I. SESSION 1:
15/05/2023
CHAPTER 1:
-
Law:a body of enforceable rules, made by the state – the parliaments and the courts
– that is enforceable by the state.
-
Agreements and Contract:
○ Agreement:
■ can be informal
■ the understanding or arrangement between two or more parties
■ no needs to be witnessed or wrien down
■ Oer and acceptance
■ flexible in nature
○ Contract:
■ formal and legally binding
■ When an agreement is enforceable by law, it becomes a contract
■ wrien and documented
■ Agreement and Enforceability
-
Function Of Law in a civil society: 5 functions
○ Regulatory function: it regulates, in the normative sense, the way we live.
Inform what we may do, how we should do, what we cannot do, what we must
do to avoid the sanction.
○ Dispute resolution (khả năng giải quyết mâu thuẫn)
○ Promotes stability and cohesion (giữ vững sự bền bỉ và liên kết xã hội)
○ Reinforce community values (củng cố những giá trị cộng đồng)
○ Promotes equality before the law and uphold
-
Separation of Powers: established by
(The separation of powers between the legislature, the executive and the judiciary)
-
Source of Law:
-
Substantive Law: refers to actual rights and duties under the law
-
Procedural Law: refers to the formal steps that must be followed in the
enforcement if those rights and duties, in particular, the rules of procedure and
evidence
-
Civil Law: law under which a person may sue (kiện) another to obtain redress (bồi
thường) for a wrong commied by the defendant (người đi kiện) - nếu bị kiện sai thì
người bị kiện có thể áp dụng luật này để đòi tiền bồi thường từ người kiện họ
○ Purpose: obtain monetary compensation or damages for the loss suered by
the plainti as a result of the defendant’s wrongful act
-
Criminal Law: defines oenses against the State and provides punishment for their
commission
II. SESSION 2:
23/09/2023
CHAPTER 2: INTRODUCTION TO THE LAW OF CONTRACT
Element Of A Valid Contract:
○
Oer and acceptance: an oer by one party and its acceptance by the other
indicating the parties have concluded an agreement
○
Form of Consideration: the exchange of promises and values between the
parties to the contract or agreement (money, goods or services)
○
Intention to create a contract: the intention of the parties to create legal relations
○
Legal Capacity: the parties must be legal age and have the mental competence
(over 18 years old, under the influence of drug or alcohol, not have mental
impairment) → to understand the terms and consequences of contracts
○
Genuine consent(chapter 6+7
○
Legality of objects: The contract's purpose must not be illegal or against public
policy
Classification of contracts:
○ Simple contracts
○ Formal contracts (under seal)
Simple contract
●
may be oral
●
may be wholly or partly in writing (Eg: statutory provision - văn bản)
●
may be implied (ngụ ý) by the conduct of the parties.
→ Every simple contract must be supported by consideration.
Formal contract/
contract under seal
●
no legal requirements
●
must take a certain form or it is invalid (không hợp lệ)
●
must be wholly in writing
●
must be signed by the person/s executing the deed (chữ kí người thực hiện
chứng thư)
●
must be witnessed (làm chứng).
→ The major dierence between a deed and an agreement is that there is no
requirement that consideration be provided.
○ Express/implied contracts
Express contract
the intentions of the parties are stated in explicit terms, either
orally or in writing
Implied contract
inferred from the conduct (hành vi) of the parties and the
surrounding circumstances
○ Bilateral/unilateral contracts
Bilateral contract
(song phương)
“promise for a promise”
consist of the exchange of mutual promises, the actual performance
of which is to occur at some future time
Unilateral contract
“one party promises to do something in return for acts performed by
the other party”
inviting acceptance by actual performance rather than by a promise
○ Valid, voidable, void, ILLEGAL & unenforceable contracts
Valid Contracts
all the essential elements are present
the usual remedy for breach of the contract: a judgment for damages
where a contract restricts one party from exercising their trade, it may be
valid provided it was reasonable as between the parties and the public
Voidable Contracts
a party may avoid (get out of) if that party wishes to do so
Void Contracts
as far as the law is concerned, never existed at a
no legal eect between the parties, not create legal rights (quyền) or
obligations (nghĩa vụ)
Unenforceable Contracts
prima facie a valid contract but which by reason of some technical defect
is not capable of being enforced by action by one or both of the parties
(thoạt nhìn thì hợp lệ nhưng vì lỗi kĩ thuật)
CHAPTER 3: OFFER AND ACCEPTANCE
Rules as to oer:
Offeree (người được đề nghị): either accept or
Offeror (người đề nghị): the party who made the offer
○
Must be distinguished from mere pu: nói xàm (saying something untrue/hypoth
or exaggerate words), invitations to treat and statements supplying info (
○
All major terms (điều khoản) must be included: the objects of goods or services,
quantity, quality, price for each items, tax prices VAT, import tax, special tax)
Not major terms: guarantee, after-services, delivery, dispute resolution
○
Must be communicated to oeree (#oerror)
Counter oer: go against backward = conditional acceptance
○
Revoke: có thể rút lại bất kỳ khi nào
thay đổi
rút lại #before oeree receive 389
hủy bỏ # phải có quy định 390
○
Lapsed_chấm dứt (Đ391
○
postal rule X (K1,
○
Counter oer:
○
Conduct but can not be imposed by silence: có thể = hành động nhưng không thể
bằng im lặng (bạn vẫy tay bắt taxi, taxi dừng lại và im lặng chở bạn đến 1 địa điểm )
*silent: thỏa thuận (K2, 393
thói quen (khoản 2, 393
Mình có cần chuẩn bị hay mang theo gì không ạ?
CHAPTER 4: INTENTION TO CREATE LEGAL RELATIONS
-
Create legal relations: tạo ra mối quan hệ theo mặt pháp luật
Social agreements:
Domestic agreements:
Balfour vs Balfour
-
Domestic agreement
No contract
No proof
Without intention to create legal
relations
Merritt vs Merritt
-
Have a contract
Have proof
Have intention to create legal relations
Presumption:
-
Executed Consideration: promises made in a contract are delivered immediately
-
Executory Consideration: promises made in a contract will be delivered in the future
-
Past Consideration:
○
No consideration
○
Acts that are done before the promises was done
III. SESSION 3:
30/09/2023
CHAPTER 5: CONSIDERATION, PROMISSORY ESTOPPEL AND
FORMALITIES
I. Consideration:
nghĩa vụ đối ứng, một bên có điều kiện/quyền/vật tương xứng, công bằng với bên còn
lại (promise=consideration)
Simple contract: not formal or made seal
The landlord could
○
Must be suicient, need not be adequate:
○
Executed(unilateral) or executory(bilateral) but can not be past consideration
Past consideration exception:
1 Done at the request of the person making the present promise
2 Understood the act was to be remunerated
3 Must have been legally enforceable had it been promised in advance
II. Promissory Estoppel: (lời hứa không thể hủy)
A promise
● which the promisor should “reasonably expect to induce action or
forbearance on the part of the promisee or a third person” (những kỳ vọng
hợp lý từ phía người đưa ra lời hứa)
● which does induce such action or forbearance: người được hứa phải hành
động vì lời hứa
● is binding if injustice can be avoided only by enforcement of the promise: sự
bất công
III. Formalities:
○ must be in writing (nhà, xe, đất)
○ oral, verbal contract
ISSUE:
1/ Sign: “Special Offer: $3 each".
2. Jamie buys 1
3/ Shopkeeper: $5 each
4/ Jamie disagree
RULE:
1/ Offer - Acceptance
2/ Invitation to treat
3/ Display in Store
APPLICATION:
1/ Invitation to Treat
2/ Jamie buy = offer
3/ Shopkeeper = acceptance
CONCLUSION:
1/ Jamie pays $5 each
IV. SESSION 4:
28/10/2023
CHAPTER 6: CONTRACTUAL CAPACITY
A. Minors:
○
Valid: legally enforceable agreement between two or more parties
○
Void (vô hiệu): an agreement has no legal eect from the beginning
■
Illegality
■
Lack of legal capacity
■
Violation of Statute: the contract violates specific laws or statutes
■
Mistake: fundamental mistake in the contract makes the agreement impossible
or meaningless
○
Voidable: legally enforceable and valid, one or both parties give the option to void or
cancel the contract → the contract remains in force until the party with the right to
void
■
Misrepresentation or Fraud (phát ngôn sai, cố tình nói sai): one party
intentionally provides false information or misrepresents facts to induce
the other party into entering the contract
■
Duress or(đe dọa bằng vũ lực, không phải lý do duy nhất): one party forces or
pressures the other party into the contract through coercion or undue
influence
■ Undue Influence: bị ảnh hưởng/ tác động để ký hợp đồng
■
Mistake: has 3 types → mutual, common, unilateral (chapter 07
■
Unconscionable conduct (hành vi vô đạo đức)
■
Lack of Capability
B. Corporation
C. Mentally incapacitated and intoxicated persons
D. Married Women
E. Bankrupts
CHAPTER 7: GENUINE CONSENT
A. MISTAKE
B. MISTAKES OF FACT
○
Common mistake: both parties make same mistakes about a fundamental mistake
(cùng hiểu sai 1 đối tượng cùng nghĩa)
VD cả 2
○
Mutual mistake (cả 2 bên đều misunderstanding mistake): both parties are
mistaken, dierent mistake
VD cô rủ đi dạy xong đi uống Katinat, cùng hiểu Katinat nhưng cả 2 không hiểu rõ Katinat nào
(của ai đền bù người đó)
Will only invalidate the contract for a certain circumstances
○
Unilateral mistake (tự hiểu sai): one party is mistaken (identity of other party,
terms of the contract, nature of the document signed)
C. MISTAKE OF LAW
D. MISREPRESENTATION
○
Fraudulent Misrepresentation: involves a deliberate and intentional false
statement made by one party with the intent to deceive and induce the other party
to enter into a contract
○
Innocent Misrepresentation: occurs when a false statement is made by one party,
but they genuinely believed it to be true and had no intention to deceive the other
party
○
Negligent Misrepresentation: occurs when a false statement is made by one party
without reasonable grounds for believing it to be true
ISSUE:
○ Rena lived in Singapore for the last 6 years
○ Agnes asked Rena to move to Australia and live with her → nominate Rena as the
sole beneficiary of substantial estate
○ Rena moved and gave up jobs
○ Agnes promised to put Rena into the will
○ Agnes write out of Rena
RULE:
○
○
○
Domestic/Family Agreement
Intention to Create Contract
Promissory Estoppel
APPLICATION:
Presumption 1:
○ No (Cost/Benefit: give up job, consideration between 2 people)
○ Yes
CONCLUSION:
V. SESSION 5:
28/10/2023
CHAPTER 9: CONSENTS AND INTERPRETATION
A. Express terms:
to which the parties
● Written agreement and signed: easier to establish due to writing and
signatures: Parol evidence rule limits contrary verbal evidence.
● Partly verbal and written agreements à courts determine intention and
meaning of what was stated.
● Verbal only: establishing an express term is more difficult.
Statement + Promissory = Agreement
B. Promissory
- The more important the more likely to be
- The closer the more likely
- Not included in written contract, likely not to be
- Made by the party having greater knowledge or experience
- Not a statement of opinion or intention
Ex:
-
Người sửa xe nói chiếc xe này cần thay đổi mã lực → thông tin được chia sẻ từ người
có kinh nghiệm
Người bán nước mía nói chiếc xe này cần thay đổi mã lực → thông tin không c
● Parol evidence: hiểu sai, có trong hợp đồng thì xài
● Collateral contract (hợp đồng phụ): hợp đồng độc lập, hợp đồng chính và hợp
đồng phụ có mối liên kết với nhau
Express terms: điều khoản chính của hợp đồng
→ bên kia vi phạm 1 trong các điều khoản, chấm dứt hợp đồng
● Condition (điều khoản chính): vi phạm condition → được quyền hủy
● Warranty (điều khoản phụ): vi phạm warranty → được quyền nhận bồi thường
● Innominate (không xác định đc condition or warranty): đủ lớn → hủy hợp đồng
VD:
Condition là thuê make up ngày 28/08, tới trước 4h sáng. Tuy nhiên không đến đúng thời gian
—> được quyền hủy hợp đồng
Warranty là thuê make up nhưng phải chuẩn bị trước son, eyeline, phấn tone cam. Tuy nhiên
không có dụng cụ make up tone cam → được quyền bồi thường
VI. SESSION 6:
01/11/2023
CHAPTER 11:
TERMINATION AND BREACH OF A CONTRACT
- Termination: the act of ending a contract
- Various ways in which a contract can be terminated:
A. TERMINATION BY PERFORMANCE làm hết việc thì xong HD
both parties fulfill their obligations as outlined in the agreement
→
complete performance of the contract
○
Substantial performance: close enough
○
Entire and divisible:
○
Partial Performance: The party receiving the performance must accept it as
meeting the contract requirements. The performance is not accepted (a right to
choose)
→ disputes or claims of non-performance or breach
B. TERMINATION BY AGREEMENT
phải ký contract under seal
Agree to end the contract
○ Termination under the original contract: express/ implied
○ Under subsequent agreement: have a new contract to
○ Under contingent conditions: condition precedent/condition subsequent
○ Under time for performance
C. TERMINATION BY BREACH
D. TERMINATION BY BY FRUSTRATION
E. TERMINATION BY OPERATION OF LAW
CHAPTER 12: REMEDIES
A. REMEDIES DEPEND ON THE NATURE OF THE BREACH
○
Common Law:
Damages:
Termination:
○
Equity:
Specific performance:
Injunction:
○
Restitution:
Breach of contract:
-
Failure to perform promised obligations;
-
Not always termination;
-
Where there is a breach, there is a remedy
B. THE REMEDIES OF DAMAGES
C. PENALTIES AND LIQUIDATED DAMAGES
D. EQUITABLE REMEDIES: SPECIFIC PERFORMANCE
E. INJUNCTION
F. RESTITUTION
VII. SESSION 7:
04/11/2023
CHAPTER 14:
LAW OF TORT
A. Comparing tort with criminal law and contract law
Liability in tort and criminal liability
- Criminal law (luật hình sự):
- Civil law (luật dân sự):
The law of tort and contract law
- Tort law:
○ Tort mang ý nghĩa là một hành vi sai trái (a civil wrong) gây thiệt hại
cho người khác, và cho phép người bị thiệt hại kiện người có hành vi sai
trái để đòi bồi thường thiệt hại.
○ Yêu cầu bên bị đơn (defendant) phải bồi thường cho bên nguyên đơn
(plaintiff) do những hành vi sai trái gây ra.
- Contract law: chỉ điều chỉnh quyền và nghĩa vụ của các bên như giao kết theo
hợp đồng
○ Tort có thể được hiểu tương tự với ngành luật bồi thường thiệt hại
(BTTH) ngoài hợp đồng được quy định trong Bộ Luật Dân Sự.
○ Tuy nhiên, nếu BTTH ngoài hợp đồng chỉ được quy định chung là ‘hành
vi xâm phạm tính mạng, sức khoẻ, danh dự, nhân phẩm, uy tín, tài sản,
quyền, lợi ích hợp pháp khác của người khác mà gây thiệt hại’ (Điều 584
Bộ Luật Dân Sự 2015 - BLDS)
○ Tort Law quy định chung
Civil liability reforms:
- limit the scope of potential liability for negligence
- reduce the amount
B. Negligence
- Tort of negligence (sơ xuất): careless behavior and can, therefore, be applied
to any form of human activity
(một người do hành vi sơ suất, bất cẩn của mình mà vô ý gây thiệt hại cho người
khác.)
