Business Law Quiz Prep

Rule of law

The idea that law, not individuals, should govern; applies equally to everyone

Constitutional monarchy

A monarchy where the monarch's power is limited by a constitution

Liberal democracy

System protecting individual rights, free markets, and free elections

Representative democracy

Citizens elect a member of parliament to represent them

Responsible government

Ministers are accountable to Parliament and voters

Private law

Law regulating relationships between individuals (e.g. contract, property, tort)

Public law

Law regulating the relationship between individuals and the state (e.g. criminal, constitutional)

Civil law (wrong type)

A wrong between individuals, resolved on the balance of probabilities, aim is compensation

Criminal law

A wrong against society, proven beyond reasonable doubt, aim is punishment

Common law system

Legal system giving weight to both legislation and case law/precedent (used in Australia)

Civil law system

Legal system relying mainly on legislation/codes, less emphasis on case law

Section 109

Constitution provision: where state law conflicts with Commonwealth law, Commonwealth law prevails

Exclusive powers

Law-making powers only the Federal Parliament can exercise (e.g. defence, currency)

Concurrent powers

Law-making powers shared between federal and state parliaments (e.g. tax, marriage)

Residual powers

Law-making powers only state parliaments can exercise (e.g. education, health, crime)

Separation of powers

Division of government into legislature, executive, and judiciary to prevent abuse of power

Referendum double majority

Requires 51%+ of national voters AND a majority of states to vote yes

Jurisdiction

The scope of a court's authority, geographic or subject matter

Original jurisdiction

A court's power to hear a case for the first time

Appellate jurisdiction

A court's power to hear appeals from a lower court

Adversarial system

Legal system where parties run their own case and the judge acts as umpire

Inquisitorial system

Legal system where the judge actively investigates and drives proceedings

Negotiation

Private, voluntary dispute resolution between parties with no third party

Mediation

Dispute resolution where a third party facilitates a voluntary, non-binding agreement

Arbitration

Dispute resolution where a third party makes a binding decision

Primary legal sources

Sources with legal authority: legislation and case law

Secondary legal sources

Sources that comment on the law: textbooks, journals

Stare decisis

Doctrine requiring courts to follow precedent set by higher courts in the same hierarchy

Ratio decidendi

The binding legal reasoning behind a court's decision

Obiter dicta

Remarks made "in passing" in a judgment that are not binding

Distinguishing a case

Arguing a precedent shouldn't apply because the facts differ

Literal rule

Interpreting legislation by giving words their plain/dictionary meaning

Golden rule

Modifying the literal meaning of legislation to avoid an absurd result

Purpose rule

Interpreting legislation according to its stated objective/purpose clause

Class/ejusdem generis rule

A general word is limited by the specific words preceding it

IRAC method

Issue, Rule, Application, Conclusion — method for solving legal problems

Vicarious liability

Liability of an employer for harm caused by an employee doing authorised work

Trespass to land

Intentional or negligent interference with land in another's rightful possession

Conversion

Interfering with goods in a way inconsistent with the owner's rights

Detinue

Unreasonably refusing to return goods when asked

Battery

Intentional or negligent physical contact with another person without consent

Assault

A threat causing reasonable belief of imminent physical contact

Defamation

Publishing a statement to a third party that damages someone's reputation

Injunction

A court order requiring a person to do or stop doing an act

Negligence

Conduct falling below the standard of care expected to protect others from harm

Duty of care

A legal obligation to take reasonable care to avoid foreseeable harm to others

Neighbour principle

Lord Atkin's principle: take reasonable care to avoid acts that could foreseeably harm your neighbour

Salient features

Factors courts weigh to decide if a duty of care exists (e.g. vulnerability, control)

Breach of duty

Failing to do what a reasonable person would have done in the same circumstances

Reasonable person test

Test comparing the defendant's conduct to what a reasonable person would have done

Bolton v Stone

Case establishing that negligible probability of harm may mean no breach of duty

Paris v Stepney Borough Council

Case establishing that seriousness of potential harm raises the standard of care

Latimer v AEC

Case establishing that burden/cost of precautions is weighed against the risk

Factual causation

Test asking whether the harm would have occurred "but for" the breach of duty

Scope of liability

Test asking whether the type of harm suffered was reasonably foreseeable

Wagon Mound (No 1)

Case establishing that a defendant is only liable for reasonably foreseeable harm

Eggshell skull rule

Defendant must take their victim as they find them, including pre-existing conditions

Voluntary assumption of risk

Defence where the plaintiff knowingly and voluntarily accepted the risk of harm

Contributory negligence

Defence reducing damages where the plaintiff partly caused their own harm

Damages

Monetary compensation awarded to a plaintiff for loss or injury suffered

Terra nullius

Legal fiction that Australia was "uninhabited" at the time of British settlement, later overturned by Mabo

Doctrine of reception

The principle that British common law was brought into Australia by settlers