Business Law Practice Flashcards

Exactly 400 vocabulary-style flashcards based on lecture notes for Principles of Business Law at the University of Melbourne, including cases and statutory sections.

Law

Rules of conduct or organisation that are recognised, applied, and enforced by the power of the state.

Parliament

Body that makes laws but cannot enforce them directly.

Police

Body that enforces laws but cannot make them.

Judges

Legal officials who apply the law and occasionally make new laws near gaps.

Purpose of Law

To achieve just outcomes.

Non-legal rules

Rules of conduct or organisation enforced by peer pressure, cooperation, or social values.

Customary rules

Traditional or local customs from which non-legal rules are derived.

Areas of business law

Contract, tort, consumer, agency, corporation, and tax.

Financial questions

Non-legal issues such as finding the cheapest price to buy an item.

Social questions

Non-legal issues involving goodwill and personal relationships.

Branches of Law in Australia

Lower House (Executive), Upper House (Senate), and the Courts.

Roman Law

Also known as civil law, one of the main streams of Western jurisprudence.

English Law

Also known as common law, involving flexibility in judge-made laws.

State Legislative Power

The general power to make law for peace, order, and good government within a specific territory.

Commonwealth Legislative Power

Specified power to make law in relation to certain matters, primarily under section $51$.

Section $51$ of the Constitution

Lists specified matters where the Commonwealth can make law, sometimes shared with states.

Section $52$ of the Constitution

Grants exclusive law-making power to the federal government.

Section $109$ of the Constitution

Provides that federal law prevails over state law to the extent of any inconsistency.

By-laws

Laws made by local government councils.

Bicameral Parliament

A parliament consisting of two houses.

House of Origin

The house where a bill is first introduced.

House of Review

The second house that considers a bill after the House of Origin.

Parliamentary draftspersons

Individuals responsible for drafting a bill from specific proposals.

Initiation (Legislative Process)

The step where the clerk of the house lists the Bill for the first reading.

First Reading

Stage where the house grants permission to introduce the Bill and its title is read.

Second Reading Speech

A speech by the relevant Minister explaining the purpose of the Bill.

Committee Stage

A phase where members of the house consider the Bill in detail, often taking weeks to months.

Third Reading

Final stage in a house where the motion is voted on and the title is read for the third time.

Amended Bills Procedure

Sent back to the House of Origin; if agreement is not reached, the government may dissolve for an election.

Royal Assent

Final approval for a Bill given by the King’s representative.

Act Name Year

Denotes the year of final draft completion and Royal Assent.

Government Gazette

The official publication where new Acts are published.

Commencement

The date an Act begins operation as law.

Statutory interpretation

The process of giving meaning to ambiguous English words used in legislation.

Literal approach

Giving every word in a statute its ordinary and natural meaning using a dictionary.

Golden rule

Modifying the literal meaning of a statute only when it produces an absurd result.

Purpose approach

Choosing a meaning that serves the best purpose of the Act using internal and external documents.

Intrinsic evidence

Evidence within an Act such as object sections, long titles, and schedules.

Extrinsic evidence

External secondary sources like second reading speeches, treaties, and law commission reports.

Pleadings

Exchange of written documents to define the nature and extent of a civil dispute.

Statement of claim

Pleading defining the facts relied on by the plaintiff.

Civil Trial Argument

Argument presented by each side regarding the relevant law and its application.

Solicitor

A legal professional who drafts legal documents.

Barrister

A legal professional who is a courtroom specialist.

Opening submissions

The initial outline of the case presented by barristers before the judge.

Witness Examination

Questioning of a witness by the side that called them.

Cross examination

Questioning aimed at testing the credibility of the opposing side's witness.

Re-examination

Opportunity for the first barrister to clarify points raised during cross-examination.

Closing submissions

Final arguments presented before the judge prepares a judgment.

Judge's Finding of Fact

Determination of what happened based strictly on the evidence presented in trial.

Orders

A numbered, legally binding list of actions the losing side must take.

Extemporary judgment

A judgment delivered by a judge immediately following the trial.

