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Introduction To Business Law (Custom Edition)

Introduction To Business Law (Custom Edition)

ISBN 9781488613418
Edition 7
Publication Date
Publisher Pearson Education
Author(s)
Overview

DETAILED CONTENTS

How to use this book xii
Educator resources xv
MyBusLawLab xvi
Preface xviii
About the authors xxii
Key to case report abbreviations xxiii
Table of cases xxiv
Table of statutes xxx

PART1 The Legal Framework 1

CHAPTER 1 Legal Foundations 2
Introduction 3
What is law? 5
Are rules always law? 6
Characteristics of a legal system 6
Sources of the law? 8
Classification of laws 8
Major and minor types of laws in the
Australian legal system 14

CHAPTER 2 Origins of Australian Law 20
Background 21
Origins of Australian law 22
Commonwealth and state powers 31
Separation of powers 41

CHAPTER 3 Legal Systems 45
What are the roles of the police and the courts? 46
Origins of the courts 48
Original and appellate jurisdiction 49
The state and territory court hierarchies 49
Criminal jurisdiction of the inferior courts 51
Federal courts 55
Abolition of appeals to the Privy Council 58
Features of a court hierarchy 59
Alternative methods to courts 59
Judicial and quasi-judicial tribunals 63
The ombudsman 70
The adversary system 72
The parties 73
The legal profession 75
The judiciary 77
The jury 77
Representative or class actions 78

CHAPTER 4 How Law is Made: Precedent/Statute Law 85
Sources of law 86
Finding cases 87
Case law (precedent) 90
Legal cases as precedent 93
Statute law 97
Methods of statutory interpretation 103

PART 2 Civil Liability 115

CHAPTER 5 Civil Liability: The Law of Torts and Negligence 116
The law of torts 117
Some general principles of tortious liability 117
Time periods for tort actions 120
Negligence 122
Negligence and harm 122
Elements of negligence 123

CHAPTER 6 Applications of Negligence to Business 158
Occupier’s liability 159
Categories of negligence 170
Criminal negligence 183

PART 3 Law of Contracts 189

CHAPTER 7 Introduction to Contracts 190
Sources of contract law 191
Contract and agreement distinguished 191
The law of contracts 192
Creation of an apparent simple contract 193
Classification of contracts 195
Classification according to formal or
simple contracts 198
Contracts and e-commerce 201

CHAPTER 8 Agreement Between the Parties 205

Step 1: Is there agreement between the parties? 207
The conventional approach: rules relating to offer 211
Termination of offer 222
Rules relating to acceptance 227
Rules as to contracts by post 231
Instantaneous communication 234

CHAPTER 9 Intention to Create Legal Relations 239
Step 2: Is there intention to contract? 241
Non-commercial agreements—agreements lacking serious intention 245
Commercial or business agreements 253
The statutory position 257

CHAPTER 10 Consideration 260
Step 3: Is consideration present? 261
Consideration defined 261
Essential rules for consideration 262
Promissory estoppel 273

CHAPTER 11  This chapter is available through MyBusLawLab
Capacity of the Parties 279
  
Step 4: Determining validity: Do the
parties to the contract have full
contractual capacity? 280
Infants (or minors) 281
Corporations 289
Bankrupts 290
Mentally unsound and intoxicated
persons 290
Married women 291

CHAPTER 12 Genuine Consent 294
Step 5: Is there genuine consent? 295
Misrepresentation 308
Duress and undue influence 316
Unconscionable (unfair) contracts 321

CHAPTER 13   This chapter is available through MyBusLawLab
Legality of Object, or is the Contract Legal? 328
Step 6: Is the contract legal? 329
Void and illegal contracts distinguished 329
Contracts affected by statute 330
The common law position 333

CHAPTER 14 Terms of the Contract 347
Express terms 348
Collateral contracts 352
How important is the term? 355
Implied terms 362
Meaningless terms 365
Exception, exemption or exclusion clauses or terms 366

CHAPTER 15 Rights and Liabilities of the Parties, Discharge and Remedies 385
Privity of contract 386
Assignment 389
Discharge 390

