La Trobe University
School of Law
BLST2BSL Introduction to Business Law and Ethics
Trimester 1, 2018
Common Law Assignment
1. This assignment is worth 20% of your final mark for this subject.
2. Your assignment must be submitted by 5pm on Friday 27th April.
3. All questions must be answered.
4. With regards to formatting, your assignment must be typed with 1.5 or double spacing, and with margins of at least 2cm on all sides. Size 12 font must be used.
5. The task is a common law assignment, so you are not required to discuss any legislation at all. It is essential that you cite relevant authorities (cases) wherever possible to support your reasoning in each answer.
6. Your work must be appropriately referenced, using footnotes. Where you state a legal principle which comes from a case, you must provide a citation to the relevant case. If you are stating a legal principle that is covered in the textbook or lecture and which does not have a relevant case provided in the textbook, you should cite the textbook. You are not expected to use any materials beyond the lectures and the set textbook. But if you do, you must provide appropriate citations. No bibliography is required. Format your citations according to the citation guide at the end of this document.
7. Your assignment must be 1,500 words or fewer, excluding all footnotes. This word limit is strict: there is no 10% leeway. You must state the word count on the front page of your assignment. (If you fail to provide this, the examiner will be forced to estimate the word count, and this may lead to penalties.)
8. You must also state the details of your seminar on the front page of your assignment. This includes the day and time and location of your seminar, and the name of your seminar leader.
9. Assignment submission is electronic only, via the link on LMS. Do not email your assignment to your tutor or the lecturer. Your assignment will not be marked unless and until you have completed electronic submission. You should receive an email receipt confirming your submission. You are responsible for ensuring submission is successful. Should any technical problems arise, if you cannot provide an email receipt we will assume that you never attempted to submit any assignment.
10. You can only submit your assignment once. Submission is final. You will not be able to access your Turnitin originality report. Teaching staff will be checking these reports ourselves.
11. You must not plagiarise. To avoid plagiarism, make sure you acknowledge all your sources with appropriate citations. You may discuss the questions with other students, but all written work must be your own: do not show anyone your written work for this assignment, and do not view anyone else’s. Academic misconduct is taken extremely seriously at La
Trobe University. Further information about plagiarism and academic misconduct is provided in the Subject Learning Guide.
12. Further information about policies on late submission, applying for an extension, etc. is available on the LMS, and in your Subject Learning Guide.
Fran runs a small business called Fran’s Fine Treats supplying gourmet chocolates to foodstores and health spas. Recently her products have grown in popularity, and the business is growing significantly.
Fran decides to hire an assistant to help her with deliveries. She approaches her brother Marco, who owns a van. Marco was planning to take on a well-paying job opportunity in a nearby town, but he agrees to stay local instead, so that he can help Fran grow her business. Marco is concerned about wear and tear on his van, and about insurance in case he is involved in a traffic accident while making deliveries. So he wants to make sure the arrangement with Fran is formalised. He gets the advice of a lawyer, who helps to draft an employment agreement setting out hours, rate of pay, reimbursement for fuel and maintenance costs, responsibility for vehicle insurance and various other details.
After both Fran and Marco have inspected the document prepared by the lawyer, and discussed all its contents, they both sign it and have their signatures witnessed. Two days later, Fran regrets her decision and wants to hire her niece Jane instead.
1. Is Fran bound by the written agreement with Marco? (5 marks)
As Fran’s business is expanding she needs more room for preparing and storing her chocolates. On her daily walks with her dog, she has noticed a small warehouse space near
her house, which has a closing down sale sign displayed at the front. She knocks and enters the premises and speaks to Octavia who is packing boxes inside. Octavia is the owner of the space, but is planning to move interstate. He is looking for someone to rent the space after he is gone.
“I’d like to get the matter sorted quickly – if I can find a tenant before I leave then I won’t need to pay a real estate agent to find one for me. I’ve already got a draft lease agreement covering all the essentials.”
Fran thinks the location will be perfect for her business, but she is concerned that the kitchen at the warehouse doesn’t have an extractor fan. She says this to Octavia and he says that he will organize and pay for installation of a fan, as long as she is serious about renting the property. Fran reassures him that she is, but that she wants time to look at the draft lease agreement properly before signing it and returning it to him.