Jurisdiction of judge-made law

Occurs when existing laws are uncertain or no laws exist for the circumstances.

Equity

A body of rules based on notions of justice and fairness, developed by the Court of Chancery.

Case Law

Joint term for common law and equity decisions as distinct from legislation.

General Law

Another name used to refer to case law.

Stare Decisis

The doctrine of precedent, translated as 'let the decision stand'.

Doctrine of Precedent

Requirement that superior court decisions must be followed unless material facts can be distinguished.

Ratio decidendi

The legal principle, rule, or reason applied to material facts to arrive at a decision.

Obiter dicta

Judge's comments on hypothetical circumstances that have no binding power but future value.

Binding precedent

Decisions of superior courts that must be followed by lower courts in the same hierarchy.

Persuasive authority

Decisions from courts outside a hierarchy or from equal-level courts that are not binding.

Magistrate's Court

Inferior court where a single magistrate presides.

County Court

Intermediate inferior court where a single judge presides.

Supreme Court

Superior court where a single judge presides.

Court of Appeal

A court where $3$ to $5$ judges preside.

High Court of Australia

The highest court where $5$ to $7$ judges preside.

Appeal condition

Must convince a higher judge that the lower judge made a mistake of law or misapplication.

Law reports

Published collections of case decisions and reasoning.

CLR

Commonwealth Law Reports, involving judgments from the High Court.

Citation Volume

The number following the year in a case name, e.g., $151$ in Taylor v Johnson (1983) $151$ CLR $422$.

Pinpoint reference

The specific page number mentioned in a case citation.

Contract definition

A legally enforceable agreement between two or more persons or corporate entities.

Parties

The entities or persons involved in a contract.

Discharge of obligations

Meeting contractual requirements through voluntary performance.

Breach of contract

Failure to perform contractual promises.

Objective approach (Formation)

Asking if a party's behavior would indicate to a reasonable person an intent to be bound.

Bilateral contract

An exchange of promises where performance remains to be completed by both parties.

Unilateral contract

Where one party's performance is completed only upon the act of the other party.

Carlill v Carbolic Smoke Ball Co

A classic case example of a unilateral contract and formation revision.

Common Law Capacity (Minors)

Individuals under $18$ generally cannot enter contracts except for specific exceptions.

Scarborough v Sturzaker

Case ruling that minors must pay a reasonable price for necessities.

Necessities

Goods or services required for a minor's livelihood, such as a bicycle for work transport.

Hamilton v Lethbridge

Case establishing that employment contracts are binding on minors if they are beneficial.

Contract Formation Requirements

Agreement, Certainty, Consideration (or deed), and Intention.

Offer

A manifestation of willingness to enter into a bargain that invites assent.

Promissory language (Offer)

Requirement that an offer involves an undertaking to do or refrain from an act.

Placer Development Ltd v Commonwealth

Case held that an offer must be promissory and not vaguely discretionary.

Invitation to treat

An indication of willingness to receive offers, such as advertisements or price lists.

Pharmaceutical Society of GB v Boots

Case establishing that shelf displays are invitations to treat, not offers.

Partridge v Crittenden

Case establishing that advertisements are generally invitations to treat.

Unqualified assent

The requirement that acceptance matches the offer exactly, without changes.

Masters v Cameron Category 1

Parties reach finality and intend to be bound immediately, with a fuller formal restatement later.

Masters v Cameron Category 2

Parties agree on all terms but condition performance on the execution of a formal document.

Masters v Cameron Category 3

Parties do not intend a binding agreement until they execute a formal contract.

Acceptance communication

The general rule that agreement is reached only when the offeree informs the offeror of acceptance.

Postal Acceptance Rule

Exception where acceptance is effective the moment a letter is posted.

Henthorn v Fraser

Case establishing that acceptance is effective when posted if the post was a contemplated medium.

Brinkibon Ltd v Sthalwharenhandelsgesellschaft

Case holding that acceptance by telex is effective when received.

Certainty requirement

Terms must be sufficiently clear and precise for an agreement to become a contract.