1、Legal Environment of Business,Threshold Legal Concepts: PROPERTY,2,Property relevant legislation,Examples of NSW statutes regulating property + long titles SALE OF GOODS ACT 1923 An Act to codify and amend the law relating to the Sale of Goods. CONVEYANCING ACT 1919 An Act to amend and consolidate t
2、he law of property and to simplify and improve the practice of conveyancing; and for such purposes to amend certain Acts relating thereto. REAL PROPERTY ACT 1900 An Act to consolidate the Acts relating to the declaration of titles to land and the facilitation of its transfer.,3,Property relevant leg
3、islation,Examples of NSW statutes regulating property + long titles WILLS, PROBATE AND ADMINISTRATION ACT 1898 An Act to consolidate enactments relating to Will, Probate and Administration FAMILY PROVISION ACT 1982 An Act to amend the law relating to the assurance to the family of a deceased person
4、and certain other persons of adequate provision from the estate of the deceased person and certain other property TRUSTEE ACT 1898 An Act for consolidating Enactments relating to Trusts and Trustees.,4,Property relevant legislation,Examples of NSW statutes regulating property + long titles RESIDENTI
5、AL TENANCIES ACT 1987 An Act relating to the rights and obligations of landlords and tenants under residential tenancy agreements; to make provision with respect to excessive rent increases and rents; to confer functions on the Consumer, Trader and Tenancy Tribunal of New South Wales with respect to
6、 landlords and tenants; to amend the Consumer Claims Tribunals Act 1974 in relation to rental bonds claims; and for other purposes.,Property rights,Personal property Chattel,Real property Fixture,Tenant? Lease Chose in action,Landlord? Legal interest In real property,Bank? Mortgage Equitable interes
7、t in real property,Cheque Book? Share certificates? Chose in action,Copyright Chose in action,6,Property concepts and definitions,property can refer to rights of ownership OR objects of ownershipproperty can be real property/realty OR personal property,7,Property concepts and definitions,Real proper
8、ty action in rem or a real action immovable land, fixtures,Personal Property action in personam or a personal action movables goods/chattels etc tangibles/intangibles,Real property,9,Real Property,real property = land + fixtures what is land? Latin maxim: cuis est solum eius est usque ad coelum et a
9、d inferos is land the surface and everything under it to the centre of the earth and everything above it to the heavens?,Physical limits of land,10,Physical limits of land the substratum Landowner does not own royal minerals (gold and silver) and Crown land grants usually reserve rights in minerals,
10、 petroleum etc under the surface to the Crown.,Physical limits of land,11,Physical limits of land the airspace above the surfaceProblems with overhanging branches, signs and cranes, aerial photography etcHow far does the landowners interest in land extend?,Real property: physical limits of land,12,B
11、ernstein of Leigh (Baron) v Skyviews & General Ltd 1978 1 QB 479,Student case presentation Topic 4,Strata title,13,Strata title legislation creates title in blocks of airspace above the surface of the land, making it possible to create separate ownership of units in a multi-storey building. The legi
12、slation also creates a body corporate (consisting of the various owners) to own and control common property.,14,Real Property,real property = land + fixtures what is a fixture? Latin maxim: quicquid plantatur solo, solo ceditdoes everything that is fixed to the land become part of the land, e.g. bui
13、ldings and things fixed to buildings ? when is it important to know whether or not it is a fixture?,Fixtures,15,Is it a fixture? depends on the intention of the person who affixed the item of personal property to the land: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 In de
14、termining intention, consider: degree of annexation purpose of annexation ease of removal damage caused by removal.,Real property: fixture?,16,National Australia Bank Limited v Blacker 2000 FCA 1458 (16 October 2000),Student case presentation Topic 4,Personal Property,Personal Property - definitions
15、,Personal property = any property that is not real property Includes: chattels real leasehold interest chattels personal choses in possession choses in action,18,Personal Property - definitions,What is personal property ? chose in possession = tangible item of personal property physical things eg bo
16、oks, furniture, cars, jewellery ownership may be: absolute i.e. a right to ownership superior to any other possessory i.e. a right to ownership arising from mere possession and subject to being overridden by the absolute owner but otherwise good title.,19,Personal Property,20,Ownership v Possession
