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Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information Cambridge University Press 978-1-108-72849-2 — Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information AUSTRALIAN COMMERCIAL LAW Second edition The scope and reach of commercial law are quite wide, and it has utility in many other areas of law. Fully revised and updated, Australian Commercial Law offers a comprehensive and accessible introduction to key aspects of commercial law in Australia. Part 1 introduces the fundamentals of contract law and business struc- tures before examining the sale of goods, agency, bailment and personal property. Part 2 covers the Australian Consumer Law, focusing on areas important to commercial entities that interact with consumers, such as product liability, con- sumer guarantees and misleading and deceptive conduct. Part 3 examines inter- national commercial law, providing a detailed introduction to the World Trade Organization and to agreements central to trade between countries. The second edition includes: • detailed and thorough discussion of key concepts in commercial law • four new chapters on contract law basics, business structures, bankruptcy and international commercial law • thorough integration of digital and e-commerce transactions throughout the text • end-of-chapter discussion questions designed to test reader knowledge of key points and themes. Written in a clear and concise style by an expert author team, Australian Commercial Law remains an indispensable resource for students who are seeking a comprehensive understanding of commercial law. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-72849-2 — Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information Dilan Thampapillai is a Senior Lecturer at the ANU College of Law at the Australian National University. Claudio Bozzi is a Lecturer in the Faculty of Business and Law at Deakin University. Mark Giancaspro is a Lecturer in the Adelaide Law School at the University of Adelaide. George Yijun Tian is a Senior Lecturer in the Faculty of Law at the University of Technology, Sydney. Cambridge University Press acknowledges the Aboriginal and Torres Strait Islander peoples as the traditional owners of Country throughout Australia. Cambridge University Press acknowledges the Mā ori people as tangata whenua of Aotearoa New Zealand. We pay our respects to the First Nation Elders of Australia and New Zealand, past, present and emerging. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-72849-2 — Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information AUSTRALIAN COMMERCIAL LAW SECOND EDITION Dilan Thampapillai Claudio Bozzi Mark Giancaspro George Yijun Tian © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-72849-2 — Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108728492 © Cambridge University Press 2015, 2020 This publication is copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2015 Second edition 2020 Cover designed by Marianna Berek-Lewis Typeset by SPI Global Printed in China by C & C Offset Printing Co. Ltd, May 2020 A catalogue record for this publication is available from the British Library A catalogue record for this book is available from the National Library of Australia ISBN 978-1-108-72849-2 Paperback Additional resources for this publication at www.cambridge.edu.au/academic/commerciallaw. Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 12, 66 Goulburn Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 E-mail: [email protected] Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-72849-2 — Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information CONTENTS Preface xix Table of cases xx Table of statutes lii List of abbreviations lxvi About the authors lxviii Acknowledgments lxix PART 1 AUSTRALIAN COMMERCIAL LAW 1 1 Contract law and commercial regulators 3 1.0 Introduction 4 1.1 Contracts in commerce 4 1.1.1 Common types of contract 5 1.1.2 General principles and ‘fragmentation’ of contract law 6 1.1.3 Formation 6 1.1.4 Terms 13 1.1.5 Performance and termination 16 1.1.6 Remedies 19 1.2 Commercial regulators 20 1.2.1 Australian Competition and Consumer Commission 20 1.2.2 Australian Securities and Investments Commission 21 1.2.3 Australian Prudential Regulation Authority 22 1.2.4 Australian Taxation Office 22 1.2.5 Foreign Investment Review Board 23 1.2.6 Australian Securities Exchange Ltd 23 1.2.7 Reserve Bank of Australia 23 1.2.8 IP Australia 24 1.2.9 .au Domain Administration 24 1.3 Key points 25 1.4 Discussion questions 26 1.5 Further reading 26 2 Business structures 27 2.0 Introduction 28 v © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-72849-2 — Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information 2.1 Determining an appropriate structure 28 2.2 Types of business structure 29 2.2.1 Sole trader 29 2.2.2 Partnership 30 2.2.3 Joint venture 34 2.2.4 Franchise 36 2.2.5 Trust 39 2.2.6 Unincorporated association 41 2.2.7 Incorporated association 42 2.2.8 Corporation 44 2.3 Key points 49 2.4 Discussion questions 50 2.5 Further reading 50 3 Personal property 51 3.0 Introduction 52 3.1 Defining personal property 52 3.1.1 Real and personal property 53 3.2 Possession 55 3.3 Interference with possession 57 3.3.1 Trespass 57 3.3.2 Conversion 58 3.3.3 Detinue 59 3.4 Loss of personal property rights 61 3.4.1 Intermixture 61 3.4.2 Accession 62 3.4.3 Fixtures 63 3.4.4 Finding 65 3.5 Challenging notions of personal property 65 3.5.1 Property rights in software 66 3.5.2 Virtual property 67 3.5.3 Commercial exploitation of medical research 69 3.5.4 Property rights in a spectacle 70 3.6 Key points 71 3.7 Discussion questions 71 3.8 Further reading 71 4 Sale of goods 72 4.0 Introduction 73 4.1 Interpreting the Sale of Goods Acts 73 vi Contents © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-72849-2 — Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information 4.2 Applying the Sale of Goods Act 75 4.2.1 A contract of sale 75 4.2.2 Goods 76 4.2.3 Distinguishing a sale of goods contract 77 4.2.4 Price 80 4.3 Terms implied into sale of goods contracts 80 4.4 Correspondence with description 81 4.4.1 Sale by description 82 4.4.2 Reliance 83 4.4.3 Breaching the condition 84 4.5 Fitness for purpose 87 4.5.1 Particular purpose must be known 87 4.5.2 Particular purpose must be clearly disclosed 92 4.5.3 Seller must be in the business of supplying goods of that description 95 4.5.4 The trade name exception 95 4.6 Merchantable quality 96 4.7 Sale by sample 98 4.8 The right to sell, quiet possession and freedom from encumbrance 100 4.9 Key points 103 4.10 Discussion questions 103 4.11 Further reading 103 5 Transfer of property 104 5.0 Introduction 105 5.1 Categories of goods 105 5.1.1 Specific goods 105 5.1.2 Unascertained goods 105 5.1.3 Ascertained goods 106 5.1.4 Future goods 106 5.1.5 The importance of classifying goods 106 5.2 Transfer of property presumptions 107 5.2.1 Rule 1 108 5.2.2 Rule 2 108 5.2.3 Rule 3 109 5.2.4 Rule 4 110 5.2.5 Rule 5 110 5.3 Transfer by a non-owner (nemo dat) 112 5.3.1 Estoppel 113 Contents vii © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-72849-2 — Australian Commercial Law Dilan Thampapillai , Claudio Bozzi , Mark Giancaspro , George Yijun Tian Frontmatter More Information 5.3.2
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