ATAR Notes: Forum
Uni Stuff => Faculties => Law => Topic started by: ninwa on December 18, 2008, 01:49:32 pm
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For costargh (and other prospective law students, I suppose :P) this is the kind of stuff you'll be reading - actually you'll probably be reading this very case if you do contract law in your first year. Every law student knows this case xD
PS> it's pasted on here because I fail at uploading word documents and then pasting the link to said uploaded word document
[IN THE COURT OF APPEAL.]
CARLILL v. CARBOLIC SMOKE BALL COMPANY.
1892 Dec. 6, 7.
The defendants, the proprietors of a medical preparation called "The Carbolic Smoke Ball," issued an advertisement in which they offered to pay 100l. to any person who contracted the influenza after having used one of their smoke balls in a specified manner and for a specified period. The plaintiff on the faith of the advertisement bought one of the balls, and used it in the manner and for the period specified, but nevertheless contracted the influenza:-
Held, affirming the decision of Hawkins, J., that the above facts established a contract by the defendants to pay the plaintiff 100l. in the event which had happened; that such contract was neither a contract by way of wagering within 8 & 9 Vict. c. 109, nor a policy within 14 Geo. 3, c. 48, s. 2; and that the plaintiff was entitled to recover.
APPEAL from a decision of Hawkins, J.(2)
The defendants, who were the proprietors and vendors of a medical preparation called "The Carbolic Smoke Ball," inserted in the Pall Mall Gazette of November 13, 1891, and in other newspapers, the following advertisement: "100l. reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1000l. is deposited with the Alliance Bank, Regent Street, shewing our sincerity in the matter.
"During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.
"One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s., post free. The ball can be refilled at a cost of 5s. Address, Carbolic Smoke Ball Company, 27, Princes Street, Hanover Square, London."
The plaintiff, a lady, on the faith of this advertisement, bought one of the balls at a chemist's, and used it as directed, three times a day, from November 20, 1891, to January 17, 1892, when she was attacked by influenza. Hawkins, J., held that she was entitled to recover the 100l. The defendants appealed.
LINDLEY, L.J. [The Lord Justice stated the facts, and proceeded:-] I will begin by referring to two points which were raised in the Court below. I refer to them simply for the purpose of dismissing them. First, it is said no action will lie upon this contract because it is a policy. You have only to look at the advertisement to dismiss that suggestion. Then it was said that it is a bet. Hawkins, J., came to the conclusion that nobody ever dreamt of a bet, and that the transaction had nothing whatever in common with a bet. I so entirely agree with him that I pass over this contention also as not worth serious attention.
Then, what is left? The first observation I will make is that we are not dealing with any inference of fact. We are dealing with an express promise to pay 100l. in certain events. Read the advertisement how you will, and twist it about as you will, here is a distinct promise expressed in language which is perfectly unmistakable - "100l. reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the iufluenza after having used the ball three times daily for two weeks according to the printed directions supplied with each ball."
We must first consider whether this was intended to be a promise at all, or whether it was a mere puff which meant nothing. Was it a mere puff? My answer to that question is No, and I base my answer upon this passage: "1000l. is deposited with the Alliance Bank, shewing our sincerity in the matter." Now, for what was that money deposited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all? The deposit is called in aid by the advertiser as proof of his sincerity in the matter - that is, the sincerity of his promise to pay this 100l. in the event which he has specified. I say this for the purpose of giving point to the observation that we are not inferring a promise; there is the promise, as plain as words can make it.
Then it is contended that it is not binding. In the first place, it is said that it is not made with anybody in particular. Now that point is common to the words of this advertisement and to the words of all other advertisements offering rewards. They are offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the condition accepts the offer. In point of law this advertisement is an offer to pay 100l. to anybody who will perform these conditions, and the performance of the conditions is the acceptance of the offer. That rests upon a string of authorities, the earliest of which is Williams v. Carwardine (1), which has been followed by many other decisions upon advertisements offering rewards.
But then it is said, "Supposing that the performance of the conditions is an acceptance of the offer, that acceptance ought to have been notified." Unquestionably, as a general proposition, when an offer is made, it is necessary in order to make a binding contract, not only that it should be accepted, but that the acceptance should be notified. But is that so in cases of this kind? I apprehend that they are an exception to that rule, or, if not an exception, they are open to the observation that the notification of the acceptance need not precede the performance. This offer is a continuing offer. It was never revoked, and if notice of acceptance is required - which I doubt very much, for I rather think the true view is that which was expressed and explained by Lord Blackburn in the case of Brogden v. Metropolitan Ry. Co. (2) - if notice of acceptance is required, the person who makes the offer gets the notice of acceptance contemporaneously with his notice of the performance of the condition. If he gets notice of the acceptance before his offer is revoked, that in principle is all you want. I, however, think that the true view, in a case of this kind, is that the person who makes the over shews by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the performance.
We, therefore, find here all the elements which are necessary to form a binding contract enforceable in point of law, subject to two observations. First of all it is said that this advertisement is so vague that you cannot really construe it as a promise - that the vagueness of the language shews that a legal promise was never intended or contemplated. The language is vague and uncertain in some respects, and particularly in this, that the 100l. is to be paid to any person who contracts the increasing epidemic after having used the balls three times daily for two weeks. It is said, When are they to be used? According to the language of the advertisement no time is fixed, and, construing the offer most strongly against the person who has made it, one might infer that any time was meant. I do not think that was meant, and to hold the contrary would be pushing too far the doctrine of taking language most strongly against the person using it. I do not think that business people or reasonable people would understand the words as meaning that if you took a smoke ball and used it three times daily for two weeks you were to be guaranteed against influenza for the rest of your life, and I think it would be pushing the language of the advertisement too far to construe it as meaning that. But if it does not mean that, what does it mean? It is for the defendants to shew what it does mean; and it strikes me that there are two, and possibly three, reasonable constructions to be put on this advertisement, any one of which will answer the purpose of the plaintiff. Possibly it may be limited to persons catching the "increasing epidemic" (that is, the then prevailing epidemic), or any colds or diseases caused by taking cold, during the prevalence of the increasing epidemic. That is one suggestion; but it does not commend itself to me. Another suggested meaning is that you are warranted free from catching this epidemic, or colds or other diseases caused by taking cold, whilst you are using this remedy after using it for two weeks. If that is the meaning, the plaintiff is right, for she used the remedy for two weeks and went on using it till she got the epidemic. Another meaning, and the one which I rather prefer, is that the reward is offered to any person who contracts the epidemic or other disease within a reasonable time after having used the smoke ball. Then it is asked, What is a reasonable time? It has been suggested that there is no standard of reasonableness; that it depends upon the reasonable time for a germ to develop! I do not feel pressed by that. It strikes me that a reasonable time may be ascertained in a business sense and in a sense satisfactory to a lawyer, in this way; find out from a chemist what the ingredients are; find out from a skilled physician how long the effect of such ingredients on the system could be reasonably expected to endure so as to protect a person from an epidemic or cold, and in that way you will get a standard to be laid before a jury, or a judge without a jury, by which they might exercise their judgment as to what a reasonable time would be. It strikes me, I confess, that the true construction of this advertisement is that 100l. will be paid to anybody who uses this smoke ball three times daily for two weeks according to the printed directions, and who gets the influenza or cold or other diseases caused by taking cold within a reasonable time after so using it; and if that is the true construction, it is enough for the plaintiff.
I come now to the last point which I think requires attention - that is, the consideration. It has been argued that this is nudum pactum - that there is no consideration. We must apply to that argument the usual legal tests. Let us see whether there is no advantage to the defendants. It is said that the use of the ball is no advantage to them, and that what benefits them is the sale; and the case is put that a lot of these balls might be stolen, and that it would be no advantage to the defendants if the thief or other people used them. The answer to that, I think, is as follows. It is quite obvious that in the view of the advertisers a use by the public of their remedy, if they can only get the public to have confidence enough to use it, will react and produce a sale which is directly beneficial to them. Therefore, the advertisers get out of the use an advantage which is enough to constitute a consideration.
But there is another view. Does not the person who acts upon this advertisement and accepts the offer put himself to some inconvenience at the request of the defendants? Is it nothing to use this ball three times daily for two weeks according to the directions at the request of the advertiser? Is that to go for nothing? It appears to me that there is a distinct inconvenience, not to say a detriment, to any person who so uses the smoke ball. I am of opinion, therefore, that there is ample consideration for the promise.
We were pressed upon this point with the case of Gerhard v. Bates (1), which was the case of a promoter of companies who had promised the bearers of share warrants that they should have dividends for so many years, and the promise as alleged was held not to shew any consideration. Lord Campbell's judgment when you come to examine it is open to the explanation, that the real point in that case was that the promise, if any, was to the original bearer and not to the plaintiff, and that as the plaintiff was not suing in the name of the original bearer there was no contract with him. Then Lord Campbell goes on to enforce that view by shewing that there was no consideration shewn for the promise to him. I cannot help thinking that Lord Campbell's observations would have been very different if the plaintiff in that action had been an original bearer, or if the declaration had gone on to shew what a société anonyme was, and had alleged the promise to have been, not only to the first bearer, but to anybody who should become the bearer. There was no such allegation, and the Court said, in the absence of such allegation, they did not know (judicially, of course) what a société anonyme was, and, therefore, there was no consideration. But in the present case, for the reasons I have given, I cannot see the slightest difficulty in coming to the conclusion that there is consideration.
It appears to me, therefore, that the defendants must perform their promise, and, if they have been so unwary as to expose themselves to a great many actions, so much the worse for them.
[cont]
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BOWEN, L.J. I am of the same opinion. We were asked to say that this document was a contract too vague to be enforced.
The first observation which arises is that the document itself is not a contract at all, it is only an offer made to the public.