CHAPTER 16 Remedies in Contract 411
Remedies at common law 413
Equitable remedies 429
Loss of right to sue 434

PART 4 Consumer Law 37

CHAPTER 17 Consumer Guarantees Implied intoContracts—Consumer Protection 438
An introduction to consumer guarantees 441
Consumer guarantees applying to goods 444
Consumer guarantees relating to the acceptability of goods 446
Where there is no overlap with the Sale of Goods Acts 455
Consumer guarantees relating to the supply of services 456
Consumers’ rights concerning guarantees
for the supply of goods and services 456
Non-exclusion of implied consumer
guarantee 459

CHAPTER 18 Consumer Protection—the Australian Consumer Law 463
Scope of the Australian Consumer Law 464
Chapter 2: General protections under the
Australian Consumer Law 466
Misleading or deceptive conduct:
ACL: ss 18–19; ASIC Act: s 12DA 468
Prohibition of unconscionable conduct:
ACL: ss 20–22; ASIC Act: ss 12CA–CB 477
Specific false representations: ss 29–31, 37 482
Prohibition of other ‘unfair practices’ 487
Safety of consumer goods and
product-related services 492
Manufacturer’s liability 492
Product liability under the Australian Consumer Law 495
Consumer transactions 500
Enforcement and remedies 501
State consumer protection bodies 505
Regulation of the financial services industry 507

PART 5 Business Organisations and the Law 513

CHAPTER 19 Agency 514
Introduction to agency 515
Distinguished from other relationships 516
Classification of agents 517
Appointment of agents 518
Authority of the agent 521
Duties of agent to principal 525
Rights of agent against principal 530
Liability of agents and principals to third parties 531
Liability of principal and agent in tort 533
Termination of agency 534
Remedies of a principal 536
Some specific types of agency 536

CHAPTER 20 Companies and Incorporated Associations 543
Administration of company law 544
Companies 545
Lifting the veil of incorporation 546
Nature of companies 548
Corporate insolvency 565
Associations 567

CHAPTER 21 Partnerships 573
Essential elements of a partnership 574
When does a partnership exist? 576
Relationships that can look like partnerships 577
Creation 582
Relationship to outsiders 584
Liability of partners 585
Being an apparent partner or ‘holding out’ 588
Liability on change of partners 588
Relationship between partners 589
What are the rights of each partner? 589
What are the duties of each partner? 591
What happens to partnership property? 593
Dissolution 593
Limited partnerships 596

CHAPTER 22 Choosing a Business Entity 602
Factors to consider in choosing a business entity 603
Sole traders 604
Partnerships 605
Companies 605
Trusts and trustees 606
Franchises 611
Business names 614

ONLINE CHAPTERS

CHAPTER 23  This chapter is available through MyBusLawLab
Other Business-Related Torts 619
Intentional torts 620
Defamation 633
Economic torts 642
Nuisance 648
Statutory torts—breach of statutory duty and statutory nuisance 652
New torts 652

CHAPTER 24  This chapter is available through MyBusLawLab
Insurance 655

Risk 656
What is an insurance contract? 657
Parties to an insurance contract 657
Sources of insurance law 658
General Insurance Code of Practice 659
Administration 659
Industry complaints resolution 659
Concepts underlying insurance law 660
Making the contract of insurance 671
Construction of the insurance policy 676
Agents and brokers 680
Fire insurance 682
Other kinds of general (indemnity) insurance 682

CHAPTER 25  This chapter is available through MyBusLawLab
Sale of Goods 689

Sale of goods 690
Formation of the contract 691
Why is the distinction between property and possession important in business? 695
Classification of goods 696
Passing of risk 704
Transfer of title by non-owner 704
Performance of the contract 707
Remedies of the parties for breach of contract 710
The Vienna Sales Convention 713

CHAPTER 26   This chapter is available through MyBusLawLab
Electronic Commerce 717
Electronic transactions legislation—making contracts electronically 718
Legal aspects of maintaining a business website 725
Electronic commerce consumer protection 728
Jurisdiction problems 729
Privacy 730
Cybercrime and business 731
Electronic banking 734

