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177 Pages • Complete Study Notes • Year: Pre-2018
Topic 1 – Introduction to Commercial Law 1.1 What is Commercial Law? 1. What it isn’t a. Torts, equity, criminal, corporations, property 2. Advanced Contract Law or Contracts as regulated in commercial contexts 3. Areas often categorised as generally “commercial” but not covered in this course a. Intellectual property b. Consumer law c. Banking and finance law d. Tax 4. One possible def for commercial law is: a. “Those issues, other than the gen law of k, raised by commercial agreements” such as: i. Formation and negotiation 1. Trade Practices 2. Agency ii. The agreement itself 1. Drafting 2. Construction iii. The transfer of any property/risk by the agreement 1. Sale of goods 2. Bailment iv. Securing finance and payment 1. Business finance 2. Guarantees v. Managing the risks 1. Insurance 1.2 Drafting Commercial Agreements 1. The basic elements of all commercial agreement drafting are: a. Title i. When in doubt (as per above) “Agreement” b. Date i. “This Agreement is made the day of , 2009” ii. Note: if any difference b/w this date, the date of commencement, the date of execution, or the dates on which any actions are to be taken or events noted which trigger other actions, then these differences need to be the subject of specific clauses c. Parties i. Names, addresses, ACNs (if companies, ABNs not usual) ii. Some description e.g. licensee, franchisor, etc, BUT if the “Agreement” is not easy to define into one of the more familiar categories, then simply shorten the name of the party to an acronym or short form: 1. e.g. BETWEEN: 2. PAUL MICHAEL O’SHEA of Room E239, Forgan Smith Building, University of Queensland, St Lucia in the State of Queensland (“the Lecturer”) 3. AND 4. VERY CLEVER STUDENT of Room 101, Building 82D, University of Queensland, St Lucia in the State of Queensland (“the Student”) d. Recitals i. Things which everyone knows, agrees and which are pre-cursors, as it were, for the Agreement ii. WHEREAS: 1. A. The Lecturer delivers lectures in commercial law at Room 101, Building 82D at the University of Queensland (“the Lecture Theatre”). 2. B. The Student attends those lecturers. 3. C. The Lecturer and the Student which to record their agreement as to how these lectures are to be conducted. e. Operative clauses i. IT IS AGREED AS FOLLOWS: 1. The Lecturer will do most of the talking in the lectures. 2. The Student will not use their mobile phone during the lectures. f. Execution and attestation i. THE PARTIES HAVE SET THEIR HANDS 1. Style matters 2. Keep it simple 3. Short sentences 4. Multiple clause rather than subordinate clauses
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