The defendants contend next, that it is an offer the terms of which are too vague to be treated as a definite offer, inasmuch as there is no limit of time fixed for the catching of the influenza, and it cannot be supposed that the advertisers seriously meant to promise to pay money to every person who catches the influenza at any time after the inhaling of the smoke ball. It was urged also, that if you look at this document you will find much vagueness as to the persons with whom the contract was intended to be made - that, in the first place, its terms are wide enough to include persons who may have used the smoke ball before the advertisement was issued; at all events, that it is an offer to the world in general, and, also, that it is unreasonable to suppose it to be a definite offer, because nobody in their senses would contract themselves out of the opportunity of checking the experiment which was going to be made at their own expense. It is also contended that the advertisement is rather in the nature of a puff or a proclamation than a promise or offer intended to mature into a contract when accepted. But the main point seems to be that the vagueness of the document shews that no contract whatever was intended. It seems to me that in order to arrive at a right conclusion we must read this advertisement in its plain meaning, as the public would understand it. It was intended to be issued to the public and to be read by the public. How would an ordinary person reading this document construe it? It was intended unquestionably to have some effect, and I think the effect which it was intended to have, was to make people use the smoke ball, because the suggestions and allegations which it contains are directed immediately to the use of the smoke ball as distinct from the purchase of it. It did not follow that the smoke ball was to be purchased from the defendants directly, or even from agents of theirs directly. The intention was that the circulation of the smoke ball should be promoted, and that the use of it should be increased. The advertisement begins by saying that a reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic after using the ball. It has been said that the words do not apply only to persons who contract the epidemic after the publication of the advertisement, but include persons who had previously contracted the influenza. I cannot so read the advertisement. It is written in colloquial and popular language, and I think that it is equivalent to this: "100l. will be paid to any person who shall contract the increasing epidemic after having used the carbolic smoke ball three times daily for two weeks." And it seems to me that the way in which the public would read it would be this, that if anybody, after the advertisement was published, used three times daily for two weeks the carbolic smoke ball, and then caught cold, he would be entitled to the reward. Then again it was said: "How long is this protection to endure? Is it to go on for ever, or for what limit of time?" I think that there are two constructions of this document, each of which is good sense, and each of which seems to me to satisfy the exigencies of the present action. It may mean that the protection is warranted to last during the epidemic, and it was during the epidemic that the plaintiff contracted the disease. I think, more probably, it means that the smoke ball will be a protection while it is in use. That seems to me the way in which an ordinary person would understand an advertisement about medicine, and about a specific against influenza. It could not be supposed that after you have left off using it you are still to be protected for ever, as if there was to be a stamp set upon your forehead that you were never to catch influenza because you had once used the carbolic smoke ball. I think the immunity is to last during the use of the ball. That is the way in which I should naturally read it, and it seems to me that the subsequent language of the advertisement supports that construction. It says: "During the last epidemic of influenza many thousand carbolic smoke balls were sold, and in no ascertained case was the disease contracted by those using" (not "who had used") "the carbolic smoke ball," and it concludes with saying that one smoke ball will last a family several months (which imports that it is to be efficacious while it is being used), and that the ball can be refilled at a cost of 5s. I, therefore, have myself no hesitation in saying that I think, on the construction of this advertisement, the protection was to enure during the time that the carbolic smoke ball was being used. My brother, the Lord Justice who preceded me, thinks that the contract would be sufficiently definite if you were to read it in the sense that the protection was to be warranted during a reasonable period after use. I have some difficulty myself on that point; but it is not necessary for me to consider it further, because the disease here was contracted during the use of the carbolic smoke ball.
Was it intended that the 100l. should, if the conditions were fulfilled, be paid? The advertisement says that 1000l. is lodged at the bank for the purpose. Therefore, it cannot be said that the statement that 100l. would be paid was intended to be a mere puff. I think it was intended to be understood by the public as an offer which was to be acted upon.
But it was said there was no check on the part of the persons who issued the advertisement, and that it would be an insensate thing to promise 100l. to a person who used the smoke ball unless you could check or superintend his manner of using it. The answer to that argument seems to me to be that if a person chooses to make extravagant promises of this kind he probably does so because it pays him to make them, and, if he has made them, the extravagance of the promises is no reason in law why he should not be bound by them.
It was also said that the contract is made with all the world - that is, with everybody; and that you cannot contract with everybody. It is not a contract made with all the world. There is the fallacy of the argument. It is an offer made to all the world; and why should not an offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs the condition? It is an offer to become liable to any one who, before it is retracted, performs the condition, and, although the offer is made to the world, the contract is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement. It is not like cases in which you offer to negotiate, or you issue advertisements that you have got a stock of books to sell, or houses to let, in which case there is no offer to be bound by any contract. Such advertisements are offers to negotiate - offers to receive offers - offers to chaffer, as, I think, some learned judge in one of the cases has said. If this is an offer to be bound, then it is a contract the moment the person fulfils the condition.
That seems to me to be sense, and it is also the ground on which all these advertisement cases have been decided during the century; and it cannot be put better than in Willes, J.'s, judgment in Spencer v. Harding. (1) "In the advertisement cases," he says, "there never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave information. The difficulty suggested was that it was a contract with all the world. But that, of course, was soon overruled. It was an offer to become liable to any person who before the offer should be retracted should happen to be the person to fulfil the contract, of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on, 'and we undertake to sell to the highest bidder,' the reward cases would have applied, and there would have been a good contract in respect of the persons." As soon as the highest bidder presented himself, says Willes, J., the person who was to hold the vinculum juris on the other side of the contract was ascertained, and it became settled.
Then it was said that there was no notification of the acceptance of the contract. One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come together. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to the English law - I say nothing about the laws of other countries - to make a contract. But there is this clear gloss to be made upon that doctrine, that as notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.
That seems to me to be the principle which lies at the bottom of the acceptance cases, of which two instances are the well-known judgment of Mellish, L.J., in Harris's Case (1), and the very instructive judgment of Lord Blackburn in Brogden v. Metropolitan Ry. Co. (2), in which he appears to me to take exactly the line I have indicated.
Now, if that is the law, how are we to find out whether the person who makes the offer does intimate that notification of acceptance will not be necessary in order to constitute a binding bargain? In many cases you look to the offer itself. In many cases you extract from the character of the transaction that notification is not required, and in the advertisement cases it seems to me to follow as an inference to be drawn from the transaction itself that a person is not to notify his acceptance of the offer before he performs the condition, but that if he performs the condition notification is dispensed with. It seems to me that from the point of view of common sense no other idea could be entertained. If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circumstances, as it seems to me, that in order to make the contract binding there should be any notification of acceptance. It follows from the nature of the thing that the performance of the condition is sufficient acceptance without the notification of it, and a person who makes an offer in an advertisement of that kind makes an offer which must be read by the light of that common sense reflection. He does, therefore, in his offer impliedly indicate that he does not require notification of the acceptance of the offer.
A further argument for the defendants was that this was a nudum pactum - that there was no consideration for the promise - that taking the influenza was only a condition, and that the using the smoke ball was only a condition, and that there was no consideration at all; in fact, that there was no request, express or implied, to use the smoke ball. Now, I will not enter into an elaborate discussion upon the law as to requests in this kind of contracts. I will simply refer to Victors v. Davies (1) and Serjeant Manning's note to Fisher v. Pyne (2), which everybody ought to read who wishes to embark in this controversy. The short answer, to abstain from academical discussion, is, it seems to me, that there is here a request to use involved in the offer. Then as to the alleged want of consideration. The definition of "consideration" given in Selwyn's Nisi Prius, 8th ed. p. 47, which is cited and adopted by Tindal, C.J., in the case of Laythoarp v. Bryant (3), is this: "Any act of the plaintiff from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff, provided such act is performed or such inconvenience suffered by the plaintiff, with the consent, either express or implied, of the defendant." Can it be said here that if the person who reads this advertisement applies thrice daily, for such time as may seem to him tolerable, the carbolic smoke ball to his nostrils for a whole fortnight, he is doing nothing at all - that it is a mere act which is not to count towards consideration to support a promise (for the law does not require us to measure the adequacy of the consideration). Inconvenience sustained by one party at the request of the other is enough to create a consideration. I think, therefore, that it is consideration enough that the plaintiff took the trouble of using the smoke ball. But I think also that the defendants received a benefit from this user, for the use of the smoke ball was contemplated by the defendants as being indirectly a benefit to them, because the use of the smoke balls would promote their sale.
Then we were pressed with Gerhard v. Bates. (4) In Gerhard v. Bates (4), which arose upon demurrer, the point upon which the action failed was that the plaintiff did not allege that the promise was made to the class of which alone the plaintiff was a member, and that therefore there was no privity between the plaintiffs and the defendant. Then Lord Campbell went on to give a second reason. If his first reason was not enough, and the plaintiff and the defendant there had come together as contracting parties and the only question was consideration, it seems to me Lord Campbell's reasoning would not have been sound. It is only to be supported by reading it as an additional reason for thinking that they had not come into the relation of contracting parties; but, if so, the language was superfluous. The truth is, that if in that case you had found a contract between the parties there would have been no difficulty about consideration; but you could not find such a contract. Here, in the same way, if you once make up your mind that there was a promise made to this lady who is the plaintiff, as one of the public - a promise made to her that if she used the smoke ball three times daily for a fortnight and got the influenza, she should have 100l., it seems to me that her using the smoke ball was sufficient consideration. I cannot picture to myself the view of the law on which the contrary could be held when you have once found who are the contracting parties. If I say to a person, "If you use such and such a medicine for a week I will give you 5l.," and he uses it, there is ample consideration for the promise.
[cont]
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A. L. SMITH, L.J. The first point in this case is, whether the defendants' advertisement which appeared in the Pall Mall Gazette was an offer which, when accepted and its conditions performed, constituted a promise to pay, assuming there was good consideration to uphold that promise, or whether it was only a puff from which no promise could be implied, or, as put by Mr. Finlay, a mere statement by the defendants of the confidence they entertained in the efficacy of their remedy. Or as I might put it in the words of Lord Campbell in Denton v. Great Northern Ry. Co. (1), whether this advertisement was mere waste paper. That is the first matter to be determined. It seems to me that this advertisement reads as follows: "100l. reward will be paid by the Carbolic Smoke Ball Company to any person who after having used the ball three times daily for two weeks according to the printed directions supplied with such ball contracts the increasing epidemic influenza, colds, or any diseases caused by taking cold. The ball will last a family several months, and can be refilled at a cost of 5s." If I may paraphrase it, it means this: "If you" - that is one of the public as yet not ascertained, but who, as Lindley and Bowen, L.JJ., have pointed out, will be ascertained by the performing the condition - "will hereafter use my smoke ball three times daily for two weeks according to my printed directions, I will pay you 100l. if you contract the influenza within the period mentioned in the advertisement." Now, is there not a request there? It comes to this: "In consideration of your buying my smoke ball, and then using it as I prescribe, I promise that if you catch the influenza within a certain time I will pay you 100l." It must not be forgotten that this advertisement states that as security for what is being offered, and as proof of the sincerity of the offer, 1000l. is actually lodged at the bank wherewith to satisfy any possible demands which might be made in the event of the conditions contained therein being fulfilled and a person catching the epidemic so as to entitle him to the 100l. How can it be said that such a statement as that embodied only a mere expression of confidence in the wares which the defendants had to sell? I cannot read the advertisement in any such way. In my judgment, the advertisement was an offer intended to be acted upon, and when accepted and the conditions performed constituted a binding promise on which an action would lie, assuming there was consideration for that promise. The defendants have contended that it was a promise in honour or an agreement or a contract in honour - whatever that may mean. I understand that if there is no consideration for a promise, it may be a promise in honour, or, as we should call it, a promise without consideration and nudum pactum; but if anything else is meant, I do not understand it. I do not understand what a bargain or a promise or an agreement in honour is unless it is one on which an action cannot be brought because it is nudum pactum, and about nudum pactum I will say a word in a moment.
