Studying Law at University

It’s actually a title of a book I picked up whilst browsing the Law section of my local library! By Simon Chesterman and Clare Rhoden. It’s quite interesting to note that these guides actually exist. Was actually looking for a one-volume introduction to Law but I couldn’t find anything! Anyway this was fun to browse through.

It does have a few helpful hints, which I will enumerate below. The only problem is that they are probably writing for Australian law students, who will do a double degree with something else, so sometimes what they say isn’t too applicable in my situation.

Time Management:
- A diary and a timetable. That I know. But a new approach to the diary: write down deadlines and reminders of deadlines! Which was an extremely efficient practice that I used to have, which I think I should take up again in university.

Tips for reading legal texts:
- Long case: look for the headnote (the summary)
- Particular area of law: read up in the legal encyclopedia or a textbook
- Get an overview: Filter. Skim what looks less relevant, since a case might deal with different parts of the Law.
- Keep asking questions: why is this written, how is it important to the conclusion that follows?

Notetaking in Lectures:
- Topic and date on the top of lecture notes!
- LOTS OF SPACE
- Colours / highlighting that will help recall when notes are skimmed over within the next 24 hours
- Distinguish between facts and the Law, for most of the time the facts are less important that the legal significance of the case. ‘It is the larger legal context that you are studying - the principles and the judgments - not the case itself’.

Notetaking from reading:
- If you must highlight, always have comments and questions in the margin
- Notes in one’s own words demonstrate understanding and form the basis of an essay

Unfamiliar words:
- jot them down and check them collectively in a half hour slot when you don’t feel like doing anything more taxing
- however if there is only one word between you and the total meaning, check it up!

What are you learning this for?
- Apply knowledge in the appropriate way
- Practice writing short essays on specific issues for open book exams / write lists if one needs to delineate points of law / write long essays on legal concepts when studying for history of law

The different levels of understanding:
- Level 1: ‘I think I’ve seen this before’
- Level 2: ‘I understand the beginning and the middle, but I can’t see why the judgment follows’
- Level 3: ‘Let me explain this to you’
- Level 4: ‘I think that this concept applies in this case, too’

Active learning strategies:
- Flow chart for case facts: help to determine causation, especially helpful in torts
- Diagram of events of a case - useful for visualising, esp for motor vehicle accident cases
- Debate with friends!
- act out the case haha.
- rewrite complex material in everyday language - interesting perspective on the ‘reasonable person’ idea
- think like the examiner: what shall I be tested on?
- summarise complicated cases into a newspaper article form
- 10 minute analytical brainstorm: list all the advantages of one legal theory, then another…

Contract Law (continued)

11. What are the rules as to mistake of the identity of the person with whom the contract is made? Discuss with reference to decided cases.

Answer:
- identity of the person has to be material
- person contracted with knows he is not the one intended to be contracted with
- case: Fraud claiming to be famous person and sold an expensive good. As I remember this case was about some Fraud claiming to be a particular celebrity and hence was sold an expensive watch on credit. The cheque bounced. The watch company could not sue for the money back based on mistake of identity because it was held that the salesman was not purely intending to contract only with the particular celebrity mentioned - the identity of the person was immaterial - ie, so long as the person had the means to pay, whoever he was didn’t matter, and the contract was only entered into on the part of the watch company because the mention of that celebrity was an assurance that the person contracted with could pay for the watch.

12. Define a misrepresentation, and distinguish between fraudulent and innocent misrepresentation.

Answer:
- Definition: An untrue statement of fact, that is made to induce another to enter into a contract, which the other does upon the misrepresentation.
- Fraudulent misrepresentation: made with knowledge of the untruth but still deliberately made
- Innocent misrepresentation: is obvious so I didn’t write it down
- Negligent misrepresentation:
- careless but not dishonest
- difference compared to innocent misrepresentation: if it (the negligent misrepresentation) had been liable if made fraudulently, then the party made liable would be so unless he proves that he had reasonable ground to believe and did believe (in the misrepresentation)

13. Distinguish, with examples, between contracts made as a result of duress and those effected by undue influence.

Answer:
- Duress - threats of violence to / imprisonment of person / family
- Undue influence - influence under which no independent will is seen to make the contract

