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76047 Advanced Contracts

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2017 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): 70211 Contracts AND 70517 Equity and Trusts AND 70327 Commercial Law
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.

Description

Most contractual disputes concern the performance or breach of contractual terms and the contractual remedies applicable to each. This subject builds upon a basic knowledge of contract law and equitable remedies applicable to contract law by applying advanced principles of contract and equity to consider the enforcement of contractual agreements and defences to claims of non-contractual performance. In doing so, an in-depth examination of actual contracts, evidential materials and witness statements is utilised to provide a practical application of the law. Students are then able to apply advanced legal principles to determine whether contractual terms have been breached or performed and to consider relevant remedies.

The subject begins with an examination of a contract and issues of formation and construction. Factual materials are then introduced to facilitate the examination, consideration and application of express terms, implied terms, good faith, interpretation, repudiation, breach, termination, defences and applications in law and equity, questions of enforcement, legislative intervention, remedies and the use of evidence. A case study of an actual contractual dispute is selected to enable students to have a factual understanding of the range of contract and equity applications that flow from a dispute.

Each class begins with the presentation of facts and materials evidencing a claimed contract breach or a defence to a claimed breach. Factual materials are provided to students through UTSOnline and in class. Interactive lectures consider and discuss the contractual and equitable principles relevant to the factual materials evidencing the contractual dispute. Students, both individually and in groups, consider the factual materials vis-a-vis the law of contract as discussed in the lectures and enter their responses into a contract portfolio. The responses of students, as recorded in their contract portfolio, are then considered and discussed in class the following week and any necessary corrections made.

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

1. Apply advanced knowledge of contract law to identify and critically analyse whether, as a matter of fact and evidence, a contract has been performed or breached.
2. Apply and evaluate advanced knowledge of contract law to identify and formulate relevant arguments in respect to claims of breach of contract and defences to claims of breach.
3. Conduct effective research to identify the proper performance of a contract and critically evaluate claims of breach and the resolution of such claims.
4. Analyse and apply relevant legislation and case law in resolving legal problems involving the rights and obligations of parties in contract law.

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes:

  • Legal Knowledge
    A coherent understanding of fundamental areas of legal knowledge including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice. (1.0)
  • Critical Analysis and Evaluation
    A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0)
  • Research skills
    Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (4.0)

Teaching and learning strategies

Strategy 1: Preparing for class activities

At the beginning of the session students are provided with base materials through UTSOnline, including a contract that forms the basis of a contractual dispute. Each week through preparatory work set out on UTSOnline and in class, students are presented with factual and evidential materials relevant to a dispute regarding that contract. These materials may include witness statements, photographic evidence, affidavits and expert reports. The contract and materials act as both the basis of a practical case study and as a vehicle to consider the law of contract in general.

Preparing for class activities, as guided on UTSOnline, enables students to formulate the framework for their Contract Portfolio (Assessment task 1). Ongoing pre-class preparation will ensure students maximize their class time to further develop, review, refine and correct their Portfolios.

Strategy 2: Learning through engagement with interactive lectures and class discussions

This strategy builds on Strategy 1 (Preparing for class activities).

During interactive lectures, the law relevant to the contractual dispute (as evidenced by the factual and evidential materials) is discussed. Students, in groups and individually, then consider the application of the law in respect to the factual and evidential materials in preparation for entry into their ‘Contract Portfolio’.

The ‘Contract Portfolio’ is a loose-leaf folder that catalogues the acquisition of advanced contract knowledge, practical research, application of law and, further, acts as a tool for correction and reflection.

Students, as guided by the interactive lectures, group discussions and questions posted on UTSOnline, engage in practical research of cases and commentary to identify the law applicable to breach, performance and remedies relevant to the factual and evidential materials. This practical research then forms the basis for consideration of the application of contract law in general.

Strategy 3: Simulated Practice as a Contract Lawyer

Students apply their practical research skills and their capacity to apply fact to law and skills in argument, as gained through their ‘Contract Portfolio’ entries, to a range of contract issues. At the commencement of the session, portfolio materials will be posted on UTSOnline to enable students to begin to draft their Contract Portfolio.

