Writing Workshop

BUSINESS LAW 1100BUSINESS LAW 1100WEEK 5WEEK 5

4 STEP WRITING 4 STEP WRITING WORKSHOPWORKSHOP

BUSINESS LAW 1100BUSINESS LAW 1100

WEEK 5WEEK 5 WRITING WORKSHOPWRITING WORKSHOP

Learning Outcomes

• How to construct a coherent and logical legal argument using the four step process.

USING THE FOUR STEP PROCESS

Identify the legal issue.Explain the principles of law relevant to that issue with reference to authority (cases and/or legislation).Apply the law to the facts.

Reach a conclusion.

Four Step Process

Identifying Four-Step Questions

• …..Using the four step process discuss…..

• All case study or ‘problem’ questions

CRICOS Provider Code 00301J

Practice QuestionNicole and Joel, who just had a baby, decided to take a break from their hectic rock star life style and drive around Queensland once Joel had finished singing with his band. While they were at the Gold Coast, Nicole and Joel stayed at a great house by the beach owned by their friend Sophie. They all agreed that Nicole, Joel and the baby would be at the beach house for four weeks and would pay Sophie $1000 a week for allowing them to stay in her house.


Practice Question cont. Nicole and Joel end up having a terrible time, their baby does not sleep at all and they do not like staying so close to the beach. It is hot and sandy and there is lots of noise from all the people on the beach. After two weeks they pack up and go to Sydney. They don’t pay Sophie any money at all for rent because the holiday was so disappointing.


Practice Question cont.Sophie however, really wants Nicole and Joel to pay her the rent as they had agreed. Sophie had counted on the money to pay for her recent cosmetic surgery. She is hurt by their failure to pay and has come to you to ask whether she can make them pay her the rent that they owe her.


Practice Question cont.Question:Using the four-step process discuss whether there is an intention to be legally bound between the parties. Can Sophie enforce the agreement between her and Nicole and Joel?


PLAN YOUR ANSWER

You should ALWAYS plan first.

Spend about 5 minutes on your plan.

Analysing the Question• Are the facts similar to a case you have studied?

• Think about why the facts have been mentioned

• Create a list of all of the legal principles that you need to discuss in your answer.


Practice - PlanningThis is the practice question for today’s workshop concerning Nicole and Joel.

Question:Using the four-step process discuss whether there is an intention to be legally bound between the parties. Can Sophie enforce the agreement between her and Nicole and Joel?


Practice - Planning


Task:Which of the legal principles on the following slide do you need to discuss in your answer?

Practice - Planning• The court’s objective approach in assessing

intention to create legal relations• Capacity to contract• The element of agreement• The presumption regarding social and domestic

agreements• The presumption regarding commercial agreements• Rebutting the presumptions concerning intention• The doctrine of consideration


Step 1 Identifying the legal

issue• Why do we do this?• How do we do this?• How long should Step 1 be?• How many marks is this worth?


Example – STEP ONEQuestionUsing the four step process discuss whether there has been sufficient consideration.

Step 1The legal issue is whether the requirement for consideration has been met for the formation of a valid contract.


Practice – STEP ONEThis is the practice question for today’s workshop concerning Nicole and Joel.

Question:Using the four-step process discuss whether there is an intention to be legally bound between the parties. Can Sophie enforce the agreement between her and Nicole and Joel?


Practice – STEP ONETask:Which of the Step 1’s on the following slide is the most appropriate?


Practice – STEP ONEa) Contract law is of vital importance to the operation of our economy. This question concerning Nicole and Joel and their recent holiday to Queensland concerns a number of areas of law. Of note is the law of contract but there is a particular focus on the area of intention to create legal relations.

b) This question focuses on the area of contract law. c) The legal issue is whether both parties have demonstrated a clear intention to be legally bound in the formation of a valid contract.


STEP TWOExplain the principles

of law• The part where you explain the principles of law in full.

• Need to explain the legal principles in a clear and logical way.

• Attracts the most amount of marks.

• Look to your plan to see which principles of law you need to discuss – one legal principle per paragraph.