Defendant only liable if plaintiff can prove:
1. Defendant owed plaintiff a duty of care
2. Defendant breached duty of care;
3. Causation: Defendant's breach was the cause of the plaintiff's loss
4. Remoteness of damage: damage suffered by plaintiff was not too remote
Other 2 considerations:
1. Defenses to an action in negligence;
2. Civil liability
C. Duty of care:
-
Duty of care (nghĩa vụ cẩn trọng): người vi phạm có nghĩa vụ cẩn trọng đối
với người bị vi phạm
Example:
• Người điều khiển phương tiện giao thông (motorists) phải có Duty of Care để tránh
gây ra thiệt hại/chấn thương cho những người tham gia giao thông khác.
• Người sản xuất (manufacturers) phải có Duty of Care với những người sử dụng sản
phẩm của mình: Đây chính là mối quan hệ trong vụ Donoghue v Stevenson (1932).
• Người chủ cửa hàng (occupiers) phải có Duty of Care với những người đến cửa
hàng (premises) của họ.
• Bác sĩ (doctors) phải có Duty of Care với bệnh nhân.
• Người sử dụng lao động (employers) phải có Duty of Care để đem lại môi trường
làm việc an toàn cho người lao động.
D. Breach of the duty of care
A. Foreseeability and the reasonable person
○
Foreseeable
○
Not insignificant (không hiếm xảy ra, chứ kh phải chuyện thường ngày, miễn có xảy
ra là tính)
B. Reasonableness of the the response
How a reasonable person would have responded to the risk:
Causation:Causal link between the breach and the injury
→ “But for" test
E. Remoteness of damage:
-
Scope of the ability: examine whether the damage is too remote, and thus not
recoverable, or whether the damage was reasonably foreseeable by the
defendant
F. Defenses to an action in negligence
-
Contributory negligence
-
Voluntary assumption of risk
-
Vicarious liability:
○
Liability for negligence of other
○
Arise where particular relationship between liable person and wrongdoer
(employer & employee)
VIII. SESSION 8:
08/11/2023
CHAPTER 15:
LAW OF AGENCY
A. Definition:
- The relationship between two parties (principal and agent):
○ is authorized by the principal
○ to do certain acts on behalf of the principal
○ with the general object that affects the principal's rights and duties.
B. Creation of agent:
○ expressly:
❖ by deed
❖ by writing
❖ by word of mouth
VD: công ty client brief lại yêu cầu của khách hàng cho Agency
○ “holding out"/ estoppel: obvious, P can't deny
VD: quá hiển nhiên nên không thể ngăn owner chối bỏ mình có agency (owner thuê sale bán
nhà, dẫn sale vào xem nhà nhưng khi kiện thì owner chối)
○ Ratification: A acts without but P accept that
VD: agency không có ủy quyền nhưng vẫn làm tốt (khi khách muốn trả phòng, chủ kh muốn cho
thuê nữa, nhưng agency đi thông báo với khách hàng có thể gia hạn tiếp hợp đồng —> chủ
chấp nhận)
○ operation of law (khi tình thế bắt buộc)
VD: bắt buộc theo chủ
❖ agency of necessity
❖ agency arising by cohabitation
C. Nature and scope of an agent's authority
D. The agency concept
- Court hierarchy:
- Lack of expertise:
- Lack of time:
- Inability to present:
E. Duties of an agent:
Agents have various duties under contract and based on trust
1.
2.
3.
4.
5.
6.
7.
Follow the principal's instruction
Act in person
Act in good faith
Make full disclosure of personal interest
Not to make any secret profits
Exercise skill and care
Further duties
F. Rights of an agent
- Right to remuneration (Right to be paid/ received commision)
+ In commercial: remuneration is often a % remuneration
Requirement 1: terms and circumstances of the appointment must be examined
Requirement 2: Agent must be the effective cause of sale
- Right to indemnity and reimbursement (Right to compensation/ reimbursement)
-
Right of lien (Right to retain possession of something until paid)
REVIEW
Chapter 3
Page 63:
1. Smoke balls: Offer
2. PepSi.Co jeff: Mere puff (quảng cáo Pepsi.Co bán
3. Gibson v Manchester City: Invitation to treat (mời để ký hợp đồng) “may be
prepare to sale", “if you would.
4. Pharmaceutical Society of Great Britain v Boots Cash Chemists (bán thuốc mà
không có dược sĩ đứng bán => khi nào trả tiền (người mua offer = người bán
accept) mới gọi là có hợp đồng (có offer)
5. Partridge v Crittenden (bán chim): không nói rõ điều khoản khi bán hợp
đồng (invitation to treat)
—> all major terms must be included
6. Harris v Nickerson (p.67)
đăng thông tin bán đấu giá: invitation to treat (thư ngỏ)
bittor: offeror
Salers: acceptant
chỉ khi nào có hợp đồng thì mới có offer
statement supplying info
Ông A muốn mua viết và hỏi giá của hãng viết là 10,000$, thì brand chỉ
báo giá chứ
VD: chỉ đưa thông tin chứ không offer
7. R v Clarke: must be communicated (làm việc vì offer mới nhận đc những
gì offer, còn
VD: làm rớt cái túi sẽ nhận đc 10 triệu, cô đăng mạng để tìm, sinh viên nhận
được cái bóp và trả lại cô nhưng không nhận thưởng 10 triệu vì bạn sinh viên
không biết cô có treo thưởng.
8. Byrne & Co Leon Van Tienhoven
postal rule (chỉ tính thời gian từ khi gửi → letter: khi gửi thư, chỉ ghi nhận
thời gian gửi khi bưu điện đóng dấu mộc đã nhận và gửi thư)
9. Option agreement:
/- : shilling
10.
Counteroffer
Hyde v Wrench: người bán đưa giá 7 tỷ mà mình thấy mắc nên người mua
đưa ra giá khác, người bán có quyền từ chối
11.
A request for information
Chỉ hỏi để khẳng định offer chứ không đưa ra điều kiện mới (say yes chứ không
say but trong đó, không đưa ra điều kiện)
Đặt câu hỏi để clarify question
12. Brinkibon Ltd & Stahag Stahl (accept nhận được tại đâu, contract được
nhận tại chỗ đó)
13. (Page 75) Felthouse … (can be by conduct but can not be imposed by
silence)
Hai người có họ hàng với nhau, ông chú muốn mua con ngựa, cháu đồng ý. Hai
người không có ký hợp đồng, cháu im lặng và bán con ngựa cho chú.
VD: taxi mở cửa xe để đón khách thì đã accept dù không lên tiếng nói accept
(không có bản hợp đồng thực tế giữa 2 bên)
Chapter 5
1. Thomas v Thomas
hứa trả 1$ mỗi năm sẽ được cái nhà, ông này đổi ý
Considerations: dù là bao nhiêu (need to be exist, needn’t to be adequate)
2. White v Bluett
Cây của ông W trồng có nhánh cây dài lấn sang nhà ông B nên ông W có offer trả 1tr
để ông B không chặt cái cây đó
3. Roscorla v Thomas: past consideration (không được dùng consideration đã đưa
ra trước đó để áp dụng cho consideration hiện tại)
4. Exception:
● Work at the promisor’s request: Có người yêu cầu thì mới thực hiện
● Would not work for nothing: Cả 2 bên đều hiểu hành động đó đáng để trả
công
● Would not have enforceable: Giả sử hứa trước khi làm thì lời hứa có hiệu
lực
→ Nếu thỏa cả 3 điều kiện này thì dù là past consideration vẫn phải trả tiền
5. Glasbrook v Glamorgan County Council (p.101): không thể offer obligation vượt
quá offer obligation vì lợi ích bản thân(nghĩa vụ cần phải làm)
6. Waltons Stores (p.106): promissory estoppel: hợp đồng xây nhà bằng văn bản,
chủ nhà gợi ý offer ký đi thì sẽ trả gấp đôi, chủ nhà phá bỏ lời hứa
tòa bắt bạn phải giữ lời hứa
(từ case của Walton Stores)
7. Sidhu v Van Dyke: ông này cho thuê nhà và ngoại tình với người thuê. Ông này
ra yêu cầu là phải ở chung với ông này thì sẽ được cho ngôi nhà, nhưng cuối
cùng ông không cho ngôi nhà. Tòa yêu cầu để đền bù t
-
Minor: chưa đủ 18 tuổi, tòa sẽ bảo vệ quyền lợi
Legal
Genuine consent: có tự nguyện tham gia vào hợp đồng kh
1. Mistake:
2. Misrepresentation:
3. Remedies for fraudulent misrepresentation:
● Refuse to be bounced
● Ngăn người khác ép mình thực hiện
● Bồi thường thiệt hại: claim damages
4. Duress: bắt buộc phải có violent
5. Undue influence: ép người khác làm gì đó
6. Unconscionable conduct:
-
Privity: nghĩa vụ và quyền riêng của 2 bên (bth người đối tác có trong hợp đồng mới có
thể bị kiện)
Ngoại lệ:
- Agent: người đại diện của công ty (không phải 1 bên của hợp đồng cũng bị dính liếu)
CHAPTER 11:
TERMINATION
- Hứa sửa nhà, sửa sai màu sơn, chủ nhà phải trả 150$ để sơn lại nhà màu hồng.
- Hợp đồng toàn phần, không quy định mỗi phòng sơn màu gì
- Substantial performance: Làm gần xong hợp đồng, trừ tiền bồi thưởng 1 phần
chưa đúng của hợp đồng
-
Partial performance: làm sai hoàn toàn nên không đáng nhận được khoản bồi
thường nào (lựa chọn mình có được lấy hay không)
Quantum meruit (deserved amount): A person who voluntarily accepts a benefit under
contract (such as a load timber for a house construction that is not in accordance with the
contract specifications) must pay on (khoản
tiền người khác xứng đáng được nhận)
CHAPTER 12: REMEDIES
-
TERMINATION
DAMAGES
(Damage: tổn hại, damages: tiền bồi thường thiệt hại)
- Specific performance
- INJUNCTION: ngăn chặn các hành vi sai trái (not illegal)
VD: không đi học thì là sai trái với đạo đức, nhưng không trái pháp luật
(vấn đề personal service không được giải quyết)
- RESTITUTION: người quản lý
- Ở VN, được quyền thỏa thuận phạt(penality) nhưng không được thỏa thuận bồi
thường (compensation)
- Ở Úc, có thể bồi thường vượt quá số mức quy định trong hợp đồng
CHAPTER 16: CONSUMER PROTECTION
Nature of partnership:
3 elements:
- Carry on a business
- In common
- With a view of profit
VD: Carry on a business: Hái xoài trên chùa đem đi bán. Tiền bán xoài không vì mục
đích kiếm tiền (không phải partnership)
(page 395)
Carry on a business: A và B rủ nhau hợp tác mở doanh nghiệp chung (rủ lập doanh
nghiệp chung đã là partner; mượn tiền mới không là partner); lập 1 tài khoản ngân hàng
chung với nhau
In common:
With a view of profit: A vẫn được tiền bồi thường
Trách Nhiệm Cá Nhân và trach nhiem rieng biet
QUIZ 1
1. Repor ng obliga ons: What is a binding precedent?
A. A decision of another court that is of persuasive authority
B. With respect to Australia, it is a decision of the UK Supreme Court
C. A decision of a court that binds judges in a lower court in the same court hierarchy
D. A decision of a di erent court on the same subject ma er
2. Which are some of the main features of the Electronic Transac ons Act 1999 (Cth):
A. Validity of electronic transac ons
B. Recogni on of wri ng by electronic
means
C. Recogni on of retaining informa on in electronic form
D. All of the above
3. Peter verbally o ers Tara his car for $5000. Tara refuses saying it’s not worth that, but : she
will pay $4000. What is the status of Peter’s rst o er?
A. It can s ll be accepted by Tara
B. Peter should have made it in wri ng so Tara had proof he made it
C. Peter needs to make it again
D. It has lapsed because of Tara’s counteroffer
4. What was one of the “prac cal bene ts” received by Ro ey in Williams v Ro ey Bros &:
Nicholls (Contractors) Ltd [1990] 1 All ER 512?
A. Williams did not sue Ro ey for breach of contract
B. Ro ey had no reason to doubt Williams would not complete his side of the bargain
C. Ro ey received addi onal payment from Williams
D. Ro ey did not need to nd another subcontractor
5. Changing the Cons tu on: Sec on 128 of the Commonwealth Cons tu on provides
that the Cons tu on can be: changed by referendum that requires a “yes” vote:
A. In at least 2 States
B. In at least 3 States
C. In the ACT and NT (the Territories)
D. By the majority of voters and in a majority of States
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6. Substan ve and procedural law: Substan ve law:
A. Refers to actual rights under the law
B. Is subsidiary to procedural law
C. Refers to the formal steps to enforcement of rights and du es under the law
D. Includes the rules of evidence
7. In which of the following situa ons is the o er most likely not to have lapsed?
A. Where Wrench had an op on to purchase land but, unknown to Wrench, the seller died:
prior to Wrench’s acceptance
B. Where Carter, a prospec ve purchaser of land, makes a counter-o er that is rejected and:
then states that he will accept the earlier o er
C. Where no me was stated for acceptance by Jane, but Ben does not accept within a :
reasonable me
D. Where Jim has become overtaken by insanity prior to accepting
8. Recep on of English law in Australia: Which La n phrase explained the ra onale for
applying English laws to the new Colony of : New South Wales?
A. actus reus
B. terra nullius
C. ra o decidendi
D. prima facie
A. Andy promises Ellie $100 on her 21st birthday. If this promise was contained in a simple :
contract, the legal posi on is that such a promise is:
B. Never binding as it must have considera on supplied by Ellie Binding only if Ellie and Andy
had contractual capacity
C. Some mes binding but only a er Ellie turned 21
D. Always binding because promises should not be broken
9. In Elizabeth City Center Pty Ltd v Corralyn Pty Ltd (1995) 63 SASR 235, the op on to :
exercise renewal of the lease:
A. Was e ec ve because of the opera on of the postal rule
B. E ec ve communica on of the renewal requirement had not been made
C. Negated the postal rule because the no ca on was not sent by cer ed mail as : required
D. b and c
10. Interpreta on – extrinsic materials: In interpreta on, extrinsic materials:
A. Are required to be referred to by a court
B. Are only to be referred to where the meaning of the provision is ambiguous
C. Are allowed to be referred to by a court
D. Are to be referred to regardless of the length of delay this will cause proceedings
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11. With respect to revoca on, which of the following statements is not correct?
12. Which of the following circumstances are likely to a ect the consent of one or both :
par es to a contract:
A. Mistake
B. Duress and undue in uence
C. Lack of wri ng
D. a & b
13. Simon and Stella, both of full legal capacity, agree to go on a date. Stella is to pay for the :
dinner, but she is running late and does not meet Simon at all. Simon is embarrassed
and : angry and calls Stella the next day to threaten to sue her for his taxi fares and dinner
: expenses. Will Simon succeed in his claims?
