ANSWERING A LEGAL QUESTION

1. Read the question right through.

2. Re-read the question identifying issues.

3. Go back over the issues and make notes on each issue

4. Plan your answer:

· Organize your notes logically – do not necessarily answer the question following a time-line. The facts in the question may follow a time-line but this will not normally coincide with a logical structure based on the issues.

· This means that you need to think about what issues need to be dealt with together

· What are the relevant issues? Resist the temptation to use the “kitchen sink” approach – ie everything including the kitchen sink. Even if by accident you stumble on the correct issues, such an approach shows that you have not really understood the question. You will in fact earn fewer marks than a student who has obviously thought about their work but still misses one or two issues.

· Unless you are answering an evidence question do not concern yourself with discussions on whether the parties are able to prove the facts of the question.

5. Write your answer.

· Do not re-state the question and do not waste time or word limits on lengthy (or in most cases any) introduction.

· Use headings and sub-headings to give structure to your answer.

· Within these headings your answer should be divided into paragraphs, each dealing with no more than one issue. Complex issues may need more than one paragraph.

· When writing, start by identifying the issue. Do not start with a conclusion.

· Then state the law relevant to the issue and use cases to support your statement of the law. Do not give lengthy explanations of the cases. You will not have the time or the word limit to do this. Use the cases to extract principles of law. In some cases you may refer to the point that the facts of a decided case are identical to the factual scenario of a question. In other situations a question may be similar to but not identical to a decided case and you may refer to this point. Mention those facts of the case that are different from the question and use this to distinguish the outcome in the case from the outcome in the question.

· Apply the law you have stated to the factual scenario of the question making sure that your arguments follow logically.

· Reach conclusions (if you can) for each issue. If you cannot reach a conclusion, say why you cannot. In some instances there may not be a “right” answer and you may need to look at the arguments from all sides.

· Finish writing your first draft at least two-three weeks before the essay is due. It does not matter how bad or rough this version is – no one except you will see it. You must get this first draft out early so that you will have something to work on.

· Read the question again and then read your first draft – you will find obvious mistakes and omissions. Correct them. Also make sure that your arguments flow properly.

· Ideally you should have revised your work at least two times before it is handed in.

6. General

· Make sure you check your work for spelling, punctuation and grammar. It does count. Also please ensure that your computers are set either to Australian or English spelling, NOT American spelling.

· Use footnotes (not end-notes or Harvard style referencing. The latter in particular is not acceptable for legal work)

· Include a bibliography.

· Keep within the word limit

· Make sure your work is handed in on time.

· When handing in your work please do not use plastic covers or folders. They are heavy to carry and awkward when marking. Just staple your work in the top left hand corner. Your law teacher will be very grateful.

Example of a problem analysis process:

QUESTION:

Lorne Moah has been interested in setting up his own gardening business for some time. His uncle, Rhydon, has a gardening business. Rhydon is 60 years old and has hinted to Lorne that he would be retiring soon. Lorne is interested in purchasing the business and expanding it to include landscaping services as well as gardening services. Lorne feels sure that he will be able to acquire the business from his uncle.

Eve R. Green runs a garden shop at Newcastle and has just imported a range of giant-sized garden gnomes sculptured in the image of 10 greatest politicians that the world has known. Eve wants to drum up more business for her shop and advertises the gnomes in the Newcastle Herald at a special price of $800 per set but only for the first ten buyers to visit the shop. Lorne sees the advertisement and decides to travel to Newcastle as soon as the contract with his uncle is arranged.

Rhydon is procrastinating about whether or not to sell his business and Lorne wants to push things through a little so he writes out a note setting out the price, description of the business, list of customers and description of the equipment together with a settlement date. Lorne and Rhydon sign this and Lorne not wanting any problems, says to his uncle: “I think you should give this to your solicitor who can draw up a proper agreement.” Rhydon goes to his solicitor and arranges for the contract to be prepared and sent to Lorne.

Lorne then travels from Sydney to Newcastle to purchase his garden gnomes. When he arrives Eve apologizes and says that the Herald printed the wrong price and the garden gnomes should have been $1,800 per set. Lorne is furious and is insisting that Eve sell a set of gnomes to him for $800 and that she reimburse him his travel expenses.

Sensing that going into business for oneself may not be all that he had hoped it to be, Lorne is having second thoughts about purchasing his uncle’s business. When Rhydon contacts Lorne to check up on things, Lorne says he had decided not to go ahead and will not be signing the contract he has received from the uncle’s solicitor.

Advise the parties of their rights and obligations pursuant to the law of contract.

WHAT NOT TO DO

· Restate the question

· Start your answer off with a conclusion

· Rely on general knowledge

· Not use law or cases

· Ignore difficult issues and use your word limit to write about issues you understand instead of relevant issues.

