Commercial Law (Paper 25, Unit 25) Syllabus - for the June and October 2009 Examinations
Outline of assessment
Time allowed: 3 hours. Each question carries a total of 25 marks. Answer only 4 of 8 questions.
The paper is divided into two parts, A and B, of which the first contains four problem questions and the
second four essay questions. Candidates must attempt at least one question from each section. Within
that format there are no restrictions on the way in which questions may be set or mixed.
The first four sections of the syllabus are concerned with ‘consumer protection’, with one section each
on agency and insurance. Candidates will therefore recognise that consumer protection provides the
largest element of the course and they may reasonably anticipate the majority of questions on the
paper to be on the relevant areas though they will also anticipate that questions might be internally
related from different areas, in particular agency and sale of goods.
All aspects of the syllabus may be examined by either essay type, problem type or note form questions
and candidates will particularly note that there may be a mix of different subject areas within individual
questions or parts of questions. Candidates will be aware not merely of the state of the present law but
of the conceptual basis of the law and the way in which common law developments may have led to
the present law. Across all elements of the syllabus candidates will know and understand essential
elements of the law of contract.
Aims and Learning Outcomes
A To acquire a thorough understanding of mainstream aspects of commercial law, building where
relevant upon knowledge previously acquired from study of the law of contract and, where
necessary, of tort. Candidates will, in particular, be able to deal with both the theoretical basis of
the relevant aspects of commercial law and to solve problem questions by analysis of the relevant
elements involved and the application of statutory provisions and common law rules to those
problems.
On completion of this unit candidates will be able to:
•
Demonstrate knowledge and understanding of the relevant aspects of commercial law; state
relevant legal rules and sources of law and be able to discuss their effect; refer to and apply
relevant authorities; explain and analyse the effect of relevant legal rules.
•
Demonstrate an ability to analyse critically the law of contract and proposals for reform.
Outline Content of Syllabus
Guidance Notes
1. Contract
The contract for the sale of
goods; classification of goods;
terms of the contract; the
implication of particular terms
by statute; the transfer of
property in goods;
performance of the contract;
acceptance and remedies.
The Unfair Contract Terms Act
1977; The Unfair Terms in
Consumer Contract
Regulations 1999; The Supply
of Goods and Services Act
1982; Sales by Auction
Candidates will know and understand the basic law of contract, in
particular, the nature of contract, the way in which judicial
attitudes and concepts may be relevant and the basic concepts of
offer, acceptance, intention to create legal relations, terms,
exemption clauses, requirements as to form and matters of e.g.
mistake, misrepresentation and remedies for breach. In the
context of the contract for the sale of goods, candidates will be
aware of the problems in the case law under the Sale of Goods Act
1979 as amended 1994, in particular classification of ‘goods’,
terms of the contract, the implication and particular terms under
the statutes, the transfer of property and such matters as
reservation of title and Romalpa clauses; they will also be aware of
the requirements in relation to performance of the contract, the
law of acceptance and remedies. These matters will be thoroughly
understood in their application to commercial situations as they
arise from day to day both in relation to the individual supplier and
consumer and, e.g. in large-scale contracts between businesses.
The importance of the way in which the law has intervened in
respect of ordinary contracts will, in particular, be understood in
the context of the working of the Supply of Goods and Services
Act 1982 together with the applicability of the European
Community Directive on Unfair Contract Terms. The law in relation
to the above will be understood thoroughly across the whole range
of contracts but, without prejudice to the generality of the
syllabus, candidates will also particularly be aware of such matters
as the European Package Travel Directive culminating in the
Package Travel, Package Holidays and Package Tour Regulations
1992 and candidates may expect that there will from time to time
be specific questions on ‘holiday disappointment’ claims; similarly
candidates will be aware of the general principles of auction sales.
2. Consumer Credit
The operation of the
Consumer Credit Act 1974
Candidates will be aware of the operation of the Consumer Credit
Act 1974 and the preceding hire purchase legislation. They will be
aware of the general principles underlying the law in relation to
the development and regulation of credit and of the nature of
regulated agreements and credit finance generally. They will be
aware of consumer hire agreements, non-commercial and small
agreements, linked agreements, and of the principles underlying
credit agreements, in particular such concepts as ‘truth in lending’,
cancellation and withdrawal, dealer/creditor liability and the
position of credit card companies.