17、rights of the owner v rights of the person in possession“possession is nine-tenths of the law”rights to things found on anothers property Armory v Delamirie (1722) 93 ER 664 National Crime Authority v Flack (1998) 86 FCR 16,Personal Property - bailment,A bailment is where one person (the bailee) tak
18、es possession of the goods of another (the bailor) but does not assume ownership Examples include: leaving your computer with a repairer storing your goods in a warehouse leaving your car in a car park borrowing a book from the library. Duties of a bailee, if not specified in a contract, include: th
19、e duty to retain possession of the goods during the bailment and to care for them the duty to take care of the goods the duty not to make unauthorised use of the goods the duty to return the goods upon expiration of the bailment,21,Personal Property - definitions,What is personal property ? chose in
20、 action= intangible personal property right examples: debts, shares, patents, copyright, statutory licences, negotiable instruments etc (legal); and examples: partners interest in a partnership, right to a legacy under a will, an interest in a trust estate (equitable)rights are claimed or enforced b
21、y taking legal action not by taking physical possession,22,Interests in land,Acquiring ownership of property,by operation of law bankruptcy Bankruptcy Act 1966 (Cth): property vests in trustee; not/available for payment of debts court settlement execution of a court judgment writ over land or writ o
22、f execution over goods compulsory acquisition by government Commonwealth Constitution:section 51 (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; administration of intestate estate,24,Acquiring owners
23、hip of property,by consent/agreement Sale - contracts for the sale of land: Conveyancing Act 1919; Real Property Act 1900- contracts for the sale of goods: Sale of Goods Act 1923 Gift Declaration of trust Assignment of chose in action Inheritance under a will,25,Contracts for the sale of land,contra
24、ct must be in writing otherwise it is not enforceable standard forms conveyancing procedure- preparation of the written contract; exchange or signing of contracts; searches and inquiries; settlement Torrens System - Real Property Act 1900 (NSW)- Registrar General/ Land Titles Office/public register-
25、 the state/government issues a certificate of title that is conclusive evidence of ownership - the state/government maintains a register of all interests in land e.g. mortgages- the registered owner/proprietor has indefeasible title,26,27,28,Contracts for the sale of goods,SALE OF GOODS ACT 1923 - S
26、ECTION 6(1)(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the priceSALE OF GOODS ACT 1923 - SECTION 5 Definitions “Goods“ include all chattels personal other than things in action an
27、d money. The term includes emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. SALE OF GOODS ACT 1923 - SECTION 8 a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partl
28、y in writing and partly by word of mouth, or may be implied from the conduct of the parties.,Contracts for the sale of goods,SALE OF GOODS ACT 1923 - SECTION 25 Risk prima facie passes with property Unless otherwise agreed, the goods remain at the sellers risk until the property therein is transferr
29、ed to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyers risk, whether delivery has been made or not: Provided that where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards a
30、ny loss which might not have occurred but for such fault: Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party,29,Contracts for the sale of goods,The time at which ownership/property passes is importan
31、t because from that time: the buyer can exercise rights of ownership risk in the goods passes to the buyerSALE OF GOODS ACT 1923 SECTIONS 21-23 contain rules which determines when ownership/property passes from seller to buyerNote contract may contain a retention of title clause (aka Romalpa clause)
32、 provides that ownership does not pass to the buyer until the seller is paid in full why? so that seller can recover the goods if buyer becomes insolvent (and is not just another unsecured creditor),30,Contracts for the sale of goods,Transfer of property/ownership by a non-owner SALE OF GOODS ACT 19
33、23 SECTIONS 26-29 The nemo dat rule - No person can pass a better title than that person possesses, e.g. the sale of a car by a thief. Exceptions to the rule include where the seller: is acting with the owners authority or consent is a mercantile agent is exercising a power of sale has a voidable ti
34、tle is a seller in possession after another sale is a buyer in possession after another sale.,31,Contracts for the sale of goods: buyers remedies,If the seller breaches the contract by non-delivery, delayed delivery or defective goods, the buyer has a right: to damages to repudiate the contract if t
