经济法 国外

Issue: Does Charles owe a duty of care to his neighbor?

1: 非建议类：

Law ：

(a) Foreseeability test: An objective test measuring if a reasonable person would have foreseen that harm may result from defendant‟s actions (b) Proximity test: Plaintiff must be in a sufficiently proximate relationship with the defendant There are 3 types of proximity: 1. Physical- closeness; 2. Circumstantial- employer to employee; 3.Causal- temporary. 2：建议类：

Law ：

MLCV Evatt（three step tests）

(1): the advice or information was given in respect of a serious or business matter

(2): The circumstance were such that D did or should have realized that P intended to act on the information or advice (assumption of responsibility)

(3): in the circumstances, it was reasonable for P to have relied on the information or advice (reasonable reliance)

1. The context in which the advice or information was given (Mohr CleaverTepko v Water Board)

2. Presence or absence of special skill (Hedley Byrne V Heller &Partners)

3. Length of relationship between parties

4. Request for information /advice (Shaddock &Associates V Parramatta City Council)

5. Alternative sources of information /advice (shaddock0

6. Direct recipient（接受者） of information /advice (Esanda Finance)

Application ：

D owes P a duty of care to ______because:

(a): There was a special relationship between D and P because (P was a long term customer of D).

(b): serious nature (money)

(c): D should know that P was going to rely on D's advices because P is D‟s client.

(d): It was reasonable for P to rely on the advice.

(1): D provided the advice in a business context-the advice was given of charge.

(2): D has special skill in providing the advice ( have licenses and accreditation 鉴定合格）

(3): (Bill and Mark have a longstanding relationship built on trust and as such the fact that there are alternative sources of seeking investment advice is irrelevant)

(4)?

(5) If D is the only source of the information, more likely that the Court will find reasonable reliance.

Conclusion:

Issue: Has Mark breached the duty of care?

Law:

(a): was the risk of harm foreseeable?(section 9(1)(a) civil liability act 2003)

D knew or ought to have known(i.e. on an objective test) the risk of harm to P (b): was the risk not insignificant? (Section 9(1) (b) (Wyong Shire council V Shirt)

(c): would a reasonable person in the position of D have taken the precautions against the risk of harm?(Section 9(1) (c))Court considers these factors when applying precautions test:

(1) The probability of harm care were not taken (section 9(2) (b))

Lower probability=reasonable person less likely to precautions(Boulton v

Stone )

(2) the likely seriousness of the harm (section9(2)(b))(Paris V Stepney

Borough Council)

(3) Burden of taking precautions(section 9(2)(c))

(4) The social utility of the activity that creates the risk of harm(section9(2)(d)) Issue: Did P suffer loss as a result of D's breach of duty?

Law :

Factual Causation (section 11 (1) (a) of the CLA) D‟s breach of duty caused the P‟s harm and the P‟s harm was reasonably foreseeable.

e.g. Barnett v Chelsea and Kensington Hospital Management Committee; Wagon Mound (No1) case.

„But for test‟: but for the defendant‟s negligence, would the plaintiff have suffered harm?” (Section 11(3) - CLA)

„Common sense test‟ can the Plaintiff prove on the balance of probabilities that the defendant in fact caused the Plaintiff‟s harm?

Remoteness:Is the harm too remote a consequence of D‟s negligence? (Section 11(4))

Issue:Can D rely on any defenses?

Law :

Civil Liability Act s 23

e.g. ：Ingram v Britten

共同责任：

(a) Contributory Negligence:共同责任的确认 P partially at fault which contributed to P‟s harm.

•

• Apply the breach of duty factors in (ii) above using P, not D (s 23); If there is contributory negligence, Court will apportion liability in % terms between P and D;

• Court can apportion liability 100% to P if it considers just and equitable to do so (s 24).

蹦极：

(b) Voluntary Assumption of Risk: 自愿假设风险

• Hypothetical1：Is the risk caused by a dangerous recreational activity? Dangerous Recreational Activity: An “activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to the person” (section 18)

Dangerous Recreational Activity Test (section 19)

•

•

• P‟s harm was suffered as a result of the materialization of an obvious risk. P was engaged in a dangerous recreational activity Obvious risk relates to the dangerous recreational activity.