In my judgment, therefore, this first point fails, and this was an offer intended to be acted upon, and, when acted upon and the conditions performed, constituted a promise to pay.
In the next place, it was said that the promise was too wide, because there is no limit of time within which the person has to catch the epidemic. There are three possible limits of time to this contract. The first is, catching the epidemic during its continuance; the second is, catching the influenza during the time you are using the ball; the third is, catching the influenza within a reasonable time after the expiration of the two weeks during which you have used the ball three times daily. It is not necessary to say which is the correct construction of this contract, for no question arises thereon. Whichever is the true construction, there is sufficient limit of time so as not to make the contract too vague on that account.
Then it was argued, that if the advertisement constituted an offer which might culminate in a contract if it was accepted, and its conditions performed, yet it was not accepted by the plaintiff in the manner contemplated, and that the offer contemplated was such that notice of the acceptance had to be given by the party using the carbolic ball to the defendants before user, so that the defendants might be at liberty to superintend the experiment. All I can say is, that there is no such clause in the advertisement, and that, in my judgment, no such clause can be read into it; and I entirely agree with what has fallen from my Brothers, that this is one of those cases in which a performance of the condition by using these smoke balls for two weeks three times a day is an acceptance of the offer.
It was then said there was no person named in the advertisement with whom any contract was made. That, I suppose, has taken place in every case in which actions on advertisements have been maintained, from the time of Williams v. Carwardine (1), and before that, down to the present day. I have nothing to add to what has been said on that subject, except that a person becomes a persona designata and able to sue, when he performs the conditions mentioned in the advertisement.
Lastly, it was said that there was no consideration, and that it was nudum pactum. There are two considerations here. One is the consideration of the inconvenience of having to use this carbolic smoke ball for two weeks three times a day; and the other more important consideration is the money gain likely to accrue to the defendants by the enhanced sale of the smoke balls, by reason of the plaintiff's user of them. There is ample consideration to support this promise. I have only to add that as regards the policy and the wagering points, in my judgment, there is nothing in either of them.
Appeal dismissed.
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I have been to one law lecture and this was mentioned in it :)
There is even an associated facebook group http://www.facebook.com/home.php#/group.php?gid=2223642512
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and this is just one case, right? don't we have to read a fair few at a time, before lectures and stuff? :/
and after you go through one, what do you do? (haven't read this one yet btw)
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i don't get it. What's the point of knowing all this info of the case. Couldn't we just google it?
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Yes, this is one case. What happens is you have a casebook, which consists of excerpts from cases relevant to the topic being studied for that week. In this case for example the judges each mention the issue of nudum pactum in their judgments, so when you're studying that topic, there will only be those parts of the judgment in your casebook for you to read.
Each week you'd read anywhere from 3 to 10 cases. Some cases can go on for 30 pages, others are only 2 pages long. After you go through one it's up to you but you'd probably take some notes on the principles discussed in the case, for your exam later on, because you'll be required to cite cases in it.
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i don't get it. What's the point of knowing all this info of the case. Couldn't we just google it?
In the exams you'll need to be able to quote judges, so no, you can't just google it, you have to read the actual judgment.
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Yes, this is one case. What happens is you have a casebook, which consists of excerpts from cases relevant to the topic being studied for that week. In this case for example the judges each mention the issue of nudum pactum in their judgments, so when you're studying that topic, there will only be those parts of the judgment in your casebook for you to read.
Each week you'd read anywhere from 3 to 10 cases. Some cases can go on for 30 pages, others are only 2 pages long. After you go through one it's up to you but you'd probably take some notes on the principles discussed in the case, for your exam later on, because you'll be required to cite cases in it.
And this is all you have been doing? As in, reading cases, making notes etc - nothing different?
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That's pretty much it. You have study guides and textbooks to help you though. Also I didn't read some of the cases cos I couldn't be bothered and I still passed fine :P
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omg please tell me they explain a lot of the stuff in that to you? like for example
"within 8 & 9 Vict. c. 109, nor a policy within 14 Geo. 3, c. 48, s. 2; and that the plaintiff was entitled to recover."
Wtf
NOW IM SCARED NINA NOOOOO!!! haha
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er okay don't worry I don't know what that means either o.O
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That's pretty much it. You have study guides and textbooks to help you though. Also I didn't read some of the cases cos I couldn't be bothered and I still passed fine :P
oh okay. i've heard about having to write essays though...maybe that's only during the exams? or not hah
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er okay don't worry I don't know what that means either o.O
LOL OK. Geez now i feel better haha.
me happy and vce01 law students 09 represent!
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oh okay. i've heard about having to write essays though...maybe that's only during the exams? or not hah
Haha no essays during the year at Monash, might be different at other unis. 10% of your mark is tutorial participation and 90% is your exam, that's all, no assignments or anything ;)
MASSIVE essays for your exam though :P but they're not essays like VCE English essays, they're more like really really REALLY extended responses. :)
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oh okay. i've heard about having to write essays though...maybe that's only during the exams? or not hah
Haha no essays during the year at Monash, might be different at other unis. 10% of your mark is tutorial participation and 90% is your exam, that's all, no assignments or anything ;)
MASSIVE essays for your exam though :P but they're not essays like VCE English essays, they're more like really really REALLY extended responses. :)
wow that is awesomee, doesn't seem so bad ...yet :P cept maybe the exams but thats ok
thanks for that.
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It seems to me that from the point of view of common sense no other idea could be entertained. If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal?
But I think also that the defendants received a benefit from this user, for the use of the smoke ball was contemplated by the defendants as being indirectly a benefit to them, because the use of the smoke balls would promote their sale.
If I say to a person, "If you use such and such a medicine for a week I will give you 5l.," and he uses it, there is ample consideration for the promise.
How can it be said that such a statement as that embodied only a mere expression of confidence in the wares which the defendants had to sell?
It was then said there was no person named in the advertisement with whom any contract was made.
I've hand-picked the main points of interest which were especially riveting for me.
I tend to agree with the Justice, in that because there was no name on the advertisement, (or contact number for that regard), that the company was never actually going to give into the reward, as it was more or less a voluntary act and there was no way of contacting the company in which to tell them that the virus was contracted within the certain time-frame.
I also agree with the promoting sales bias. Because many of the people were in it for the incentive, then the sales of the smoke balls would have been much greater, and more lucrative to the company, but ultimately not benefiting the individual as these have vast effects on their health and ultimately, their future well-being (given it has long-term effects).
And also in accepting the proposal brings up a crucial issue. Nobody knows how many people may have taken up the offer (because it was to advertise a product, not to look for a lost item/thing to which only one person may feel victorious). Many people may have suffered the effects of influenza, and subsequently, may feel that during this period of time, they feel equally deserving of the money incentive as the next person. As there was no contact number with which to reach the company, I assume it had only made matters worse for the people participating.
All in all a very interesting case. :D
me happy and vce01 law students 09 represent!
Yay, we will so rock law in '09. ;)
EDIT: Oh, I hope we get to write really long essays; I just got into the mood. XD
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happy have u applied for deakin law by any chance?
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Interesting, Alana, are you on the company's side?
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happy have u applied for deakin law by any chance?
Nope... Didn't get the ENTER for it, unfortunately. :(
Interesting, Alana, are you on the company's side?
Lol, no, did it sound like I was? :S... I was talking about how the people couldn't contact the company and how they suffer indefinitely because of it. But I will say that it does seem a little naive to try out the technique, being fully aware of the consequences, and not knowing who to contact... Also, knowing that there are also others in the same boat who are also trying for the same incentive decreases the chances you have of actually gaining the incentive.
Actually, now it sounds like I favour the company. :$
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Oh OK, yeah it just sounded like you were on the company's side ... you'd be the first :P
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Oh OK, yeah it just sounded like you were on the company's side ... you'd be the first :P
Haha, I have a very individual point of view... I like to interpret law inside-out. :P
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happy have u applied for deakin law by any chance?
Nope... Didn't get the ENTER for it, unfortunately. :(
Interesting, Alana, are you on the company's side?
Lol, no, did it sound like I was? :S... I was talking about how the people couldn't contact the company and how they suffer indefinitely because of it. But I will say that it does seem a little naive to try out the technique, being fully aware of the consequences, and not knowing who to contact... Also, knowing that there are also others in the same boat who are also trying for the same incentive decreases the chances you have of actually gaining the incentive.
Actually, now it sounds like I favour the company. :$
but doesnt deakin have that underpresented schools thing? and also dont u have other SEAS categoties? do u have it on ur preferences? u might get in, u never know.
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happy have u applied for deakin law by any chance?
Nope... Didn't get the ENTER for it, unfortunately. :(
Interesting, Alana, are you on the company's side?
Lol, no, did it sound like I was? :S... I was talking about how the people couldn't contact the company and how they suffer indefinitely because of it. But I will say that it does seem a little naive to try out the technique, being fully aware of the consequences, and not knowing who to contact... Also, knowing that there are also others in the same boat who are also trying for the same incentive decreases the chances you have of actually gaining the incentive.
Actually, now it sounds like I favour the company. :$
but doesnt deakin have that underpresented schools thing? and also dont u have other SEAS categoties? do u have it on ur preferences? u might get in, u never know.
Our school's not an under-represented school on Deakin's list... And that's the only SEAS category I applied for. :S (I should have put on my other circumstances but oh well, I guess I can transfer to Deakin next year instead of La Trobe? A year goes by really quickly. :P)
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lol aww ok. all the best! :)
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lol aww ok. all the best! :)
All the best for you too! Let's show the legal system what we're made of! :)
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oh okay. i've heard about having to write essays though...maybe that's only during the exams? or not hah
Haha no essays during the year at Monash, might be different at other unis. 10% of your mark is tutorial participation and 90% is your exam, that's all, no assignments or anything ;)
MASSIVE essays for your exam though :P but they're not essays like VCE English essays, they're more like really really REALLY extended responses. :)
I don't think the exam is weighed as heavily in most ANU law courses, but everyone has to write an essay sometime during the semester. Also, I think there might be a mid-semester exam for some subjects, which is redeemable at the end-of-semester if you phailed.