A. Yes, because there is agreement
B. Yes, because there was considera on in that Simon incurred taxi and dinner expenses
C. No, because Simon and Stella did not intend the agreement to create legally enforceable :
obliga ons
D. No, because there was no genuine consent of either party
14. Royal Assent: Who or what gives Royal Assent to an Act of the Commonwealth Parliament?
A. The Queen
B. The Governor-General on the Queen’s behalf
C. The Prime Minister
D. Cabinet
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15. In Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 why did the :
High Court disagree with the decision of the Victorian Court of Appeal in nding there was
: no case for promissory estoppel:
A. Even though the elements of estoppel had been proven no remedy was provided as the
: ini al claim was brought too late and equity does not assist claims lodged with unreasonable :
delay
B. The plain could not establish that the statement that it would be “looked a er at : renewal
me” was capable of conveying to a reasonable person that it was a genuine o er : of a
further lease
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A. Revoca on need not be in words
B. The o eror must personally communicate the revoca on to the offeree
C. The o eree may accept the o er un l such me as they become aware of the
revocation
D. Where an o er has been made to the world at large, revoca on does not need to be
seen : by everyone in order to be e ec ve
C. There was a need for certainty as to what the par es had agreed on at the end of the :
nego a ons to found a claim for estoppel
D. B&C
16. Which of the following is not a way in which an o er can be terminated?
A. Revoca on a er acceptance has been mailed where the postal rule applies
B. Lapse
C. Lapse where no time was stipulated
D. Revocation before acceptance
17. Farah agreed to take care of an elderly woman Marge and in return was provided with a :
house to live in that was promised by Marge to be Farah’s a er she died. Farah cared for
the : woman for 23 years, but upon Marge’s death Farah discovered that their oral
agreement : was never put into wri ng. The woman’s son moved into the house and
Farah made a claim : to the house. The court:
A. Is likely to reject Farah’s claim to the house as she provided no considera on of any legal:
value
B. Is likely to reject Farah’s claim to the house as the contract was not set down in wri ng as :
required
C. Is likely to order speci c performance of the oral agreement because simple contracts do :
not need to be in wri ng
D. Is likely to apply the doctrine of part performance
18. Which of the following is most likely to be considered an offer?
A. A catalogue of books with discounted prices shown
B. A radio adver sement for drinks at “the coolest li le pub in Victoria”
C. “I’ll pay you $3,000 if you complete a total rewrite of chapters 12 and 15 of this :
textbook.”
D. “Would you allow me to pay o the $2,000 over six weeks?”
19. Australian Cons tu on : Which Act established the federal legal and poli cal system and
converted the separate : colonies into states?
A. Commonwealth of Australia Cons tu on Act 1900
B. The Australia Act 1986
C. Statute of Westminster Adop on Act 1942 (Cth)
D. statute of Westminster 1931 (IMP)
20. Contracts voidable by a minor do not include:
A. Those not binding unless ra ed by the minor during their
minority
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B. Those binding unless repudiated by the minor during their minority
C. Those binding unless repudiated by the minor within a reasonable me a er a aining : their
majority
D. Those not binding unless ra
ed by the minor within a reasonable me of a aining : majority
21. Where an agreement has been made during the course of trade or commerce between
businesses, the situa on will commonly indicate that the par es:
A. intended to create moral binding rela ons based on trust
B. intended to create binding legal rela ons
C. intended that there was no contract unless clearly speci ed in the agreement
D. intended to avoid court proceedings by inser ng exclusion clauses in the agreement
22. Which of the following is not a class of persons regarded by the law as wholly or partly:
incapable of entering into legally binding contracts?
A. Intoxicated persons
B. Minors
C. Women
D. Mentally incapacitated persons
23. Separation of powers: Which of the following is not one of the three branches of the
Commonwealth government: in Australia:
A. The Governor
B. The executive
C. The judiciary
D. The legislature
24. Criminal o ences: Which of the following is incorrect with respect to criminal offences?
A.
B.
C.
D.
Indictable o ences are generally the more serious offences.
The prosecu on must prove its case beyond reasonable doubt.
Summary o ences are determined by a magistrate without a jury.
A commi al hearing is held before most summary o ence matters.
25. Federal system: Which of the following statements is correct?
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A. Australia is a federal system, with one Cons tu on and a number of nonlaw-making: States and Territories.
B. Australia is a unitary system, where the States and Territories are constrained in their :
law-making powers by the Commonwealth.
C. Australia is a federal system, with two legal systems for each citizen.
D. Australia is a federal system with three branches of government: the judiciary, the :
execu ve and the Crown.
26. Na ve Title: Na ve Title was rst recognised in which of the following cases?
A.
B.
C.
D.
Mabo v State of Queensland (No 2) (1992) 175 CLR 1
Wik Peoples v State of Queensland (1996) 187 CLR 1
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Commonwealth v Jones (1901) 174 CLR 25
27. Separation of powers: Which of the following statements about separation of powers in
Australia is correct?
A.
B.
C.
D.
The judiciary is the body that makes statute law.
The legislature is the branch that declares what the law is and interprets the law.
The execu ve is the body that administers the law.
The legislature is the body that resolves disputes concerning the applica on of law and :
polices the law.
28. The postal acceptance rule:
A. Can be negated where the mailed o er was misdirected and the misdirec on was the :
fault of the o eror
B. Can be impliedly excluded by o eror specifying actual receipt of acceptance
C. Can create a situa on where a revoca on is validly made days a er the o er has actually
: been accepted
D. May apply to electronic communica ons, such as email, if the o eree chooses
29. Jack was subpoenaed to give evidence on Rods behalf. Jack claimed Rod promised him :
$2000 to give evidence. Would Jack recover that money?
A.
B.
C.
D.
No - Jack’s public duty is to give evidence in response to that subpoena.
No this is illegal
Yes, if Rod put that in writing
Always binding because promises should not be broken
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30. Law Reports: Where are decisions of the High Court of Australia found?: only online
A. In the High Court reports
B. In the Commonwealth Law Reports
C. In the Common Law Reports
31. The Age of Majority Act 1977 (Vic) reduced the age for contractual capacity of a minor
A.
B.
C.
D.
16
18
21
25
32. Delegated legisla on: An example of delegated legisla on is the:
A.
B.
C.
D.
Partnership Act 1958 (Vic)
Local Government Act 1993 (Qld), s 25
Corpora ons Bill 1988 (Cth)
Corpora ons Regula ons 2001 (Cth)
33. The Execu ve Power : The Execu ve power is administered by:
A.
B.
C.
D.
The Senate and the House of Representatives
The Queen, the Prime Minister and the Cabinet
The Governor, the Senate and the House of Representatives
The Judiciary, the Senate and the House of Representatives
34. Delegated legisla on: Which of the following is not correct?: Delegated legislation:
A. Is subordinate legislation
B. Is made under the authority of an Act of Parliament
C. O en contains more detailed rules than those of the associated Act
D. Can only be made by Government Ministers
35. Common law: Which one of the following statements about common law is correct?
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A.
B.
C.
D.
Common law overrides statute law
Common law is made by Parliaments
Common law and equity are the same types of laws and provide the same
remedies
36. In Ashton v Pra [2015] NSWCA 12 what was the main reason for the court deciding that :
there was no inten on to create a legally binding contract?
A. The agreement was not reduced to writing
B. The verbal language of the agreement greatly lacked detail from either party and
did not : indicate de nite obliga ons
C. Pra lacked the necessary contractual capacity due to his age and ill health
D. The plain had been a worker in the escort business and not morally en tled to any:
monies under the verbal agreement
37. Public and private law: Which of the following is not classi ed as private law?
A.
B.
C.
D.
The law of contract
Criminal law
The law of property
Corpora ons law
38. Criminal proceedings: An indictable o ense is:
A.
B.
C.
D.
A more serious civil wrong
A less serious civil wrong
A more serious criminal offence
A less serious criminal offence
39. A quali ed acceptance may also be known as a/an:
A.
B.
C.
D.
Counteroffer
Invita on to treat
Condi on subsequent
Condi onal agreement
40. Local or Magistrates Courts:
A. Are the lowest courts in the state hierarchy
B. Are the lowest courts in the federal hierarchy
C. Are an intermediate court
D. Are above Country Courts in the hierarchy
41. The legislature: Exclusive powers are those that:
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A. Can be exercised by either the Commonwealth or the States
B. Can be exercised only by the Commonwealth
C. Can be exercised only by the States
D. Where there is any inconsistency, the Commonwealth law will prevail
42. Which of the following statements about contracts is true?
A. A contract must be in wri ng to be enforceable
B. It is a common law requirement that certain contracts are in writing
C. A simple contract is another term for an oral contract
D. It is a statutory requirement throughout Australia that some contracts must be in
wri ng: and others must be evidenced in wri ng
43. Sources of law: Sources of law in Australia do not include:
A. Consolida ng statutes
B. Judge-made law
C. Repealed statutes
D. Equity
44. Which of the following statements about acceptance is false?
A. Acceptance can be by telephone or email or conduct
B. Acceptance can be in any manner chosen by the offeree
C. Acceptance must be unconditional
D. Acceptance can only be made by the person/s to whom the o er was made
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45. The main legal issue in Felthouse v Bindley (1862) 11CB (NS) 869 was:
A. the contract was formed due to o er and acceptance being proven
B. An o er to sell a horse was simply an invita on to treat
C. generally silence /lack of ac on does not cons tute acceptance of an offer
D. An o er can be revoked at any me prior to acceptance
46. Ratio decidendi*: The ratio decidendi of a case:
A. Is the full judgment of all judges
B. Is a statement of principle that is important, yet not crucial to the decision
C. Is the reason given for deciding the case
D. Is contained within the last published judgment
47. Hierarchy of courts: Which of the following is higher than the Federal Court of
Australia in the federal court : system?
A. Supreme Court
B. Magistrates Court
C. High Court
D. Federal Magistrates Court
48. Which of the following statements about consideration is correct?
A. A gratuitous promise is enforceable if contained in a simple contract
B. Good consideration may consist of performing an existing legal obligation
C. Good consideration can be present, future and even “past”
D. Consideration need not be adequate
49. Civil and criminal law: Which of the following is not correct with respect to civil law?
A. The typical purpose of a civil action is to obtain damages
B. Under civil law, one person may sue another who has committed a wrongful act.
C. Interrogatories and discovery are procedures that are available in civil proceedings.
D. The document led by the defendant is called a writ.
50. If one party has threatened another party to enter into a contract, the element that is :
missing is:
A. Acceptance
B. Intention to create legal relations
C. Real/genuine consent
D. Legality
51. Court hierarchy: The highest court in Australia is:
A.
B.
C.
D.
The Privy Council
The Federal Court of Australia
The High Court of Australia
The Supreme Court of Australia
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51. With respect to the contractual capacity of corporations, s 124 of the Corporations
Act : 2001 (Cth) gives them:
A. Only the capacity to make contracts approved by shareholders in general meeting
B. The capacity to make contracts but only in the state or territory where the corporation :
conducts its business
C. All the legal capacity of a natural person (together with some additional powers that can
: only be exercised by a corporation)
D. Different capacity to contract depending on whether the corporation is public or : proprietary
52.The High Court’s decision in Waltons Stores (Interstate) Ltd v Maher (1988) 164
CLR 387:
A. Extended the doctrine of promissory estoppel such that it applies even where
the: promisor does not create or encourage the false assump on of the
promisee
B. Extended the doctrine of equitable estoppels such that it applies even where
there is no : pre-exis ng contractual rela onship between the par es
C. Restricted the doctrine of equitable estoppel such that, where the contract is of a :
commercial nature, the doctrine will not apply
D. Restricted the doctrine of promissory estoppel such that where an innocent third party :
has been a ected, no remedy can be ordered
53.Which of the following statements about bilateral and unilateral contracts is not correct?
A. More than one party is required for both bilateral and unilateral contracts
B. A unilateral contract does not require considera on but simply a promise to
perform an : act is su cient
C. Both par es are obligated to perform their promises in a bilateral contract
D. Only one of the parties is obligated to perform an action in a unilateral contract
54. Why are illusory terms in a contract problematic?
A. they are vague or ambiguous so they fail to create a legal obligation
B. They exist in one party’s imaginary belief only
C. Courts have di culty interpre ng them
D. Interpre ng them in any way at all could result in an unfair decision
55. Business law: Which of the following no longer regulates business or commercial law?
A. Trade Prac ces Act 1974 (Cth)
B. Compe on and Consumer act 2010 (cth)
C. Corporations Act 2001 (cth)
D. The law of contract
56. Sources of law – statute: Which of the following is incorrect?: Statutes may:
A. Codify the law
B. Bring new laws into existence
C. Repeal laws
D. Not overrule exis ng common law
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57. The rule of law: Which of the following concepts is closely related to the rule of
law?
A. Representative government
B. Responsible government
C. Due process
D. Separation of powers
58. Interpretation: Which of the following is not correct?: With respect to
interpretation, the main approach used by courts is:
A. The literal approach
B. The purposive approach
C. The requirement that the natural and ordinary meaning to be given to words
D. The courts are free to exercise judicial discretion
59. In which of the following types of agreements is there a presumption that
parties intend : to be legally bound?
A. Partnership between husband and wife
B. Living arrangement between mother and daughter
C. Agreement between father and daughter
D. Dinner arrangement between friends
60. Doctrine of precedent: With respect to a case being decided under the appellate
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jurisdiction of the County Court of : Victoria, a decision of the appellate division of the
District Court of New South Wales on the : same Commonwealth legislation is:
A. Strictly binding
B. Persuasive
C. Available for consideration if required
D. Not of any consequence
In Elizabeth City Centre Pty Ltd v Corralyn Pty Ltd (1995) 63 SASR 235, the option to :
exercise renewal of the lease:
A. Was effective because of the operation of the postal rule
B. Effective communication of the renewal requirement had not been made
C. Negated the postal rule because the noti cation was not sent by certi ed mail as :
required
D. B&C
Sally puts up a sign stating that she has lost her dogs and will pay a reward of $100 for
: their return to her within three days. Which of the following statements is correct?
A. Jim will not get the reward because he returned the dog but did not verbally :
communicate acceptance of the offer to Sally
B. Nadia will get the reward as she returned the dog to the RSPCA
C. Chang will not get the reward because he returned the dog knowing it was Sally’s,
but : was unaware of her offer of a reward
D. Isabel will get the reward because she was only one day late in returning the dogs (and
to : not give her the reward would be unreasonable)
Which of the following is not one of Brennan J’s six criteria for estoppel from Waltons:
Stores (Interstate) Ltd v Maher (1988) 164 CLR 387?
A. The promisor induced an assumption
B. The promisee acted in reliance on that assumption
C. The promisor knew or was reckless as to whether the promisee intended to act in
that
D. The promisee will suffer a material loss if the assumption is not ful lled
Constitution: Which of the following statements about constitutions in Australia is
NOT correct?
A. The Commonwealth Constitution sets out the relationship of the Commonwealth :
government with the States
B. A written constitution is a feature of a federal legal system such as Australia.
67.
68.
69.
70.
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66.
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65.