Students’ findings and arguments relevant to their research are entered into their Contract Portfolio. The following week, students’ legal arguments, opinions or advice relevant to the factual and evidential materials are discussed in-depth and evaluated in class. Corrections and adjustments are then made to student responses to enable students to reflect upon their original answers. By Week 4, through in-class formative feedback, students develop a sound knowledge of how they are performing in the subject.

Students build on the knowledge gained in the lectures and through their Contract Portfolio to provide a written response to a problem question (Assessment task 2). This assessment task is based on real-world learning through series of scenarios.

Strategy 4: Class participation and class contribution

The interactive lectures, class discussions and evaluation of ‘Contract Portfolio’ entries provide the opportunities for active student participation (Assessment task 3). Each week the responses to the portfolio questions from the previous week and related legal concepts and issues are discussed in class and student participation marks recorded.

Marks will be awarded according to the contribution students make within the classroom setting. Contribution equates to the quality of students’ participation, rather than quantity.

Strategy 5: Ongoing Feedback

The lecturer provides formative feedback on student performance during each seminar, commencing in Week 2, through an in-depth discussion of Contract Portfolio entries. Students should correct any shortfalls in Portfolio entries and, if so, they will receive credit for such correction. The lecturer will be available at the end of the class to take students through any areas of uncertainty. Detailed guidance as to the assessment criteria and the provision of timely feedback will form an important part of the learning process.


Subject Delivery

This subject consists of 11 weeks of classes plus Week 1 preparation (online). Each class consists of a three-hour lecture / seminar every week. The subject will concentrate on the law of New South Wales. References will be made to other laws where appropriate.

Content (topics)

  • Contract formation
  • Contractual terms
  • Construction
  • Performance
  • Repudiation
  • Good faith
  • Breach
  • Discharge and termination
  • Restitution
  • Estoppel
  • Liquidated debt
  • Damages

Assessment

Assessment task 1: Contract Portfolio of research based arguments, opinion and advice.

Objective(s):

This task addresses the following subject learning objectives:

1, 2 and 4

This task contributes specifically to the development of the following graduate attributes:

1.0, 3.0 and 4.0

Weight: 40%
Length:

2,500 words
Criteria:
  • Demonstrated understanding of the portfolio tasks.
  • Development and articulation of doctrines relevant to the contractual dispute.
  • Reflection, analysis and revision of arguments, opinions and legal advice based on research, class discussion and feedback.
  • Evidence of advanced knowledge and application of relevant contractual principles based on research and class discussion.
  • Capacity to critically apply law to fact as revealed through the factual and evidential materials.
  • Demonstrates effective and clearly structured written communication and use of plain language.

Assessment task 2: Written Problem Question

Intent:

The intent of the written assignment is to provide an assessment task in which students apply the advanced practical research skills, their capacity to apply fact effectively to law, and skills in legal argument - as gained in their ‘Contract Portfolio’ entries - to a range of contract issues.
Objective(s):

This task addresses the following subject learning objectives:

1, 2, 3 and 4

This task contributes specifically to the development of the following graduate attributes:

1.0, 3.0 and 4.0

Weight: 40%
Length:

2,000 words
Criteria:
  • Reflection, evaluation and integration of advanced practical research skills.
  • Implementation of an understanding of contract law, its principles, procedures and application.
  • Reflection, evaluation and integration of legal knowledge and skills gained in the Contract Portfolio to communicate an appropriate and persuasive answer to the problem question.
  • Utilisation of appropriate legal research in drafting response to the problem question.
  • Clear and concise legal argument, written in plain language in accordance with the AGLC (3rd ed.).