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gahh. is this supposed to scare the shit out of me?
but i suppose looking at it closely, and less in a overwhelmed state it isn't so bad.
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Omg, that is so scary :(
Do you know if Business law, Australian company law and Taxation law @ Monash is anything like that? :(
Oh, and and has anyone done those subjects?
I'll buy your assignments off you if you still have them :D haha
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are u doing law next yr roxxii?
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I think she just means as electives?
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oh okay. i've heard about having to write essays though...maybe that's only during the exams? or not hah
Haha no essays during the year at Monash, might be different at other unis. 10% of your mark is tutorial participation and 90% is your exam, that's all, no assignments or anything ;)
MASSIVE essays for your exam though :P but they're not essays like VCE English essays, they're more like really really REALLY extended responses. :)
I don't think the exam is weighed as heavily in most ANU law courses, but everyone has to write an essay sometime during the semester. Also, I think there might be a mid-semester exam for some subjects, which is redeemable at the end-of-semester if you phailed.
so it is not like arts where you have research essays and other assignments totalling 50% and exam components comprising 50% of the unit?
I'm not sure what you mean. Many arts subjects don't have exams at all and your grade is derived entirely from essays and participation and usually when arts subjects do have exams, it's worth about 40% of the total mark or even less.
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are u doing law next yr roxxii?
I'm doing Commerce, majoring in Accounting and Finance.
To get accreditation for CA (Chartered Accountant) I need to complete those 3 law subjects :(
I'm really scared I'll suck at it, and they'll bring the average of my marks down :'(
There's even a chance that i'll fail them :P
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are u doing law next yr roxxii?
I'm doing Commerce, majoring in Accounting and Finance.
To get accreditation for CA (Chartered Accountant) I need to complete those 3 law subjects :(
I'm really scared I'll suck at it, and they'll bring the average of my marks down :'(
There's even a chance that i'll fail them :P
Nahh, no way amy. I have confidence you'll do well, remember nothing is impossible. :)
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are u doing law next yr roxxii?
I'm doing Commerce, majoring in Accounting and Finance.
To get accreditation for CA (Chartered Accountant) I need to complete those 3 law subjects :(
I'm really scared I'll suck at it, and they'll bring the average of my marks down :'(
There's even a chance that i'll fail them :P
Nahh, no way amy. I have confidence you'll do well, remember nothing is impossible. :)
Have that confidence in yourself too, Prav. :)
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Do you know if Business law, Australian company law and Taxation law @ Monash is anything like that? :(
I'm pretty sure you don't read nearly as many cases like that. Contract law is just one part of subjects like business law, which aren't actually handled by the law faculty I believe. Taxation law is apparently a bitch and nobody likes it :P don't know about Australian company law.
gahh. is this supposed to scare the shit out of me?
but i suppose looking at it closely, and less in a overwhelmed state it isn't so bad.
NO!
It really isn't that bad. You get used to it. Plus your lecturers give you summaries of cases, which are easier to read. And you have textbooks, which also summarise the main principles in the cases. You're not going to be figuring things out on your own :)
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All this stuff is too exciting! I can't wait to start law! How would we go about choosing subjects, though? :(
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^good question. excited about doing it myself also, except im quite happy with the holidays at the moment and would like it never to end...
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And this is all you have been doing? As in, reading cases, making notes etc - nothing different?
That pretty much sums up 3 years of law school.
All this stuff is too exciting! I can't wait to start law! How would we go about choosing subjects, though? :(
If you want to be a lawyer, for the first 2/3 of your course, you don't choose at all. The other 1/3 you pick according to your interests that you will find out later.
are u doing law next yr roxxii?
I'm doing Commerce, majoring in Accounting and Finance.
To get accreditation for CA (Chartered Accountant) I need to complete those 3 law subjects :(
I'm really scared I'll suck at it, and they'll bring the average of my marks down :'(
There's even a chance that i'll fail them :P
You will be fine.
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*mega bump*
Just started case law today in PBL :)
Really enjoyed reading through the cases (we only read the summaries and 'abridged' versions of the cases in class, I read the whole things on Austlii (NERD))
I'm worried I made a mistake choosing commerce lol (jk, seriously though, accounting is soo boring this semester)
EDIT: hehe I know, I know, I would probably feel much differently about reading through full cases if I had 10+ to read a week. I think I'll stick with Accouting for now :P
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How are you (people that are doing law that posted in this thread) finding law now? Has there been much change from the regular casebooks? I'm interested in transferring to a double degree including law next year.
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I'm finding it very interesting now that I'm doing torts and criminal law (two of the easiest and probably most interesting law subjects). Ask me again when I'm doing taxation law and the answer will be v v different :P
Has there been much change from the regular casebooks?
What do you mean?
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1. What are the job opportunities and 2. also the prospect of attaining a job in law?
I've heard that the employment isn't that bright in law knowing that there are a great number of students graduating from law each year from Monash.
3. What sets you apart from being the brighter law student than majority of them?
Thanks very much! :)
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1. A law degree opens a lot of doors. You definitely don't have to be a lawyer. Maybe you can list some careers you're interested in and I'll tell you if a law degree is useful? :P
2. If you want a job in the legal industry then it gets a bit harder. Because of the sheer amount of law graduates each year it is very very competitive, to the point where the top and middle tier law firms, when taking seasonal clerkship applications, will not even consider those who don't have a distinction average or higher.
And to give you a rough idea of how difficult it is to even get a D: I have had several lecturers saying that it is practically impossible to get 90+ in a law subject, and I have a friend doing an elective subject whose lecturer told them that he was only allowed to award 1 or 2 HDs - this was in a class of about 70 people. This is because a lot of law subjects (the core subjects, I think) don't have a quota for each grade. If a class happens to be dumb one year it's possible nobody will get HD/D.
3. Sorry, don't know the answer to this one because I'm one of the "majority of them" :P
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1.
* Becoming a CEO of a company, preferably a large company.
* Politician
* Mad Scientist (lol)
* hmm, there must be more but can't think of any that could relate or not to law degree
2. Ohhh okay. Law is very very very very very very x1000000 competitive. Being a lawyer for the one of the Big 4 would be almost impossible if you didnt have average of D then.
3. Hmmm idk. lols, you must be the brighter one to be answering those q's!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1
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1.
CEO: a law degree would help in that I think it gives you credibility. I would have thought an MBA would be more useful in this case however - can anyone confirm?
Politician: a law degree definitely helps, especially if you want to go into diplomacy/international affairs. Though again, our PM only has an arts degree, so who really knows :P
Mad scientist: well, do a science degree, get into politics with a law degree, then you can be a mad scientist who takes over the world
2. What's the Big 4 :-[
3. only cos I'm pretty much the only active law student on VN lol
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2. What's the Big 4 :-[
Powerhouses of accounting/auditing/miscellaneous important businessy stuff.
PricewaterhouseCoopers (PwC), Deloitte, Ernst & Young, and KPMG.
There used to be 8 in the beginning... which dwindled down to 5 due to various company merges... which was further cut to 4 after Arthur Andersen packed up shop and left town after the Enron incident in 2002.
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Oh I see. Thanks Fyrefly!
In that case, lacoste, the Big 4 isn't usually what most law students look to first. I guess the legal equivalent of the "Big 4" is what I mentioned before - the "top tier" law firms. These would be firms like Allens Arthur Robinson, Mallesons, Freehills, Minter Ellison, Clayton Utz, Blakes - the most highly ranked law firms in the country. If you can get a clerkship at one of those, once you graduate you'll probably start your legal career a fair way ahead of most other students who didn't :P (unless you bombed out in your final years, which is unlikely if you're smart enough to get into one of those firms in the first place)
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Yeh, with Big 4. I think thats more of an aspiration for accounting grads, not law grads.
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In Australia more than a third of graduates with law degrees do not practise law. Law is seen as a good general education for working in business, banking, technology, the property market, construction, public administration, journalism, and many other occupations.
As in other countries, a large percentage of parliamentarians at the State and Federal level are qualified lawyers.
Also, as of Feb 2009:
currently the Federal Coalition has a shadow cabinet of 21 frontbenchers. Of these 17 have law degrees and 4 have economics degress - Tony Abbott, Andrew Robb, Nick Minchin and Sharman Stone (who has a PhD in economics).
Some past PMs who had law degrees:
Barton was one of the three judges who founded Australia’s High Court.
Whitlam would have had a law degree if war hadn't broken out.
Menzies received 1st class honours in law from UoM.
Hawke, Holt, McMahon and John Howard all had law degrees.
Deakin and Bruce were barristers.
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I'm finding it very interesting now that I'm doing torts and criminal law (two of the easiest and probably most interesting law subjects). Ask me again when I'm doing taxation law and the answer will be v v different :P
Has there been much change from the regular casebooks?
What do you mean?
Sorry I wasn't very clear there. What I'm asking is whether you are still receiving those weekly cases, that you referred to earlier, to revise. Ie. is the form of learning and being assessed changing at all or is it the same basic pattern?
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Yes, that's basically how every law subject works :P you get a bunch of cases and relevant legislation and learn the law from there.
It's not as monotonous as it sounds, I promise!!
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Haha, I'll take your word. In that case, I may have to try and sit in on some Monash law lectures.
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lol ninwa i shall soon join you as an active VN-user/law student XD im excited but now ever so slightly concerned...
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Oh you poor poor thing :(
Just kidding, congrats xD
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i know most law students on VN go to monash, but what is your opinion on the postgrad JD at melbourne?
is a BA+JD @ UoM better than LLB @ monash?
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No because the JD program is almost exactly the same as the LLB. All law graduates need to do a prescribed set of subjects, so the only difference between courses is the quality, and UoM and Monash are pretty much on par in terms of employment opportunities, quality of teaching, reputation etc.
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thanks :)
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UoM and Monash [Law degrees] are pretty much on par in terms of employment opportunities, quality of teaching, reputation etc.
Glad to hear this as some of my (~ 60 y.o.) relatives were giving me 'tude about going to Monash for law. If anything, I'm willing to bet that Monash law might surpass Melbourne in the near future, as I know a lot of people in my yr 12 cohort are/were put off by the lack of an undergrad degree.
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Haha, what were they saying?
For employers, I've found they're more often interested in your course rather than which university you went to. Some companies will only ask for commerce/business/accounting etc. / law students for example. So with your ENTER (where you can get into either course easy) the more pressing issue would be what exactly you want to do with your law degree.