CHAPTER 27  This chapter is available through MyBusLawLab
Property and Mortgages 739
Land 740
Goods 741
Distinguish between real and personal property 742
What is the extent of land? 747
Interests in land 748
Methods by which land ownership is established 751
What is a mortgage? 764
Mortgagor’s right to deal with the property 765
Remedies of the mortgagee 766
Licence and lease distinguished 768
Classification according to duration 768
Terms of agreement for lease 769
Terms of a leasing contract 770
Termination of leases and tenancies 770
Can the landlord recover possession of the premises? 771
Residential tenancies legislation 772
Retail tenancies legislation 774

CHAPTER 28  This chapter is available through MyBusLawLab
Intellectual Property 780
The concept of intellectual property 781
Copyright 781
Designs 792
Patents 795
Trade marks 798
What is passing off ? 802
Australian Consumer Law—unfair practices 803
Confidential information 804

CHAPTER 29  This chapter is available through MyBusLawLab
Ethics and Business Practice 809
The law and morality 810
Morals and ethics 812
Theories of ethics 812
Corporations and ethics 817
Ethical investing 819
Ethical professional advice 820

CHAPTER 30  This chapter is available through MyBusLawLab
Criminal Law in a Business Context 829
Sources of the criminal law 830
Differences between criminal law and civil law 830
Classification of offences 831
Criminal procedure 832
Elements 833
Standard of proof 833
White-collar crime 834
Statutory criminal liability in business situations 836
Criminal liability involving companies 840
Cybercrime 840
Civil penalty 841

CHAPTER 31  This chapter is available through MyBusLawLab
Restrictive Trade Practices 846
Operation of the Act 847
The Competition Policy Reform Act 1995 (Cth) 847
Administration of the Act 848
Restrictive trade practices 851
Monopoly or market domination (ss 46, 47, 50) 854
Authorisations and notifications (s 88) 863
Enforcement procedures and remedies 864
Industry codes of conduct 865

CHAPTER 32  This chapter is available through MyBusLawLab
Negotiable Instruments 869
Origins of negotiable instruments 870
Negotiability as an exception to
the nemo dat rule 871
Bills of exchange 872
Cheques 875
Bank cheques 892
Other methods of money transfer 892
The Code of Banking Practice 894
The banking industry ombudsman 894
Financial Transaction Reports Act 1988 (Cth) 895

CHAPTER 33  This chapter is available through MyBusLawLab
Insolvency and Debt Recovery 901
Should legal proceedings be commenced? 902
The debt recovery process 902
Overview of bankruptcy proceedings 905
Other effects of bankruptcy 906
Key aspects of bankruptcy 907
Effect of a sequestration order 913
Alternatives to bankruptcy 913
Property available for payment of debts 916
What power does a trustee have to avoid  antecedent  transactions? 921
Collection of money or property from third parties 922
What is the order of payment of debts? 923
Discharge and annulment of bankruptcy 924
Corporate insolvency 926

CHAPTER 34  This chapter is available through MyBusLawLab
The Work Environment and The Employment Relationship 933
Introduction to employment law 934
Implied duties in the contract of employment 942
Termination 947
The Importance of the Commonwealth Constitution Act 1900 (Imp) 949
The National Workplace Relations Scheme 949
Human rights-based work regulations 952
Work health and safety and workers’ compensation 957

CHAPTER 35  This chapter is available through MyBusLawLab
Consumer Credit and Privacy 970
Operational areas of the National Credit Code 971
Types of credit arrangements and parties 973
Formalities 974
Security for the credit—mortgages and guarantees 976
Hardship and unjust transactions 978
Privacy Act 1988 (Cth) 981
The Privacy Act 1988 (Cth), as amended by the
Privacy Amendment (Enhancing Privacy
Protection) Act 2012 984
Hire-purchase 988

CHAPTER 36  This chapter is available through MyBusLawLab
Ethics and Regulations in Marketing
and Advertising 993
Ignorance of the law is no excuse! 994
The law and ethics 994
Ethics in a business context 997
Marketing law 997
Advertising law 1010

