guidelines
The assignment topic is set out on page 17 of the Student Manual. It centres on a quote by Lord Denning in a case of Lewis v Averay in 1972. He refers to two earlier cases of Phillips v Brooks Ltd in 1919 and Ingram v Little in 1961 which he said could not be reconciled.

Factual Background A common criminal practice in the 20th century was for a thief to find (or steal?) a personal cheque book belonging to another, and then use one of the other persons cheques to buy some valuable object. Having obtained possession of the valuable object, the thief would then quickly sell it to an unsuspecting buyer (a third party) for cash before the cheque was dishonoured by the

Who legally owns the article? When the deception is discovered by the true owner because the cheque is dishonoured, he wants to retrieve the article. But the third party has paid cash for it and wants to keep it. A dispute then arises between the true owner and the third party. Such was the situation in the three cases mentioned in the assignment

Legal Title to the Article The legal issue in these cases is who gets legal title to the asset? Does title revert to the true owner (1st party) , from whom the asset has effectively been stolen? Or does title pass to the third party (2nd party) who has paid good money to buy it, and usually is not aware that the seller (2nd party) does not have title (because he has

The Mistake Argument The true owner will argue that he was mistaken as to the identity of his buyer. At law, mistake makes a contract void, which means that there was never any contract at all. Because the contract is null and void from the outset, the arrangement cannot achieve any legal outcome, such as transferring

The Mistake Argument [cont.] Under this argument, the true owner will keep title, and is therefore legally entitled to have the article returned to him. This was the outcome in the case of Ingram v Little, where the judge concluded that the ladies who sold their car to the conman were mistaken as to his identity because he said that he was the person who owned the cheque, but he had in fact

Alternative Argument In these cases, there is an alternative argument based on fraudulent misrepresentation of identity by the thief. This argument will be put by the third party, who will say that it is a preferable argument to mistake when parties are dealing face-to-face. Misrepresentation does not make a contract void it makes is voidable, meaning that it can be

Alternative Argument [cont.] This argument, which succeeded in the first and third cases of Phillips v Brooks Ltd in 1919 and in Lewis v Averay in 1972, results in the third party keeping title to the article if: The first contract has not been avoided by the true owner when the second sale occurs and the second buyer is a bona fide

Alternative Argument [cont.] So the result in such cases depends solely on which of the two competing arguments the court adopts. Mistake will give victory to the true owner. Misrepresentation will give victory to the third party. The loser is left only with the right to chase the thief for his loss, which is a very doubtful remedy.

The Assignment Task Your challenge is to: research the three cases mentioned in the topic; analyse the two competing arguments; and form a conclusion as to how such cases will be dealt with by the courts should they occur again.

The Assignment Task [cont.] The starting point for your research is the area of Unilateral mistake in the relevant texts. Note that this contest between mistake and misrepresentation is limited to cases where the first sale is negotiated face-to-face, not by correspondence. On this point, see Cundy v Lindsay where the mistake argument did succeed where the

Developing a Plan After analysing the topic, you can develop a plan for your essay. This is a useful procedure before you begin your reading. It helps you to: 1. clarify the issues which the question is asking you to examine. 2. form a structure for your answer. 3. focus your reading on the topic.

What does `Research' mean? When you are asked to research an essay topic/assignment, you will need: to analyse your topic carefully, so you understand exactly what you are required to do. to go to the library and locate primary and secondary sources of material which are relevant to your topic. You will be expected to read a number of these. You need to be selective in your reading. to skim through these materials, to identify and select the material which is directly relevant to your topic. to take notes in your own words from these various sources, noting down bibliographical details. to demonstrate, from your research, that you have a thorough understanding of the topic. to incorporate the notes from your research into a wellstructured, coherently argued essay/assignment.

The Structure of an Essay 1. Introduction introduces topic provides background information lists main points to be covered in each paragraph (may indicate method of development to be used) 2. Body develops main points from the introduction 3. Conclusion summarises or restates main points, provides final comment

The Structure of a Paragraph 1.Topic Sentence states the main idea limits the topic to one or two specific areas to be discussed (neither too general nor too specific) 2. Supporting Sentences expand, explain, describe illustrate by examples/facts/statistics/details/cases/statutes use quotations (from judgements) 3. Concluding sentence (the nature of the concluding sentence varies depending on where the paragraph lies within the essay) signals end of paragraph summarises important elements , may provide a link with the next paragraph

Transition signals Transition signals are important within paragraphs and between paragraphs. They are used to ensure that your ideas flow well from one to another and that your ideas and themes are linked.

Transition signals between paragraphs It is useful to think of transition signals between paragraphs as the links in the chain. The links of the chain connect the chain and hold it together. Similarly, a transition signal between two paragraphs links your ideas together. The link may be placed at the end of the paragraph, or at the beginning of a paragraph. Sometimes it consists of a group of

Synopsis (abstract or summary) (optional) This should be a summary outline of the key areas you have covered and the general conclusions you have reached. Approximately 5 to 10% of the length of your essay It should be written as one paragraph Presented after title page and before essay itself Reader can see in advance key areas covered and essence of your argument Write synopsis after you have written your essay It is usual to write it in past or present tense

Using Cases in Research Essays The most important information you need to extract from cases is: Court's decision Reasons for decision (ratio decidendi) Material facts of case You will use this information when demonstrating how cases illustrate the application and development of legal principles in your research essay. You will need to summarise the important information you extract from cases in preparation for writing your research essay.