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Haha, what were they saying?
For employers, I've found they're more often interested in your course rather than which university you went to. Some companies will only ask for commerce/business/accounting etc. / law students for example. So with your ENTER (where you can get into either course easy) the more pressing issue would be what exactly you want to do with your law degree.
surely employers would recognise (unofficialy at least) that some universities have higher quality courses than others?
ie X degree is better at job applicant A's university than applicant B's so employers would be more willing to hire A over B
(in case nobody has picked up im talking in generall here and not just about law)
lol as for jejak and your relatives, dont worry, im going to uom yet most of my family went to monash anyway :)
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as I know a lot of people in my yr 12 cohort are/were put off by the lack of an undergrad degree.
+ 1
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Haha, what were they saying?
For employers, I've found they're more often interested in your course rather than which university you went to. Some companies will only ask for commerce/business/accounting etc. / law students for example. So with your ENTER (where you can get into either course easy) the more pressing issue would be what exactly you want to do with your law degree.
surely employers would recognise (unofficialy at least) that some universities have higher quality courses than others?
ie X degree is better at job applicant A's university than applicant B's so employers would be more willing to hire A over B
(in case nobody has picked up im talking in generall here and not just about law)
lol as for jejak and your relatives, dont worry, im going to uom yet most of my family went to monash anyway :)
Oh sorry I should've clarified. Employers do care what university you went to. I only meant that they don't usually differentiate between UoM and Monash graduates, as both universities are similar in terms of reputation.
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Haha, what were they saying?
For employers, I've found they're more often interested in your course rather than which university you went to. Some companies will only ask for commerce/business/accounting etc. / law students for example. So with your ENTER (where you can get into either course easy) the more pressing issue would be what exactly you want to do with your law degree.
surely employers would recognise (unofficialy at least) that some universities have higher quality courses than others?
ie X degree is better at job applicant A's university than applicant B's so employers would be more willing to hire A over B
(in case nobody has picked up im talking in generall here and not just about law)
lol as for jejak and your relatives, dont worry, im going to uom yet most of my family went to monash anyway :)
Oh sorry I should've clarified. Employers do care what university you went to. I only meant that they don't usually differentiate between UoM and Monash graduates, as both universities are similar in terms of reputation.
ok good to hear, i just didnt like the idea of uom being considered equal to say... vu or deakin :P
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old thread but:
ninwa, i don't understand how you study law this way haha.
so basically you have that huge case (which i'm sure is quite short, yes?) but then what do you do with it, you read through it and make notes on what? and then how do you study from it?
and how do you link all the cases you do in that week, is there a lot of ROTE learning?
&so then how is it all tested in the exams...?
haha sorry, just curious..
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How do I study?
I leave the case til a week before the exam then frantically search for study guides. I do not recommend this if you want a legal job after graduation.
How you're supposed to study:
Most high court judgments are that long but we get textbooks which only take the useful segments. Those cases often deal with a whole range of legal issues so the textbook authors only take the chunks relevant to the issues we're studying.
So you're supposed to read (at least - some lecturers are all "you can read the whole case if you're keen!" and I'm all "gtfo") that segment and then extract the main principles from it. You are directed to read specific cases because they contain statements on how the law is currently interpreted.
You take the principles from every case basically. You don't really need to memorise specific details of the circumstances of the case (although basic facts are useful if you wish to distinguish situations in the exam problems).
There's not much rote learning for open-book exams; I haven't done a closed-book exam yet (they're only just beginning to phase them in) but I imagine there might be a bit of rote-learning of principles.
For an open book exam your notes would probably look something like this:
Area of law A
<case A1>: established <principle A1>
<case A2>: established <principle A2>
Area of law B
<case B1>: established <principle B1>
<case B2>: established <principle B2>
Exam question will describe a situation and then say "advise client".
You go through the situation and identify all the relevant areas of law (which is a lot harder than it sounds).
Then you might spot something like "hey this part of the problem sounds a lot like case B1" and then you will turn to your notes and take principle B1 and apply it to the problem. (So your answer can look something like "client would/would not succeed because according to the principle established in case B2, blahblahblah")
Sorry for the ramble. Hope it makes sense :P
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ahhh thank you! it did make sense..
so basically it's a lot of reading, and understanding concepts through that with cases, even in the first few subjects? it sounds weird but not that bad, maybe cos i like reading hah. not sure if i'd like reading 'law cases' though.
.. and you can basically cram well for it o-O how are you doing in law? straight HD;)
well i just assumed law was private studying about a million concepts to memorise, i must have been sooooo wrong. haha
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Yeah it's pretty much like that for all law subjects.
It is possible to cram and do well BUT you're pretty much playing Russian roulette with your degree.
Also, no comment re: my marks :P
There may need to be far more memorising in future as the law faculty at Monash is slowly changing all exams to closed-book. (Don't know about other universities)
Law cases can be a bit tedious to read, especially since judges are notoriously bad at expression and will construct the most grammatically awkward sentences that you have to read 3 times just to understand. Also they often like to ramble on about something extremely complex for 10 pages, and then after you've waded through all that they'll say "oh btw none of that was relevant soz" =_=''
But once you get used to them they can be enjoyable. Some of the situations you'll read about are seriously funny as hell. Also when your life consists of reading legal judgments, you learn to find the humor in anything or you'll go batshit crazy.
Also some judges are actually quite entertaining to read, e.g. here's some quotes from Michael Kirby, my favourite high court justice of all time:
CALLINAN J: Mr Jackson, it seems to me that clearly the people at the party, including Ms Joslyn and Mr Berryman, went out with the intention of getting drunk.
MR JACKSON: It would be a big night, your Honour, big night.
CALLINAN J: With the intention of getting drunk and they fulfilled that intention.
MR JACKSON: Well, your Honour, young people sometimes...
KIRBY J: I just think “drunk” is a label and I am a little worried about - it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.
MR JACKSON: Yes.
KIRBY J: “A drunk” has all sorts of baggage with it.
HAYNE J: Perhaps “hammered” is the more modern expression, Mr Jackson, or “well and truly hammered”.
MR JACKSON: I am indebted to your Honour.
KIRBY J: I do not know any of these expressions.
McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.
KIRBY J: I have never heard that word “hammered” before, never. Not before this very minute.
MR MARTIN: Indeed, your Honour. The agreement, in our submission, needs to be put into its context, and I will do that very briefly. The background is that prior to 1980 there were, amongst other brands, two substantive brands of ice-cream being marketed in the country, one under the name Peters, the other under the name Pauls.
KIRBY J: Was there a quality differential? Was Pauls not a more high class sort of ice-cream than Peters?
MR MARTIN: Different views were held by different consumers on that subject, I think, your Jonour, and there is no evidence bearing directly on that.
KIRBY J: You do not have any samples for us?
MR MARTIN: No, I am afraid not, your Honour.
KIRBY J: Could you give me the page again, I am sorry.
MR JACKSON: Page 148, your Honour, in volume 1.
KIRBY J: I must be getting a bit deaf, Mr Jackson.
GUMMOW J: You are.
KIRBY J: There is no need for my colleagues to agree; sometimes it is a mercy.
KIRBY J: As Chief Justice Gleeson said in the special leave application, none of us look particularly beautiful in a balaclava; all of us look a little bit suspicious in a balaclava. It is certainly something that is very unusual. I have never heard of anything like this happening in a trial before.
MR GAME: This is a balaclava which, at this stage in the trial at least is not being said to be the balaclava that was used in the robbery. It is a balaclava taken from a spare bedroom at the house-...
KIRBY J: Balaclavas are not a vast range of boutique product.
MR GAME: No, your Honour.
---
GUMMOW J: What is the provenance of this balaclava?
MR GAME: It was taken from a spare room at the appellant's father's house where the appellant resided.
KIRBY J: I think his father said, did he, or is it only the caps that he had been given by the TAB.
MR GAME: Yes, the caps.
KIRBY J: The balaclavas had not been given?
MR GAME: No, no.
KIRBY J: There were a number of balaclavas, were there not?
MR GAME: There were hundreds of balaclavas, first in the garage and later moved...
KIRBY J: He going into the balaclava selling business, is he?
MR GAME: Yes.
KIRBY J: Hundreds of balaclavas.
MR GAME: Yes, your Honour.
KIRBY J: Since Sevastopol, how can there be hundreds of balaclavas?
CRENNAN J: Twenty five boxes, I think, Mr Game.
MR GAME: I do not know how many balaclavas you can put in a box but there were lots of balaclavas.
GUMMOW J: Fallen off a truck probably.
Kirby says he will miss the court jesting. "Some of my colleagues are not, shall we say, strong in the humour department.
"Justice Callinan can share a joke. During the boring bits of a trial, it's good to pen drawings of colleagues or someone at the table. Justice Callinan appreciated my drawings. Most of my colleagues do not."
(His introduction to a dissenting judgement - insurance claim on permanent disability - construction of 'permanent disability')
The ninety-first Psalm reflects the common human fear of injury to the foot. The Psalmist promises rescue from various misfortunes. The angels, we are assured, will take charge over the righteous:1
They shall bear thee up in their hands, lest thou dash thy foot against a stone.
Unfortunately, angels did not intervene to protect the appellant's foot. But he had an insurance policy.
MR R.J. DOUGLAS, SC: If it please the Court, I appear with MR D.J. KELLY for the applicant. (instructed by Carter Capner and Co)
MR H.B. FRASER, QC: May it please the Court, I appear with MR R.J. MORGAN for the respondent. (instructed by HBM Lawyers)
KIRBY J: Yes, Mr Douglas.
MR DOUGLAS: Thank you. Your Honours, there are two issues, in our submission, which ordain this matter as apt for appellate disposition by this Court.
KIRBY J: Could you explain to me what a BMX bike is? My rather cloistered life has prevented my ever getting to know what that form of bicycle is.
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^haha, i actually found those amusing. a little giggle here and there i must say!
"KIRBY J: Could you explain to me what a BMX bike is? My rather cloistered life has prevented my ever getting to know what that form of bicycle is." that has to be taken out of context HAHAHA.
ahhh closed-book? will this possibly happen when i arrive at monash.. (if i ever happened to do law..unlikely...)
i still don't get how to study by just reading, i don't know if i'd be able to take everything in, i think i'd get lazy and just read the summaries ..
so does that mean getting 70%+ in the units is difficult? how much time would this require, considering it's a person who can't really write essays very well..hard?
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Well some core subjects (contracts and property law) are already closed book now so I'd guess that yes, if you were to start law next year, you'd have to do a fair few.