• Only discuss relevant principles. CRICOS Provider Code 00301J

STEP TWO – Explaining the law

• Students often lose marks in this section for not explaining the principles of law in sufficient detail.

• To ensure that you adequately discuss each legal principle, in each paragraph you should:

a)Outline the principle of law; and b)Provide some case or legislative authority *


STEP TWO – Outlining the principle of law

• For each paragraph it is important to introduce the topic for that paragraph.

• The principles of law identified in your plan are the topics for each of your paragraphs.

• Your first sentence for each paragraph should introduce the legal principle.


STEP TWO – Outlining the principle of law

For example, if a legal principle identified in your plan is:

“A presumption concerning intention to create legal relations can be rebutted”.

The first sentence of your paragraph might read:“In some circumstances a court’s presumptions in relation to intention to create legal relations can be rebutted. For this to occur, the party who claims that the presumption should

not apply needs to present evidence to the court to establish why.”


STEP TWO – Providing authority

• Each legal principle that you raise in Step Two should be supported with some legal authority.

• Failure to do so will result in a significant reduction in marks.

• When discussing a case, you need to discuss the facts, issue for the court and the decision of the court.


STEP TWO – Providing authority

For example, in our paragraph concerning rebutting the presumptions of intention, we would cite a relevant case – Merritt v Merritt. Our discussion might read as follows:

“This was seen in the case of Merritt v Merritt. In this case a husband and wife had separated. The husband promised to pay the wife £40 per month and that he would transfer the home to the wife if she made the mortgage payments. This agreement was documented in writing. The wife paid off the mortgage and the husband did not transfer the house to her. The court had to decide whether the presumption concerning social and domestic agreements was rebutted. The court agreed with the wife’s argument that this was an arms-length transaction and that the subject matter (the mortgage) was so serious that the parties must have intended to create legal relations.”


STEP TWO – An example paragraph

“In some circumstances the court’s presumptions in relation to intention to create legal relations can be rebutted. For this to occur, the party who claims that the presumption should not apply needs to present evidence to the court to establish so. This was seen in the case of Merritt v Merritt. In this case a husband and wife had separated. The husband promised to pay the wife £40 per month and that he would transfer the home to the wife if she made the mortgage payments. This agreement was documented in writing. The wife paid off the mortgage and the husband did not transfer the house to her. The court had to decide whether the presumption concerning social and domestic agreements was rebutted. The court agreed with the wife’s argument that this was an arms-length transaction and that the subject matter (the mortgage) was so serious that the parties must have intended to create legal relations.”


DOs for STEP 2 use separate paragraphs for separate legal principles

refer to real cases (not the case studies in seminars or CBT)

explain the facts/decisions and principle of law of real cases


DON’Ts for STEP 2 refer to the facts of the question use lists use bullet points/numbered paragraphs give your opinion of the law give examples based on the tutorials/seminar case studies, rather than citing real cases

refer to case names only (no need to put the facts etc if we can remember the name)

use personal pronouns ‘I’/’you’


STEP TWO – An exercise in paragraph construction

1.Form a small group with those sitting close to you.

2.On the following slide is a list of sentences. Your task is to place these sentences in the correct order to form a logical paragraph. The topic of the paragraph is the presumption that parties to social agreements do not intend to be legally bound.

3.Remember the two parts to each paragraph:a. Statement of the principle of lawb. Supporting authority – facts, issue and decision


STEP THREE – APPLY THE LAW• The part where you apply the facts of the case study to each principle of law discussed in Step 2.

• Need to apply the legal principles in a clear and logical way.

• Attracts a substantial amount of marks.


STEP THREE – APPLY THE LAWIn our Step 2 we would have discussed the following principles of law:1) The court’s objective approach in assessing intention to create legal relations.2) The presumption regarding social and domestic agreements.3) The presumption regarding commercial agreements.4) Rebutting the presumptions concerning intention.

We need to apply the facts of the case study to these principles


STEP THREE – APPLY THE LAW1) The court’s objective approach in assessing

intention to create legal relations.