You can use the following steps to write a summary: 1. Identify the material facts. Underline or take notes on these facts. 2. Identify the decision, the ratio decidendi (and the obiter). Underline or take notes on these two/three elements. 3. Compose a summary from your notes or from the elements you have underlined. 4. Eliminate unnecessary words or points. 5. Try and write a cohesive summary which flows logically. Linking and signalling words and phrases will assist this process.

Using signalling word and phrases in case summaries When referring to legal principles and particular aspects of cases in your essay, you can use the following signalling words and phrases. These words and phrases introduce or signal to the reader what is happening in the different aspects of your essay. For example, if you are discussing a legal principle, you may introduce this discussion with: The law in this area states that The law states that The law requires/stipulates that

When discussing cases/precedents, you may introduce the discussion with: In the case of Lewis v Avery [1971] 3 All ER 907, Lord Denning concluded/indicated/stated that It was held in the case of ..v.. that The case of v demonstrates/clarified/highlights/shows/explain s/ manifests/exhibits/exemplifies


Fraudulent misrepresentation as to identity was argued in the case of Phillips v Brooks[1919] 2 KB 243. This law was upheld until 1961 when a complication occurred because of the decision in Ingram v Little [1961] 1 QB 31. In this case,

It was held that Lord Denning argued that In the course of his judgment In the view of There is a list of signalling words, phrases and sentences in Appendix D, pp.226-227, Crosling and Murphy, How to Study Business Law 4th edition.

Common linking words and phrases: Further Furthermore In addition Moreover However Consequently Finally Also As well Subsequently

Citation of cases Case details should include: parties names: Ingram v Little (italics) date case reported: [1961] volume number of the law report: 1 abbreviation of the law report: QB starting page number of the case in the report: 31 pinpoint page number: 42 (use when referring to a specific point in the judgement)

name of judge/s (only where appropriate)

Citation of cases

You can cite the parties names in the body of your work (Ingram v Little) and the other details of the case can be cited in a footnote at the bottom of the page([1961] 1 QB 31). See www.vu.edu.au/library - under Information Resources (on right) click Referencing & Styles under Style Guides click Australian Guide to Legal Citation (AGLC) (VU).

Incorporating Cases into your Discussion The law regarding fraudulent mistake as to identity was established in the case of Phillips v Brooks[1919] 2 KB 243. In this instance, However, the case of Ingram v Little [1961] 1 QB 31 created a state of uncertainty in regard to this law because In his judgment of Lewis v Avery [1972] 1 QB 198, Lord Denning stated that the decision in Ingram v Little [1961] 1 QB 31 was bad law. He argued that

Study carefully pages 209- 213 in Parker and Box. Provides a very good discussion of the issues in these cases.

Paraphrasing Paraphrasing is a technique where material from texts is rewritten in your own words without changing the original meaning. The paraphrase is usually as long as the original passage. This is the most common technique you will use in your notetaking.

Strategies to assist your paraphrasing are: Read the passage several times to understand the meaning. Identify:
the main idea; the main supporting points; and supporting details to assist with your understanding of the passage.

Check the dictionary for any words you do not understand. Use synonyms where possible, but remember you cannot substitute important legal terms. They are essential to the meaning of a passage. You can only substitute general words. Change the word order of sentences

Example of Paraphrase (Original Parker and Box, 2004, pp.210-211) As mentioned, it is difficult to prove unilateral mistake as to identity in cases where negotiations take place face-to-face, since the law presumes that the mistaken party intended to make the actual contract that he has entered into in fact. This is confirmed by the case of Phillips v Brooks[1919] 2 KB 243.(210) The court, again faced with the unattractive task of having to choose between two relatively innocent parties, accepted the argument based on misrepresentation, preferring it to the argument based on mistake. (211)

Paraphrase As has already been stated, unilateral mistake as to identity is hard to prove in cases where negotiations are organised face-to-face. In these situations, the law presumes that the party who has made the mistake actually intended to ratify the contract he entered into. The case of Phillips v Brooks[1919] 2 KB 243 established this. In this particular case, the court, once again faced with the difficult task of having to decide between two innocent parties, accepted the fraudulent misrepresentation as to identity argument rather than the argument based on mistake.