Assessment task 3: Class Participation and Contribution

Intent:

The interactive lectures and the discussion and evaluation of ‘Contract Portfolio’ entries and any ensuing debates are incorporated into student participation. Marks are awarded according to the contribution students make within the classroom setting.
Objective(s):

This task addresses the following subject learning objectives:

1, 2, 3 and 4

This task contributes specifically to the development of the following graduate attributes:

1.0, 3.0 and 4.0

Weight: 20%
Length:

Indicative word length 500 words.
Criteria:
  • Quality of oral contributions.
  • Demonstrated engagement with the portfolio exercise.
  • Demonstrated understanding of the portfolio tasks.
  • Capacity to critically apply law to fact as revealed through the factual and evidential materials.
  • Capacity to engage in persuasive and reasoned argument.
  • Capacity to absorb the arguments of others and, if necessary, respond to those arguments.
  • High quality contributions to any small-group discussion.
  • Capacity to verbally express ideas in an orderly, clear, logical, succinct and persuasive manner.
  • Capacity to deal with questions and counter arguments.
  • Ability to participate in general discussion.
  • Very importantly, displayed respect to other class members by paying attention and not engaging in non-class activities such as web-browsing.

Required texts

Essential Materials:

Recommended texts

The following books are recommended as a useful reference resource:

  • Mulcahy and Tillotson, Contract Law in Perspective (4th ed, 2004) Cavendish Publishing
  • Carter JW, Contract Law in Australia (6th ed, 2013) LexisNexis Butterworths, Australia.
  • Carter JW, Carter's Breach of Contract, (2011) LexisNexis Butterworths, Australia.
  • Lewison K and Hughes D, The interpretation of contracts in Australia, (2012) Thompson Reuters Lawbook.
  • Carter JW, The construction of Commercial Contracts, (2013) Hart Publising, Oxford.
  • Carter, JW, Cases and Materials on Contract Law in Australia, Sydney, (6th ed. 2012), LexisNexis Butterworths
  • Carter, Carter’s Guide to Australian Contract Law (2011) LexisNexis Butterworths.
  • Mason K, Carter JW, Tolhurst GJ, Restitution Law in Australia, (2008), LexisNexis Butterworths, Australia.
  • Seddon et al, Cheshire & Fifoot Law of Contract, (10th ed. 2012), LexisNexis Australia.
  • Patterson, Robertson and Duke, Principles of Contract Law (3rd ed 2009) Thomson Reuters Lawbook Co
  • Patterson, Robertson and Duke, Contract Cases and Materials (12th ed 2011) Thomson Reuters Lawbook Co
  • Khoury and Yamouni, Understanding Contract Law (8th ed, 2010) Butterworths
  • Graw, An Introduction to the Law of Contract (6th ed, 2008) Lawbook Co
  • Willmott, Christensen, Butler and Dixon, Contract Law (3rd ed, 2009) Oxford University Press
  • Clarke, and Clarke Contract Law Commentaries, Cases and Perspectives 2nd edition (2012) Oxford University Press
  • Covell & Lupton, Principles of Remedies (3rd ed, 2005) LexisNexis Butterworths
  • Fitzgerald, Fitzgerald, Clarke, Lim and Middleton, Internet and e commerce law, business and policy (2011) Law Book Co
  • Brownsword, Contract Law Themes for the Twenty First Century Second ed 2006 Oxford University Press
  • Peden, Good Faith in the Performance of Contracts (2003) LexisNexis Butterworths
  • Forte ADM (ed), Good Faith in Contract and Property Law (1999) Hart Publishing, Oxford.
  • Hillman, The Richness of Contract Law. An Analysis and Critique of Contemporary Theories of Contract Law (1997) Kluwer Academic Publishers.
  • Spanogle, Malloy, del Duca, Rowley and Bjorklund, Global Issues in Contract Law (2007) Thomson West
  • Blount, Electronic Contracts: Principles from the Common Law (2009) LexisNexis Butterworths
  • Aityah PS, Essays on Contract (1990) Oxford University Press. Finn PD, Essays on Contract (1987) Lawbook Co.
  • Tolhurst and Peden, Commercial Issues in Contract Law (2009) Sydney University Monograph Federation Press
  • Thomson, Warnick and Martin, Commercial Contract Clauses: Principles and Interpretation (2008) Lawbook Co

Other resources

Reports and Journals:

  • Australian Contract Law Reporter, CCH Australia, (2 volume loose-leaf service)
  • Journal of Contract Law published by Butterworths. UTS Library Digital Resources Register
  • Some articles are also available relevant to this subject from the UTS Digital Resources Register.

Useful Web Sites