Yes a 70%+ is difficult. Time required varies depending on how smart you are and also on your natural affinity for the subject. Some people are just better at some areas of law, I don't know why.
Reading cases serves 2 general purposes: to teach you about the law as it stands now, and to teach you about how to structure a legal argument.
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A sample case extract from the Contracts B Textbook:
FACTS
By a time charter dated 26 December 1956, it was mutually agreed between the owners of the vessel Hong Kong Fir, classed Lloyd's 100 A1, and the charterers that (cl 1) the owners would let and the charterers hire the vessel for twenty-four months from the date of her delivery to the charterers at Liverpool “she being in every way fitted for ordinary cargo service”, and that (cl 3) the owners would “maintain her in a thoroughly efficient state in hull and machinery during service”. Under the charter hire was payable at the rate of 47s per ton, but it was provided that no hire should be paid for time lost exceeding twenty-four hours in carrying out repairs to the vessel and that such off-hire periods might at the charterers' option be added to the charter time. The vessel was delivered to the charterers at Liverpool on 13 February 1957, and on the same day she sailed for Newport News, USA, to load a cargo of coal which she was to carry to Osaka. When she was delivered to the charterers at Liverpool, her engine-room was undermanned and her engine-room staff incompetent, although the owners knew that the vessel's machinery was very old and, therefore, required an ample and efficient engine-room staff to maintain it. During the voyage to Osaka, the vessel was off hire for repairs to her engines for a total period of about five weeks, and when she arrived at Osaka, on 25 May 1957, it was found that the engines were in a very bad state and that it would take a further fifteen weeks to make the vessel seaworthy. The condition of the engines at Osaka was due mainly to the inefficiency of the engine-room staff on the voyage from Liverpool. By 15 September 1957, the vessel had been made seaworthy in every respect and then had an efficient and adequate engine-room staff; at that date she was still available to the charterers for seventeen months. In mid-June, there had been a steep fall in freight rates from 47s to 24s per ton, and by mid-August the rates had dropped again to 13s 6d per ton. On 6 June and on 11 September 1957, the charterers had written to the owners repudiating the charter. In an action by the owners for wrongful repudiation, the trial judge found that the owners were in breach of cl 1 of the charter in delivering a vessel that was unseaworthy with regard to her engine-room staff, and were also in breach of cl 3 in negligently failing to maintain the vessel in an efficient state, but that in June there were no reasonable grounds for thinking that the owners were unable to make the vessel seaworthy by mid-September at the latest. The charterers contended
[1962] 1 All ER 474 at 475
that the owners' breaches of charter entitled them to repudiate the charter, alternatively that the charter had been frustrated.
DIPLOCK LJ.
The contract, the familiar Baltime 1939 Charter, and the facts on which this case turns have been already stated in the judgment of Sellers LJ who has also referred to many of the relevant cases. With his analysis of the cases, as with the clear and careful judgment of Salmon J , I am in agreement, and I desire to add only some general observations on the legal questions which this case involves.
Every synallagmatic contract contains in it the seeds of the problem: in what event will a party be relieved of his undertaking to do that which he has agreed to do but has not yet done? The contract may itself expressly define some of these events, as in the cancellation clause in a charterparty, but, human prescience being limited, it seldom does so exhaustively and often fails to do so at all. In some classes of contracts, such as sale of goods, marine insurance, contracts of affreightment evidenced by bills of lading and those between parties to bills of exchange, Parliament has defined by statute some of the events not provided for expressly in individual contracts of that class; but, where an event occurs the occurrence of which neither the parties nor Parliament have expressly stated will discharge one of the parties from further performance of his undertakings, it is for the court to determine whether the event has this effect or not. The test whether an event has this effect or not has been stated in a number of metaphors all of which I think amount to the same thing: does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings? This test is applicable whether or not the event occurs as a result of the default of one of the parties to the contract, but the consequences of the event are different in the two cases. Where the event occurs as a result of the default of one party, the party in default cannot rely on it as relieving himself of the performance of any further undertakings on his part and the innocent party, although entitled to, need not treat the event as relieving him of the performance of his own undertakings. This is only a specific application of the fundamental legal and moral rule that a man should not be allowed to take advantage of his own wrong. Where the event occurs as a result of the default of neither party, each is relieved of the further performance of his own undertakings, and their rights in respect of undertakings previously performed are now regulated by the Law Reform (Frustrated Contracts) Act, 1943.
This branch of the common law has reached its present stage by the normal process of historical growth, and the fallacy in counsel for the charterers' contention that a different test is applicable when the event occurs as a result of the default of one party from that applicable in cases of frustration where the event occurs as a result of the default of neither party arises, in my view, from a failure to view the cases in their historical context. The problem: in what event will a party to a contract be relieved of his undertaking to do that which he has agreed to do but has not yet done? has exercised the English courts for centuries, probably ever since assumpsit emerged as a form of action distinct from covenant and debt, and long before even the earliest cases which we have been invited to examine; but, until the rigour of the rule in Paradine v Jane was mitigated in the middle of the last century by the classic judgments of Blackburn J in Taylor v Caldwell and Bramwell B, in Jackson v Union Marine Insurance Co, it was in general only events resulting from one party's failure to perform his contractual obligations which were regarded as capable of relieving the other party from continuing to perform that which he had undertaken to do.
In the earlier cases before the Common Law Procedure Act, 1852, the problem tends to be obscured to modern readers by the rules of pleading peculiar to the relevant forms of action—covenant, debt and assumpsit, and the nomenclature adopted in the judgments, which were mainly on demurrer, reflects this. It
[1962] 1 All ER 474 at 486
was early recognised that contractual undertakings were of two different kinds: those collateral to the main purpose of the parties as expressed in the contract, and those which were mutually dependent so that the non-performance of an undertaking of this class was an event which excused the other party from the performance of his corresponding undertakings. In the nomenclature of the eighteenth and early nineteenth centuries, undertakings of the latter class were called “conditions precedent”, and a plaintiff under the rules of pleading had to aver specially in his declaration his performance or readiness and willingness to perform all those contractual undertakings on his part which constituted conditions precedent to the defendant's undertaking for non-performance of which the action was brought. In the earliest cases, such as Pordage v Cole and Thorpe v Thorpe, the question whether an undertaking was a condition precedent appears to have turned on the verbal niceties of the particular phrases used in the written contract, and it was not until 1779 that Lord Mansfield, in the case which is a legal landmark, Boone v Eyre ((1779), 1 Hy Bl at p 273 n), swept away these arid technicalities. He said:
“The distinction is very clear, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent.”
This, too, was a judgment on demurrer, but the principle was the same when the substance of the matter was in issue. Other phrases expressing the same idea were used by other judges in the cases which have already been cited by Sellers LJ (See p 480, letters e to i, ante), and I would only add to his comments on them that, when it is borne in mind that, until the latter half of the nineteenth century, the only event that could be relied on the excuse performance by one party of his undertakings was a default by the other party, no importance can be attached to the fact that, in occasional cases, and there may be others besides Freeman v Taylor, the court has referred to the object or purpose of the party not in default rather than to the object or purpose of the contract, for the relevant object or purpose of the party not in default is that on which there has been a consensus ad idem of both parties as expressed in the words which they have used in their contract construed in the light of the surrounding circumstances.
The fact that the emphasis in the earlier cases was on the breach by one party to the contract of his contractual undertakings, for this was the commonest circumstance in which the question arose, tended to obscure the fact that it was really the event resulting from the breach which relieved the other party of further performance of his obligation; but the principle was applied early in the nineteenth century and without analysis to cases where the event relied on was one brought about by a party to a contract before the time for performance of his undertakings arose, but which would make it impossible to perform those obligations when the time to do so did arrive: for example, Short v Stone; Ford v Tiley; Bowdell v Parsons . It was not, however, until Jackson v Union Marine Insurance Co , that it was recognised that it was the happening of the event and not the fact that the event was the result of a breach by one party of his contractual obligations that relieved the other party from further performance of his obligations. Bramwell B, said ((1874), LR 10 CP at p 147):
“… there are the cases which hold that, where the shipowner has not merely broken his contract, but so broken it that the condition precedent is not performed, the charterer is discharged … Why? Not merely because
[1962] 1 All ER 474 at 487
the contract is broken. If it is not a condition precedent, what matters it whether it is unperformed with or without excuse? Not arriving with due diligence, or at a day named, is the subject of a cross-action only. But, not arriving in time for the voyage contemplated, but at such a time that it is frustrated, is not only a breach of contract, but discharges the charterer. And so it should, though he has such an excuse that no action lies.”
Once it is appreciated that it is the event and not the fact that the event is a result of a breach of contract which relieves the party not in default of further performance of his obligations, two consequences follow: (i) The test whether the event relied on has this consequence is the same whether the event is the result of the other party's breach of contract or not, as Devlin J pointed out in Universal Cargo Carriers Corpn v Citati ([1957] 2 All ER at p 83; [1957] 2 QB at p 434). (ii) The question whether an event which is the result of the other party's breach of contract has this consequence cannot be answered by treating all contractual undertakings as falling into one of two separate categories: “conditions”, the breach of which gives rise to an event which relieves the party not in default of further performance of his obligations, and “warranties”, the breach of which does not give rise to such an event. Lawyers tend to speak of this classification as if it were comprehensive, partly for the historical reasons which I have already mentioned, and partly because Parliament itself adopted it in the Sale of Goods Act, 1893, as respects a number of implied terms in contracts for the sale of goods and has in that Act used the expressions “condition” and “warranty” in that meaning. But it is by no means true of contractual undertakings in general at common law.
No doubt there are many simple contractual undertakings, sometimes express, but more often because of their very simplicity (“It goes without saying”) to be implied, of which it can be predicated that every breach of such an undertaking must give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract. And such a stipulation, unless the parties have agreed that breach of it shall not entitle the non-defaulting party to treat the contract as repudiated, is a “condition”. So, too, there may be other simple contractual undertakings of which it can be predicated that no breach can give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and such a stipulation, unless the parties have agreed that breach of it shall entitle the non-defaulting party to treat the contract as repudiated, is a “warranty”. There are, however, many contractual undertakings of a more complex character which cannot be categorised as being “conditions” or “warranties” if the late nineteenth century meaning adopted in the Sale of Goods Act, 1893, and used by Bowen LJ in Bentsen v Taylor, Sons & Co (2), ([1893] 2 QB at p 280), be given to those terms. Of such undertakings, all that can be predicated is that some breaches will, and others will not, give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and the legal consequences of a breach of such an undertaking, unless provided for expressly in the contract, depend on the nature of the event to which the breach gives rise and do not follow automatically from a prior classification of the undertaking as a “condition” or a “warranty”. For instance, to take the example of Bramwell B, in Jackson v Union Marine Insurance Co ((1874), LR 10 CP at p 142), by itself breach of an undertaking by a shipowner to sail with all possible despatch to a named port does not necessarily relieve the charterer of further performance of his obligation under the charterparty, but, if the breach is so prolonged that the contemplated voyage is frustrated, it does have this effect.