Glossary of legal terms G-1
Index I-1

 

 

Overview

DETAILED CONTENTS

How to use this book xii
Educator resources xv
MyBusLawLab xvi
Preface xviii
About the authors xxii
Key to case report abbreviations xxiii
Table of cases xxiv
Table of statutes xxx

PART1 The Legal Framework 1

CHAPTER 1 Legal Foundations 2
Introduction 3
What is law? 5
Are rules always law? 6
Characteristics of a legal system 6
Sources of the law? 8
Classification of laws 8
Major and minor types of laws in the
Australian legal system 14

CHAPTER 2 Origins of Australian Law 20
Background 21
Origins of Australian law 22
Commonwealth and state powers 31
Separation of powers 41

CHAPTER 3 Legal Systems 45
What are the roles of the police and the courts? 46
Origins of the courts 48
Original and appellate jurisdiction 49
The state and territory court hierarchies 49
Criminal jurisdiction of the inferior courts 51
Federal courts 55
Abolition of appeals to the Privy Council 58
Features of a court hierarchy 59
Alternative methods to courts 59
Judicial and quasi-judicial tribunals 63
The ombudsman 70
The adversary system 72
The parties 73
The legal profession 75
The judiciary 77
The jury 77
Representative or class actions 78

CHAPTER 4 How Law is Made: Precedent/Statute Law 85
Sources of law 86
Finding cases 87
Case law (precedent) 90
Legal cases as precedent 93
Statute law 97
Methods of statutory interpretation 103

PART 2 Civil Liability 115

CHAPTER 5 Civil Liability: The Law of Torts and Negligence 116
The law of torts 117
Some general principles of tortious liability 117
Time periods for tort actions 120
Negligence 122
Negligence and harm 122
Elements of negligence 123

CHAPTER 6 Applications of Negligence to Business 158
Occupier’s liability 159
Categories of negligence 170
Criminal negligence 183

PART 3 Law of Contracts 189

CHAPTER 7 Introduction to Contracts 190
Sources of contract law 191
Contract and agreement distinguished 191
The law of contracts 192
Creation of an apparent simple contract 193
Classification of contracts 195
Classification according to formal or
simple contracts 198
Contracts and e-commerce 201

CHAPTER 8 Agreement Between the Parties 205

Step 1: Is there agreement between the parties? 207
The conventional approach: rules relating to offer 211
Termination of offer 222
Rules relating to acceptance 227
Rules as to contracts by post 231
Instantaneous communication 234

CHAPTER 9 Intention to Create Legal Relations 239
Step 2: Is there intention to contract? 241
Non-commercial agreements—agreements lacking serious intention 245
Commercial or business agreements 253
The statutory position 257

CHAPTER 10 Consideration 260
Step 3: Is consideration present? 261
Consideration defined 261
Essential rules for consideration 262
Promissory estoppel 273

CHAPTER 11  This chapter is available through MyBusLawLab
Capacity of the Parties 279
  
Step 4: Determining validity: Do the
parties to the contract have full
contractual capacity? 280
Infants (or minors) 281
Corporations 289
Bankrupts 290
Mentally unsound and intoxicated
persons 290
Married women 291

CHAPTER 12 Genuine Consent 294
Step 5: Is there genuine consent? 295
Misrepresentation 308
Duress and undue influence 316
Unconscionable (unfair) contracts 321

CHAPTER 13   This chapter is available through MyBusLawLab
Legality of Object, or is the Contract Legal? 328
Step 6: Is the contract legal? 329
Void and illegal contracts distinguished 329
Contracts affected by statute 330
The common law position 333

CHAPTER 14 Terms of the Contract 347
Express terms 348
Collateral contracts 352
How important is the term? 355
Implied terms 362
Meaningless terms 365
Exception, exemption or exclusion clauses or terms 366

CHAPTER 15 Rights and Liabilities of the Parties, Discharge and Remedies 385
Privity of contract 386
Assignment 389
Discharge 390

CHAPTER 16 Remedies in Contract 411
Remedies at common law 413
Equitable remedies 429
Loss of right to sue 434