EXAMPLE OF A FAIL ANSWER:

This question asks us to give advise to Lorne, Rhydon and Eve. They have all entered into contracts and someone is trying to back out of the deal. Eve has placed adds in a newspaper to which Lorne has responded according to the add and Rhydon and Lorne have agreed on a contract and now Lorne is trying to back out.

As Rhydon has given hints to Lorne about selling his business it is only reasonable for Lorne to try and purchase the business if he wants to. The uncle is almost 60 anyway and if he is going to be retiring he would probably want the business to stay in the family. This is evidenced by the fact that the uncle and Lorne have discussions about the business and sign the note. If Rhydon did not want to sell he should not have signed the note. Also a person is bound by something they have signed even if they have not read it. This is found in the case of L’estrange v Graucob where a person signed a document for vending machines without reading it. The document was an order form which contained printed terms of sale, It was retained by the salesperson and two days later the defendant sent to the plaintiff and order confirmation signed on behalf of the defendant. When the machine was delivered it did not work. The plaintiff brought an action for damages for breach of an implied warranty that the machine was reasonably fit for the purpose for which it was required. The defendant relied on the following clause in the sales agreement: “the agreement contains all the terms and conditions under which I agree to purchase the machine specified above and any expresss or implied condition statement or warranty, statutory or otherwise not stated herein is hereby excluded. The judge found that a party is bound by the terms of the document which he or she has signed. So in this case Rhydon and Lorne are bound even if they did not read what they signed.

Lorne thinks he has the business and travels up to Newcastle after seeing Eve’s add. He wants to buy the gnomes but Eve tells him the paper has made a mistake so it is not her fault that the wrong price is in the paper. The parties obviously have made a contract. If Eve booked the add over the phone she will have trouble proving that the paper made the mistake unless she has kept something in writing. But other than land contracts do not need writing so it is unlikely that Eve had anything in writing. Anyway she is guilty of false advertising and could be persecuted by Lorne for it. If I were her I would just cut my losses and sell him the gnomes at the advertised price. If I were Lorne I would sue Eve for false advertising – section 52 of the Trade Practices Act and also for my travelling expenses from Sydney to Newcastle.

When Lorne changes his mind he has breached the contract with his uncle. The uncle can sue Lorne for damages because Lorne has already signed the contract. There has been offer and acceptance for the business. An offer is shown in the case of Carlill where the Smoke Ball co put an add in the paper about using the smoke ball and giving a reward if a user caught the flu. Mrs Carlill saw the add and purchased the smoke ball but she still caught the flu. The court said that offer and acceptance equals a contract. Here Lorne and Rhydon have made offer and acceptance so they are bounded to a contract just like the lady in the smoke ball case.

To sum up as has been shown Lorne and Eve have a contract so Eve has to sell Lorne a set of gnomes at $800 as well as reimbursing travel expenses for Lorne. On the other hand Lorne will lose the case against his uncle as they had already agreed on a contract.

CAN YOU SEE WHAT IS WRONG WITH THIS ANSWER?

WHAT STEPS SHOULD YOU TAKE TO AVOID REPEATING THOSE MISTAKES?

1. Read the question right through.

2. Re-read the question identifying issues.

The question is in italics>

1. Lorne Moah has been interested in setting up his own gardening business for some time. His uncle, Rhydon, has a gardening business. Rhydon is 60 years old and has hinted to Lorne that he would be retiring soon. Lorne is interested in purchasing the business and expanding it to include landscaping services as well as gardening services. Lorne feels sure that he will be able to acquire the business from his uncle.

Lorne and his uncle Rhydon are related so this raises issues regarding intention to enter into a contract.

2. Eve R. Green runs a garden shop at Newcastle and has just imported a range of giant-sized garden gnomes sculptured in the image of 10 greatest politicians that the world has known. Eve wants to drum up more business for her shop and advertises the gnomes in the Newcastle Herald at a special price of $800 per set but only for the first ten buyers to visit the shop.

Is this an invitation to treat or an offer?

3. Lorne sees the advertisement and decides to travel to Newcastle as soon as the contract with his uncle is arranged.

Whether Lorne can claim damages for travelling depends upon whether there is a contract between Lorne and Eve and its terms and whether damages are reasonably foreseeable.

4. Rhydon is procrastinating about whether or not to sell his business and Lorne wants to push things through a little so he writes out a note setting out the price, description of the business, list of customers and description of the equipment together with a settlement date. Lorne and Rhydon sign this and Lorne not wanting any problems, says to his uncle: “I think you should give this to your solicitor who can draw up a proper agreement.” Rhydon goes to his solicitor and arranges for the contract to be prepared and sent to Lorne.