35、he seller has breached a condition of the contract.Note: the right to repudiate is lost if the buyer has accepted the goods by: intimating to the seller that the goods are accepted doing an act inconsistent with the sellers ownership retaining the goods for a reasonable period without rejecting them
36、,32,33,Contracts for the sale of goods: sellers remedies,If the buyer breaches the contract, the seller has rights against the buyer personally and in relation to the goods themselves Personal remedies include: action for damages for non-acceptance action for the price. Real remedies include: lien s
37、toppage in transitu right of resale.,Acquiring ownership of property,by consent/agreement Gift Inheritance under a will,34,Legal and equitable interests in property,legal interests are property interests recognised by the common law equitable interests are property interests protected by equity; equ
38、ity will intervene to prevent a legal owner acting so as to deprive others of interests in the property to which they are entitled recall: courts of Common Law v Court of Chancery examples of equitable interests- interest under an option to purchase- interest under a contract for the sale of land,35
39、,Intellectual property,37,What is intellectual property?,Intellectual property or IP refers to a variety of rights conferred by law to encourage the creation of certain subject matter and to protect the economic interests of the creators or investors who fund them Intellectual property is a chose in
40、 action a form of personal property rights exercised not by taking possession but by taking legal action,38,What is intellectual property?,According to IP Australia Intellectual property represents the property of your mind or intellect. It can be an invention, trade mark, original design or the pra
41、ctical application of a good idea. In business terms, this means your proprietary knowledge - a key component of success in business today. It is often the edge which sets successful companies apart and as world markets become increasingly competitive, protecting your intellectual property becomes e
42、ssential.,http:/www.ipaustralia.gov.au/ip/index.shtml,Types of IP,Patents For new or improved products or processes Trade marks For letters, words, phrases, sounds, smells, shapes, logos, pictures, aspects of packaging or a combination of these, to distinguish the goods and services of one trader fr
43、om another Designs For the shape or appearance of manufactured goods Copyright For original material in literary, artistic, dramatic or musical works, films, broadcasts, multimedia and computer programs Circuit Layout Rights For the three-dimensional configuration of electronic circuits in integrate
44、d circuit product or layout designs Plant Breeders rights For new plant varieties Confidential information and trade secrets,39,Different Intellectual Property rights,Recipe for contents Trade Secret,Manufacturing method - patent,Bottle shape registered design,Name and logo registered trademark,Writ
45、ing copyright,Source of IP rights,Federal legislation why? Commonwealth Constitution section 51(xviii) confers legislative power with respect to copyright, patents of inventions and designs, and trade marks. E.g. Copyright Act 1968 (Cth); Trade Marks Act 1995 (Cth)BUT other laws also important in th
46、is area Common law e.g. tort of passing off, contract law and equitable action for breach of confidence Statutory action for misleading or deceptive conduct: section 18 Australian Consumer Law (see week 12 notes),41,What is IP Australia?,an independent agency within the Department of Innovation, Ind
47、ustry, Science and Research administers statutes relating to IP and Australias IP rights system in relation to - Patents Trade marks Designs Plant breeders rights Formal steps must be taken to register these IP rights and obtain legal rights of ownership Contrast other IP rights which are automatic
48、Copyright Circuit layout rights,42,Protecting IP,The statutory IP regime confers a limited monopoly on the proprietor Why? Arguments for protecting creative effort include: economic arguments: protection induces creators to produce work moral rights arguments: the moral or natural rights of authors
49、and creators are worthy of protection in their own rightE.g. moral rights in copyright law right of attribution of authorship; right not to have authorship falsely attributed; right of integrity of authorship,43,International dimensions of IP,A number of multilateral treaties/agreements exist that d
50、eal with aspects of IP examples Paris Convention 1883 (trade marks, industrial designs, patents) Berne Convention 1886 (literary and artistic works) Rome Convention 1961 (rights of broadcasters and performers) Most important is TRIPS (Agreement on Trade-Related aspects of Intellectual Property rights) Effective from 1 January 1995 Administered by the WTO (World Trade Organisation) Members must satisfy standards concerning the availability scope and use of IP rights, enforcement of IP rights, dispute resolution etc,