PART 4 Consumer Law 37

CHAPTER 17 Consumer Guarantees Implied intoContracts—Consumer Protection 438
An introduction to consumer guarantees 441
Consumer guarantees applying to goods 444
Consumer guarantees relating to the acceptability of goods 446
Where there is no overlap with the Sale of Goods Acts 455
Consumer guarantees relating to the supply of services 456
Consumers’ rights concerning guarantees
for the supply of goods and services 456
Non-exclusion of implied consumer
guarantee 459

CHAPTER 18 Consumer Protection—the Australian Consumer Law 463
Scope of the Australian Consumer Law 464
Chapter 2: General protections under the
Australian Consumer Law 466
Misleading or deceptive conduct:
ACL: ss 18–19; ASIC Act: s 12DA 468
Prohibition of unconscionable conduct:
ACL: ss 20–22; ASIC Act: ss 12CA–CB 477
Specific false representations: ss 29–31, 37 482
Prohibition of other ‘unfair practices’ 487
Safety of consumer goods and
product-related services 492
Manufacturer’s liability 492
Product liability under the Australian Consumer Law 495
Consumer transactions 500
Enforcement and remedies 501
State consumer protection bodies 505
Regulation of the financial services industry 507

PART 5 Business Organisations and the Law 513

CHAPTER 19 Agency 514
Introduction to agency 515
Distinguished from other relationships 516
Classification of agents 517
Appointment of agents 518
Authority of the agent 521
Duties of agent to principal 525
Rights of agent against principal 530
Liability of agents and principals to third parties 531
Liability of principal and agent in tort 533
Termination of agency 534
Remedies of a principal 536
Some specific types of agency 536

CHAPTER 20 Companies and Incorporated Associations 543
Administration of company law 544
Companies 545
Lifting the veil of incorporation 546
Nature of companies 548
Corporate insolvency 565
Associations 567

CHAPTER 21 Partnerships 573
Essential elements of a partnership 574
When does a partnership exist? 576
Relationships that can look like partnerships 577
Creation 582
Relationship to outsiders 584
Liability of partners 585
Being an apparent partner or ‘holding out’ 588
Liability on change of partners 588
Relationship between partners 589
What are the rights of each partner? 589
What are the duties of each partner? 591
What happens to partnership property? 593
Dissolution 593
Limited partnerships 596

CHAPTER 22 Choosing a Business Entity 602
Factors to consider in choosing a business entity 603
Sole traders 604
Partnerships 605
Companies 605
Trusts and trustees 606
Franchises 611
Business names 614

ONLINE CHAPTERS

CHAPTER 23  This chapter is available through MyBusLawLab
Other Business-Related Torts 619
Intentional torts 620
Defamation 633
Economic torts 642
Nuisance 648
Statutory torts—breach of statutory duty and statutory nuisance 652
New torts 652

CHAPTER 24  This chapter is available through MyBusLawLab
Insurance 655

Risk 656
What is an insurance contract? 657
Parties to an insurance contract 657
Sources of insurance law 658
General Insurance Code of Practice 659
Administration 659
Industry complaints resolution 659
Concepts underlying insurance law 660
Making the contract of insurance 671
Construction of the insurance policy 676
Agents and brokers 680
Fire insurance 682
Other kinds of general (indemnity) insurance 682

CHAPTER 25  This chapter is available through MyBusLawLab
Sale of Goods 689

Sale of goods 690
Formation of the contract 691
Why is the distinction between property and possession important in business? 695
Classification of goods 696
Passing of risk 704
Transfer of title by non-owner 704
Performance of the contract 707
Remedies of the parties for breach of contract 710
The Vienna Sales Convention 713

CHAPTER 26   This chapter is available through MyBusLawLab
Electronic Commerce 717
Electronic transactions legislation—making contracts electronically 718
Legal aspects of maintaining a business website 725
Electronic commerce consumer protection 728
Jurisdiction problems 729
Privacy 730
Cybercrime and business 731
Electronic banking 734

