JD-LLB Course manual 21 22 PDF

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Course Manual for Academic Year 2021-22...

Description

SCHOOL OF LLA AW

LW5658/L W5658/LW4658 W4658 Commercial La Law w Course Manual Semester A Course Leader: Dr. Sara Tsui

COMMERCIAL LLAW AW Course Description This course examines various aspects of commercial law and the application of legal doctrines in personal property, contract, equity etc in the context of commercial and business transactions. The course covers general principles relating to personal property and dealings in personal property, with a focus on contracts for the sale of goods. The course also covers issues in credit and security in business and consumer finance. It also provides an introduction to negotiable instruments, and personal bankruptcy and corporate insolvency.

Syllabus Outline 

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Characteristics of personal property  the concepts of ownership and possession distinguished  legal and equitable ownership; mere equities; finders  varieties of personal property: chattels and intangibles / choses in possession and choses in action. Dealings in personal property  bailment; nature of bailment; rights and duties  alienation of choses in possession; sale, gift, deed  gifts; conditional gifts; gifts of future property  assignments of choses in action; legal assignments and equitable assignments  dispositions by non-owners; nemo dat rule and exceptions. Contracts for the sale of goods  the scope and impact of the Sale of Goods Ordinance  the principal obligations of the seller and buyer, including implied obligations  delivery, acceptance/rejection of goods  transfer of property and risk  resolution of rival claims to ownership  remedies of seller and buyer. Other contracts for the supply or use of goods: barter; hire-purchase; simple hire and leasing. Credit and security  nature and forms of credit  securing credit: forms of security (arising from agreement or operation of law) – pledges, liens, mortgages, charges  the creation, enforcement and transfer of security rights  effectiveness of security against third parties: perfection and priority questions  reservation of title clauses  particular forms of business finance: conditional sales; hire purchase; finance leasing; guarantees; floating charges; stocking finance; receivables financing and factoring  consumer credit; Moneylenders Ordinance and other legislation. Bills of exchange and other negotiable instruments. Introduction to bankruptcy and insolvency.

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Course Intended Learning Outc Outcomes omes (CILO (CILOs) s) Upon successful completion of this course, students should be able to: No.

CILOs

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Analytically and evaluatively describe and explain the basic principles of different areas of law which impinge on commercial transactions.

2

Apply the principles of commercial law to solve legal problems by:

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analysing cases

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interpreting statutes

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conducting independent research on the law

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marshalling arguments clearly, logically, coherently and effectively, both orally and in writing.

Research, analyse and critically evaluate: legal principles and doctrines in commercial law in light of both doctrinal coherence and in relation to the policy objectives of the law.

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Teaching and Learning Activities (TLA (TLAs) s) Duration o off course: 1 semester: 2 hr lecture + 1 hr tutorial per week Tea each ch ching ing m meth eth ethods ods ods:: Teaching will be based upon traditional lectures and tutorials but will be problem solving centred and a critical and analytical approach will be encouraged. Lectures will be used to impart relevant information and to provide guidance to the students in their reading and research. Further, lectures will also provide a forum for active student participation and discussion of major issues. Tutorials will be used for student centred learning. Students will be set tasks and problems to solve based on selected realistic case scenarios and theoretical issues. To enable the full benefit to be obtained from this course, students should attend all of the classes and activities.

CILO No.

TLAs

CILO 1

Lectures: 

Students will receive guidance on their reading and research through multimedia or other presentations.

Reading of cases, statutes and other material, and research: 

Students will acquire knowledge of the substantive rules of commercial law.

Tutorials or other small group / interactive sessions: 

Students’ understanding will be enhanced by seeing the operation of the law in case studies, and through group

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discussions. CILO 2

CILO 3

Tutorials or other small group / interactive sessions: 

Students will analyse cases, interpret statutes, and may need to research issues of commercial law.

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Students will apply relevant legal analysis to case study situations, thereby developing issue recognition, problem solving and application skills.

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Students will present arguments orally and may need to provide written submissions.

Lectures: 

Students will be introduced to issues and concerns and aspects of the operation of the substantive rules of commercial law through multimedia or other presentations.

Reading of cases, statutes and other material, and research: 

Students will learn and evaluate conceptual and policy issues in commercial law.

Tutorials or other small group / interactive sessions: 

Students will scrutinise, analyse and evaluate issues and concerns in the field of commercial law through group discussions.

