Вы находитесь на странице: 1из 4

Lecture 2- Commercial law scope of commercial law ownership title and possession nature of property scope of commercial law-

body of law that governs commercial transactions agreement between professionals for the provision and exchange of goods, services and facilities in trade More emphasis on dealings between merchants than consumers Scope of commercial law various common law doctrines e.g. bailment, law of finding contract law prevalent in commercial law overlaps with equity and trusts/contract law/tort Remedies under commercial law are not bound by the civil liability act under tort law Consumer law act: Section 18, 19 (sub sec 1 and 2) and section 52.. Nature of Property Property can refer to a thing, or to legal rights in respect of a thing The thing may be tangible (eg goods) or intangible (eg copyrights or patents) Even a legal right to sue someone else is an item of property in law (as a chose in action) Types of property Real property: land, fixtures (indestructible, immovable, appreciates) Personal property (impermanent, temporal, fragile, often depreciates in value, e.g. work of art (recent tax law said you cant claim art as tax deductible) Property rights: enforceable against the world Personal rights: enforceable against other party in the contract or individual only (e.g tortious claim) Title in law? Dont necessarily need to have possession and ownership at the same time Ownership: a right to use, sell, give away, put into a trust, use as security for a loan, share with co-owners, leave in will possession: means to have exclusive control (or dominion) over the item Types of possession: de facto, legal, right to immediate possession Helpful cases (but not in exam) Items found attached to land: Hannh v Peel (broach in house not used by owner) South Staffordshire (rings found in mud) Items found on land (i.e. not attached)

Parker v British Airways (gold bracelet in executive airport lounge)-cf private home (NCAvFlack) Bridges v Hawkesworth [1843-60] (finder of parcel with money Possession and Finding Possession involves a form of legal title: Even if by finding Even if by theft (Costello [2001]) Personal property Transfer of personal property: Gift of personal property (intention to give by donor- relinquish dominion over item, acceptance by done, delivery) Knapp v Knapp (1944): Gift of car to wife by husband, no transfer of registration Flinn v White (1950): Gift of piano by father to daughter, remained in common custody, no delivery Question: if you donate the art, they display it for 3 years, and as a result of public display , the art gets more attention and appreciates in value does the done get some money from the increase in value of the art ? BAILMENT Parties to a bailment Types of bailment Essential elements Obligations and duties of the parties Sub-bailments Bailor: party who gives possession of goods to another Bailee: takes possession but not ownership sub-bailee: takes possession from bailee Bailee for reward (consideration) Gratuitous Bailee (no consideration- e.g. finding lost goods, holding goods for a friend) See Coggs v Bernard for common examples of bailments Essential elements: Hobbs v Petersham Transport Co Pty Ltd (1971) look at 238: Windeyer J Transfer of possession Distinguish bailment from a license Greenwood v Waverly Council (not bailment but rather a license to use the locker- no attendant present) Ultzen v Nicols [1984] (bailment over coat taken by waiter in restaurant where waiter made request and selected place for safekeeping) Ashby v Tolhurst (1937) car space as license not bailment as no control over car, requirement to show ticket as requested)

Obbailorligation to redeliver If the bailee is not obliged to return the goods, then no bailment has been created- compare contract of sale No bailment where goods may be substituted (Chapman Bros v Verco Bros and Co 1933)- wheat unmarked, obligation to return equivalent only Duties of Bailee To take reasonable care of the goods Not to depart from the scope of the bailment Mitchell v Ealing London BC (failure to redeliver goods on agreed date turned gratuitous bailee into insurer) To return the goods or deal with them as directed: Bailment for reward can only be terminated by scope of the bailment Gratuitous bailment is terminated on demand To not dispute the bailors title to the goods Reasonable Care Tottenham Investments Nature of goods (value) shapes obligation Costs paid, knowledge Duties of Bailor Not interfere with bailees possession (depends on term of bailment) Bailor may be liable for trespass, conversion and brach of contract Not liable if Bailee warned Comply with terms of bailment look up LIEN Role of contracts Contract determines scope of bailment and nature of duties and liabilities Exclusion clauses (Sydney CC v West) Implied term in bailments for reward (hiring) that goods reasonably fit for purpose Bailment may be broader than contract : Modifies privity rule by conferring rights against 3rd parties Bailee may sue 3rd party for damages caused to bailed goods as possession is title against wrongdoer (Winkfield (1902)) Bailee may sue even if bailor suffered noloss (Goodwin-bailor paid out in insurance, bailee could still sue for the value of the damage) The effect of statutes Implied terms (Business contracts; may exclude implied terms under SOGA) consumer contracts: SOGA (nsw) Sub-bailment Occurs where bailee transfers possession of gods to 3rd party for a particular purpose, sub-bailee must be aware they are bailee

May be permitted or prohibited by head bailment Sub-bailee owes same bailment duties to head bailor (subject to contract) CW Martin- exclusion clause could not be relied on by cleaner Termination of a Bailment By expiry of the term By demand of the gratuitous bailee, at any time- Parastatidis

Вам также может понравиться