Any activity with the exception of a dangerous recreational activity

Hypothetical 2• If a risk is obvious, a person is deemed to be aware of the risk unless P proves, on the balance of probabilities, that P was not aware of the risk (s14 (1));

• Obvious Risk: A risk that, in the circumstances, would have been obvious to a reasonable person in the position of P (section 13(1)):

• Includes: Risks that are clear or common knowledge (section 13(2)), and may be obvious even if the probability of the risk occurring is low (section 13(3)) or if the risk is not “prominent, conspicuous or physically observable” (section 13(4)).

• Does not include: A risk created by D‟s failure to properly operate, maintain, replace, prepare or care for a thing (s 13(5))

(1) Misleading and deceptive conduct - section 18

a. Silence, failure to disclose, or the giving of incomplete information can be misleading conduct （沉默或不说）Henjo Investments Pty Ltd v Collins

MarrickvillePty Ltd

b. Giving false warranties or guarantees breach s18 can be misleading （无效的保证）Accounting Systems 2000 v CCH Australia Ltd

(2) Unconscionable conduct - sections 20, 21 & 22

a. Section 20(1): “A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.”（不合理，即使写了）Commercial Bank of Australia Ltd v Amadio b. Section 22: “A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.”（不平等的行为）Miller v Gunther and others

C. Section 21(2) provides a list of considerations the Court may have regard to when determining whether there has been unconscionable conduct: ACCC v Lux Pty Ltd

Bargaining strengths of corporation and consumer（利用优势）

Whether consumer required to comply with unnecessary conditions（不需

要的条款）

Whether consumer was able to understand any documents relating to the

supply of goods and services（无法明白合同）

Whether undue influence or pressure exerted or unfair tactics used against

the consumer（向消费者施压，寡妇）

The amount for which the consumer could have acquired identical or

equivalent goods and services from another（卖的比别别人家高）

(3) False Representation - section 29

Section 29: “A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false representation”. （错误介绍）

Section 29(a)

（特点错误）Hartnell v Sharp Coporation of Australia Pty ltd Section 29(c)provides that a company cannot falsely represent that its goods are “new.” （新旧错误）

Section 29(g)provides that a company cannot make false representations in regard to

Section 29(h)provides that a company cannot make false representations about sponsorship, approval or affiliation associated with goods or services, they do not have. （赞助，从属错误）

Section 29(i) provides that a person cannot make statements or representations about “price” in relation to range of goods and services may give a misleading impression of the price. （减价错误，说减了但是没减）Trade Practices Commission v Cue design Pty Ltd

Section 29(j)provides that a company may not make a false or misleading representation concerning the availability of faculties for the repair of goods or the spare parts for goods.（售后服务，配件）

Section 29(k) provides that a company may not make a false or misleading representation concerning the place of origin of goods.（原产地错误）

Section 29(l)provides that a person cannot make a false or misleading statement concerning the need for any goods or services.（用不着的也得买） Section 29(m) provides that a person cannot limits a consumer‟s right to remedies for unsatisfactory goods or services. （强行卖残次品）TPC v Fiona’s Clothes Horse Pty Ltd

消费者的保护

the supplier has the right to sell the goods (ss. 51-53);

the goods are of acceptable quality(s.54);

the goods match their description(s.56) and correspond with any

samples(s.57);

the goods are fit for any purpose that the consumer makes known to

the supplier (ss.55, 61);

the repairs and spare parts are reasonably available(s.58);

the services are carried out with reasonable care and skill (s.60); and the services are completedwithin a reasonable time(s.62).

生产商

Manufacturers are liable to compensate for loss or damage

suffered as a result of supplying defective goods: ACL, Ch.3, Part 3-5 of the ACL.

是否是合伙公司：

Issue: Is there a partnership between [insert names]?

Law ：“Carrying on a business”: There must be repetition in parties‟ conduct, unless parties intended partnership or single activity would be repeated e.g. but after partnership formed = partnership activities.