C. The Commonwealth Constitution sets out the powers of the Commonwealth government.
D. Australia has one constitution only (States have no constitutions).
Section 51 powers: Which of the following is not an area that the Commonwealth
Parliament has power to : legislate on under s 51 of the Commonwealth Constitution?
A. Education
B. Bankruptcy and insolvency
C. Foreign corporations
D. Banking and insurance
A contract dividing the proceeds of a cocaine importing venture that has no technical :
defects and that is not overly harsh/unfair to either party is:
A. Valid
B. Void
C. Voidable
D. Unenforceable
Sources of law: The two main types of law in Australia are
A. Common law and judge-made law
B. Statute law and judge-made law
C. Statute law and Acts of Parliament
D. Common law and equity
Constitution: Section 51 Commonwealth Constitution grants what type of law making
power to the : Commonwealth Parliament?
A. Concurrent powers
B. exclusive powers
C. residual
D. inherent
Simone advertises a car for $4,000. John responds to the advertisement and asks :
whether Simone will take $3,000. Simone says ‘no’, but that she will hold the offer
open for : a week. The next day she sells it to Samantha. : Which of the following
statements is correct?
A. Simone has to hold the offer open as she made a promise
B. Simone does not have to hold the offer open as no consideration was given
C. John’s question is an invitation to treat
D. Simone does not have to hold the offer open as John made a counter-offer
Which of the following statements about the contractual obligations of government policy
proposals is incorrect?
A. The courts tend not to assign contractual obligations to government policy promises
B. Where the government enters into an ordinary commercial agreement to buy services, :
the law of contract regulates this agreement
C. Where the government makes a policy promise and a citizen relies on it the court
will : always regard that policy commitment as a binding contractual obligation
D. In Australian Woollen Mills Pty Ltd v Commonwealth of Australia (1954) 92 CLR 424, the :
government’s wool subsidy was found to be an administrative scheme and not contractual
: obligations
Section 15AA of the Acts Interpretation Act: Section 15AA of the Acts Interpretation
Act 1901 (Cth)
A. Is an in exible section
B. Provides that express mention of one matter suggests that other matters are excluded
C. Provides that where there is a con ict between a speci c and a general provision, the :
speci c provision should be applied
D. Provides that the purpose of the statute or its object should be the preferred
method of : determining the statute’s meaning
QUIZ 2
1. Which of the following is not true? A signature on a contract containing an
exemp on: clause:
Will not guarantee the e ec veness of the clause where the doctrine of non est factum :
applies
Incorporates the exemp on clause into the contract
Guarantees that an exemp on clause will be e ec ve
Will be e ec ve even if one party did not read the contract
A.
B.
C.
D.
2. Which of the following is correct?
A. There cannot be any legal remedy where a contract is unenforceable
B. There can be no remedy where a contract is not terminated
C. There can be no remedy where a contract remains on foot after a breach
D. Damages must not be too remote from a breach
3. Which of the following is not correct? Restitution:
A.
B.
C.
D.
May be awarded where there is less than substantial performance
Is said to be based on unjust enrichment
Is subject to a number of defences, such as estoppel
Was not awarded in the case of Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
as : the contract was not in writing as required by statute and therefore not enforceable
5. Fraser crashes his car with his friend Angus as a passenger. Angus is injured. Angus was :
not wearing a seatbelt. Which of the following is not correct?
A. Liability would likely be appor oned between Fraser and Angus
B. Damages cannot be appor oned for breach of contractual duty of care where
there is : contributory negligence
C. Damages awarded to Angus, if any, would be reduced by his contributory
negligence
D. Angus’ contributory negligence relates only to his own safety, not to that of others
6. Which of the following would not cons tute the unfair prac ce of harassment or :
coercion under the Australian Consumer Law? Where there is a debt in connec on
with the : possible of goods and the creditor:
A. Consciously calculates to in midate the debtor with the content of her demands
B. Tells the debtor, among repeated demands for payment give the debtor a discount for :
early payment
C. Makes demands constantly in order to exhaust the debtor
D. Chooses par cularly threatening demands in order to demoralise the debtor
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7. When considering whether a contract is a standard form contract, the court does not :
have to consider:
A. The bargaining power of the par es as unequal bargaining power does not cons tute a :
special disadvantage
B. Whether both par es had the opportunity to nego ate the terms of the contract
C. Whether one party’s vicarious liability for its agents is limited
D. Whether the terms of the contract take into account the speci cs of the par cular :
transaction
8. Which of the following is not an example of an unfair contract term?
A. Stan is not allowed to terminate the contract, but Flo is
B. The speci cs of Rose’s situation were not taken into consideration by Melton
Apartment : Construction Ltd
C. Interpretation of the contract is only on the terms of Big Guns Insurance Co
D. The burden of proof for all matters rests on Ms Smith
9. Which of the following is not true? Economic duress:
A. Is a threat to the innocent party’s economic interests
B. Permits the threatened party to avoid the contract
C. Needs to be distinguished from a legitimate level of commercial pressure – an example : of an
actionable level of pressure is a threat to break a contract without any legal : justi cation in
order to extract money from an innocent party
D. Was found in North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] 1
QB : 705 and the threatened party was able to recover the payments made under
duress
10.In Barton v Armstrong [1976] AC 104, the court held that:
A. The defendant’s threats against the plaintiff’s life were insuf cient to constitute duress : as the
plaintiff had nancial reasons for entering into the contract
B. The defendant’s threats against members of the plaintiff’s family were insuf cient to :
constitute duress as they were not “immediate” family
C. The threats to the plaintiff’s life contributed to the plaintiff’s decision to sign the :
contract and therefore constituted duress
D. The threats to the plaintiff’s life were not suf ciently plausible to create a real : apprehension
in the plaintiff constituting duress
11. Which of the following statements is correct with respect to mistake?
A.
B.
C.
D.
Mistakes of fact include bilateral mistake, common mistake and mutual mistake
Any mistake by either party will always void a contract
Recti cation is a remedy for certain types of mistakes in written contracts
If a party mistakenly signs a document unaware of the nature of what they are signing : they
will be bound
12.Why are late payment charges on credit cards not penalties?
A. Banks penalties on cards are legitimate to cover their costs
B. They are considered penalties but in Paciocco v ANZ Banking Group Ltd the court held : they
were not
C. The Reserve Bank states they are not
D. They are considered just a consequence of the use of credit
13.Where a loan contract allows for termination by the loan provider in the event of
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default : by the borrower, this is:
A. An implied power to terminate
B. An express power to terminate
C. A condition precedent
D. A release
14.Which of the following is not a way that a person seeking to rely on an exemption
clause : can show that the clause has become part of the contract?
A. By showing it is in writing and the other party has signed the contract
B. By showing it is in writing in a document a reasonable person would expect to contain :
contractual terms and was brought to the other party’s notice
C. By showing that the parties had previously contracted on terms that included the : exemption
clause and that they intended to contract on the same basis
D. By showing it was brought to the notice of the other party at the time of, or subsequent
: to, entering into the contract
15. Non est factum means:
A. It is not [my] deed
B. It is not true
C. Mistake of fact
D. It is unknown
16. Tom agrees to x Richie’s car for $1,000. Richie pays a deposit of $200 and Tom :
guarantees the job will be completed within two weeks. Before Tom commences the
repairs, : the car is stolen from Richie’s locked garage and destroyed by re. Richie
demands the : return of his $200 deposit and Tom refuses to give it to him. Which of
the following is not : correct?
A. The contract is automa cally terminated
B. Tom is no longer obligated to x Richie’s car
C. Under the Australian Consumer Law and Fair Trading Act 2012 (Vic), Tom is en tled
to:retain the $200 deposit
D. Under the Australian Consumer Law and Fair Trading Act 2012 (Vic), Tom is en tled to :
retain the por on of the $200 deposit he spent on parts and other relevant expenses, if
any
17. Which of the following is not correct? An ac on in restitution:
A. Is o en brought where one party has been unjustly enriched at the expense of the other
B. Cannot be brought where there is no contract between the parties
C. Can be brought where the contract between the par es is unenforceable
D. Can be brought where there has been only part performance
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18. Chris and Tama buy a noodle bar from Udon4U Pty Ltd. In the course of
nego a ons, : Udon4U Pty Ltd’s agent, Nadia, misrepresents the turnover of the
noodle bar, sta ng an : amount that is double the actually turnover. Nadia herself
received this informa on on : turnover from Geo , a director of Udon4U Pty Ltd.: In
making the misrepresenta on, what sec ons has Nadia likely contravened?
A. As she merely passed on the informa on with no inten on to procure a
contraven on : she probably will not be personally liable
B. Sec on 2(1)
C. Sec on 18
D. Sec on 52
19. Which of the following is not one of the three elements of an unfair term under s
24(1) : of the Australian Consumer Law? Where:
A. It would cause a signi cant imbalance in the par es’ rights and
obliga ons
B. The term is not transparent
C. It is not reasonably necessary to protect the interests of the disadvantaged party
D. It would cause detriment to a party if it were applied
20. Which unfair prac ce involves par cipa on in a trading scheme where persons at
the : top receive most of the bene ts?
A. referral selling
B. pyramid selling
C. unconscionable conduct
D. misleading and decep ve conduct
21. Janey takes her fur stole to the dry cleaner. When she returns to collect it, there is a :
black mark in the shape of an iron in the middle of her stole and it is ruined. The dry
cleaner : tells Janey that he is not liable for the damage to her fur stole as there was
an exemp on : clause in their agreement. Which of the following is not correct?
A. If the exemp on clause was merely contained within a no ce on the wall, the dry :
cleaner will be liable for the damage
B. If the exemp on clause was on the dry cleaning docket Janey was given and she was
told : “don’t worry about this, it’s just the docket you have to give us when you come
to collect : your stole”, the dry cleaner will not be able to rely on the exemp on clause
C. In order for the exemp on clause to be e ec ve where it was not in a signed
document: it had to have been brought to Janey’s attention
D. If the exemp on clause was on the dry cleaning docket Janey was given rather than a :
formal wri en contract, the onus will be on the dry cleaner to prove that Janey was
aware it : contained condi ons that would modify the agreement
22. Which of the following statements is correct?
A. An exemp on clause is a term that completely excludes one party’s liability
B. An exemp on clause is a term that excludes or limits the liability of one or more par es
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C. An exemp on clause limits liability to a certain monetary amount
D. An exclusion clause limits one party’s liability whereas an exemp on clause limits all:
par es’ liability
B. Loss that is di cult to es mate
C. Nominal loss
D. Expenses incurred in reliance on the other party’s promise to perform
24. A party repudiates a contract when
A. They decide to terminate it
B. They are no longer able or are unwilling to perform their
obliga ons
C. The other party decides to terminate it
D. They take too long to perform an obliga on that has a me limit under the contract,
such : as payment of rent
25. Chung is looking to purchase a carwash business from Terry. Terry tells Chung that
she : serves 100-150 cars per day and that she has just concluded an agreement to
service the : eet of cars of a local business. In reality, Terry has only served
around 15 cars per day since : her customer service received a bad review in the
local newspaper and a compe ng carwash : business opened one street away.
Terry intends for Chung to buy her business based on : what she has stated. This is
an example of:
A. unilateral mistake
B. negligent misrepresenta on
C. fraudulent misrepresenta on
D. mutual mistake
26. Undue in uence di ers from duress in that:
A. With undue in uence, the contract is not voidable but void
B. With undue in uence, no unlawful act is required
C. Duress arises only within a closed list of special duciary rela onships
D. With undue in uence, actual physical violence is required
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27. Which of the following cons tutes referral selling?
A. Jaz is approached by her neighbor to join the sales team of Thames Beauty Products. :
Thames sells its products door-to-door through agents and is a close-knit family type of
: company. Agents that introduce other agents to “the family” are rewarded with a
nders’: fee. It is only $500 to join the Thames family, and Jaz only has to spend $400 of
products in: her rst month
B. Jaz starts work at a chemist and no ces that the chemist, as retailers o en do, puts a :
sale price on a s cker on most of the products in the shop. However, the chemist does
not: put the sale price s cker on top of the original price s cker and when customers
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23. Which of the following is not usually recoverable by way of damages?
A. Compensa on for mere inconvenience or disappointment
bring the : products to the counter, the chemist tells them that unfortunately there has
been a mistake, : the true price is the higher price
C. Jaz approaches a salesperson on the forecourt to buy the car package she saw :
adver sed on television and is told that there were only two cars for sale as a part of
that : deal and there are now none le . The salesperson tells Jaz that she would look
much be er : in the conver ble model and although there is no deal on that car, it is only
$50,000 more
D. Jaz purchases a pain ng through a new art gallery that has just opened in town. The :
price is high and Jaz is at rst uncertain about the expense, but the art dealer promises
Jaz a : commission on sales to any of Jaz’s friends who she sends along to the gallery. Jaz
has a lot : of art collector friends so is sure that she will receive some commission from
the gallery in : the near future.
28. In Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107:
A. Blue Circle was a sub-contractor whose worker was injured, and privity precluded the :
worker from ge ng an indemnity under the contract
B. It was held that the subcontractor could get an indemnity even though the:
subcontractor had given no considera on under the contract
C. In Deane J’s view Trident, the insurance company, had an obliga on to the
subcontractor because otherwise Trident would be unjustly enriched
D. The majority were of the view that the “se led and fundamental” doctrine of privity of :
contract should not be overturned by the court
29. Jacq and Jack robbed the Commercial Bank. Jacq thinks that Jack was too aggressive :
with the tellers and the robbery could have gone very wrong. Jacq is now refusing to
give : Jack his share of the takings. Which of the following is correct?
A. Jack provided considera on in the form of performing the robbery and is en tled to his :
share
B. Under the principle of freedom of contract, Jacq and Jack are en tled to agree to :
whatever they wish and the contract will be enforceable
C. The contract involved the commission of a crime and is therefore illegal and :
unenforceable
D. The contract will be unenforceable if the courts deem it to be against public policy
30. If one party has completed its obliga ons under the contract, and the other has not:
A. The contract can be terminated by mutual agreement
B. The contract cannot be terminated by simple agreement without consideration
C. The contract can be terminated if it is put down in wri ng; no further considera on is :
require
D. The contract can be terminated where one party promises to abandon their rights under
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: the contract and the other party promises to do the same
31. Ella contracted Anasaki to build a balcony for her house to certain speci ca ons.
When : Anasaki had nished, Ella was shocked to see that the balcony was much
bigger than she : had speci ed. Ella refused to pay Anasaki. Which of the following is
incorrect?
A. Ella has received some benefit
B. The bene t Ella received was at Anasaki’s expense
C. It would be unjust for Ella to have to pay any money for a balcony that was not built to :
her speci ca ons under the contract
D. Ella will probably not have to pay the contract price but must pay a reasonable amount
32. Which of the following is an element required for the doctrine of frustra on to
operate?
A. Material loss to one party
B. No fault on the part of either party
C. Material loss to both par es
D. Hardship or inconvenience
33. Which of the following is not correct with respect to the prohibi on of
unconscionable : conduct within the meaning of the unwri en law?
Unwri en law includes equity
There is no unconscionable conduct where both par es have made the same mistake in:
good faith
There must be a special disadvantage and an exploita on of that disadvantage
Unequal bargaining power of itself is enough to cons tute a special disadvantage
A.
B.
C.
D.
A.
