DEPARTMENT OF BUSINESS LAW & TAXATIONINSTRUCTIONS
1.Due date. Answers to this assignment are due by 6 pm Tuesday 12th May 2009 [Week Ten].This date must be complied with unless an extension has been granted 72 hours prior to the due date. Extensions will only be granted for genuine extenuating circumstances, and will require some form of proof, such as a medical certificate. All applications for an extension of the time allocated to an assessment task must be made in writing to the Unit Coordinator. Approval, if granted, will be in writing and will be recorded on the Faculty Assignment cover sheet accompanying the assessment task by the responsible lecturer/tutor.2.Penalties for late lodgement: A maximum penalty of 2 marks allocated to this assessment task will be deducted for each calendar day (Thus including weekends.) that the assessment is late. The Unit Coordinator may also refuse to accept the assignment. 3. Submission. Students should place their completed assignment in the assignment box marked “BTX 9020 Assignment” at the Business Law and Taxation Departmental Office on the third floor of Chisholm Tower (“S” Building). Answers mailed to Andrew Coleman and postmarked as above are also acceptable. The postal acceptance rule applies. 4. Word limit. The word limit is 2,500-3,000 words, and must be complied with, even though at times it may appear difficult. A maximum of 3 marks allocated to this assessment task will be deducted if the word limit is exceeded, and the Unit Leader may also refuse to accept the assignment.5.Assignment Cover Sheets. Work submitted for assessment must be accompanied by a completed copy of the Assignment cover sheet which has been signed by the student. NO assignment will be accepted, or marked, if it is not accompanied by a signed Faculty Assignment cover sheet.6.A photocopy of your assignment must be made and retained by you.7. All assignments must be typed with one and a half spacing, and a margin of at least 3.5 cms. The attached cover page, signed where indicated, must be filled in and stapled in the top left hand corner to your answer. Attention to style, setting out, spelling, grammar, correct citation of cases and legislation will be rewarded. Case citations should be placed in footnotes (i.e. Donoghue v Stevenson ). A bibliography is necessary. Do not provide illustrations. NO PLASTIC COVERS OR FOLDERS!!!
8.Your assignment must reflect your own work (see Plagiarism below). Back up notes may be requested if there is any doubt.9.You should take all necessary care to ensure that your assignments are free of spelling and grammatical errors. A maximum of 4 marks allocated to this assessment task will be deducted, for poor use of expression, grammatical and spelling errors. The Unit Coordinator may also refuse to accept the assignment.#p#分页标题#e#10. DO NOT recite the question as part of your answer. Only refer to relevant facts in your application stage.11. Parts. Please complete all questions.12. Assumptions. If you need more information, please state what that could be, why it is necessary, and how it would affect your answer. 13. Topics examined. Potential issues range from topics 2 (Negligence) to 9 (Remedies). Due to time constraints some topics may not be covered in lectures before the due date. Students will still be expected to discuss any issues from these topics: 2 to 9 regardless of what is covered in lectures. Do not forget to include cases and/or legislation in your answer. You are expected to conduct independent research beyond the prescribed text.14. References. You must use either footnotes or endnotes (See the example below.). DO NOT USE THE HARVARD METHOD or a combination of the Harvard method and endnotes or footnotes: a maximum of 2 marks allocated to this assessment task will be deducted if you use the Harvard method or a combination. 15. Value. The assignment counts for thirty per cent (30%) of the total marks for the Unit.Important: Plagiarism & Collusion
The submission of essays, assignments and homework is an essential part of the learning process and a vital way of assessing students’ understanding of a unit. The submitted work must therefore be a student’shttp://www.ukassignment.org/daixieAssignment/daixieyingguoassignment/ own work. Also students must not present work as their own if it is taken from another source. The source of such work must be properly identified and acknowledged. However, in quoting or paraphrasing material from other sources, those sources must be acknowledged in full. Failure to do so may amount to plagiarism. Such work will be marked as a zero, and according to University regulations the matter reported to the Dean.
Collusion refers to inappropriate collaboration with others in the preparation, and final expression of your assignment. Whilst we encourage students to form study groups where discussion with other students about concepts and issues is permissible, THIS IS NOT a group assignment. You must write your assignment on your own. This means from the very moment you begin drafting through to the final submission of the written assignment, the work must be yours alone.
