BE VERY KEEN ON INSTRUCTIONS BEFORE YOU START HANDLING THE PAPER and REVIEW VERY KEENLY
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6.pdf
Prepared by: H Thong
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UNSW Foundation Studies
2016 B/B+ Semester 2
Unit 6:
Contract Law
(continued)
Lecturer: Hui Thong
Business Law
Unit 6: Contract Law (continued)
Overview
Terms Express/Implied
Conditions/Warranties
Breach
Remedies Rescission
Damages
Injunction
Specific performance
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Terms
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Terms
Form part of the contract
Have contractual force
Promissory in nature
Party has obligation to comply with (perform, carry out) terms of the contract
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Terms
Terms
Expressed Implied
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Express v Implied Terms
Express terms
Terms actually agreed to by both contracting parties
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Express v Implied Terms
Implied terms
Terms inserted in a contract as a matter of law and irrespective of parties’ intention
Terms may be implied into a contract through:
Common law (ie. through courts)
Custom or trade usage
Statute (See Unit 10)
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Express v Implied Terms
Implied terms – Common law
A term can be implied by the common law on the basis of business efficacy.
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Express v Implied Terms
Implied terms – Custom or trade usage
A term can be implied on the basis of a well-known custom or usage
Implied term must be consistent with the express terms
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Express v Implied Terms
Implied terms – Statute
A term can be implied by a piece of legislation
For example: Australian Consumer Law (ACL) guarantees such as fitness for purpose, acceptable quality (See Unit 10)
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Terms
Terms
Conditions Warranties
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Conditions v Warranties
Conditions
Terms which form an essential part of the contract
If breached: Innocent party may sue for damages and/or rescind (avoid) the contract
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Conditions v Warranties
Warranties
Terms which are not essential to the contract
If breached: Innocent party may only sue for damages only
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Breach
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Breach
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Occurs when a party refuses/fails to comply with (perform, carry out) the terms of the contract
Breach of a term might give rise to remedies
Breach
Complete failure to perform
Party made no effort at all to perform terms
Party’s performance is completely different to what was required
Party clearly indicate that they will not be performing terms prior to the time for performance
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Breach
Partial performance
Party complies with some of the terms of the contract but breach one/more of other terms
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Remedies
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Remedies
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A breach of contract will result in remedies awarded to the innocent party.
Remedies
Rescission
Right to rescind (avoid) the contract
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Remedies
Damages
Right to a sum of money awarded to compensate for loss resulting from the breach
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Remedies
Equitable remedies
Awarded if damages are considered to be inadequate/unavailable
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Remedies
Equitable remedies – Specific performance
A court order directing a party to specifically carry out terms under the contract
Usually awarded where the subject matter of the contract is unique. Examples:
A contract for sale of land
A rare vintage car
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Remedies
Equitable remedies – Injunction
A court order to stop a party from performing or repeating a wrongful act
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End of Lecture
Students must:
Read prescribed reading for Unit 6 (Contract Law (continued))
Attempt Tutorial Exercises BEFORE going to Tutorial in Week 7
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Written Assignment (15%)
Written Assignment question and instructions now released
Students must read and follow given instructions carefully
Assignments must be typed into the given template on Moodle
Use the IPAC method
Individual/Independent work
Submission to Turnitin for plagiarism check on Moodle
Due date: Friday 23rd September (Week 8), 5pm
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