If there is an agreement it appears to be certain – so no issues of certainty. Issue is whether there actually is a binding agreement upon the signing of the note or whether it depends upon the contract being signed that the solicitor is preparing.

5. Lorne then travels from Sydney to Newcastle to purchase his garden gnomes. When he arrives Eve apologizes and says that the Herald printed the wrong price and the garden gnomes should have been $1,800 per set. Lorne is furious and is insisting that Eve sell a set of gnomes to him for $800 and that she reimburse him his travel expenses.

Has there been offer and acceptance? If add is an offer has it been accepted, has it been revoked?

6. Sensing that going into business for oneself may not be all that he had hoped it to be, Lorne is having second thoughts about purchasing his uncle’s business. When Rhydon contacts Lorne to check up on things, Lorne says he had decided not to go ahead and will not be signing the contract he has received from the uncle’s solicitor.

Whether or not Lorne is entitled to back out depends on whether there is a concluded agreement on the note. If there is Lorne cannot back out. If there is no concluded agreement– he can back out.

3. Go back over the issues and make notes on each issue

1. Lorne and his uncle Rhydon are related so this raises issues regarding intention to enter into a contract.

· All contracts need intention to enter into legal relations (Balfour v Balfour)

· Intention is judged objectively (Carlill v Carbolic Smoke Ball)

· Courts apply a weak presumption in domestic cases that there is no intention to enter into a contract (Wakeling v Ripley)

· Courts apply a strong presumption in commercial situations that there is intention to enter into a contract (Banque Brussels Lambert SA v ANI Ltd)

· The presumptions may be rebutted either by the express words of the parties or by the surrounding circumstances (Wakeling v Ripley)

· In some cases the courts favour a more global approach (Ermogenous v Greek Orthodox Communityi fo SA Inc)

· In this question the parties are related but the nature of the transaction is still commercial. Presumption in favour of intent unless it has been rebutted which does not appear to be the case.

2. Is this an invitation to treat or an offer?

· An invitation to treat is something that starts the negotiation process designed to entice the purchaser to make an offer (Boots v Pharmaceutical Society of Great Britain)I

· An offer is an indication of a willingness to enter into a contract on terms. There is nothing further to negotiate from point of view of offeror (Carlill v Carbolic Smoke Ball)

· Boots and similar cases such as Partridge v Crittenden indicate that for sale type adds are usually invitations to treat.

· Is this add in the same category though? It does indicate that first 10 buyers will get gnomes at discount price. Is it like Carlill or like Boots?

3. Whether Lorne can claim damages for travelling depends upon whether there is a contract between Lorne and Eve and its terms and whether damages are reasonably foreseeable.

This depends on points 2 and 5. But even if the add is an offer – nothing to indicate that Eve will pay for travelling expenses. Add was placed in Newcastle paper – is it reasonably foreseeable someone would travel from Sydney given that items are so large and bulky? See Victoria Laundry v Newman.

4. If there is an agreement it appears to be certain – so no issues of certainty. Issue is whether there actually is a binding agreement upon the signing of the note or whether it depends upon the contract being signed that the solicitor is preparing.

· If the agreement is only tentative it will not be binding.(Masters v Cameron)

· 3 categories of cases in Masters v Cameron

· Here most likely to be category 2 or 3

o Category 2 is a binding agreement but subject to a pre-performance agreement. Preparation of contract by vendor’s solicitor would fall into Meehan v Jones type of situation.

o Category 3 no agreement as parties are still negotiating – like Masters v Cameron

· There are two ways of looking at this

o Lorne just wanted to move things along and he was the one that referred to the solicitor so more likely that no binding contract until solicitors documents signed. Therefore category 3 and no contract. or

o Nothing to indicate that Lorne and Rhydon will depart from terms of note so it could be category 2 and parties are bound immediately.

5. Has there been offer and acceptance? If add is an offer has it been accepted, has it been revoked?

· Acceptance is an unconditional assent to the offer (Carlill)

· Needs to be communicated (Felthouse v Bindley)

· Answers depend on whether add is offer or invitation to treat.

· If add is invitation to treat:

o Lorne makes offer when he wants to buy at $800

o Eve rejects offer when she makes counter offer at $1,800(Hyde v Wrench)

o Rejection of offer and counter offer kill offer dead (Hyde v Wrench)

o Lorne rejects counter offer – no contract no right to sue for anything.

· If add is an offer:

o An offer may be revoked prior to acceptance (Byrne v Van Tienhoven)

o Revocation must be communicated (Dickinson v Dodds)

o Issue really then turns on whether offer accepted prior to any revocation.

o Can it be said that Lorne merely turning up is sufficient to amount to acceptance.

o Not really enough here Lorne could have been in shop for any number of reasons and problem says that he was told about mistake in price when he arrived. Change in price would be counter offer that revokes prior offer.

o Problem also does not tell us what Lorne said – nothing to indicate that he actually communicated any acceptance.

o No contract – no right to sue for damages.