Our application of the law might read as follows:

“As an agreement is only legally enforceable if the parties intend to be legally bound at the time the agreement is made, an objective assessment of the circumstances in which Joel and Nicole and Sophie made the agreement needs to be undertaken. The question is whether, in the circumstances, a reasonable person would regard the rental agreement as intended to be binding.”


STEP THREE – APPLY THE LAW2) The presumption regarding social and domestic agreements


“The parties here are friends. Given that the parties are friends and the rental agreement appears to have been made in a social context, the courts will rely on the presumption that in these

circumstances Nicole and Joel and Sophie did not intend to be legally bound at the time the agreement was made.”


STEP THREE – APPLY THE LAW3) The presumption regarding commercial agreements


“There are no explicit facts to indicate that the rental agreement was made in a commercial or business context, such as the beach house regularly being rented out by Sophie as a source of income or for investment. ”


STEP THREE – APPLY THE LAW4) Rebutting the presumptions concerning intention

Take ten minutes now to apply the law to this principle of law.

Hint: Look to the case study to see if there are any factors that suggest that the presumption regarding social agreements can be rebutted


STEP THREE – APPLY THE LAW

• There is often more than ONE definite answer.

• Complete your application of the facts to the principles of law discussed step two – even if one of the elements is not satisfied.

For example, if the question asks you to determine whether there is a valid contract and you determine that there is no intention to create legal relations you still need to apply the law for the elements of agreement and consideration.


STEP FOUR – Reach a CONCLUSION

• The part where you conclude your answer

• Only needs to be one or two sentences.

• Usually attracts a mark (or marks allocated for use of 4-step process)


STEP FOUR - CONCLUSION

“Using the four-step process discuss whether there is an intention to be legally bound between the parties. Can Sophie enforce the agreement between her and Nicole and Joel?”


STEP FOUR - CONCLUSIONOur conclusion might read:

“In conclusion, it is likely that the rental agreement is legally enforceable because Nicole and Joel and Sophie intended to be legally bound at the time the agreement was made. A contract has been formed and Sophie can enforce the agreement between her and Nicole and Joel in order to receive payment.”


MARKS BREAKDOWNSTEP ONE No marks

specificallySTEP TWO 7 marks

availableSTEP THREE 5 marks

availableSTEP FOUR No marks

specifically available

OVERALL USE OF FOUR STEP PROCESS AND STRUCTURE OF ANSWER

3 marks available


Topic 4 case study: The red car

Reaching agreement


Case study: The red car• The seller has advertised a car for sale. The car is

a red Ford Falcon. The seller has papers that show the car was manufactured and first registered in 2008. The odometer shows that the car has done 50,000 kilometres. The car appears to be in good condition with no dents or scratches. The engine starts without difficulty. A new Ford Falcon would cost $38,000.

• The buyer has seen the advertisement and contacted the seller. Now they are meeting to see if they can reach agreement on a sale.

• Consider the discussion that takes place between the buyer and seller. Their conversation illustrates many important aspects of contract law.


Questions to consider

• At what point did discussion end and a final agreement come into existence? Identify the various offers and counter offers (or withdrawals of offer).

• What things were clearly agreed on?


Practice Four step Process Using the four step process discuss the element of agreement required for the formation of a legally enforceable contract. In the red car scenario, have the parties reached agreement so that a contract can be said to exist?


PLANNING STAGEWhat are the legal principles (and authority) that you will need to discuss in your Step 2?


Step 1

Identify the legal issue The principle (or issue) of law is

Step 2

Explain the rule(s) of law relevant to the legal issue identified in step one w ith reference to authority.

Step 3

Apply the law to the facts of the question in a detailed and logical m anner, to each rule of law explained in step 2

Step 4

D raw possible conclusions (logical and consistent w ith w hat you have argued above)

HELP – I’m still confusedIf you are confused about the 4-step process you can seek help from the following sources:

•Email your lecturer•Make appointment with Lecturer


Writing Workshop

Documents

Transcript of Writing Workshop