14. Enumerate contracts which are illegal (i) by statute (ii) at common law.

Answer:
- statute: (certain) gaming, wagering contracts, moneylending etc (nb please take this with a pinch of salt, I didn’t think much of this section so my notes were skimpy)
- common law:
- to commit a crime/tort
- sexual immorality
- freedom of contract
- champerty and maintenance:
- maintenance: third party abetting party to take action against another
- champerty: similar, but third party shares in recovered damages
- injure public service
- trading with the enemy
- in restraint of trade

15. In what ways may a contract be discharged? What is meant by the statement ‘a contract may be discharged by frustration’?

Answer:
- agreement to discharge by parties involved
- performance of the contract, fully
- breach
- frustration = subsequent impossibility
- operation of law - need to check up on this one

16. What remedies are available at law to a person who claims there has been a breach of contract?

Answer:
- refusal of further performance on the victim’s part
- action for damages:
- aim: restitutio in integrum - to restore both parties to the state at which they were before the contract had started
- breach has to have arisen naturally
- contemplation of both parties - need to read up too
- mitigation in damages (actions must have been taken on the victim’s part to minimise losses)
- action on a ‘quantum meruit’ (to get damages for ‘as much as he has earned’ - as much as has been performed on the victim’s part)
- action for specific performance (the court rules that the other party has to carry out certain actions befitting the contract)
- injunction - negative stipulation: where the court restraints the other party from doing particular things, I imagine this is used where the contract that has been breached must have had something to do with the defaulting party agreeing to be in restraint of a particular act but never followed through
- rescission - just end it, I think.

17. Distinguish between general and special damages.

Answer:
- General: damages that follow specifically from breach (ie the payment of such damages find their cause immediately arising from the breach) and are pecuniary (monetary) compensation
- Special: specially proved, not arising naturally
- nominal - where damages are awarded for a technical point in Law that the party awarded has argued successfully and won
- contemptuous - the party is acknowledged to have won the case theoretically, but in reality it does not amount to much change, so a token damage is awarded, called contemptuous damage
- exemplary - to make an example of, say, the defendant
- liquidated - has something to do with companies I think - need to read up!
- non-liquidated
- penalties (inserted in terrorum)

18. What is meant by ‘an equitable assignment’ of a debt or other chose in action?
- an assignment that does not comply with the requirements of a legal assignment, but can take effect as an equitable assignment

Contract Law

I was attached to a law firm for one and a half months, and besides reading lots of cases and attending several court hearings, when I didn’t have anything else to do I read a book I borrowed from the library on Law. It’s a very basic introduction and cannot match up to those whole textbooks those lawyers have on the different types of Law. But it worked as a starter to the concept.
I found the book’s end questions on each topic most useful to study the topic, so I shall just write out the questions and my answers to them (as found from the book).

1. Define a contract, and state the essential elements of a valid contract.

Answer:
A contract is a legally binding agreement between two or more parties, by which rights are acquired by one or more to acts or forbearances on the part of the other(s) - consensus ad idem (there is a common agreement between the parties involved)
The essentials of a valid contract are:
offer and acceptance
intention to create legal relations
capacity
consent (genuine)
consideration - (nb) I did not note down the legal definition of consideration, but from what I remember, this means some benefit for each party involved that would make it seem possible for them, by common sense, to enter into the contract. The layman’s ‘what’s in it for me?’
legality
possibility of performance

2. Distinguish between an offer and an invitation to treat.

Answer:
An invitation to treat is an invitation to make an offer (eg auctioneer inviting bids / goods at a shop window enticing one to make an offer to purchase) whereas an offer is, well, an offer - a voicing out directly of an intention to purchase or do or whatever… (cripes I’m actually quite scared now, if by any chance a law student or lawyer is looking at this please be merciful and not bash me for the countless inadequacies in my explanation - this is a personal project. I will definitely not write this as an answer in my exams when I eventually study Contract Law.)

3. What is the effect of an acceptance ’subject to contract’?

Answer:
Parties are not bound until a formal contract is prepared and signed by them. The purpose of an acceptance ’subject to contract’ is to give the parties an opportunity to reflect on the matter, and change their minds if need be.

