how to answer a legal problem question PDF

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Summary

Kendra went to Steve’s place to look at the Triumph Spitfire that Steve had advertised on gum tree. Steve told Kendra that he would accept $5000 for the car on an as is basis. Kendra asked if she could test drive the car. During the drive they discussed the car in some detail. Steve pointed out that...

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Kendra went to Steve’s place to look at the Triumph Spitfire that Steve had advertised on gum tree. Steve told Kendra that he would accept $5000 for the car on an as is basis. Kendra asked if she could test drive the car. During the drive they discussed the car in some detail. Steve pointed out that driving it really got you noticed. Among other things Steve told Kendra that it was very economical and got around 24 kilometres to the litre of fuel. Kendra said that would be very useful as she was an underpaid union lawyer so that a low fuel bill would be of value to her. Kendra bought the car but after owning it a week she discovered that the vehicle was a real gas guzzler and its fuel consumption was in the order of about 7 kilometres to the litre. She contacted Steve but Steve was unhelpful. Steve claimed that the deal was the money for the car as is and that there was therefore no comeback.

You have only just started contract law, so you are not in a position to work out whether or not the promise as to fuel consumption is, or is not, part of the contract of sale. Suffice to say that the promises people make in negotiations can become part of a contract. We will ignore the effect of the other term; that Kendra took the car ‘as is’.

Here is the fairly standard approach. A statement made in negotiations can either be a mere puff or a warranty. 1 A statement that is promissory in nature and is made to induce a person into a contract may be a warranty and thus may become a term of the contract.2 In order to determine if the promise is part of the contract a court can look at how close in time to the contract the statement was made, and the closer to the time the contract was formed the more likely it is that the promise is part of the contract. 3 The court will also determine who has the control of the knowledge behind the promise4 and at how important the promise was to the person who received it.5 In this case the statement about how much gas the car uses has become part of the contract. This is how many students approach problem solving. The student spotted the issue, as I hope you would. It is not particularly subtle! The student stated the law, but really what that is just a download of the student’s notes. Note that the student at least provided an authority (yes I made them up) for each statement of law. There is then an answer, and it is probably right, but there is no analysis and I am left trying to guess if they worked out the answer sensibly or just got lucky. If this part of the overall problem was worth ten marks I would give it two. Having had a go at science and maths people, this is a commerce and or business law approach! If this is how you have previously answered problem questions, forget what you have learned!

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Here is another approach A statement made in negotiations can either be a mere puff or a warranty. 6 A statement that is promissory in nature and is made to induce a person into a contract may be a warranty and thus may become a term of the contract.7 In order to determine if the promise is part of the contract a court can look at how close in time to the contract the statement was made, and the closer to the time the contract was formed the more likely it is that the promise is part of the contract. 8 The court will also determine who has the control of the knowledge behind the promise9 and at how important the promise was to the person who received it.10 It is clear that Steve made the promise about gas consumption to induce Kendra into the contract. The statement was made immediately before the contract was made, and Kendra was not in a position to know how much fuel the car actually used. It is also clear that the promise was important to Kendra and was one of the reasons she decided to buy the car. The promise is thus a term of the contract. I think you can see that this is a better answer, as I can see that there was some real analysis and that the student got to an answer through applying the law to the facts. But it is still a dump of law and then sort of common sense analysis rather than applying the law to the facts. Maybe a low C grade?

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And another The first issue to be cleared up is whether or not Steve’s statement about petrol consumption was incorporated as a term in the contract for the sale of the car. Steve’s statement to Kendra was promissory in nature, as it offered a real advantage to Kendra if Kendra were to buy the car. As it was promissory, rather than just a ‘mere puff’ such as “The car will really get you noticed” it may be seen as a warranty and thus may have become a term.11 It is clear from the circumstances that Steve made the statement to induce Kendra into entering the contract. Kendra’s response as to how important that was to her shows that Kendra clearly had his statement in mind (and thus was induced) when she decided to buy. If a person gives a promise of some advantage in order to induce someone to enter into a contract the promise may be incorporated as a term of the contract.12 Steve made that statement close in time to when the sale occurred, and Kendra had no way to determine if it was or was not true. A court would be likely to find that as Steve had control of the knowledge behind the promise (and as Kendrra did not have time to make enquiries of his own to see if the promise was true) the promise was a warranty that was incorporated as a term. 13 In all the circumstances, the term as to gas consumption, which was promissory in nature, was made to induce Kendra into entering the contract and was made close to the time at which the contract was formed is likely to be a term of the contract. This finding is reinforced by the fact that Steve was the only one in a position to know if the statement was or was not true.

Can you see that in that answer there is a clear view of what needs to be discussed and then the analysis, which combines the facts and the law, all come together and then lead to a supported conclusion? The conclusion is given with a summary. Note also that there are statements of law, and the authorities are provided. Also note that the student spelled Kendra’s name wrong. You would be surprised at how often that sort of thing happens and it is just such a dumb way to lose marks. I have my wife edit my writing and she finds all sorts of dumb mistakes. Having found that the promise did become a term, the next task would be to move on and find out how that will work with a term that says Kendra took the car ‘as is’. We won’t, as the point of this is to try and illustrate that a good answer weaves the issue, the facts and the law all into on answer and then gives a conclusion as to how that issue will be resolved before going on to the next issue.

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