B.
C.
D.
34. In Jarvis v Swans Tours Ltd [1973] QB 233, where Jarvis was disappointed by, among :
other things, the li le dry nut cakes on his holiday:
Damages were not awarded
Damages were awarded for anxiety and depression
Pleasure and enjoyment were not promises of the tour company with respect to the :
holiday in Switzerland
Damages were awarded partly for disappointment
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35. What does the concept “quantum meruit” mean?
A. The contract is terminated because of a breach by both parties
B. The innocent party would be unjustly enriched if they were able to retain the bene t :
without compensa ng the party in breach for the “amount he deserves”
C. Voluntarily accep ng a contractual bene t
D. Not my deed
36. Cathy and Mel entered into a contract where Cathy was to steam clean seven rooms
in : Mel’s house at $200 per room. A er cleaning three rooms, Cathy abandoned the
job for a : more valuable contract. Which of the following is true?
A. As there has been substan al performance, Cathy will be able to enforce all the rights :
conferred by the contract
B. If the exact performance rule is applied, Cathy is en tled to payment for the work she
has : done
C. If the contract is divisible, Cathy is en tled to payment for the work she has done
D. Courts are inclined to treat contracts as indivisible and to require exact performance
37. Chang wants the court to imply an engineering custom into a term of a contract to
which : he is a party. The other party has no knowledge of this custom. It is not
contrary to any of : the express terms of the contract. The court:
A. Will not imply the term in these circumstances
B. May imply the term
C. Will imply the term even if the custom is not very well known
D. Will not imply the term unless it is implied by statute
38. Jong complains that the barbecue he bought is not t for purpose because the metal :
sides melted the rst me he cooked with it. The manufacturer maintains that Jong
should : not have used the barbecue for slow cooking and that it never represented
that the : barbecue would be t for the purpose of slow cooking. What are the
circumstances in which : the guarantee as to tness for purpose would apply?
A. Where Jong made known to the supplier that he was going to use the barbecue for slow
cooking meals
B. Where Jong bought the barbecue at auction
C. The guarantee always applies as it is not possible for a manufacturer or supplier to :
contract out of it
D. Where the un tness for slow cooking of the barbecue was not drawn to Jong’s attention :
prior to his purchase by either the manufacturer or the supplier
39. It is important to dis nguish between representa ons and terms because:
A. Damages cannot be awarded for misrepresentation
B. Damages can only be awarded for fraudulent or negligent misrepresentation
C. There is no remedy for misrepresentation
D. The remedy of rescission is not available for misrepresentation
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40. Which of the following is not an enforcement measure under the Australian Consumer
: Law?
A. An order of the court requiring a supplier to publish an advertisement
B. A disclosure order issued by the ACCC
C. A two-year proba on order of the court
D. A no ce issued by the ACCC requiring a supplier to substan ate a claim about a
product : they are selling
41.Which of the following is not an excep on to privity?
A. Insurance
B. Agency and trust
C. Employment
D. Property law
42. James is going through a di cult me and does not feel he can con de in anyone. :
Eventually he con des in the priest of his church and asks for support. The priest
forcefully : tells James to turn over all of his money to the church or he will be struck
down by : lightening. The priest does not believe that James will be struck down.
James makes the : payments. Which of the following is most likely legal grounds for
James to avoid the : transaction?
A. Mistake
B. Undue influence
C. Duress
D. Misrepresentation
43.In which High Court decision was it said: “[T]here are two relevant circumstances in
which : a breach of contract by one party may en tle the other to terminate. The rst is
where the : obliga on [is] essen al … The second relevant circumstance is where there
has been a : su ciently serious breach of a non-essen al term …we rest our decision in
the appeal not : upon the ground of breach of an essen al obliga on, but upon
applica on of the doctrine : respec ng intermediate terms.”
A.
Gumland Property Holdings Pty Ltd v Du y Bros Fruit Market (Campbelltown) Pty Ltd
: (2008) 234 CLR 237
B. Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
C. Ankar Pty Ltd v Na onal Westminster Finance (Australia) Ltd (1987) 162 CLR 549
D. Shevill v Builders Licensing Board (1982) 149 CLR 620
44. Which of the following are sources of illegality?
A. Statute
B. Statute and common law
C. Statute, common law and equity
D. Statute, common law and par es’ subjec ve views on morality
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45.In which situa on is termina on not available?
A. Where one party has repudiated the contract
B. Where one party has repudiated the contract and the other party has ignored the :
repudia on
C. Where one party s ll has obliga ons to perform under the contract
D. Where both par es s ll have obliga ons to perform under the contract
46. What is the main di erence between the misleading or decep ve conduct provisions in :
the Trade Prac ces Act 1974 (Cth) and in the Australian Consumer Law?
A. The Australian Consumer Law no longer refers to “trade or commerce”
B. The Australian Consumer Law refers to a body corporate
C. The Australian Consumer Law refers to a corporation
D. The Australian Consumer Law refers to a person
47. With respect to consumer guarantees, which of the following is not correct?
A. It is possible to exclude the consumer guarantees in very limited circumstances
B. Remedies for non-compliance with the consumer guarantees depend on
whether there : was a “major failure” or not
C. With respect to tness for purpose, a “disclosed purpose” relates to the supplier only
–: the manufacturer may make representa ons to the consumer, but the consumer
cannot : disclose a purpose to the manufacturer and receive a guarantee in return
D. A manufacturer does not need to provide repair facili es or spare parts a er a certain
: period
48. Which of the following is not a type of contract illegal at common law on the grounds
of : public policy?
A. Contracts to oust the jurisdic on of the courts
B. Contracts to commit a tort
C. Contracts prejudicial to the public safety
D. Champertous contracts
49. The term “transparency” in unfair contracts means:
A. It is expressed in reasonably plain language that is readily available to the
a ected party
B. It is easily interpretable by the court
C. It is easily interpretable by the industry
D. It is capable of only one meaning
50. In Howe v Teefy (1927) 27 SR (NSW) 301 where a leased racehorse was retaken
three : months into a three-year lease:
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A. The court was unable to assess the damages because they were uncertain and there
was : no evidence on which they could be assessed
B. The fact that assessment was di cult did not prevent a court from gran ng
damages : where the plain had been deprived of something of value
51. A wri en contract allows Joseph, the neighbour of Sonny, to take “as many
strawberries : as he likes each strawberry season”. This contract:
A. Is void for uncertainty
B. Is valid but unenforceable because it is too uncertain
C. Is valid as the par es’ inten on is clear
D. Is voidable for uncertainty
E.
52. Which of the following is not an equitable remedy?
A. Injunction
B. Speci c performance
C. Restitution
D. Exemplary damages
53. Consumer guarantees as to tle are contained within:
A.
B.
C.
D.
The “General Protec ons” chapter of the Australian Consumer Law
Sec on 38 of the Trade Prac ces Act 1974 (Cth)
Chapter 2 of the Australian Consumer Law
Sec ons 51-56 and ss 60-61 of the Australian Consumer Law
54. Which of the following is not one of the four ways a statute may render a contract
illegal : set out in Yango Pastoral Co v First Chicago Australia Ltd (1978) 139 CLR 410? The
contract:
A. May require an ac on that statute forbids
B. May be performed in a prohibited manner
C. May have been made to e ect an unlawful purpose
D. May set out an unreasonable restraint
55. Which of the following is not correct with respect to the Australian Consumer Law?
A. It is contained within Schedule 2 to the Compe on and Consumer Act 2010 (Cth)
B. It applies to conduct engaged in outside of Australia
C. Owing to the Commonwealth’s limited lawmaking powers under s 51 of the
:Cons tu on, it applies only to corporations
D. The Australian Consumer Law is applied in each State and Territory
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56. Which of the following is not one of the six elements required for a claim of
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C. Although there was a value a ributable to the plain ’s loss, it was too remote to be :
recoverable
D. The court was unable to assess the damages because the process was di cult and
me : consuming
fraudulent : misrepresenta on to succeed?
A. The representa on must be fall
B. The representa on must have been acted upon by the other party
C. The representa on must be one of fact
D. The representa on must be in wri ng (cannot be verbal only)
57. Ben planned the perfect surprise birthday party for his mother: He hired a hall, he
hired : a violinist and he organised catering. Two weeks prior to the event, the violinist
called to : cancel. Ben was so upset at the loss of what he thought would be the
highlight of the : evening that he called the whole event o . Ben lost both the deposit
on the hall and the : deposit for the catering. Which of the following is correct?
A. Ben can sue the violinist for all losses a er Ben cancelled the hiring of the hall
B. Ben can recover his hire fees and catering fees as it was not his fault
C. The caterers and hall owners can sue the violinist for losses
D. Ben has a duty to mi gate his losses
58. Sandy is selling her horse, Flossy. Miranda is interested in buying Flossy. Sandy tells :
Miranda that Flossy: : • Is the best li le racehorse in Australia: • Has all the registra ons,
licences and permits required to race in the current season but : that Miranda should
probably get this checked herself: These two statements are:
A. Mere pu & term
B. Opinion & term
C. Opinion & representation
D. Mere pu & representation
59. Can a person use an o cial posi on they hold for their nancial advantage?
A. Of course, this is a side benefit
B. Depends on the circumstances
C. The courts are silent on this speci c point
D. No because if a contract is involved, this could lead to the promo ng of corrup on in :
public life
60. Smithy Builders have a contract with Big Bank Pty Ltd which contains the following : clause:
“Where Smithy Builders fails to complete the contract by 7 December, it will pay a : sum of
$300,000 in full and nal sa sfac on of its liability.” Smithy Builders fails to complete : by 7
December. If Smithy Builders wishes to avoid paying the sum of $300,000, what must it :
prove?
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A. That the clause is an unliquidated damages clause
B. That the clause is a penalty clause (to punish the builders)
C. That the clause is a liquidated damages clause
D. That the clause is a genuine pre-es mate of the loss to Big Bank Pty Ltd
61.Who/what are exempt from the provisions of s18 of the Australian Consumer Law?
A. No-one is exempt
B. Corporations
C. Informa on providers such as media outlets
D. Advertisers
62. Which of the following is not a way to discharge a contract?
A.
B.
C.
D.
By performance
By opera on of law
Through breach
By agreement
63. Which of the following statements about the parol evidence rule is true.?
A. It applies only to oral (parol) evidence
B. It does not apply to wri en contracts
C. It does not apply where it can be shown that the wri en contract was not
intended to : be a complete record of the agreement
D. It applies only to previous dra s of a wri en contract
64. In Cur s v Chemical Cleaning & Dyeing Co Ltd [1951] 1 KB 805:
A. The exemp on clause in the sales agreement for the drycleaning was effective
B. The exemp on clause in the sales agreement for the drycleaning was not
su ciently : explained to the customer
C. The exemp on clause in the sales agreement for the drycleaning was signed and :
therefore e ec ve
65.Which of the following is not correct with respect to mi ga on of loss?
A. There is a duty on the person claiming the damages to take all reasonable steps to : mi gate
their losses
B. Where loss could have been mi gated and was not, a person cannot claim that loss
C. The burden of proving that losses were mi gated falls upon the party claiming the :
damages ie the defendant
D. The ques on of whether a person took all reasonable steps to mi gate is one of fact :
dependent upon the par cular circumstances
66.Which of the following is not correct with respect to termina on by subsequent :
agreement?
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A. A subsequent simple contract can cancel a contract where one party has completed
their : obliga ons and the other has not
B. A subsequent agreement may cancel an original contract
C. A subsequent agreement must be valid to rescind an earlier contract
D. A subsequent simple contract can cancel a contract where there is s ll something to be :
done by each party
67.In the case of restraint of trade with respect to employment:
A. The court does not easily allow par es to contract out of their means of
employment
B. Whatever the par es determine will be accepted by the court
C. There are no restraints on employees unless set out in a contract with their
employer
D. These agreements are construed as strictly as restraints of trade between
purchaser and : vendor of a business
68.Krell v Henry [1903] 2 KB 740 illustrated what point?
A.
B.
C.
D.
That death can be regarded as frustration
That the par es were en tled to a discharge
That the par es must perform regardless of circumstance
That the par es are discharged if an event occurs which forms the basis of the
contract, : but which prevents performance at no fault of either party
69.Con ngent condi ons include:
A.
B.
C.
D.
Accord and sa sfac on and consideration
Condi ons subsequent and condi ons precedent
Warran es and innominate terms
Releases and mutual terminations
70.Which of the following is NOT a requirement for an assignment of a debt or other
chose : in ac on under various State statutes?
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A. The assignment is absolute and not by way of charge;
B. Fourteen days’ no ce in wri ng is provided to debtor;
C. the assignment is in writing;
D. If not in wri ng then no ce of the assignment is given by no ce to the debtor.
71. The parol evidence rule performs much the same func on as:
A.
B.
C.
D.
A collateral warranty
An oral collateral contract
Consideration
A merger clause
72. Which of the following is not one of the special rela onships in which the
onus of : proving that undue in uence was not employed shi s to the denying Party?
A.
B.
C.
D.
Parent and child where the child is living independently
Solicitor and client
Trustee and beneficiary
Doctor and patient
73. How may a court view substan al performance of a contract?:
A. The contract is complete, but the uncomplete por on may be allowed for as a
reduc on : of the full contract price
B. it will not grant a discharge
C. It will sever the incomplete parts
D. It will treat the contract as breached
74. How is repudia on determined by the court?
A. Subjectively
B. By considering the ac ons of the repudia ng party
C. By viewing the circumstances of the repudiation
D. Objectively
75.How is the Australian Consumer Law structured into the Compe on and Consumer Act :
2010 (Cth)?
A. They are separate statutes
B. The Australian Consumer Law is an amendment to the Trade Prac ces Act 1974 (Cth)
C. The Australian Consumer Law is Sch 2 to the Compe on and Consumer Act 2010 (Cth)
D. The Australian Consumer Law is App 3 to the Compe on and Consumer Act 2010 (Cth)
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76. In considering whether a contract is a standard form contract, which of the
following is : not something that the court must consider?
A. If one of the parties has most of the bargaining power
B. If one party prepared the contract prior to discussing it with the other party
C. If another party was given opportunity to negotiate the terms
D. Whether the price payable takes into account the speci cs of the party and the :
transaction
77. In which one of the following cases was it held that for a loss in the contemplation
of the : parties to be recoverable it must be “a serious possibility”, “a real danger”,
“liable to result” : or “not unlikely” to occur?
A.
B.
C.
D.
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653
Koufos v Czarnikow Ltd [1969] 1 AC 350
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
78. Which of the following is a circumstance where speci c performance would be
ordered?
A. Where the subject matter of the contract is personal property that is not rare or
unique
B. Where a famous actor is to work as a Master of Ceremonies at a function
C. Where the subject matter of the contract is an apartment in a complex of 20
apartments
D. Where a non-famous actor is to wear a gorilla suit every day to advertise a
product
79. A consumer contract with respect to unfair contract terms does not involve:
A. The supply of goods or services
B. The sale of land
C. An individual who acquires goods or services or land
D. Wholly for personal, domestic or household use or resupply
80.Which of the following is not a valid assignment of a contract?