Octavia emails Fran with the agreement and says that he has booked someone to come and
install a fan. He says in the email, ‘please let me know if you’re not going to go ahead, in which case I’ll cancel the fan installation’.
Fran responds saying ‘Everything’s fine. I’ll look at the lease tonight and bring it around to the warehouse tomorrow’. That afternoon, an electrician comes and installs the fan into the kitchen at the warehouse.
Later the same evening, Fran discusses her plans with some friends. They encourage her to consider opening her own shop, rather than only selling the chocolates to other businesses for retail. Fran now thinks that a warehouse setting will not be appropriate. She decides to look for a shop front in an area with good visibility and foot traffic.
First thing the next morning, Fran contacts Octavia and announces that she will no longer be renting the warehouse space.
2. Does the doctrine of promissory estoppel apply to Fran and Octavia? (6 marks)
Fran finds a shop suitable for her business, and enters into a lease agreement without any troubles. She then advertises online for an assistant to help her in the shop. After interviewing several applicants, she decides on Dante. He is keen to learn and has some experience as an amateur chef. Fran hires Dante as an apprentice chocolatier.
Their written agreement contains a restraint of trade clause. This clause forbids Dante from
opening a competitor business in the same area or supplying to the same clients as
Fran’s business, for one year after leaving the apprenticeship.
Six months into the apprenticeship, Dante feels he has learned all that he can from Fran. He quits.
Two weeks after Dante has gone, Fran finds out that he has approached several of her clients, and has begun providing two of them with similar gourmet chocolates at a lower price. Fran wants to enforce the restraint of trade clause, but Dante says that the employment contract isn’t binding on him.
3. Is Dante bound by the contract with Fran? (5 marks)
Rather than advertising online, Fran thinks that she is more likely to find someone trustworthy if she relies on existing networks to find someone who comes recommended. Fran sits at her desk to start preparing a notice to display in the front window. The sign offers a month’s supply of free chocolates to anyone who can recommend a suitable, trustworthy assistant or apprentice.
One of her regular customers, Arjun, comes in to pick up his regular weekly order. “Where’s Dante these days?” Arjun says.
“He quit¨ responds Fran. “I need to find a new assistant or apprentice to replace him.” “I know someone perfect. My neighbor has some experience in food preparation and is looking to start an apprenticeship. She’s honest and a hard-worker. Here, I’ll write down her name and number for you.”
As Arjun picks up a paper and pen from Fran’s desk he sees the sign for the first time.
“Oh great” he says. “I’ll take the month’s supply of free chocolates with me now thanks.”
4. Is Arjun entitled to the month’s supply of free chocolates? (4 marks)
Guide to citation for the common law assignment
Legal citation is different to other styles of citation, such as Harvard or other in-text citation. Legal citation involves providing the most relevant legal authority for any statement of legal
rules or principles. Citations are provided in footnotes. (If you’re working in MS Word simply go to the ‘References’ tab and click on ‘Insert Footnote’.)
For the purposes of BLST2BSL Introduction to Business Law and Ethics, we do not expect you to learn the Australian Legal Guide to Citation, which is the usual approach to legal citation in Australia. That Guide is incredibly complex. Instead, you can simply follow these instructions for citations in your common law assignment.
As stated above in the Assignment Instructions, where you state a legal principle which comes from a case, you must provide a citation to the relevant case. You are not expected to read the cases themselves: as long as a case is summarised in the textbook, you can cite the case itself. An example of this would be if you said this in your assignment:
“If a letter of comfort includes statements which are not promissory, then it probably was not intended to be legally binding.”
Alternatively, you could mention the case name in the sentence of your assignment itself, and just put the case citation in a footnote, like this:
“As in the case of Commonwealth Bank of Australia v TLI Management Pty Ltd a letter of comfort with only non-promissory statements was probably not intended as legally binding. Either way, we expect you to provide a citation to the relevant case for the legal principle you are stating.
If you are stating a legal principle that is covered in the textbook or lecture and which does not have a relevant case provided in the textbook, you should cite the textbook. An example of this would be:
“If an agreement is executed as a deed then there is no requirement for both parties to provide consideration.”
Please also note that you are not expected to use any materials beyond the lectures and the set textbook. But if you do, you must provide appropriate citations. No bibliography is required.
Finally, remember that footnote citations do not count towards your word count so don’t hesitate to provide citations for any statement of legal principle. If in doubt, provide a citation.