Failure to do so may amount to collusion. Such work will be marked as a zero, and according to University regulations the matter reported to the Dean.
IF YOU HAVE ANY DOUBTS REGARDING WHAT CONSTITUTES PLAGIARISM PLEASE CONTACT THE UNIT LEADER TO DISCUSS THE MATTER.PART A
Abhinav the Giant is a former professional wrestler. Sadly due to serious injuries to his shoulders he has been forced to retire. One day in March 2007 he was walking down High St, Armadale, (Victoria) admiring all the antiques when he noticed a watch in the window of Joyce’s Vintage & Second-Hand Watch Store Pty Ltd. Sitting in an official Rolex wooden box was a beautiful Rolex Submariner with the following sign next to the box in bright pink hand writing.#p#分页标题#e#
Awesome Offer! Genuine Rolex Submariner! It comes with an official certificate from the Swiss Horological Society. Valued at over $8,000, but available for $6,000. A free crocodile skin wrist strap valued at $400 if you pay cash!! A GREAT BARGAIN: BUT BE QUICK!! It won’t last long!!
Abhinav liked watches, and fancied himself as an amateur collector, so he went in to the store and spoke to the salesperson, Celina behind the counter. Abhinav pointed to the Submariner watch and asked Celina: ‘Is that a genuine Rolex Submariner?’
Celina, who was Joyce’s 14 yr old daughter and only worked in the store part time, said: ‘I think so. What does the sign say?’
While Celina read the sign, Abhinav examined the watch: he could hardly believe his luck! It looked like a genuine Rolex, and even though it was second-hand he thought it would be worth at least $8,500! Abhinav then said to Celina: ‘Don’t worry I can read the sign.’ Celina replied: ‘Ok, but I have to ask my Mum.’ Celina then ran off to fetch her mother, Joyce.
When Joyce arrived at the counter she smiled and said: ‘Wow, you picked a great bargain, what colour strap would you like?’ Abhinav replied: ‘Black please.’ Joyce placed the strap and the Rolex in a plastic shopping bag. Joyce then said: ‘Here’s the official certificate of authenticity from the Swiss Horological Society, see the watch’s serial number matches the one in the certificate? This proves it is genuine.’
Abhinav handed her the $6,000, in cash, and Joyce handed him the receipt. On the receipt in addition to the details of the sale (Watch model, price, date) there was the following information, in small font (size 8) at the bottom of the receipt as follows:
Dear Valued Customer,
Whilst Joyce’s Vintage & Second-Hand Watch Store Pty Ltd takes all care to guarantee the fine goods sold in this store, all goods are sold at the buyer’s risk, and we are not liable for any defects whatsoever. However, Joyce’s Vintage & Second-Hand Watch Store Pty Ltd may, at their discretion, exchange a good for another of a similar price.
The next day (13 March 2007) Abhinav visited Sumit another retired wrestler. Abhinav proudly showed his Submariner to Sumit and said: ‘Look I bought this watch for only $6,000!’ Sumit had a close look, and then laughed. ‘You’re crazy,’ he said, ‘I bought a Rolex just like that for $25 last week in Hong Kong: see?’ Sumit then showed him his fake watch: it was exactly the same!
Abhinav laughed and said (in a weak voice): ‘No, mine is different. I know everything about Rolex watches! Anyway it came with an official certificate!’
However, Abhinav was worried, so he took the watch to an official Rolex dealer in Melbourne, and sadly for Abhinav, the watch proved to be a fake: a very good fake, but one obvious difference was that the fake Rolex was powered by a quartz battery, whereas a genuine Rolex was a self-winding (automatic) watch, powered by the wearer’s arm movements. Abhinav was so embarrassed he decided he could not tell his friends because they would laugh too much! He was always bragging about his knowledge of fine watches! Anyway he liked showing it off to people, and only Sumit knew the truth.#p#分页标题#e#
Then late October 2008 his good friend Manali turned 30, and Abhinav seized the opportunity to give her the watch as a birthday present. (So no consideration was provided by Manali.) Manali, who knew absolutely nothing about watches, was so impressed, and very thankful. With a tear in her eye she said: ‘Abhinav, you are so generous. How many times have you told me what a fine watch it is, and you love it so much. Many thanks!’