A. A bankrupt’s estate passing to the Of cial Trustee in Bankruptcy
B. A contract for personal services
C. A contract under which Sharma and his friend Melanie were to concrete a
driveway : devolving on Melanie after Sharma’s death
D. A contract under which Tom was to receive goods devolving on Tom’s
administrator : after letters of administration were granted
81. Sharma was selling his secondhand vacuum cleaner to Natasha and told Natasha that it :
could “do all the rooms in the house ten mes over without the lter needing to be :
changed”. Natasha spent a few weeks shopping for other vacuum cleaners but eventually :
returned and purchased Sharma’s, telling Sharma it was the cheapest she had seen in two :
weeks and she liked the colour. When Natasha took it home she soon discovered that the :
vacuum cleaner could only do one room at a me and then the lter would need changing.
: Natasha cannot rely on Sharma’s statement for breach of contract because:
A. The statement was not put into writing
B. Natasha did not attach any importance to the statement when it was made
C. Natasha should have tested the vacuum cleaner before buying it
D. The statement was a merger clause
82.Which of the following is not correct?
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A. The Australian Consumer Law contains provisions on unconscionable conduct
B. The Australian Consumer Law contains provisions on misrepresentation
C. The Australian Consumer Law contains provisions on misrepresentation in relation to : the sale
of land
D. The Australian Consumer does not have any provision for unconscionable conduct
83.The plaintiff in an action under s18 of the Australian Consumer Law is required to
prove : what?
A. the conduct is misleading or deceptive
B. the conduct is misleading or deceptive or likely to mislead or deceive
C. b, above, plus the intention of the defendant
D. The ACCC takes on the issues of proving the defendant’s intentions
84. In Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625, Gibbs CJ listed all
but the : following various ways that a contract may be repudiated:
A. “[I]f one party discharges [themself] from performance by agreeing to a new agreement
: that supersedes the previous one”
B. “[I]f one party renounces his liabilities under it”
C. If one party “shows that [the party] intends to ful l the contract only in a manner : substantially
inconsistent with [the party’s] obligations and not in any other way”
D. If one party “evinces an intention no longer to be bound by the contract”
85. A divisible contract:
A. Is one that provides expressly that performance is due after the other party has : performed
stages of the contract
B. Is one that provides impliedly that performance is due after the other party has : performed
stages of the contract
C. Is one that provides expressly or impliedly that performance is due after the other party
: has performed stages of the contract
D. Is one that provides that exact performance of the entire contract is required and duties :
under it are not severable
86. Which of the following is the general position of the courts when awarding
damages?
A. Where it is possible to place an innocent part in the position he/she would have been in : if the
breach had not occurred
B. Where it is dif cult to quantify the loss
C. Where the plaintiff is unable to establish that they have suffered any actual loss
D. Where the damages are unliquidated
87. Unliquidated damages are
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A. Non-monetary sums
B. Prohibited by law as they are uncertain and dif cult to quantify
C. Damages where the court is to determine the amount
D. Damages where an amount has been xed in the contract
88.Which of the following sections of the Australian Consumer Law are relevant to :
misrepresentation?
A. Sections 23-25
B. Sections 18 and 29
C. Sections 20-22
D. Sections 52 and 53
89.Where a contract is made in writing, the express terms of that contract:
A. Are to be found in the writing
B. Are generally to be found in the writing
C. Are to be found in the writing unless it is an online agreement, in which case terms and
: conditions may be incorporated from the website of one or both parties
D. Cannot include anything said orally
90.Which of the following is not accurate? Duress involves:
A. Actual or threatened violence
B. Duress must be the only reason for entering into a contract
C. A party coerced into entering into a contract (against their will)
D. Coercion of a person or their immediate family or near relatives
91.Janey takes her fur stole to the dry cleaner. When she returns to collect it, there is a :
black mark in the shape of an iron in the middle of her stole and it is ruined. The dry
cleaner : tells Janey that he is not liable for the damage to her fur stole as there was
an exemption : clause in their agreement. Which of the following is not correct?
A. If the exemption clause was merely contained within a notice on the wall, the dry :
cleaner will be liable for the damage
B. If the exemption clause was on the dry cleaning docket Janey was given and she was told :
“don’t worry about this, it’s just the docket you have to give us when you come to collect : your
stole”, the dry cleaner will not be able to rely on the exemption clause
C. In order for the exemption clause to be effective where it was not in a signed document, : it
had to have been brought to Janey’s attention
D. If the exemption clause was on the dry cleaning docket Janey was given rather than a : formal
written contract, the onus will be on the dry cleaner to prove that Janey was aware it :
contained conditions that would modify the agreement
92.Chris maintains that a document that he and Kathy have signed is a binding contract.
: Kathy maintains that it is merely a receipt and does not include all the terms of their :
agreement. Which of the following statements is correct?
A. If both parties have signed the document then the court will look no further into the :
circumstances
B. Kathy should plead non est factum
C. Kathy will be able to establish the existence of an oral collateral contract even where it is :
inconsistent with the terms of the main binding contract
D. Parol evidence may be admissible
93.Which of the following statements about damages is not correct?
A. Damages may be recoverable for loss of pro t
B. The onus of proving losses is on the plaintiff
C. Damages are a common law remedy
D. Damages are awarded to compensate a party for all losses caused by breach of
contract
94. Which of the following is not one of the special relationships in which the onus of :
proving that undue in uence was not employed shifts to the denying party?
A. Parent and child where the child is living independently
B. Solicitor and client
C. Trustee and bene ciary
D. Doctor and patient
95. A unilateral mistake does not include:
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A. Mistake as to the nature of the document signed
B. Mistake as to the identity of the parties
C. Mistake as to the terms of the contract
D. Mistake as to capacity of the parties
96.Which of the following is not a type of termination?
A. Termination by bankruptcy
B. When the parties have fully and exactly performed their obligations to each other under : the
contract
C. When a deed displaces a simple contract
D. Where an event occurs that is not the fault of either party that causes a fundamental :
change to the nature of the contract and the parties obligations and although the
contract : covers that eventuality, it would cause hardship to one party to enforce it
97.Terms may not be implied into a contract by
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A. The court
B. Representations
C. Trade usage
D. Custom
98.Which of the following is not a type of contract void at common law?
A. An agreement that offends the Australian Consumer Law (ACL).
B. A contract to oust the jurisdiction of the courts
C. A “marriage brokerage” agreement whereby money is paid in order to procure a : marriage
D. A price maintenance agreement that restrains trade.
99. In Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149
CLR : 337:
A. The High Court implied a term in the agreement granting a reasonable extension of time: b
Codelfa was able to prove that the term was necessary to make the contract work
B. Codelfa did not need to prove that the term was necessary to make the contract work : for the
term to be implied as it was suf cient that both parties needed to be rescued from a : dif cult
position imposed upon them by the injunction
C. The High Court found that the contract was frustrated
100.In Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 the court recognized
“reasonably : foreseeable losses” as being:
A. All losses that a plaintiff can prove beyond reasonable doubt
B. Losses that arise naturally from a breach of contract
C. Losses that are actually contemplated by the parties
D. b & c
101.Which of the following is correct with respect to privity of contract?
A. It is unrelated to the doctrine of consideration
B. There are no exceptions to the doctrine of privity; the Trident v McNiece insurance : exception
is not a true exception
C. In circumstances where the doctrine applies, a third party bene ciary under a contract is :
able to acquire rights under it
D. Despite the doctrine, a new owner of land is able to enforce a covenant between the :
previous owner and another party
102.With respect to substantial performance and partial performance:
A. Partial performance is a lower level of performance than substantial performance, and : there
is no deduction of the contract price available where substantial performance has : occurred
B. Substantial performance is where the parties terminate the contract for less than full :
performance
C. Partial performance is where a party voluntarily accepts less than full performance by :
the other party
D. Partial performance is where the court terminates the contract for less than exact :
performance
103.Which of the following is not a situation where frustration would occur
A. Long term serious illness of a person contracted to perform a personal services contract
B. Where the government in exercising its powers has made completion of the contract :
impossible
C. Where a change in the law renders performance of the contract illegal
D. Where the performance of the contract is rendered illegal by the destruction of the :
subject matter of the contract by one of the parties
104.In determining whether a statement has become a term of the contract, the key test :
applied by the courts is:
A. Whether it is in writing
B. Contractual intention
C. The knowledge of the parties
D. The parties’ own beliefs
105.Which of the following are not usually compensated for with payment of damages?
A.
B.
C.
D.
Injured feelings/disappointment
Nominal loss
Loss that is dif cult for the court to estimate
Loss of pro t expected to be received
106.Which of the following is most correct? If an amount of $5,000 is speci ed in a written :
contract as the agreed genuine pre-estimate of damages in the event the contract is :
breached then this is commonly referred to as:
A. A penalty clause
B. Liquidated damages
C. Punitive damages
D. A mitigation clause
107.Which of the following is NOT a method of termination?
A. Agreement
B. Frustration
C. Breach
D. Recti cation
108.Where a contract has not been completed within the speci ed time
A. If no time limit was speci ed in the contract, there is nothing the innocent party can do
B. The innocent party will be entitled to terminate the contract
C. The innocent party will be entitled to terminate the contract upon giving notice that
time : is of the essence
D. Only damages will be available no matter how crucial the time limit was to the innocent : party
109. Which of the following is not a requirement of a valid collateral contract?
A.
B.
C.
D.
The statement must be promissory
The parties must have intended the promise to be binding
The promise must be supported by consideration
The consideration must be of higher value than the main contract
110.Which of the following constitutes pyramid selling?
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A. Jaz is approached by her neighbor to join the sales team of Thames Beauty
Products. : Thames sells its products door-to-door through agents and is a close-knit
family type of : company. Agents that introduce other agents to “the family” are
rewarded with a nders’: fee. It is only $500 to join the Thames family, and Jaz only
has to spend $400 of products in: her rst month
B. Jaz starts work at a chemist and no ces that the chemist, as retailers o en do, puts a :
sale price on a s cker on most of the products in the shop. However, the chemist does
not: put the sale price s cker on top of the original price s cker and when customers
bring the : products to the counter, the chemist tells them that unfortunately there has
been a mistake, : the true price is the higher price
C. Jaz approaches a salesperson on the forecourt to buy the car package she saw :
adver sed on television and is told that there were only two cars for sale as a part of
that : deal and there are now none le . The salesperson tells Jaz that she would look
much be er : in the conver ble model and although there is no deal on that car, it is only
$50,000 more
D. Jaz purchases a pain ng through a new art gallery that has just opened in town. The :
price is high and Jaz is at rst uncertain about the expense, but the art dealer promises Jaz
a : commission on sales to any of Jaz’s friends who she sends along to the gallery. Jaz has
a lot : of art collector friends so is sure that she will receive some commission from the
gallery in : the near future.
111.James, a chef, tells Laura, who is looking to buy his antique lounge chair, that the
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chair is : of Spanish origin. Three weeks later a written contract is drafted that makes
no mention of : the chair’s origin. The statement that the chair is of Spanish origin is
most likely to be a/an:: a Mere puff
A. Representation
B. Opinion
C. Term
112.If the court held the sum the parties inserted into their contract ($100,000) to be a :
penalty, and the actual loss determined by a court was $30,000:
A. The plaintiff would be able to recover nothing as it was a penalty
B. The plaintiff would be able to recover $30,000 only
C. The plaintiff would be able to recover $100,000 as this was in the contract
D. The plaintiff would be able to recover$70,000 (the difference between the amount in : the
contract and the actual loss)
113.Which of the following is correct?
A. It is prohibited to offer free gifts with purchase
B. It is prohibited to offer goods at a special price, not have a suf cient amount of those :
goods available and then attempt to upsell to customers who are drawn to the shop for
the : special price deal
C. It is not prohibited for a supplier to take a customer’s money when the supplier believes : they
won’t be able to supply the service to the customer within a reasonable time
D. It is not prohibited for a supplier to take a customer’s money when the supplier believes : they
won’t be able to supply the service to the customer within a reasonable time
114.The de nition of “consumer” is limited by what amount?
A. $40,000
B. Recently increased to $100,000
C. There is no limit
D. A negotiated amount
115.Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460; Beswick v Beswick
[1968] : AC 58 and Tweddle v Atkinson (1861) 1 B & S 393 all relate to the doctrine of:
A. Frustration
B. Consideration
C. Privity
D. Innominate terms
116.A party in breach of contract is liable to pay damages for:
A. Losses occurring in the usual course of things from the breach
B. All losses whether contemplated or not
C. Remote losses only
D. Losses that should have been mitigated
117.Matt sells his car to Tabitha, who purchases it on the condition that she can
continue to: keep it in his garage at no cost for the next six months. Tabitha pays in
full. Two months: later, Matt tells Tabitha she will have to remove her car from his
garage as he has bought a: new car and wants to keep it in the garage. Which of the
following statements is correct?
A. If Tabitha agrees to remove her car, the contract has been terminated by partial: performance
B. The condition that Tabitha is allowed to keep her car in Matt’s garage is a condition: precedent
C. The condition that Tabitha is allowed to keep her car in Matt’s garage is a condition:
subsequent
D. If Tabitha promises to remove her car, Matt will not be able to enforce the promise:
unless the promise is supported by consideration or made under seal
118.A term that is vital to a contract is known as
A. A key term
B. A condition
C. A warranty
D. An innominate term
119.Which of the following statements is not correct?
A. A condition is a major term of the contract; a breach renders the contract substantially :
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different from the agreed term
B. A breach of a warranty entitles the innocent party to be compensated with damages
and : termination of the contract
C. A breach of a condition entitles the innocent party to be compensated with damages
D. A warranty is a minor term of the contract; a breach renders the contract insubstantially :
different from the agreed term
120.When are nominal damages awarded?
A. The plaintiff has not mitigated his loss
B. The damages are so great the court has to estimate them
C. A legal right has been infringed but there is no actual loss
D. The plaintiff has calculated his losses incorrectly
121.Which of the following is a way that a contract may be terminated by operation of law?
A. Where a deed on a slightly different subject matter displaces a simple contract
B.Where a party to a delivery of goods contract becomes bankrupt
C.Where a deed where one of the parties is different displaces a simple contract
D. Where a simple contract merges into a deed and the security is of the same value in both
122.Which of the following is not a remedy for unconscionable conduct?
A. An injunction
B. Ordinary damages
C. A criminal prosecution
D. A pecuniary penalty
123.In which case was it that held that where an exemption clause is in a non-contractual :
document, the clause must be brought to the other party’s attention for it to be effective?
124.Which of the following statements is not correct? With respect to legality of object:
A. Illegality is not con ned to criminal illegality
B. A contract may be illegal where it is made to effect a purpose that a statute renders : unlawful
C. A contract may be illegal where its object is impliedly prohibited by statute
D. Illegal objectives will not affect a contract provided both parties have agreed to it
125.Which of the following is not correct? With respect to s 18 of the Australian Consumer :
Law, silence:
A. May constitute misleading or deceptive conduct where a statement is literally true but is :
misleading without further quali cation
B. May constitute misleading or deceptive conduct where there is a “reasonable : expectation”
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that disclosure will be made
C. Is not relevant in considering the contravention
D. May constitute misleading or deceptive conduct where there is failure to disclose a : change
in circumstances
126.In which case did the court recognise that damages for disappointment and distress :
could be available subject to certain limitations?
A. Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653
B. Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257
C. Howe v Teefy (1927) 27 SR (NSW) 301
D. Baltic Shipping Co v Dillon (1993) 176 CLR 344
127.In which case did the court nd that passing off had been engaged in and the misleading :
and deceptive conduct provisions had been contravened?
A. Apand Pty Ltd v The Kettle Chip Co Pty Ltd (1994) 52 FCR 474
B. McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394
C. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
D. eBay International AG v Creative Festival Entertainment Pty Ltd (2006) 170 FCR 450
128.A liquidated damages clause in a written contract:
A. States that the parties have agreed to leave the calculation of damages to the court
B. Sets out the price of the contract
C. Sets out the agreed amount payable to the innocent party for terminating the contract
D. Sets out the amount agreed payable to the innocent party if there is a breach of
contract
129.In which of the following cases would a plea of frustration not succeed?
A. Where the event should have been foreseen
B. Where no speci c provision was made for the event in the contract
C. Where performance is still possible but would be pointless
D. Where performance has become fundamentally different from what was contemplated : by
the parties
130.In Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, the court :
recognised which of the following terms which later became part of Australian law in :
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115?
A. Transitional term
B. Warranty
C. Innominate term
D. Intervening term
131.Which of the following is not correct? A condition:
A. If breached, entitles an innocent party to damages or speci c performance under the :
common law
B. Is an essential term of the contract
C. Goes to the root of the subject matter of the contract
D. If breached, entitles an innocent party to rescind the contract
132.A party repudiates contract when
A. The party is able but unwilling to perform their obligations under it
B. The party decides to terminate the contract
C. The party breaches a representation
D. The party breaches a warranty
133.In Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528:
A. All loss related to the delay in installation of the boiler was recoverable because the :
defendant should have known that delay would cause loss to a commercial operation
B. All loss related to the delay in installation of the boiler was recoverable because the : plaintiff
had made known to the defendant that the plaintiff was “most anxious” that the : boiler was
installed on time
C. Only the ordinary loss related to the delay in installation of the boiler was recoverable :
because the defendant was not made aware that additional lucrative contracts had
been : negotiated
D. No damages were recoverable as the defendant could not be expected to foresee that : late
delivery would cause any loss
134.Which of the following statements is incorrect?
A. Innominate terms are neither conditions nor warranties
B. Intermediate terms are the same as innominate terms
C. The remedies available for breach of an intermediate term depend on their
classi cation : as an intermediate term, not the effect of the particular breach
D. Intermediate terms are terms that are capable of being breached in minor and major : ways
135.Which of the following is incorrect? Repudiation:
A. Is where a party demonstrates an unwillingness to perform their obligations
B. Is the same as termination; the contract is at an end
C. Gives an innocent party the right to terminate the contract
D. Is where a party demonstrates an inability to perform their obligations
136.Which of the following is not an unfair practice under the Australian Consumer Law?
A. Where a free gift is offered with the purchase an electric toothbrush and the cost of the : “gift”
toothpaste is added to the price of the toothbrush
B. Where a television advertisement for a chocolate bar shows teddy bears working the :
manufacturing lines
C. Where a brochure advertising a beauty therapy treatment consisting of time in an : oxygen
tank lists the treatment as lasting two hours, when in fact the treatment lasts just : under one
hour
D. Where a shop assistant takes money from a customer knowing that the shirt the : customer
wants is sold out, but hoping that after a few days when the customer is told that : there are
no more shirts they will purchase something else from the shop
137.Marnie loans Bill $1000 so that Bill can pay a local politician to ensure his tender will be :
the winning tender. The contract between Marnie and Bill is:
A. A simple loan contract that is enforceable
B. A contract voidable at Marnie’s option
C. An illegal contract
D. A contract voidable at Bill’s option
138.In ACCC v Turi Foods Pty Ltd [2012] FCA 19:
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A. The statement that the chickens were “free to roam” was misleading as there were too :
many chickens per square metre for the chickens to easily move
B. The advertising was found to be misleading as the chickens were not lounging on deck : chairs
C. The court had no power to issue a ne
D. The court ordered Turi to make a disclosure order
139.Which of the following is not an element requiring satisfaction before the court will : imply a
term into a contract?
A. It must be reasonable
B. It must be capable of clear expression
C. It must be equitable
D. It must complement an express term of the contract
140.Century Dragon Pty Ltd is contracted to export 1000 beach balls to Minerva Beach Surf :
Club by 1 January, with payment due by 1 April. Which of the following is correct?
A. The time of delivery is likely to be considered an essential term.
B. The time of payment is likely to be considered an essential term
C. The time of delivery and the time of payment are likely to be considered essential terms
D. Neither the time of delivery nor the time of payment are likely to be considered essential :
terms unless time is expressly stated to be of the essence
141.Which of the following is NOT correct?
A. The ACCC can seek both criminal and pecuniary penalties for breaches of the unfair : practices
provisions of the Australian Consumer Law?
B. The new maximum penalties may vary depending on turnover of a corporation
C. Injunctions can be sought as orders
D. A criminal penalty can be sought for a breach of s 18?
142.Where one party believes the contract refers to the Bonny Lass, a freight ship based out :
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of Norway, and the other party believes the contract refers to the Bonny Lass, a freight ship :
based out of Hong Kong, this is an example of a:
A. Mistake of law
B. Unilateral mistake
C. Common mistake
D. Mutual mistake
143.Which of the following is not true with respect to misleading or deceptive conduct?
A. The plaintiff has to prove that conduct was misleading or deceptive
B. The plaintiff has to prove the causal link between the conduct and the loss
C. A person acting as a ”mere conduit” in passing on representations may also be liable
D. A corporation is not liable where it is clear that the corporation is not the source of the :
information
144.Which of the following matters is least likely to contribute to a nding of unconscionable :
conduct in connection with goods or services?
A. Where conditions imposed on a customer were not necessary for the protection of the :
supplier’s interests
B. Where the supplier makes a commercial decision to breach the contract knowing that :
the customer will seek a legal remedy for the breach
C. Where the supplier acted in bad faith
D. Where unfair tactics were used against the customer
145.Janine has sold her business to Simone. Simone insists on inserting a clause in the :
agreement that Janine cannot open a similar business within 10 kilometres of her former :
business, for the next two years. Which of the following is not true?
A. This clause is a restraint of trade
B. The court will always uphold restraint of trade provisions in contracts for sale of :
business
C. Where a restraint of trade is unreasonable, the whole or parts of the contract will be void
D. It is impossible to say whether a court would deem this restraint of trade clause : reasonable
without further details
146.Which of the following is not a restraint of trade?
A. A price maintenance agreement
B. A contract restraining Laura from working as a welder within Ballarat for two years after : her
termination with Welders R Us
C. An agreement between John and Liz that John will not open a brew shop within 2km of : the
brew shop he just sold to Liz
D. An agreement by which Steve agrees to repay his daughter’s loan debt in return for the
: person who advanced the loan to his daughter agreeing not to report Steve’s
A. Is in most cases unascertainable
B. Depends on what a reasonable person would have said
C. Is a question of fact
D. Is not applicable; oral contracts only contain implied terms
152.Which of the following constitutes bait advertising?
A. Jaz is approached by her neighbor to join the sales team of Thames Beauty Products. :
Thames sells its products door-to-door through agents and is a close-knit family type
of : company. Agents that introduce other agents to “the family” are rewarded with a
nders’: fee. It is only $500 to join the Thames family, and Jaz only has to spend $400
of products in: her rst month
B. Jaz starts work at a chemist and no ces that the chemist, as retailers o en do, puts a :
sale price on a s cker on most of the products in the shop. However, the chemist does
not: put the sale price s cker on top of the original price s cker and when customers
bring the : products to the counter, the chemist tells them that unfortunately there has
been a mistake, : the true price is the higher price
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C. Jaz approaches a salesperson on the forecourt to buy the car package she saw :
adver sed on television and is told that there were only two cars for sale as a part of
that : deal and there are now none le . The salesperson tells Jaz that she would look
much be er : in the conver ble model and although there is no deal on that car, it is
only $50,000 more
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daughter to : the police for fraud
147.Parol evidence may not be admitted in which of the following circumstances?
A. To evidence an oral collateral contract
B. To evidence the identity of the parties to the contract
C. To contradict an unambiguous term
D. To explain a local custom
148.Which of the following is not correct? An injunction:
A. Is an order of the court
B. Restrains a person from doing something
C. Is sometimes granted to compel a party to do something they would not have been : ordered
to do by speci c performance
D. Is an equitable remedy
149.When it was said in Re Hall & Barker [1878] 9 Ch D 538, “if a shoemaker agrees to make :
a pair of shoes, he cannot offer you one shoe and ask you to pay one half the price”, this is :
referring to:
A. The court’s tendency to regard contracts as divisible
B. The court’s tendency to regard contracts as severable
C. The court’s tendency to regard contracts as entire
D. The court’s tendency to require substantial performance
150.Which of the following guarantees applies to a sale by auction?
A. Guarantee as to undisturbed possession
B. Guarantee as to express warranties
C. Guarantee as to acceptable quality
D. Guarantee as to title
151.When a contract is made orally, the question of what the express terms are:
D. Jaz purchases a pain ng through a new art gallery that has just opened in town. The :
price is high and Jaz is at rst uncertain about the expense, but the art dealer promises Jaz
a : commission on sales to any of Jaz’s friends who she sends along to the gallery. Jaz has
a lot : of art collector friends so is sure that she will receive some commission from the
gallery in : the near future.
153.Con ngent condi ons include:
A.
B.
C.
D.
Accord and sa sfac on and consideration
Condi ons subsequent and condi ons precedent
Warran es and innominate terms
Releases and mutual terminations
Quiz 3
1. To claim damages a causal link must be established between what two things?
A. Between the defendant’s conduct and the actual monetary value of the loss/
damage
B. The conduct and ini a ng court proceedings
C. The fact that the plain su ered loss or damage is su cient. Nothing else is
required
D. The defendants breach and the plain ’s injury
2. The “neighbour principle” is o en viewed as:
A.
B.
C.
D.
3.
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An objec ve test
A test of the reasonable person
A test of the foreseeability of harm
An iden ty test
In Tame v State of New South Wales (2002) 211 CLR 317 where Tame was given a false :
blood alcohol reading:
Whether the police o cer was found to have owed Tame a duty of care was
en rely a : ques on of community standards
The psycho c depressive illness Tame developed was found to ow from the breach
of : duty of the police sergeant because it was en rely caused by his ac ons that
could have : been avoided had he exercised su cient care
Part of the test of reasonable foreseeability is a ques on of fact
Because of the “eggshell skull” principle, pre-exis ng knowledge of Tame’s
suscep bility : to su ering nervous shock was not required to prove a breach
Which of the following is not correct?
If damages are too remote they will not be recoverable
The remoteness test will be sa s ed where the damage su ered is of the same type or
: kind as foreseeable damage
In order for damage to not be too remote, it must be reasonably foreseeable
In The Wagon Mound No 1 and The Wagon Mound No 2, where there was an :
unfortunate combina on of an oil spill, welding sparks and oa ng co on waste, the
loss : was found to be not reasonably foreseeable in the circumstances
5. Which of the following is not a provision of the Wrongs Act 1958 (Vic) rela ng to:
professional liability?
A. If there are di ering peer professional opinions across Australia, the court may accept
: just one of those opinions
B. The court must rely on peer professional opinion even where it considers that
opinion : irra onal
C. If there are di ering peer professional opinions across Australia, the court may accept
all : of those opinions
D. Peer professional opinion can be considered widely accepted even where it is not :
universally accepted
6. Why was the plain successful in Overseas Tankship (UK) Ltd v Miller
Steamship Co Pty : Ltd (The Wagon Mound No 2) [1967] AC 617 (PC) when another
plain failed in the earlier : related Wagon Mound case?
A. The plain s in the second had be er legal representation
B. The legal situa on had changed between the two cases
C. The court was more disposed to think about the consequences of the damage su ered
by : so many as a result of the oil spill
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D. In the rst case, the plain s failed to show that a reasonable man would have
foreseen : the risk of damage from the oil spill
7. Nicola drives the forkli at her place of work, Rooze’s Roo ng. Nicola always leaves
the : forkli in a certain place where she has been told to leave it, with the forks up
o the : ground. One a ernoon a customer who is collec ng goods from the workshop
reverses his : car into the forks on the forkli . He is injured and his car is damaged.:
What is the principle that would make Nicola’s employer liable for her ac ons?
A. Contributory negligence
B. Strict liability
C. Vicarious liability
D. Voluntary assump on of risk
8. Where a person gives advice, that advice is relied upon and the advice is incorrect, the
: person giving the advice may be liable in negligence. Which of the following is
incorrect?
A. The “special rela onship” described in Mutual Life & Ci zens’ Assurance Co Ltd v Eva :
(1968) 122 CLR 556 has been accepted as the test for determining the existence of a
duty of : care with respect to negligent misstatements
B. The test in Mutual Life & Ci zens’ Assurance Co Ltd v Eva (1968) 122 CLR 556 was :
approved in San Sebas an Pty Ltd v Minister Administering Environmental Planning &:
Assessment Act 1979 (1986) 162 CLR 340
C. The duty of care only arises where the “special rela onship” involves a person
seeking : advice from the advice-giver, not where the advice was given unrequested
and merely : accepted
D. The advice-giver does not need to be in the business of giving advice
9. Which of the following is not correct? The reform to the law of negligence that
took : place in Australia in the early 2000s:
A. Limits the scope of poten al liability for negligence
B. Does not apply to claims in contract law
C. Was enacted in all Australian states and territories
D. Covers personal injury
10. In Australian Safeway Stores v Zaluzna (1987) 162 CLR 479:
A. The respondent was a lawful entrant upon the land of the respondent, establishing a :
rela onship between them and there was therefore a duty of care owed by the
appellant to : avoid a foreseeable risk of injury
B. The respondent was limited by his par cular status as entrant without speci c
consent of : the appellant
C. The respondent contributed to the accident thus limi ng damages
D. There was no liability.
QUIZ 4
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1. The incorrect statement?
A. Partners are not bound when another partner misappropriates monies
B. If the giving of investment advice is within the scope of the rm’s business then all
partners : are jointly and severally liable for advice which is not in a client’s best
interests
C. the client should seek a personal indemnity from a partner
D. special skill is required to bind all partners
2. Which of the below statements is incorrect?
A. a wri en and signed no ce of a partner’s inten on to dissolve the partnership is
required, : where no xed term has been agreed upon for the dura on of the
partnership
B. a con nuing guarantee given by or to a partnership is revoked as to future
transac ons if there is : a change in the cons tu on of the partnership
C. where a partnership con nues a er a xed term has expired, the rights and du es
of the partners : remain the same, but the partnership becomes a partnership at
will
D. partnership property must be used exclusively for the purposes of the
partnership and in the : manner set out in the partnership agreement
3. Which legisla on controls the actual registra on of the rm name?
A. Corpora ons Act 2001 (Cth)
B. Partnership Act
C. Statute of Frauds 1677
D. Business Names Registra on Act 2011 (Cth)
4. Which of the following statements regarding partnerships is incorrect?
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A. The second element of a partnership is carrying out a business in common
B. To be a partnership there must be a mutuality of rights and obligations
C. Each partner must take an ac ve part in the direc on and management of the firm
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5.