They will also be aware of termination and remedies including
termination by the creditor on the debtor’s default, financial
remedies and repossession. In addition candidates will know and
understand the concept of judicial control of regulated
agreements, in particular of enforcement and time orders,
protection orders, and special powers in the case of hire purchase
and condition of sale. Candidates will be aware of the provisions of
the Consumer Credit Act 2006 so far as they affect private
individuals and credit agreements. They will be aware of the Unfair
Commercial Practices Directive 2005/29/EC and of the Consumer
Credit (Agreements) Amendment Regulations 2004.
2
3. Manufacturer’s Liability
Manufacturer’s liability for
defective goods in the law of
tort; the European
Convention and EC Directives
on product liability; the
Consumer Protection Act
1987
Candidates will be aware of the importance of the concept of
manufacturer’s liability for defective goods; they will be aware of
the problems of privity of contract and possible ways round those
problems including use of the law of tort; they will likewise be
aware of the movement towards strict product liability and of the
Council of Europe Convention of product liability and the European
Community’s Directive on product liability of 1985 leading to the
1987 Consumer Protection Act. Candidates will be aware of the
nature of the 1987 Act and of the way in which it implements the
European Directive.
4. Criminal Liability
The Trade Descriptions Act
1968
In relation to all or any of the above, candidates will be aware of
the use of the criminal law to supplement the civil law, remedies
and procedures under the Trade Descriptions Act 1968 and know
and understand, in general terms, the use and admissibility for
consumers of convictions under the Act.
5. Agency
The nature and creation of
the principal and agent
relationship and the scope of
the agent’s authority. The
position of the principal and
agent via-à-vis third parties;
contracts and torts; passing
of property by agents and the
Factors Act 1889. Rights and
duties of principal and agent
inter se. Remuneration of
agents. The agent’s lien.
Termination of agency.
Candidates will be aware of the importance of the concept of
agency in the general law of contract; they will know the principles
of the nature and creation of the relationship between principal
and agent and the scope of the agent’s authority; they will be
aware of the definition of agency and ways of testing a
relationship to see whether one of the parties is an agent or
merely an employee or independent contractor; and they will be
aware, in general terms, of the relationships created by the law of
agency. Candidates will understand the nature of the authority of
the agent, in particular, the types of authority, the concept of
‘apparent authority’; the question of estoppel arising after the
event; and of the concepts of agency of necessity and ratification.
Likewise they will understand generally the position of the
principal and agent in relation to third parties in contract and tort
and the concept of passing of property by agents. The natures of
disclosed and undisclosed agency and the concepts of liability from
misstatements will likewise be known and understood. As between
principal and agent, candidates will understand the nature of
consent to act and the contractual basis for the relationship
together with the rights and duties of the agent and the means by
which agency may be terminated. In particular, the concepts of
passing of property and the Factors Act 1889 will be understood.
Candidates will be aware of questions of the remuneration of
agents, lien of agents and termination.
6. Insurance
Insurance (other than
marine): formation of
contract; non-disclosure;
misrepresentation; warranties
and conditions; insurable
interest; construction of
policy; the risk; premium;
indemnity; assignment and
transfer.
Candidates will know and understand the nature of insurance;
they will understand the definition of the key terms involved in the
contract of insurance and of the important concepts relevant to
the formation of the contract, in particular, the principles of
utmost good faith and the concepts of non-disclosure and
misrepresentation. They will understand the concept of insurable
interest; the nature of indemnity; the particular obligations arising
not only at the time of formation of the original contract but at the
time of renewal and the duties of good faith by both parties. They
will understand relevant concepts in connection of the terms of the
contract including conditions and warranties, the importance of
agents in the context of insurance; the nature of insurance cover
and the concept of the risk insured. They will understand the
principles of indemnity and the concept of subrogation and the
nature of double insurance and contributions. In addition they will
know and understand the possibility of assignment and transfer of
insurance.
3
Recommended Textbook:
Commercial Law: Texts, Cases, Materials by L.S. Sealy, R. Hooley, S.Berwin (3rd edition),
published by Butterworths, or any new edition published in 2008/09”.