Assessment

Tutorial Work: Assignment: 2 hr exam:

20% 30% 50%

To pass this course, students must obtain an aggregate mark of 40% (for JD) and 30% (for LLB) and a minimum of 40% in each of the tutorial work, Assignment and the examination elements of the assessment. Coursework for this purpose means those ways in which students are assessed otherwise than by the end of session examination. Forma Formative tive Assessment Your participation during the interactive small group sessions allows you to demonstrate your capacity to understand, analyse and apply rules and principles. Some of the more difficult questions will require you to demonstrate your ability to synthesise cases and articles and advise clients in novel situations. Your responses in these sessions will enable you and your teachers to assess the adequacy of your learning and how to improve it where necessary. You will also receive formative feedback on your coursework assignment. Summative Assessment 30% - Assignment

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You will be required to complete an assignment during the semester which represents 30% of the assessment. The assignment question will be made available on the 5 Nov 2021 and the soft copy (word or PDF) of the assignment will be due by 2pm on Monday 8 Nov 2021. Further instructions with regard to this 30% assignment will be given in the course of the semester. 20% - Tutorial Work For the tutorial work, you will be required to prepare for the tutorial problems as allocated by your tutor. You will need to: (1) be prepared to present and to discuss the tutorial question(s) during the tutorial; and (2) answer questions that are directed to you during the tutorial class. The tutorial work represents 20% of the assessment. Further instructions with regard to the 20% tutorial work will be given in the course of the semester. 50% - Examination The remaining 50% of assessment is in the form of an open book examination held at the end of the semester during the normal examination period. This will test your knowledge and understanding of the policy and rules and principles of commercial law, and your ability to apply these rules and principles to particular sets of circumstances.

Co Core re Gen Gener er eral al Sk Skill ill illss As Asse se sessm ssm ssment ent In addition to the skills specified in the foregoing formative and summative assessment statements, assessment of your work may also specifically include your ability to:  select, evaluate, analyse, summarise and process relevant data/resources  develop and express coherent, cogent and relevant arguments  demonstrate critical and original thinking  select, use and cite relevant sources appropriately  select appropriate content and language to suit context and intended audience  communicate your ideas clearly, coherently and accurately in your own words and in plain English.

CILO No.

Type of assessment tasks/activities

CILO 1

End-of-course examination Tutorials Assignment(s) 

CILO 2

Students’ ability to describe and explain substantive rules of commercial law will be tested by all three assessment tasks/activities.

End-of-course examination 

Students’ ability to apply the principles of commercial law to given

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situations, to resolve problems, and to communicate arguments in writing will be tested. Tutorials 

Students’ ability to research, analyse and resolve problems, and to communicate arguments orally and in writing will be tested.

Assignment(s) 

CILO 3

Students’ ability to research, collect data and decipher primary and secondary materials in order to resolve problems, and to communicate arguments in writing will be tested.

End-of-course examination 

Students’ ability to analyse and critically evaluate, and to communicate arguments in writing will be tested.

Tutorials 

Students’ ability to analyse and critically evaluate, and to communicate arguments orally and in writing will be tested.

Assignment(s) 

Students’ ability to research, collect data and decipher primary and secondary materials, and to analyse and critically evaluate issues in commercial law, and to communicate arguments in writing will be tested.

READING MA MATERIALS TERIALS

R Goode, Commercial Law . L S Sealy and R J A Hooley, Commercial Law: Text, Cases and Materials , Oxford University Press, Oxford, P S Atiyah, J N Adams, H MacQueen, The Sale of Goods , Pearson Longman, Harlow, J E Sihombing, Goods: Sales and Securities , 3rd edn, Hong Kong University Press, Hong Kong, 1997 Suggested readings are set out under each topic in the reading guide. References marked with an asterisk (*) are essential reading. Additions and changes may be made to the reading guide in the course of the semester.

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TIMET TIMETABLE ABLE (Subject to revision) LECTURE

TUT TUTORIAL ORIAL

Date

Introduction

Week 1

Basic Concepts of Personal Property

Introduction

2 Sept

Bailment

Revising basic concept of personal property, alienation of personal property and bailment.