[1962] 1 All ER 474 at 488
In 1874, when the doctrine of frustration was being foaled by “impossibility of performance” out of “condition precedent”, it is not surprising that the explanation given by Bramwell B, should give full credit to the dam by suggesting that in addition to the express warranty to sail with all possible dispatch there was an implied condition precedent that the ship should arrive at the named port in time for the voyage contemplated. In Jackson v Union Marine Insurance Co, there was no breach of the express warranty; but, if there had been, to engraft the implied condition on the express warranty would have been merely a more complicated way of saying that a breach of a shipowner's undertaking to sail with all possible dispatch may, but will not necessarily, give rise to an event which will deprive the charterer of substantially the whole benefit which it was intended that he should obtain from the charter. Now that the doctrine of frustration has matured and flourished for nearly a century and the old technicalities of pleading “conditions precedent” are more than a century out of date, it does not clarify, but on the contrary obscures, the modern principle of law where such an event has occurred as a result of a breach of an express stipulation in a contract, to continue to add the now unnecessary colophon
“therefore it was an implied condition of the contract that a particular kind of breach of an express warranty should not occur.”
The common law evolves not merely by breeding new principles but also, when they are fully grown, by burying their ancestors.
Continued in next post because I reached the character limit -__-
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As my brethren have already pointed out, the shipowner's undertaking to tender a seaworthy ship has, as a result of numerous decisions as to what can amount to “unseaworthiness”, become one of the most complex of contractual undertakings. It embraces obligations with respect to every part of the hull and machinery, stores and equipment and the crew itself. It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which must inevitably result in a total loss of the vessel. Consequently, the problem in this case is, in my view, neither solved nor soluble by debating whether the owners' express or implied undertaking to tender a seaworthy ship is a “condition” or a “warranty”. It is, like so many other contractual terms, an undertaking one breach of which may give rise to an event which relieves the charterer of further performance of his undertakings if he so elects, and another breach of which may not give rise to such an event but entitle him only to monetary compensation in the form of damages. It is, with all deference to counsel for the charterers' skilful argument, by no means surprising that, among the many hundreds of previous cases about the shipowner's undertaking to deliver a seaworthy ship, there is none where it was found profitable to discuss in the judgments the question whether that undertaking is a “condition” or a “warranty”; for the true answer, as I have already indicated, is that it is neither, but one of that large class of contractual undertakings, one breach of which may have the same effect as that ascribed to a breach of “condition” under the Sale of Goods Act, 1893, and a different breach of which may have only the same effect as that ascribed to a breach of “warranty2 under that Act. The cases referred to by Sellers LJ illustrate this, and I would only add that, in the dictum which he cites from Kish v Taylor ([1912] AC at p 617; 12 Asp MLC at p 220), it seems to me from the sentence which immediately follows it as from the actual decision in the case and the whole tenor of Lord Atkinson's speech itself that the word “will” was intended to be “may”.
What the learned judge had to do in the present case as in any other case where one party to a contract relies on a breach by the other party as giving him a right to elect to rescind the contract, was to look at the events which had occurred as a result of the breach at the time at which the charterers purported
[1962] 1 All ER 474 at 489
to rescind the charterparty, and to decide whether the occurrence of those events deprived the charterers of substantially the whole benefit which it was the intention of the parties as expressed in the charterparty that the charterers should obtain from the further performance of their own contractual undertakings. One turns, therefore, to the contract, the Baltime 1939 Charter. Clause 13, the “due diligence” clausec, which exempts the shipowners from responsibility for delay or loss or damage to goods on board due to unseaworthiness unless such delay or loss or damage has been caused by want of due diligence of the owners in making the vessel seaworthy and fitted for the voyage, is in itself sufficient to show that the mere occurrence of the events that the vessel was in some respect unseaworthy when tendered or that such unseaworthiness had caused some delay in performance of the charterparty would not deprive the charterer of the whole benefit which it was the intention of the parties he should obtain from the performance of his obligations under the contract—for he undertakes to continue to perform his obligations notwithstanding the occurrence of such events if they fall short of frustration of the contract and even deprives himself of any remedy in damages unless such events are the consequence of want of due diligence on the part of the shipowner.
c The relevant part of this clause is set out at p 477, letter a, ante
The question which the learned judge had to ask himself was, as he rightly decided, whether or not, at the date when the charterers purported to rescind the contract, namely 6 June 1957, or when the owners purported to accept such rescission, namely 8 August 1957, the delay which had already occurred as a result of the incompetence of the engine-room staff, and the delay which was likely to occur in repairing the engines of the vessel and the conduct of the owners by that date in taking steps to remedy these two matters, were, when taken together, such as to deprive the charterers of substantially the whole benefit which it was the intention of the parties they should obtain from further use of the vessel under the charterparty. In my view, in his judgment—on which I would not seek to improve—the learned judge took into account and gave due weight to all the relevant considerations and arrived at the right answer for the right reasons.
I'm fairly sure this is how the case appears in my casebook. It is only an extract because the judgment of the other two judges has been left out. The casebook trims down cases so that they only discuss a certain key principle. For instance, this case involved two major issues: termination for breach and frustration, however, for the purpose of the course we are only interested in termination for breach (frustration is covered by other cases, presumably this is not a good case for principles on frustration) so everything about frustration is left out. In some cases, there are a huge number of different issues so the case extract can be tiny compared with the full-length case.
This also probably looks like a huge wall of text but it is actually one of the shorter cases in the casebook. On paper, it only takes up ~3.5 pages. The average case in Contracts is around 5 pages long, although every so often there are 10 or 20 page cases which can take a while to get through. You also learn to skim read cases. When I read cases, I tend to quickly skim over every paragraph and identify all the important paragraphs or sections. I then carefully read these sections while largely ignoring everything else.
My summary of this case (which was made before semester actually started when I was using a different summary style):
Hongkong Fir Shipping Co v Kawasaki Kisen Kaisha [1962]
Case in summary:
• Established concept of an intermediate term.
• If a term can be breached in a number of ways, some trivial, some serious, it is an intermediate term.
• Termination is justified if the breach is substantial (as opposed to a condition where any breach justifies termination.
• The important test is:
○ Did the breach deprive K of substantially the whole benefit which it was the intention of the parties as expressed in the agreement? - Lord Diplock
○ The standard necessary to satisfy this test is VERY high. In this case, even though the ship was unavailable for 8 months, the court held the breach did not justify termination.
○ Use this case as a qualitative comparison when applying the test. Compare the breach to the breach in this case., which indicates the threshold where the test is satisfied.
Facts:
• H chartered a ship to K, promised to 'maintain her in a thoroughly efficient state in hull and machinery during service'.
• The ship was out of service for some time because it was unseaworthy.
• K attempted to terminate K.
Issue:
• Did the failure to maintain the ship in good condition justify termination?
• Was the term a condition or intermediate term?
• If the latter, was the breach serious?
Rule:
• Breach of an intermediate term will justify termination where the breach deprives 'the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the K that he should obtain' (per Diplock LJ)
Application:
• 'unseaworthiness' can be construed in a number of ways. It may be broken by a trivial or serious defect.
• Must look at the consequences of breach at time of purported termination.
• Did the breach deprive K of substantially the whole benefit which it was the intention of the parties as expressed in the agreement?
Decision:
• Even though H was in breach of K, the breach was not serious enough to justify termination
• Appeal dismissed.
Case comparisons/Additional Notes/Questions Raised:
• This is an English case. The equivalent Australian Authority is Koompahtoo Local Aboriginal Land Council v Sanpine
So from the summary it is clear I can use this case as authority for the principle of termination for breach. The case established the important test in the 'Rule' section of my summary. I can apply this same test to a different fact scenario when I want to determine whether there has been a sufficiently serious breach of an intermediate term to justify termination. It also provides a good indication of the magnitude of breach needed to allow termination. The discussion on 'seaworthiness' is also useful for categorising terms as conditions or intermediate terms -> I can use the same principle and ask whether the term can be breached in a number of ways, each varying in severity, to determine how a term should be classified.
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Thanks for the replies btw, haha lynt i actually don't understand what that case is on about. Maybe i'm a bit tired and can't think ><
&ninwa, i guess law is not the best idea if i'm wanting to try to transfer into med after first year at unsw where i need a high GPA cos law will bring me down?
that suckks. i just listened to the start of the first law unit 'intro to law reasoning' i think it was called, and it seemed okay..
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lynt I think that's a little too complex for people who've never had any exposure to legal studies before :P
vexx, definitely do not do law if you're just aiming for a high GPA to transfer. Law is probably one of the more likely disciplines to kill your average.
Also intro to legal reasoning is nothing like actual substantive law units - try criminal law, it's probably one of the easier subjects (and more interesting too, who doesn't like learning about murder and drugs???)
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Thanks for the replies btw, haha lynt i actually don't understand what that case is on about. Maybe i'm a bit tired and can't think ><
&ninwa, i guess law is not the best idea if i'm wanting to try to transfer into med after first year at unsw where i need a high GPA cos law will bring me down?
that suckks. i just listened to the start of the first law unit 'intro to law reasoning' i think it was called, and it seemed okay..
Introduction to Legal Reasoning (ILR) is one of two introductory law units. It is not a very good representation of what other law subjects will be like because its purpose is to just bring everyone up to speed with our legal system, its history and the basics of how it works etc. It's essentially year 12 legal studies crammed into the first six or so weeks, and then a little bit on statutory interpretation for the rest. Unlike other law subjects, you do not go into the actual substantive law.
vexx, definitely do not do law if you're just aiming for a high GPA to transfer. Law is probably one of the more likely disciplines to kill your average.
ugh, its the other way round for me. My commerce units are the ones dragging down my GPA =[
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lynt I think that's a little too complex for people who've never had any exposure to legal studies before :P
vexx, definitely do not do law if you're just aiming for a high GPA to transfer. Law is probably one of the more likely disciplines to kill your average.
Also intro to legal reasoning is nothing like actual substantive law units - try criminal law, it's probably one of the easier subjects (and more interesting too, who doesn't like learning about murder and drugs???)
