Comlaw 101 Notes

3192 Words Aug 20th, 2013 13 Pages
COMMERCIAL LAW 101

Statutory Obligations

There are two broad aspects addressed in this topic:
Civil liability:
Legislation may affect existing common law and equitable obligations: e.g
-Legislation can cut across or interfere with common law and equitable obligations. Legislation can also reinforce such obligations.
-Example: ACC legislation in NZ takes away right to sue for personal injury, but sets up statutory rights to compensation for injury regardless of fault.
Criminal liability:
Legislation may create criminal liability:
-In NZ crimes can only be created by legislation. In this topic we will look at the nature of criminal liability
Express creation (or denial) of civil liability:
Some statutes expressly create a
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Can still be created by statutory interpretation
E.g. Simpson v AG (Baigent's Case) -See case on page 806 Set Text. -Mrs Baigent sue the Attorney-General as there was an unlawful search of her home (police knew it was the wrong house) -Causes of action included s21 NZ Bill of Rights Act - unreasonable search. -High court struck out section 21 argument -Court of Appeal held that section 21 could be used as a cause of action (i.e. little point in having a "right" if you can’t enforce that right"
Changing the content of an existing cause of action:
That is modifying common law.
E.g.
-Contract:
Example: The sale of goods Act 1908 implies certain standard terms and creates particular remedies in non-consumer contracts; thus supplementing the general law of contract
Criminal Liability
Criminal and civil liability distinguished
a. General concepts
Ensure you understand:
Government agencies (E.g. Police, Commerce commission) bring prosecutions for a breach of the criminal law, normally there will be o agency to assist a plaintiff in enforcing a civil action
-Basic notions of civil liability to remedy and
-Basic notions of criminal liability is to punish b. Difference in terminology and procedure -Prosecute cf sue -The name of the case can indicate the type of case it is E.g. Simpson v AG = Civil case
-R v Ann Harris = Criminal

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