Week 2

Sale of goods – General + Implied Terms

Bailment

Alienation of Personal Property

Sale of goods – Transfer of property and risk

Sale of goods – Performance

Sale of goods – Remedies of seller and buyer

Public holiday

Sale of goods – Remedies of seller and buyer

9 Sept Week 3 16 Sept

Bailment

Week 4

Sale of goods – General + Implied Terms

23 Sept

Bailment

Week 5

Sale of goods – General + Implied Terms

30 Sept

Sale of goods – General + Implied Terms

Week 6

Sale of goods – Transfer of property and risk

7 Oct

Sale of goods – Transfer of property and risk

Week 7

Sale of goods – Performance

14 Oct

Sale of goods – Performance

Sale of goods – Resolution of rival claims to ownership

Week 8 21 Oct

Sale of goods – Remedies of seller and buyer

Week 9

Credit, security and consumer protection

Sale of goods – Resolution of rival claims to ownership

28 Oct

Credit, security and consumer protection

Sale of goods – Resolution of rival claims to ownership

Week 10

Bills of exchange instruments

and

Bills

and

of

exchange

other

negotiable

4 Nov

Credit, security and consumer protection other

negotiable

Credit, security and consumer protection

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Week 11

instruments and cheques

Introduction insolvency

to

agency,

Bills of exchange and other negotiable instruments

bankruptcy

Revision

and

Bills of exchange and other negotiable instruments

Introduction to agency, bankruptcy and insolvency

11 Nov Week 12 18 Nov Week 13 25 Nov

Reflection 

Due to the current COVID-19 situation there is no set time but email me to set up time for Zoom for reflection. o Reflect on course related matter – teaching method/assessment/teachers etc o Further discussion on issues; o Other comments and issues; o JD/LLB issues; o Personal issues; o Etc.

INTRODUCTION Goode, Ch 1 Sealy and Hooley, Ch 1 

Nature and function of commercial law.

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Historical development of commercial law.

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Sources of commercial law. o Common law: egs contract law, property law, equity. o Legislation: eg Sale of Goods Ordinance (Cap 26).

BASIC CONCEPTS OF PERSONAL PROPER PROPERT TY Goode, Ch 2 Sealy and Hooley, Ch 2 

Concept of property.

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Classifications of property. o Real and personal property. o Choses in possession and choses in action. o Legal and equitable interests in property. o Mere equities. o Existing and future property.

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Ownership and possession.

ALIENA ALIENATION TION OF PERSONAL PROPERT PROPERTY Y Sealy and Hooley, pp 903-954 

Legal assignment. o Choses in possession. o Choses in action. *Law Amendment and Reform (Consolidation) Ordinance (Cap 23) s 9

Brilliant (Man Sau) Engineering Ltd v Prosperity Construction and Decoration Ltd [2005] HKEC 24 

Equitable principles regarding assignment of legal property. o

Assignment for valuable consideration which fails at law.

Holroyd v Marshall (1862) 10 HLC 191, 11 ER 999 Brandts (William) Sons and Co v Dunlop Rubber Co Ltd [1905] AC 454 o

Gifts of legal property assignable at law.

*Milroy v Lord (1862) 4 De GF and J 264, [1861-73] All ER Rep 783 Re Rose, Rose v IRC [1952] Ch 499 *Pennington v Waine [2002] 4 All ER 215 Anning v Anning (1907) 4 CLR 1049 Corin v Patton (1990) 169 CLR 540, 92 ALR 1 To Kau v Horace Percy Smith [1908] HKCU 11 Official Administrator v The Luk Hoi Tong Co Ltd [2005] 3 HKC 615 o

The rule in Strong v Bird.

Strong v Bird (1874) LR 18 Eq 315, [1874-80] All ER Rep 230 o

Gifts of legal property unassignable at law.

Re Patrick, Bills v Tatham [1891] 1 Ch 82

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Agreement to assign.

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Declaration of trust.

Assignments of equitable property.

Kekewich v Manning (1851) 1 De GM & G 176 Re McArdle [1951] Ch 669, [1951] 1 All ER 905 Timpson’s Executors v Yerbury [1936] 1 KB 645, [1936] 1 All ER 186 Ng Wing Keung Paul v AXA China Region Trustees Ltd [2001] 2 HKC 410

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o

Agreement to assign.

Oughtred v Inland Revenue Commissioners [1960] AC 206, [1959] 3 All ER 623 o

Equitable interests and section 9.

Law Amendment and Reform (Consolidation) Ordinance (Cap 23) s 9

Brandts (William) Sons and Co v Dunlop Rubber Co Ltd [1905] AC 454 Everett v FCT (1980) 143 CLR 440 

Other dispositions of equitable property.

