合同标的的合法性
合集下载
相关主题
- 1、下载文档前请自行甄别文档内容的完整性，平台不提供额外的编辑、内容补充、找答案等附加服务。
- 2、"仅部分预览"的文档,不可在线预览部分如存在完整性等问题,可反馈申请退款(可完整预览的文档不适用该条件!)。
- 3、如文档侵犯您的权益，请联系客服反馈,我们会尽快为您处理(人工客服工作时间：9:00-18:30)。
• Introduction • Illegality under statute law:
– illegal or void by statute
– illegal at common law – void at common law • restraints of trade
• Consequences of illegal and void contracts • Example questions
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Contracts Void by Statute
but in both cases the contract is unenforceable
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Legality of Object
Legality of object (4 types of unlawful contract) Illegal Void
Statute
Common Law
Statute
Common Law
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
CHAPTER 8 Legality of Object
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
A statute may make a contract void, rather than illegal, eg gaming and wagering contracts, 源自文库ttempts to exclude the Competition and Consumer Act 2010 (Cth) is void under s 45, many gaming or wagering contracts are void) and cannot be enforced in the courts.
In the case of an implied prohibition, the question is:
• was the non-compliance limited to a penalty or fine?
This leaves the validity of the contract unimpaired; or • was the non-compliance impliedly prohibited? This leaves the contract illegal and unenforceable?
• For the validity of a contract, its purpose must be not be something prohibited by the law • If the contract does involve something prohibited by law, it may be:
Object of lecture
This lecture introduces you to the rules relating to legality. Contracts with an unlawful purpose are classified as illegal or void.
• Chitts v Allaine [1982]: where a by-law required the tendering of a certificate to an intending buyer before entering into the contract but it was not given until just before settlement
By the end of this lecture you will be able to: • distinguish between illegal contracts and void contracts under statute and common law • explain the consequences for the parties of illegal and void contracts • describe a restraint of trade and explain in what situations such clauses are allowed
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Contracts Illegal by Statute as Formed/performed
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Introduction
What was the legislation was intended to achieve, eg protecting the public or furthering some public policy objective?
• Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978): the respondent lent the appellants money secured by a mortgage and a guarantee. On default, it was argued that the transactions were illegal under the Banking Act 1959 (Cth) but cf: • Buckland v Masset [1985]: a Queensland Act made it an offence to sell a car without a Roadworthy Certificate and while the parties agreed the seller did not need to obtain one, the seller could not recover the balance of the purchase price
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Contracts Illegal by Statute
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Contracts Illegal by Statute
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Overview
Contracts Illegal by Statute
If a contract is expressly prohibited by statute, then it is illegal and therefore void and unenforceable:
• Re Mahmoud & Ispahani [1921]: D untruthfully told P that he had a licence to buy linseed oil. After agreeing to purchase oil, D refused to take delivery
• If the illegal conduct was incidental to the way in which the contract was performed, the contract will not be unenforceable:
– St John Shipping Corp v Joseph Rank Ltd [1957]: overloading of a grain ship contrary to legislation resulted in fines for breach
– so serious that it is to be regarded as illegal in the strictest meaning of the word, eg to commit a crime; or – less reprehensible and void rather than illegal, eg a restraint of trade
• A statutory prohibition may make a contract:
– illegal as formed when it is prohibited from inception, e.g. Re Mahmoud & Ispahani [1921]; – illegal as performed where the parties intend to perform it in an illegal manner or for an illegal purpose: • Ashmore, Benson, Pease & Co Ltd v A V Dawson Ltd [1973]: P contracted with the D to transport equipment, both parties knowing that the weight exceeded the legal road limit. When the load toppled over, P sued D for the loss
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
– illegal or void by statute
– illegal at common law – void at common law • restraints of trade
• Consequences of illegal and void contracts • Example questions
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Contracts Void by Statute
but in both cases the contract is unenforceable
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Legality of Object
Legality of object (4 types of unlawful contract) Illegal Void
Statute
Common Law
Statute
Common Law
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
CHAPTER 8 Legality of Object
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
A statute may make a contract void, rather than illegal, eg gaming and wagering contracts, 源自文库ttempts to exclude the Competition and Consumer Act 2010 (Cth) is void under s 45, many gaming or wagering contracts are void) and cannot be enforced in the courts.
In the case of an implied prohibition, the question is:
• was the non-compliance limited to a penalty or fine?
This leaves the validity of the contract unimpaired; or • was the non-compliance impliedly prohibited? This leaves the contract illegal and unenforceable?
• For the validity of a contract, its purpose must be not be something prohibited by the law • If the contract does involve something prohibited by law, it may be:
Object of lecture
This lecture introduces you to the rules relating to legality. Contracts with an unlawful purpose are classified as illegal or void.
• Chitts v Allaine [1982]: where a by-law required the tendering of a certificate to an intending buyer before entering into the contract but it was not given until just before settlement
By the end of this lecture you will be able to: • distinguish between illegal contracts and void contracts under statute and common law • explain the consequences for the parties of illegal and void contracts • describe a restraint of trade and explain in what situations such clauses are allowed
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Contracts Illegal by Statute as Formed/performed
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Introduction
What was the legislation was intended to achieve, eg protecting the public or furthering some public policy objective?
• Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978): the respondent lent the appellants money secured by a mortgage and a guarantee. On default, it was argued that the transactions were illegal under the Banking Act 1959 (Cth) but cf: • Buckland v Masset [1985]: a Queensland Act made it an offence to sell a car without a Roadworthy Certificate and while the parties agreed the seller did not need to obtain one, the seller could not recover the balance of the purchase price
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Contracts Illegal by Statute
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Contracts Illegal by Statute
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012
Overview
Contracts Illegal by Statute
If a contract is expressly prohibited by statute, then it is illegal and therefore void and unenforceable:
• Re Mahmoud & Ispahani [1921]: D untruthfully told P that he had a licence to buy linseed oil. After agreeing to purchase oil, D refused to take delivery
• If the illegal conduct was incidental to the way in which the contract was performed, the contract will not be unenforceable:
– St John Shipping Corp v Joseph Rank Ltd [1957]: overloading of a grain ship contrary to legislation resulted in fines for breach
– so serious that it is to be regarded as illegal in the strictest meaning of the word, eg to commit a crime; or – less reprehensible and void rather than illegal, eg a restraint of trade
• A statutory prohibition may make a contract:
– illegal as formed when it is prohibited from inception, e.g. Re Mahmoud & Ispahani [1921]; – illegal as performed where the parties intend to perform it in an illegal manner or for an illegal purpose: • Ashmore, Benson, Pease & Co Ltd v A V Dawson Ltd [1973]: P contracted with the D to transport equipment, both parties knowing that the weight exceeded the legal road limit. When the load toppled over, P sued D for the loss
2012 Thomson Legal & Regulatory Ltd. All Rights Reserved. PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2012