CHAPTER 27  This chapter is available through MyBusLawLab
Property and Mortgages 739
Land 740
Goods 741
Distinguish between real and personal property 742
What is the extent of land? 747
Interests in land 748
Methods by which land ownership is established 751
What is a mortgage? 764
Mortgagor’s right to deal with the property 765
Remedies of the mortgagee 766
Licence and lease distinguished 768
Classification according to duration 768
Terms of agreement for lease 769
Terms of a leasing contract 770
Termination of leases and tenancies 770
Can the landlord recover possession of the premises? 771
Residential tenancies legislation 772
Retail tenancies legislation 774

CHAPTER 28  This chapter is available through MyBusLawLab
Intellectual Property 780
The concept of intellectual property 781
Copyright 781
Designs 792
Patents 795
Trade marks 798
What is passing off ? 802
Australian Consumer Law—unfair practices 803
Confidential information 804

CHAPTER 29  This chapter is available through MyBusLawLab
Ethics and Business Practice 809
The law and morality 810
Morals and ethics 812
Theories of ethics 812
Corporations and ethics 817
Ethical investing 819
Ethical professional advice 820

CHAPTER 30  This chapter is available through MyBusLawLab
Criminal Law in a Business Context 829
Sources of the criminal law 830
Differences between criminal law and civil law 830
Classification of offences 831
Criminal procedure 832
Elements 833
Standard of proof 833
White-collar crime 834
Statutory criminal liability in business situations 836
Criminal liability involving companies 840
Cybercrime 840
Civil penalty 841

CHAPTER 31  This chapter is available through MyBusLawLab
Restrictive Trade Practices 846
Operation of the Act 847
The Competition Policy Reform Act 1995 (Cth) 847
Administration of the Act 848
Restrictive trade practices 851
Monopoly or market domination (ss 46, 47, 50) 854
Authorisations and notifications (s 88) 863
Enforcement procedures and remedies 864
Industry codes of conduct 865

CHAPTER 32  This chapter is available through MyBusLawLab
Negotiable Instruments 869
Origins of negotiable instruments 870
Negotiability as an exception to
the nemo dat rule 871
Bills of exchange 872
Cheques 875
Bank cheques 892
Other methods of money transfer 892
The Code of Banking Practice 894
The banking industry ombudsman 894
Financial Transaction Reports Act 1988 (Cth) 895

CHAPTER 33  This chapter is available through MyBusLawLab
Insolvency and Debt Recovery 901
Should legal proceedings be commenced? 902
The debt recovery process 902
Overview of bankruptcy proceedings 905
Other effects of bankruptcy 906
Key aspects of bankruptcy 907
Effect of a sequestration order 913
Alternatives to bankruptcy 913
Property available for payment of debts 916
What power does a trustee have to avoid  antecedent  transactions? 921
Collection of money or property from third parties 922
What is the order of payment of debts? 923
Discharge and annulment of bankruptcy 924
Corporate insolvency 926

CHAPTER 34  This chapter is available through MyBusLawLab
The Work Environment and The Employment Relationship 933
Introduction to employment law 934
Implied duties in the contract of employment 942
Termination 947
The Importance of the Commonwealth Constitution Act 1900 (Imp) 949
The National Workplace Relations Scheme 949
Human rights-based work regulations 952
Work health and safety and workers’ compensation 957

CHAPTER 35  This chapter is available through MyBusLawLab
Consumer Credit and Privacy 970
Operational areas of the National Credit Code 971
Types of credit arrangements and parties 973
Formalities 974
Security for the credit—mortgages and guarantees 976
Hardship and unjust transactions 978
Privacy Act 1988 (Cth) 981
The Privacy Act 1988 (Cth), as amended by the
Privacy Amendment (Enhancing Privacy
Protection) Act 2012 984
Hire-purchase 988

CHAPTER 36  This chapter is available through MyBusLawLab
Ethics and Regulations in Marketing
and Advertising 993
Ignorance of the law is no excuse! 994
The law and ethics 994
Ethics in a business context 997
Marketing law 997
Advertising law 1010

Glossary of legal terms G-1
Index I-1

 

 

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