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Assignment of future property.

Holroyd v Marshall (1862) 10 HLC 191, 11 ER 999 Tailby v Official Receiver (1888) 13 App Cas 523, [1886-90] All ER Rep 486 Re Lind [1915] 2 Ch 345 Re Wait [1927] 1 Ch 606

BAILMENT Sealy and Hooley, pp 81-94 A Bell, “The Place of Bailment in the Modern Law of Obligations” in N Palmer and E McKendrick (eds), Interests in Goods , 2nd edn, LLP, London, 1998, Ch 19 

Nature and types of bailment.

Re S Davies and Co Ltd [1945] 1 Ch 402 Ashby v Tolhurst [1937] 2 KB 242 *The Pioneer Container [1994] 2 AC 324 Morris v C W Martin and Sons Ltd [1966] 1 QB 716 Newman v Bourne and Hollingsworth (1915) 3 TLR 209 Elvin and Powell Ltd v Plummer Roddis Ltd (1933) 50 TLR 158 *Ho Sui Kam v On Park Parking Ltd [2004] 4 HKC 339, [2005] 2 HKLRD 434 Hong Kong Hua Guang Industrial Co v Midway International Ltd [2000] 2 HKC 348 

Rights and duties of bailee. *Houghland v RR Low (Luxury Coaches) Ltd [1962] 1 QB 694 Port Swettenham Authority v TG Wu and Co Sdn Bhd [1979] AC 580 The Winson [1982] AC 939 The Winkfield [1902] P 42 Bewise Motors Co Ltd v Hoi Kong Container Services Ltd [1998] 4 HKC 377, [1998] 2 HKLRD 645 *Dense Billion Ltd v Hui Ting Sung [1996] 2 HKC 110 Always Win Ltd v Autofit Ltd [1995] 2 HKC 48 Berthier Godown Ltd v Cheung Lee Warehouse and Transportation Ltd [1985] 2 HKC 1

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Rights and duties of bailor.

HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2006] 1 WLR 643

SALE OF GOODS – GENERAL Goode, Ch 7 Sealy and Hooley, Ch 7 Atiyah, Chs 2, 6 Sihombing, Ch 2 

Introduction and definitions. o Contract of sale of goods. o Goods. o Existing goods and future goods. o Property. *Sale of Goods Ordinance ss 2, 3, 7, 18

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Sale of o o o o o o

goods distinguished from other transactions in relation to goods. Barter or exchange. Bailment. Hire-purchase. Contract for work and materials. Agency. Licence to use intellectual property.

T Y Chee & Co v The Sik Dick Knitting Factory (1932-33) 26 HKLR 25

SALE OF GOODS – IMPLI IMPLIED ED TERMS Goode, Ch 11 Sealy and Hooley, Ch 10 Atiyah, Ch 13 Sihombing, pp 37-51 *Sale of Goods Ordinance ss 14, 15, 16, 17. 

Implied undertakings as to title etc: s 14.

Rowland v Divall [1923] 2 KB 500 Niblett Ltd v Confectioner’s Materials Co Ltd [1921] 3 KB 387 Karflex Ltd v Poole [1933] 2 KB 251 * Butterworth v Kingsway Motors Ltd [1954] 1 WLR 1286 Microbeads v Vinhurst Road Markings Ltd [1975] 1 All ER 529 

Sale by description: s 15.

Varley v Whipp [1900] 1 QB 513

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Grant v Australian Knitting Mills [1936] AC 85 David Lynn & Co v Lien Foo Co [1952] HKLR 381 Re Moore & Co Ltd [1992] 2 KB 519 *Arcos v EA Ronaasen & Son [1933] AC 470 Ashington Piggeries v Christopher Hill [1972] AC 441 *Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 Harlington & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd [1991] 1 QB 564 Hellenic v Au Sing-men [1966] HKLR 697 Harrison v Knowles [1918] 1 KB 608 Oscar Chess Ltd v Williams [1957] 1 WLR 370 

Merchantable quality: s 16(2).

Stevenson v Rogers [1999] 1 All ER 613 Aswan Engineering Establishment Co v Lupdine [1987] 1 WLR 1 * Henry Kendall & Sons v William Lilico & Sons Ltd [1969] 2 AC 31 Rogers v Parish (Scarborough) Ltd [1987] QB 933 Brown & Son Ltd v Craiks Ltd [1970] 1 All ...