Oh no i wouldn't do it for a high GPA, but i'd be trying to transfer to medicine and getting into medicine along the way, just because thats where i want to be. And law would there for interest/backup plan/experience something different.. which is why im not sure if i even want to do it cos its a lot of work/difficult to do well/can be boring.
but criminal law, just watched the start, seems quite interesting actually, im sure i would like this, but the other parts not too sure. i like all this justifying, looking for arguments/issues type thing.
and as lynt.br says that its like year 12 legal studies, which seems horrible haha for my first year experience of law :p
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lynt I think that's a little too complex for people who've never had any exposure to legal studies before :P
vexx, definitely do not do law if you're just aiming for a high GPA to transfer. Law is probably one of the more likely disciplines to kill your average.
Also intro to legal reasoning is nothing like actual substantive law units - try criminal law, it's probably one of the easier subjects (and more interesting too, who doesn't like learning about murder and drugs???)
Oh no i wouldn't do it for a high GPA, but i'd be trying to transfer to medicine and getting into medicine along the way, just because thats where i want to be. And law would there for interest/backup plan/experience something different.. which is why im not sure if i even want to do it cos its a lot of work/difficult to do well/can be boring.
but criminal law, just watched the start, seems quite interesting actually, im sure i would like this, but the other parts not too sure. i like all this justifying, looking for arguments/issues type thing.
and as lynt.br says that its like year 12 legal studies, which seems horrible haha for my first year experience of law :p
You'll still do Contract Law in first year provided you aren't doing biomed/law or eng/law or something like that. I find Contracts pretty interesting but then again I also find RAW interesting and sit in random lectures whenever I have breaks so my idea of interesting is probably different to most people's.
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Based on the highly accurate sample of my friends Facebook updates, they all hate RAW with a passion lol
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nahh i'd only be doing biomed/law..
haha what is RAW?
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RAW = research and writing i.e. learning how to write in legalese, legal referencing etc.
Quite a dry subject. -_-
Still, if you want to transfer you want the highest GPA possible. Doing law really doesn't help you in that respect... I think you really need to make a choice: law or medicine?
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RAW = research and writing i.e. learning how to write in legalese, legal referencing etc.
Quite a dry subject. -_-
Still, if you want to transfer you want the highest GPA possible. Doing law really doesn't help you in that respect... I think you really need to make a choice: law or medicine?
haha ahhh research and writing i should have guessed that, as i was looking through the subjects of law yesterday and i read about that..
yeahh i definitely want to do medicine, just perhaps doing something a bit different beforehand is potentially a good idea, maybe i'll just stick with arts subjects then >< though, i'm sure i can do OK at my single law subject per semester and try to just smash my other 3 biomed subjects. maybe GPA won't be that big of a problem? who knows though i could do terrible!
just the interest part is what i'm wondering about..hmm decisions, decisions.
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The way GPA is calculated means that getting 100% in some subjects won't really compensate for getting average marks in others, since they convert it to a different scale.
If you want to do medicine and don't get in, I'd have science as my nth preference so that I can at least take similar subjects until there's a chance to reapply/transfer/apply PG
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The problem with law is that it's kind of unpredictable. Just because you are smart and work hard doesn't mean you'll get good marks. Learning how to write law exams is a process all on its own, because the format of law exams is pretty unique.
My friend got an 88 in torts; she didn't go to a single lecture or tutorial. I believe that was the highest mark that semester.
My best law mark was for the exam which I crammed for the night before the exam, after already having pulled an all-nighter the night before that (so by the time of the exam I was on about 50 hours without sleep).
A friend who works his arse off because he genuinely loves studying law (his life pretty much revolves around it, he's always going to law events and seminars and functions and lectures) has two fails on his transcript already.
Also, the GPA system for law is slightly different, the substantive law subjects you do in your initial years (i.e. not RAW or ILR) are weighted twice as heavily as later-year subjects which are mostly one-semester subjects. Thus if you screw up in your first year (which is highly likely, I think first-year drop out rate is something like 30%) your GPA takes a massive beating.
This is why I suggest you make a choice between medicine or law.
Each law unit is weighted according to its value in the Bachelor of Laws:
* 12 credit point units and compulsory full year units carry a weighting of 1.0
* 6 credit point units and compulsory semester units carry a weighting of 0.5
* 3 credit point units carry a weighting of 0.25
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^ hmmm i see.
well ive definitely chosen medicine, just not sure how i will get there.
i'm sure doing 1 law breadth per semester won't hurt my GPA too much, if it does as you've said it can be unpredictable, i can always drop the law units and just focus on biomed and push it up. never hurts to try i guess :p.. maybe alittle pain ha
thanks for the replies though, but still unsure.
ok edit, question (sort of similar but meh)
if i was to enjoy studying law, what would i HAVE to enjoy doing?
:P
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Reading, problem solving, studying.
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I hope Deakin law doesn't change to closed book if Monash does. That would be horrible!
Lynt.br I'm opposite, law is dragging me down whilst I'm going really well for commerce. Maybe cause commerce at Deakin is pretty easy. lol
Though I'd just add this as well for prospective law students:
If you're considering Law but might not get the enter score for law at monash or post-grad melb, don't be disheartened about going to Deakin, even if it is considered the less prestigious university. So far I have found the law lectures extremely interesting and law lecturers pretty good quality. The way I see it, if you get good enough grades at Deakin, the prestigious law firms are not only going to accept the good quality law students from Melbourne and Monash but from Deakin as well. (well I hope so anyway)
Also know a couple of people that have transferred from Melb uni commerce to Deakin commerce/law because they believe law adds value to their commerce degree and opens up other opportunities in the commerce field.
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hey brahs I need a back-up. Vic Uni Law or Monash Caufield Business Law. Which would you choose out of these two?
Many people say Vic Uni doesnt have a bad rep, its just so new that it doesnt have a rep at all. On the other hand it is still an accredited law degree.
The Monash course is obviously done at Monash so there is greater recognition however its not a degree that allows you to practice law in the end.
Both I am considering as back-ups if I dont do as well as I hope with an intention to trasnfer to a better course - LLB @ monash, deakin or latrobe - as soon as possible.
Which one would you place higher? - im not interested in you discounting the courses entirely however other pathways/back-ups are welcomed.
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I'd choose business law if you want to go to Monash:
- it's easier to transfer internally
- if you transfer from law at VU you're required to repeat first year law at Monash (i.e. Monash doesn't recognise any first year VU units - at least they didn't when my friend transferred 2 years ago)
Don't know what the Deakin/Latrobe requirements are
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hey brahs I need a back-up. Vic Uni Law or Monash Caufield Business Law. Which would you choose out of these two?
Many people say Vic Uni doesnt have a bad rep, its just so new that it doesnt have a rep at all. On the other hand it is still an accredited law degree.
The Monash course is obviously done at Monash so there is greater recognition however its not a degree that allows you to practice law in the end.
Both I am considering as back-ups if I dont do as well as I hope with an intention to trasnfer to a better course - LLB @ monash, deakin or latrobe - as soon as possible.
Which one would you place higher? - im not interested in you discounting the courses entirely however other pathways/back-ups are welcomed.
Are you considering only doing a straight law degree?
For Deakin if you're considering a double degree like Arts or Commerce with law, you could do the single degree (commerce or arts) in the first year and be able to get into law in your second year, as long as you achieve a D (70) average. My friend has done that, transferring from arts to arts/law with a D average (her double degree will take 6 years though).
Have you also considered doing the law degree at the Deakin Waurn Ponds campus where they have lower enter scores? That's where I'm doing it and the campus is pretty nice and law classes are fairly small (get to know people easily). Also a few people I know have done their first year here and will transfer to Deakin Burwood to move back home for next year (no extra time added to your degree).
But if I had the choice of your two options I would choose Vic Uni law over business law because I don't know where business law would take you or what jobs are even possible with that degree, if for some reason you don't achieve the average to transfer into law. At least at Vic Uni no matter what happens at least at the end of it you'll be able to practice law.
Either choice you make though you've got to make sure you work really hard for your first year of uni and make sure you can transfer. Alot of people have big plans to go well at uni and become really slack, as noone even cares if you turn up or complete your assignments
Good Luck :)
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hey brahs I need a back-up. Vic Uni Law or Monash Caufield Business Law. Which would you choose out of these two?
Many people say Vic Uni doesnt have a bad rep, its just so new that it doesnt have a rep at all. On the other hand it is still an accredited law degree.
The Monash course is obviously done at Monash so there is greater recognition however its not a degree that allows you to practice law in the end.
Both I am considering as back-ups if I dont do as well as I hope with an intention to trasnfer to a better course - LLB @ monash, deakin or latrobe - as soon as possible.
Which one would you place higher? - im not interested in you discounting the courses entirely however other pathways/back-ups are welcomed.
Are you considering only doing a straight law degree?
For Deakin if you're considering a double degree like Arts or Commerce with law, you could do the single degree (commerce or arts) in the first year and be able to get into law in your second year, as long as you achieve a D (70) average. My friend has done that, transferring from arts to arts/law with a D average (her double degree will take 6 years though).
Have you also considered doing the law degree at the Deakin Waurn Ponds campus where they have lower enter scores? That's where I'm doing it and the campus is pretty nice and law classes are fairly small (get to know people easily). Also a few people I know have done their first year here and will transfer to Deakin Burwood to move back home for next year (no extra time added to your degree).
But if I had the choice of your two options I would choose Vic Uni law over business law because I don't know where business law would take you or what jobs are even possible with that degree, if for some reason you don't achieve the average to transfer into law. At least at Vic Uni no matter what happens at least at the end of it you'll be able to practice law.
Either choice you make though you've got to make sure you work really hard for your first year of uni and make sure you can transfer. Alot of people have big plans to go well at uni and become really slack, as noone even cares if you turn up or complete your assignments
Good Luck :)
Hey yes Deakin Geelong is also an option. Ill probably list it higher than both these Vic Uni and Business law degrees. I would be looking to transfer asap back to burwood and im not sure I'd want to stay in geelong or make the commute every day. =\
I havent considered putting down arts or commerce single degrees but maybe I should. I have arts/commerce double at deakin but then i'd need to keep a D average over both those degrees wouldnt I? Maybe ill just switch it to arts and spend more time ensuring I get a good enough average to transfer into law.
That being said I will also put arts at uom somewhere in my prefs so I could potentially do an external transfer or at the very least finish an arts degree at a better uni (UoM) then even do a JD. Maybe ill change this one to Monash arts then I can transfer into Monash Arts/Law.
Youve got me thinking. haha.