6. Whether or not Lorne is entitled to back out depends on whether there is a concluded agreement on the note. If there is Lorne cannot back out. If there is no concluded agreement– he can back out.

· Already dealt with in point 4

4. Plan your answer:

· Organization – what issues belong together?

· Issues 1, 4 and 6 relate to Rhydon and Lorne so they belong together

· Issues 2, 3 and 5 relate to Lorne and Eve so they belong together

· Organization – Headings

· LORNE v EVE (major heading)

§ Advertisement in Newcastle Herald (sub-heading)

§ Offer and Acceptance (sub-heading)

§ Advertisement an Invitation to Treat (sub-heading)

§ Advertisement an Offer (sub-heading)

§ Travelling Expenses (sub-heading)

· RHYDON v LORNE (major heading)

§ Intention to enter into Legal Realtions (sub-heading)

§ Is the note a binding contract? (sub-heading)

5. Write your answer. (Please note that here I have not used full sentences or footnotes etc. YOU ARE EXPECTED TO WRITE FULL SENTENCES AND USE FOOTNOTES, PROPER NAMES OF CASES AND A BIBLIOGRAPHY. This outline is merely designed to show you how the answer should be structured)

· Rather than writing an introduction, introduce your answer with the identification of an issue.

1. LORNE v EVE. (Taken and modified from points 2 and 3)

Whether Lorne can claim damages and whether he can force Eve to sell him the gnomes at the advertised price depends upon whether there is a contract between Lorne and Eve and what the terms of that contract are. (Taken and modified from point 3) The first point to consider is whether the advertisement Eve placed in the Newcastle Herald is an invitation to treat or whether it is an offer that is capable of acceptance. (modified from point 2)

· Then continue your answer using your notes and identification of issues within the headings and sub-headings you have chosen.

1.1 Advertisement in Newcastle Herald (Taken from point 2)

· An invitation to treat is something that starts the negotiation process designed to entice the purchaser to make an offer (Boots v Pharmaceutical Society of Great Britain)I

· An offer is an indication of a willingness to enter into a contract on terms. There is nothing further to negotiate from point of view of offeror (Carlill v Carbolic Smoke Ball)

· Boots and similar cases such as Partridge v Crittenden indicate that for sale type adds are usually invitations to treat.

· Is this add in the same category though? It does indicate that first 10 buyers will get gnomes at discount price. Is it like Carlill or like Boots?

· Case law inconclusive on facts of question

1.2 Offer and Acceptance. (Taken from point 5)

· Acceptance is an unconditional assent to the offer (Carlill)

· Needs to be communicated (Felthouse v Bindley)

· Whether there has been offer and acceptance and hence a contract needs to be looked at differently depending upon whether the add is an invitation to treat or an offer.

1.3 Advertisement an Invitation to Treat (Taken from point 5)

If add is invitation to treat:

· Lorne makes offer when he wants to buy at $800

· Eve rejects offer when she makes counter offer at $1,800(Hyde v Wrench)

· Rejection of offer and counter offer kill offer dead (Hyde v Wrench)

· Lorne rejects counter offer – no contract no right to sue for anything.

1.3 Advertisement an Offer (Taken from point 5)

If add is an offer:

· An offer may be revoked prior to acceptance (Byrne v Van Tienhoven)

· Revocation must be communicated (Dickinson v Dodds)

· Issue really then turns on whether offer accepted prior to any revocation.

· Can it be said that Lorne merely turning up is sufficient to amount to acceptance.

· Not really enough here Lorne could have been in shop for any number of reasons and problem says that he was told about mistake in price when he arrived. Change in price would be counter offer that revokes prior offer.

· Problem also does not tell us what Lorne said – nothing to indicate that he actually communicated any acceptance.

· No contract – no right to sue for damages or obtain items at cheaper price.

1.4 Travelling Expenses (Taken from point 3)

· Even if add were an offer there is nothing to indicate that Eve will pay for travelling expenses.

· If somehow there is a contract query whether what happened is in any event reasonably foreseeable. Add was placed in Newcastle paper – is it reasonably foreseeable someone would travel from Sydney given that items are so large and bulky?

2. RHYDON v LORNE (Taken from points 4 and 6)

The issue is whether there is a binding agreement upon the signing of the note or whether a binding agreement depends upon the contract that the solicitor prepared being signed. If the note is a binding contract then Lorne cannot change his mind. If, however, the note is not binding Lorne will be able to change his mind about proceeding with the transaction.

Intention to enter into Legal Relations. (Taken from point 1)