EXAMPLE OF SYNOPSIS (optional for Business Law) Acceptance of a contract, when utilizing the post as a means of communication, occurs when the acceptance letter is placed in the post by the offeree. This is known as the postal rule of acceptance. Introduced for commercial convenience, the postal rule of acceptance has been a component of contract law since 1818. Nearly 200 years later the rule has become relatively unimportant. This can partly be attributed to the introduction of instantaneous and near instantaneous methods of communication, such as the telephone, fax machine and, email systems, which are currently governed by the general rule of acceptance. However, another impact on the postal rules decline is the somewhat standard declaration and intention of many businesses that acceptance of a contract occurs upon receipt of an acceptance letter; avoiding the postal rule. In response, the courts have taken a strict view to postal rules application, and if there is any ambiguity as to the method of acceptance, the courts are likely to repudiate the rule. These issues are examined in detail together with relevant cases, throughout the essay. Also discussed is the proposed and soon to be introduced change in legislation in relation to electronic communication. However, it is the suggestion of this essay that the post remains a major communication tool in relation to the formation of contracts and abandonment of the post rule, at this point in time, may disadvantage the community at large.

Example of definition of concept in Introduction The postal rule of acceptance is unique. Within the rules of acceptance in contract law, the postal rule has the distinction of establishing a contract prior to the knowledge of the offeror. In essence, the rule stipulates that when the postal service is contemplated as the medium of exchange for acceptance of an offer, acceptance is deemed to occur the moment the letter of acceptance is posted not when the acceptance is communicated to the offeror, as per the general rule of acceptance. Limited to the agency of the post and telegrams, the postal rules use must be warranted to be valid. Considered contentious, the rule is rarely imposed by the courts. Nevertheless, the issue of the rules relevance needs to be reconsidered, as does the viability of the rules expansion into the realm of instantaneous

Examples of Case Discussion (with footnotes)

.........cases where the postal rule is the expected mode of communication, and that "notice .... to the intending vendor", meant that uncommunicated notice was no notice; thus, displacing the use of the postal rule. It was therefore held that actual communication was required and since it had never been received, there was no contract1. Similarly the courts will not apply the postal rule if they believe that its practice will manifest inconvenience or absurdity, as remarked by Lord Bramwell in British & American Telegraph Co v Colson (1871)2. His Lordship asserted that, "if a man proposed marriage, and the woman was to consult her friends and let him know, would it be enough if she wrote and posted a letter which never reached him? ... [That] would be wholly unjust and unreasonable". In the context of discussion of the postal rule, I believe it is also important to note that withdrawing ones acceptance, after a letter of acceptance has been posted, is contrary to the postal rule. However, Australian Postal By-law 543 enables a person who has posted a letter to recover it, provided that Australia Post considers the reasons for recovery are satisfactory.4 This by-law is yet to be tried in court; yet it illustrates the legal systems reluctance to maintain the postal rule of acceptance. 1. J W Carter and D J Harland Contract Law in Australia (Butterworths: 2nd ed, 1991) 48. 2. British & American Telegraph Co v Colson (1871) LR 6 Exch Id 119. 3. Postal By-Law 54 ( Refer to Post Office Guide :paras 131-138) 4. J G Stark, N C Seddon and M F Ellinghaus, Cheshire and Fifoots Law of Contract (Butterworths:6th ed,1992) 87.

Example of discussion in body of text

Referring to this precedent in Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft6, Lord Wilderforce said "it appears logical that ... even where there is not mutual presence at the same place and at the same time, if communication is instantaneous for example by telephone or radio communication . . . this should be at the place where acceptance is communicated to the offeror . . . ". This supports the concern that if a sudden power failure breaks contact before acceptance has been adequately conveyed, the offeror is not disadvantaged7. However, in April 1998, the Attorney General's E-Commerce Expert Group released a report recommending the enactment of legislation, deeming that unless parties agreed otherwise, acceptance occurs at the offeror's place of business, and that the country in which the offeror conducts business will therefore govern the contract. Possibly in response to this report, on 1 September, the Electronic Transactions Act 2000 (Vic) came into effect8. Although somewhat confusing, this legislation states that when corresponding by electronic communication "the person to whom the information is required to be given consent to the information being given by means of an electronic communication" and ". .. the time of receipt of the electronic communication is the time when the electronic communication enters that information system". Thus, reiterating the current application in regard to email which stipulates that, a message is mailed when sent, but the offeree's acceptance by email is not received until the offeror has logged into the system (deeming it a form of instantaneous communication)9. More importantly, this legislation will now apply this concept to facsimile and telex machines. 6. Brinkibon Ltd v Stahag Stahl und Stahwarenhandelsgesellschaft mbH [1983] 2 AC 34,4. 7. David Alan and Mary Hiscock, Law of Contract in Australia (CCH:c1987) 197. 8. Electronic Transactions Act 2000 (Vic) http://www.dms.dpc.vic.gov.au/pdocs/bms/B00333/B003331. html . 9. Paul Latimer, Australian Business Law (CCH:19thed, 2000) 228.

Example of Conclusion In today's world of alternative lifestyles and high tech gadgets, there are numerous ways in which people chose to live and to communicate with others. Yet even the people in the forests of the Amazon are able to participate in the exchange of information, goods and services. This is not because the world's electronic networks are vastly expansive and never break down, because when there is no fax machine or computer handy, we can always use the post. Obviously if some important deal is being negotiated, then all precautions should be taken, and every effort made, to ensure that communication is prompt and effective. But