Abhinav breathed a sigh of relief, and the next time he saw Manali he asked her about the watch. Manali was so enthused: ‘It keeps wonderful time. Also it is such a good present, because I have taken up scuba diving!’ Abhinav, feeling a little bit concerned, but not wanting to admit anything, said: ‘Ah, well, are you sure you should be wearing that watch underwater?’ Manali replied: ‘What! Why? It is a Submariner, designed for divers? What’s the matter?’ Abhinav replied: ‘Ah nothing, well I mean you never can be 100% sure it’s a real one…’ Manali looked at him: ‘Abbey (Abhinav) are you teasing me? Would you really give me a fake watch?’ Abhinav hastily replied: ‘Well, I mean it’s just that it is so expensive, you might bump it against a rock or something.’
Manali laughed and said: ‘Well don’t be silly, anyway I’ve worn it swimming at Bondi beach, twice already, and even bumped into a surf board. There was no harm done, the watch is very tough.’
Abhinav heard nothing more about it until he heard that Manali had had a horrible accident on Christmas Eve 2008.
Whilst diving, Manali, and her diving buddy Oscar, had dived to a depth of 30 metres. In order to avoid decompression sickness (the “bends”) they only intended to stay 15 minutes at this depth. However, Manali’s fake watch stopped working, and Oscar did not have one, so they had no idea of how long they had stayed at this depth. Thus when they attempted to complete a decompression stop, they had to make guesses regarding three important factors: (1) how long they had stayed at 30 metres, (2) how long they should spend completing the decompression stop, and (3) how to measure the actual time whilst completing the decompression stop. (Manali said she tried to count seconds in her head, but with her mounting anxiety, and fatigue, she lost count several times.) Consequently, both Oscar and Manali suffered decompression sickness, and if not for the professionalism, and skill of the dive boat captain, who made them dive again and complete another decompression stop using his watch, they might have died. They were then rushed to hospital.
After visiting Manali in hospital, Abhinav took the broken fake watch and stormed into Joyce’s store (12 January 2009) and showed her the watch. He yelled: ‘This is a fake and it doesn’t work! Give me back my money!!’
Joyce replied: ‘What are you talking about?’ Abhinav showed Joyce the receipt dated 12 March 2007, as well as the report written by the official Rolex dealer (also dated March 2007) stating that the watch was a fake. Abhinav said: ‘See, you lied to me, you said it was genuine!! Your certificate tricked me!!’ Joyce replied: ‘Look I didn’t know it was a fake, the person who sold it to me lied, he gave me the certificate. It’s not my fault! Anyway it happened so long ago. You have got NO legal rights to have your money returned.’#p#分页标题#e#
Abhinav was furious, and shouted: ‘How can you not know it was a fake, it had a quartz movement!! You should know: YOU’RE AN EXPERT AREN’T YOU!!
Joyce replied: ‘What, I never said I was an expert I merely sell watches!’
Abhinav lost his temper: ‘You nearly killed my friend!’ he threw a newspaper article detailing the accident at Joyce, and stormed out.
The next day Abhinav by accident bumped into Joyce and told her that he has just seen his solicitor, and that the solicitor had advised him that Joyce was “in big trouble”. Joyce who had read the newspaper article was now very worried. When she purchased the watch it was part of a dozen that she purchased from a new supplier who she had never used before, but had sold the watches to her very cheaply. Of the other 11 watches, seven had checked out as originals, so she didn’t bother to check the final four, including the Submariner purchased by Abhinav. Also it was rather embarrassing for a watch dealer to make such an obvious mistake, since Rolex had never used quartz to power their watches (and probably never will!).
Advise Joyce of her legal rights and responsibilities regarding:
1.The sale of the fake Submariner to Abhinav.2.Manali and Oscar’s diving accident.PART B
Exemption clauses and disclaimers are extremely common in business (as well as in “every-day life”). Consider the role played by exemption clauses and disclaimers in business. How important or significant are they for both customers and the proferens?
Secondly, does it matter where exemption clauses and disclaimers are located, does it matter who the parties are, or what they attempt to do? What type of notice do you believe should be given regarding the existence of exemption clauses/disclaimers? Should the type of notice be determined by the extent of these clauses?
(Remember this is a research question. You are expected to go beyond the prescribed text and to find relevant articles, cases, legislation, textbooks, or works of scholarship.)