4. Describe the main rules regarding consideration:

Answer:
Consideration:
- must be real / genuine (not vague, either)
- need not be adequate, but must be sufficient (I really like this clause (I mean clause in a linguistic, not legal, sense) but when one thinks more about it one realises it can be a legal loophole - what does ’sufficient’ really mean?)
- legal
- consideration must move from the promisee (not only the one who is promised a right should have consideration due to him or her, but also the one who promises to carry out an act or forbear from it)
- consideration must be possible
- consideration must not be past (ie say your benefactor saved you from nearly getting hit by a car. That’s consideration for you. In return you promise to do something that will benefit your benefactor. That’s not valid in contract law, as it has already passed. Hard isn’t it.)

5. Distinguish between a guarantee and an indemnity.

Answer:
Indemnity means having another responsible for a benefit obtained by you, whereas a guarantee means you are primarily liable, and if you default, your guarantor, secondarily liable, must pay.

6. What is the doctrine of part performance? What are the 4 points that must be proved before the equitable remedy will be applied?

Answer:
(nb) I think I over-estimated my ability to memorise and recall confidently the doctrine of part performance, as I didn’t write it down (I’m copying from my notebook.) So from memory, it means what it says: part of the contract has been dutifully carried out by one party to the contract, whereas the other has not.
In order for a remedy to be applied … (nb an equitable remedy is a remedy that is available in the courts of equity. I am writing from a Common Law viewpoint, the British legal system and its commonwealth beneficiaries’. I confess my extremely inadequate understanding of the concept of equity; as far as my readings have taken me from the history of the Common Law system there were certain conditions or circumstances under which the courts were bound, by what was written in black and white, not to take action even though to do so would be wrong (I will not discuss whether morally or socially or … at present). Thus in response the courts of equity were set up so that these cases could be tried and a fair and judgement would be meted out.):
- the court must be able to compel performance (the nature of the contract has to be such that)
- part performance must be unequivocally referable to the contract
- it would be fraudulent to take advantage of lack of evidence so as not to compel performance
- oral evidence (that there was a contract and it was partly performed)

7. (I didn’t like the question, I suppose, because I struck it off my list)

8. What special rules apply to contracts by corporations?

Answer:
- All corporations are incapable of making contracts of a personal nature (like marriage)
- Chartered corporations are not restricted by charter (that set them up), but may be by law through injunctions, etc.
- Statutory corporations are restricted by statutes
- Registered Companies are subject to powers drafted
- Form of contracts are made under seal in cases where an ordinary person is required to do so.
(NB - as the book that I read happened to be published some time ago, say, in the late 80s, early 90s, content may not be as relevant now. Furthermore, as the book is on the English Law system, I felt sometimes that it didn’t really fit always with the laws of commonwealth countries. So really, take it as an intro. Definitely NOT the real thing.)

9. When will an ‘implied term’ be imported into a contract?
- to give the contract business efficacy:
I wrote ‘Moorcock - river bed’, which refers to an example that the book gave. Apparently it should be quite classic as I saw this example in another book. Can’t remember the exact details. Some company (A) let another company (B) dock the latter’s ship called the Moorcock at their river side docking area (now besides the lawyers I think I’m also offending shipping companies and their mates with my imprecise terminology - can’t believe I work at one now! Ahhhh!) but the river belonged to a third party. The river bed was too shallow for B to dock the ship safely and the ship suffered casualties as a result. B sued A, and it was decided that although the river didn’t belong to A but by claiming to B that B could dock at their pier (or equivalent), A has thus implied that the area was safe for docking and so B can successfully sue A for damages.

10. (It is too late and I have to work tomorrow! So I’ll finish this one and continue on another day) Distinguish between (i) a condition and (ii) a warranty, in a contract:

Answer:
A condition is the key clause in a contract, warranties are secondary.

Whoa. Just by doing this I actually feel rather disappointed at meself for not reading up lately on Law… really want to start on Torts but there’s always so much going on! Dear dear. Glad I like what I’m going to study in future. :)