In Degiorgio v Dunn [2004] NSWSC 767 it was held that there was no
partnership because the : business was not run “in common”
Which of the following statements regarding dissolu on of partnership is
incorrect?
In the event of dissolu on, losses must be met rst out of pro ts, followed by
capital, then by : partners in propor on to their share of pro ts
A rm’s assets as contributed by partners to make up capital losses need not be
applied to pay : the rm’s debts/liabili es to non-partners
A er dissolu on, each partner is en tled to advances and residue by the firm
A er the dissolu on, each partner’s authority to bind the rm con nues, so far as
necessary for : winding up partnership a airs and comple ng un nished transactions
Which is incorrect statement?
If a member of a rm of solicitors ac ng for a vendor in a sale absconds with the
deposit, : his/her partners are not liable to refund the money
In Lloyd v Grace, Smith & Co [1912] AC 716, the rm was held responsible for the
fraud commi ed : by a managing clerk of a rm, who misappropriated property while
ac ng within the scope of his : authority
In SJ Mackie Pty Ltd v Dalziell Medical Prac ce Pty Ltd [1989] 2 Qd it was held that the
transfer of a : share to a non-partner breaks the con nuity of the rm, cons tu ng a
new rm/partnership of the : remaining former partners and the new member
Partnership agreements can contain provisions to enable the transi on from one rm
to another : to be e ected without the disrup on of a formal winding up.
Which of the following statements is not correct?
as an agent, a partner is able to bind the other partners and, as principal, be bound
by the ac ons : of the other partners
in New South Wales, Victoria, Queensland, South Australia, Western Australia and:
Tasmania provision for limited partnerships is made in the Partnership Act
incorporated limited partnerships have been introduced in all Australian States and
Territories
the Partnership Act provides that the rules of the common law and equity are to
con nue in force : except insofar as they are inconsistent with the Act
Find one incorrect statement?
In the absence of special statutory provision, although each partner is liable with the
others for : the whole of the debts of the rm, their liability is only joint
A creditor can bring only one ac on against members of a partnership and any
partner can insist : that the ac on be stayed un l all other partners are joined as
parties.
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A person admi ed into an exis ng rm, liability may be incurred where it is
specially agreed upon
D. A creditor can enforce liability against an incoming partner whether or not he/
she is a party to : the contract
9. What cons tutes an excep on to the usual number of a partnership being 20 partners?
A. If one of the partners is married-his/her husband or wife is automa cally a
partner
B. The excep on relates only to limited partnerships
C. No more than 20 are allowed
D. The Corpora ons Regula ons 2001 (Cth) provide greater numbers in certain
speci ed : professions
10. Which statement regarding an outsize partnership is incorrect?
A. it has more than 20 partners
B. its partnership agreement is invalid
C. it is liable to a criminal penalty ($500)
D. its agreement does not a ect the enforceability of contracts or other
arrangements made
11. Which nding is correct?: In Popat v Schonchhatra (1997) 3 All ER 800, the Court
decided:
A. Popat was en tled to half the pro ts on the sale of the business and to a share of the
pro ts : that had accrued a er the dissolu on of the partnership, but before the nal
se lement of : accounts.
B. Popat was not en tled to any pro ts on the sale of the business, as there was no
partnership : agreement and he was further not en tled to a share of the pro ts
accrued a er the dissolu on of : the partnership, but before the nal se lement of
accounts.
C. Popat was en tled to half the pro ts on the sale of the business, but not to a share of
the pro ts : that had accrued a er the dissolu on of the partnership, but before the
nal se lement of : accounts.
D. Popat was not en tled to half the pro ts on the sale of the business, but he was
en tled to a : share of the pro ts that had accrued a er the dissolu on of the
partnership but before the nal : se lement of accounts.
12. Which of the following statements is incorrect?
A. a separate legal en ty can commit civil wrongs and engage in criminal conduct
B. a public company has serious compliance obligations
C. a partnership must be in writing
D. a separate legal en ty is en tled to own property, pay tax and enter into
contracts
13. Which of the below does not apply to the Partnership Act?
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A.
The rules in the Partnership Acts assist in determining whether a business is being
carried on in : common
B. The partnership under the Act must be registered with ASIC
C. Each rule states a nega ve: i.e. that a certain fact does not of itself create a
partnership, but is : only indica ve of a partnership
D. Joint or part ownership or joint tenancy, or tenancy in common whether or not the :
owners/tenants share the pro ts, does not of itself create a partnership as to anything
so : held/owned
14. Which of the following statements regarding the wri en law is incorrect?
A. Under s 115 of the Corpora ons Act 2001 (Cth), the maximum number of
persons who may form a : partnership for the acquisi on of gain is 20
B. Under the Corpora ons Regula ons 2001 (Cth), reg 2A.1.01, partnerships of more
than 20 : partners may be formed for certain professions/callings
C. The Corpora ons Regula ons 2001 (Cth), reg 2A.1.01 sets a maxima of partners for
medical and : legal prac oners, veterinary surgeons, patent and trademark
a orneys, sharebrokers and : stockbrokers and pharmaceu cal chemists
D. The Corpora ons Regula ons 2001 (Cth), reg 2A.1.01 does not set a maxima of
partners for : architects and accountants
15. Which court nding is incorrect?
A. In Mercan le Credit Co Ltd v Garrod [1962] 3 All ER 1103, damages were not
recovered even : though, from the plain ’s perspec ve, the sale of the car was
within the usual course of : business.
B. In Goldberg v Jenkins (1889) 15 VLR 36, the rm was not bound to the transac on
because : borrowing money on behalf of the rm at over 60% interest when comparable
rates were between : 6% and 10% was beyond ‘the usual
way’.
C. In Construc on Engineering Pty Ltd v Hexyl Pty Ltd (1985) 155 CLR 541, Hexyl was not
liable : because the construc on contract appeared to be between
Construc on Engineering and Tembel
D. If judgment is obtained against one or more partners of a rm, no ac on may be taken
against the : other partners, even if sa sfac on cannot be obtained from the partner(s)
sued
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16. Cribb v Korn (1911) 12 CLR 205 established:
A. Joint ownership creates a partnership
B. A joint tenancy is just another name for a partnership
C. The sharing of joint returns does not in itself create a partnership
D. The statutory rules can be excluded by agreement
17. The incorrect statement is?
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A. Partnerships are created with a view to profit, so partners must make a profit: b A partner
does not have to have a direct claim to a share of the pro ts
B. Associa ons and chari es are not partnerships, as pro ts come from ancillary
business ac vi es : and are reinvested, not distributed as dividends to their
members
C. The Partnership Acts do not govern members of a corpora on incorporated under the
provisions : of the Corpora ons Act 2001 (Cth), a special Act of Parliament, or Royal
Charter
19.Which of the below statement is incorrect?
A. Partnership property is liable to be seized for the private (personal) debt of a partner
and : made liable on a judgment against the partnership
B. A creditor who has obtained judgment in respect of the separate debt of a partner may
obtain an : order charging that partner’s interest in the partnership property and pro ts
with the amount of the : debt and interest.
C. A creditor who has obtained judgment in respect of the separate debt of a partner may
obtain by : an order the appointment of a receiver of that partner’s share of pro ts and
of any other money : which may be coming to the partner in respect of the partnership.
D. The two sources of law relevant when considering how partners bind their partners
when dealing : with third par es are the common law (including equity) of agency and
the Partnership Act. The : common law complements the provisions of the Partnership
Act in rela on to the authority that an : agent has.
20.Which statement is incorrect?
A. carrying on a business implies repe on (Smith v Anderson (1880) 15 Ch D 247)
B. partnership may be formed in order to undertake a single business transaction
C. in Khan v Miah [2000] 1 WLR 2123 it was held that work, such as nding, acquiring and
ng out : a shop/restaurant, is undertaken with a view to pro t
D. in Keith Spicer Ltd v Mansell [1970] 1 All ER 462 it was held that ordering goods and
opening a : joint bank account in contempla on of a business are insu cient for a
partnership
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A. A partner has express actual and implied actual authority to engage in certain
ac vi es with third: par es
B. A partner cannot pledge/sell partnership property, incur and pay debts on
partnership : accounts or hire employees
C. Contraven on of an agreement to restrict a partner’s authority is not binding on the
rm if no ce : of the agreement has been given
D. In Polkinghorne v Holland (1934) 51 CLR 143, the rm was held liable because Holland
provided : the advice in his role as solicitor; thus in the ordinary course of the rm’s
business
18. Regarding partnerships, which of the following statements is incorrect?
22. Which below is incorrect? A firm is not bound by the acts of a partner if:
A. the act is not of the usual business of the kind carried on by the firm
B. the partner exceeds his/her actual authority in the par cular matter
C. the person with whom the partner is dealing knows that he/she has exceeded his/
her authority
D. the person with whom the partner is dealing knows or believes him/her to be a
partner
23. Legisla on in Victoria: What Act regulates partnerships in Victoria?
A. Partnership Act 1892
B. Partnership Act 1958 (Vic)
C. Corpora ons Act 2001 (Cth), s 20
D. Compe on & Consumer Act 2010 (Cth)
24. Which statement regarding persons of unsound mind and minors is incorrect?
A. a partner of unsound mind is capable of binding the rm and of being bound by
co-partners, : unless proven that he/she was of unsound mind when the partnership was
entered into and the : other partners knew this
B. if a partner who is a minor enters into a contract with a third party on behalf of the
rm, the : minor is liable as far as private assets are concerned
C. a creditor who has obtained judgment against the rm may not seize the minor’s
separate : property
D. a minor will become liable as an ordinary partner when he/she a ains majority the
partnership is : not repudiated within a reasonable me
25.Which below statements is incorrect?
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Partners share the pro ts in a partnership
In a partnership, partners have limited liability for the business debts
A partner is also an agent of the partnership
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21.Find incorrect statement
A. A term o en included in a partnership agreement that allows other partners to
purchase a : re ring/deceased partner’s interest at an agreed valua on avoids the
disrup on of a formal winding
B. A partnership cannot be dissolved because the business is carried on at a loss
C. Partnerships can be dissolved because of mutual incompa bility, making it
impossible for partners : to carry on a business
D. On dissolu on, partnership property can be applied towards the payment of
partnership : liabili es/debts and any surplus can be distributed among the
partners
D.
Agreement may be implied in a partnership
26. Which statement regarding dissolu on of a partnership is incorrect?
A. Partners are not en tled to have partnership property applied towards the
payment of : partnership liabili es
B. After payment of the firm’s liabilities, partners do not have the right to have surplus
assets : applied in payment of what may be due to the partners respectively
C. On the termina on of the partnership, any partner can apply to the court for a
decree to dissolve : the partnership and appoint a receiver to wind up the firm’s
business/affairs
D. Should a sequestra on order be made against a partner, a creditor of the rm cannot
receive a : dividend out of the bankrupt’s separate property un l all separate
creditors of the bankrupt partner : have been paid in full.
27.Which court decision regarding duciary du es is incorrect?
A. In Chan v Zacharia (1984) 154 CLR 178, the court decided that that the duciary rela onship :
con nued un l the partnership had nally been wound up.
B. In United Dominion Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1, the Court found that a duciary :
rela onship, with a endant duciary obliga ons ordinarily exist between prospec ve
partners who : have embarked upon the conduct of the partnership business or venture
before the precise terms of : any partnership agreement have been se led
C. In Popat v Schonchhatra (1997) 3 ALLER 800 in the absence of a statement to the contrary, :
partners are en tled to an equal share of pro ts
D. in Harvey v Harvey (1970) 120 CLR 529, the Court held that if a partner receives an
addi onal : annual fee to be “on call” for that client, the fee belongs to the partnership.
28. Which of the following statements regarding limited partners is incorrect?
A. A limited partner may assign his/her share in the partnership with the consent of the
general : partners
B. The consent of a limited partner is not required to admit a person as a partner
C. If a limited partner has su ered his/her share of the partnership property to be
charged for a : separate debt, the other partners are en tled to dissolve the
partnership
D. A limited partner is not en tled to dissolve the partnership by notice.
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29. Which legisla on regulates partnerships in NSW?
A. Partnership Act 1892 (NSW)*
B. Compe on & Consumer Act 2001 (Cth)
C. Partnership Act 1958 (Vic)
D. Partnership Act 1895
30. Find a statement that is incorrect
A. A re ring partner should give speci c no ce of their re rement to persons with whom
the rm : has had dealings to avoid being made liable for debts incurred a er retirement.
B. Persons who represents themselves, or knowingly allow themselves to be represented,
as a : partner, are liable as a partner to anyone who has on the faith of such representa on
given credit to : the rm
C. A wrongful act/omission includes breach of contract or of duciary duty, negligent :
misrepresenta on and misleading or decep ve conduct
D. Innocent partners are liable for wrongful acts of other partners made in the
ordinary conduct of : business
31. Which statement regarding partnership is incorrect?
A. A partnerships (or rm) is a way of gathering resources or exper se for major
projects
B. Partnerships do not avoid taking on the formality and expense of an incorporated
company
C. Partners in a partnership complement each other with their skills and bring in new capital
and : broader funding op ons
32. How would a partner pledge the rm’s credit?
A. By deed
B. Only for a purpose directly connected to the rm’s business but must have express
authority : to do so
C. By agreement with other partners
D. By agreement with a majority of partners plus an appropriate credit applica on
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33. Which statements is not correct?
A. if the agreement is that a person should be paid a xed sum by the rm, he/she may be a
partner : and jointly liable to creditors of the rm
B. the rights and obliga ons of partners to each other arise from the partnership
agreement, the : statute and the equitable concept of the duciary
C. a partnership agreement must be in wri ng; it cannot be reached orally or by a
course of : conduct
D. the Partnership Act determines partners’ rights, du es and interests, if not
included in the : partnership agreement
34. Which of the statements below is incorrect?
A. A partner’s express authority must be in writing
B. A partner’s authority to buy/sell goods of a kind necessary for or usually employed in
the business : on account of the rm is implied
C. A partner cannot pledge the rm’s credit for purposes not connected with its
ordinary course of : business without express authority
D. A partner cannot pledge the rm’s assets for private debts without express
authority
35. Which of the following is NOT a ground for termina on of a partnership?
A. Court order
B. Partner leaves the jurisdiction
C. Expiry of a xed term
D. Bankruptcy of a partner
36. In Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 the court recognized
“reasonably : foreseeable losses” as being:
A. All losses that a plaintiff can prove beyond reasonable doubt
B. Losses that arise naturally from a breach of contract
C. Losses that are actually contemplated by the parties
D. b & c
37. Which statements is incorrect?
A. Like most partners, sole traders have unlimited personal liability of the business/ rm
B. More complex business organisations are unsuitable for larger businesses
C. Upon incorporation, a corporation becomes a separate legal entity
D. Diverse ownership requires proper management and expertise in numerous areas
38. Which is incorrect statements regarding limited partnerships?
A. A limited partner must not take part in the management of the business and does
not have power : to bind the rm
B. If a limited partner partakes in the management of the business, he/she is liable
as a general : partner
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C. A limited partner does not have the right to inspect the books of the rm
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D. Any differences arising as to ordinary matters connected with the rm’s business
are to be : decided by a majority of the general partners