“In Common”: Parties must be acting as agents (on behalf of partnership) and sharing rights and obligations. sharing of obligations (i.e. building costs and land-related costs) “With a view of profit”: Parties must have intended to make a profit

Co-ownership of property (s 6(1) (a)): does not itself create a

partnership

Sharing of gross returns (s 6(1) (b)): does not itself create a partnership

Sharing of profits (s 6(1) (c)): strong indicator that a partnership exists 是否是合伙人（合伙关系是否存在）：

(a): co-ownership of property: Section 6(1)(a) PA: （共同拥有财产）

The joint ownership of property does not itself create a partnership irrespective of whether the owners do or do not share in any profits made by the use of the property or whether the property is held as joint tenants or tenants in common. (b): sharing of gross returns :(分享利益）（尽管分享收入但是分工不同没有in common business Crib v Korn (1911)）section 6(1) (b): The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have an interest in any property which is utilized to obtain the returns.

(c)Sharing Profits : The receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business, but simply receiving such a share does not mean the person is a partner

[section 6(1)(c)]

(反向证明）：针对（b ）说的Three specific instances in which a share of profits will not necessarily mean that there is a partnership. We will deal with three instances:-

1. Debts paid out of profits （Cox v Hickman (1860) ）

2. Payments to employees and agents out of profits ：The payment of a

share of profits to an employee or agent of the business under a contract does not make the agent or employee a partner in the business [section 6(1)(c)(ii)]

3. Payment of interest out of profits: A lender of money to a partnership who

receives interest based on the partnership‟s profits or a percentage of profits instead of interest, does not become a partner in the business, provided that the contract of loan is in writing and signed by the parties

(sections 6(1)(c)(iv) and 6(2))

是否该对伙伴的购买负责

Issue: is the (company) under the contract to P?

Law:

(a) Did D (a partner of the company) have actual authority to buy the laser machine?

(b) Did D have apparent authority to do?

Section 8 Partnership Act: The firm will be bound to acts of partners with actual or apparent authority. There are four requirements to establish apparent authority:

(a) the transaction involved must be within the scope of the partnership business("business of the kind")(Polkinghorne v Holland)

(b) The transaction must be effected in the usual way ( Goldberg v Jenkins) (c) The outsider must not know that the partner had no actual authority

(d) The outsider must have known, or at least must have believed, that the person with whom he or she was dealing was a partner.

Section 12: every partner in a firm is liable jointly with the other partner for all debts and obligations of the firm incurred while a partner (Kendall v Hamilton)

结束合伙的权利

Exclusivity of partnership property (s23-s25) Section 23 of the PAstates that:

“Assets that have become partnership property will belong to the partners collectively rather than to each partner individually”.资产是企业的不是个人的 Section 24 of the PAstates that:

“Property bought with money belonging to the firm is deemed to have been bought on the account of the firm”.

Issue : what rights does P (the person who wants to stop the company)

have to end his partnership relation with Sam (the partner)?

Law: partner unless a power to do so has been conferred by express agreement between the partners".

to all the other partners of his/her intension to dissolve the partnership. where a partner has been declared to be of unsound mind; s 38(a) Gibbons v Wright (1954) 91 CLR 423.

permanent incapacity; s 38(b)Payton v Mindham (1971) 3 All ER 1215.

where a partner is guilty of conduct which, in the opinion of the court, is calculated to prejudicially affect the business; s 38(c).Jenkins and Joaquim v Bennett (1965) WAR 42.

where a partner has engaged in willful or persistent breaches of the partnership agreement; s 38(d)Campbell v Blair (1873)

when the business can only be carried on at a loss; s 38(e)Jennings v Baddeley (1856)

where it is just and equitable: e.g. guilty of misconduct; breach of mutual trust and confidence; continual disagreement between the partners: s 38(f)Knight v Bell (1887; Cayron v Rusell (1897).

Issue: how is the partnership property distributed on dissolution? Law:

creditors who are not partners in the firm. If there is not enough partnership property to pay the debts, the partnership has a loss. The loss is allocated to the partners in the same proportion as they share profits.

in the absence of a contrary agreement, the partners are entitled to share in profits and each must contribute equally to make up the

firm's losses.