Approaching problem questions in Contract Law.
Hi everyone!
Approaching problem questions - this is a problem i'm experiencing at the moment and I thought it maybe something a lot of others are experiencing too. So a few words of wisdom from those that are wiser than us first year LLBers would be really useful!!
I have a few general questions, but ANY advice on how to approach problem questions would also be a help!
The question i'm currently tackling is a contract law question:
- How would an introduction start??
Will I just be identifying the area of law in which i am advising my client and then the terms in the contract?
- How do i refer to my client in my essay? Shall i just refer to them as 'My Client'?
- Do i need to include journal articles and critical analysis? If so how do I incorporate this?
- How would the general structure of the question pan out?
- I'm aiming for a first (must aim high!) so what things would be good to just raise my mark a bit more into the first bracket??!!
Approaching problem questions - this is a problem i'm experiencing at the moment and I thought it maybe something a lot of others are experiencing too. So a few words of wisdom from those that are wiser than us first year LLBers would be really useful!!
I have a few general questions, but ANY advice on how to approach problem questions would also be a help!
The question i'm currently tackling is a contract law question:
- How would an introduction start??
Will I just be identifying the area of law in which i am advising my client and then the terms in the contract?
- How do i refer to my client in my essay? Shall i just refer to them as 'My Client'?
- Do i need to include journal articles and critical analysis? If so how do I incorporate this?
- How would the general structure of the question pan out?
- I'm aiming for a first (must aim high!) so what things would be good to just raise my mark a bit more into the first bracket??!!
You always start a problem question by identifying the various legal issues. Usually at the bottom of a question you'll be told to advise a particular party; it may be a number of parties or even all of them. Because you will usually have time constraints it's important that you do only advise those parties and keep the answers as relevant as possible. State which area of law is being contended and then move on to the main body of the answer.
Here you have the flexibility to approach this in whichever way is best for you. Some lawyers tend to find that a party-by-party basis is best; if you're told to advise Michael, John and Jack then have one paragraph explaining the arguments which you'd raise in favour of each party and the defences which may provide a hurdle for your client to surmount. I tend to find it easier to identify all the relevant causes of action for all the parties in one paragraph and then all the relevant defences for your client to surmount in another, separate one.
Once you've identified the legal issues, discussed the relevant law and applied it to the facts of the case you then have to draw some sort of conclusion. This is an opportunity for you to advise the client as to whether or not you think that he/she has a valid claim and, crucially, what the courts will award if he/she is successful. This is where a brief discussion the type and quantum of damages is important. This also happens to be what most first year students forget to do.
All of this stuff will become natural to you with practice but in the meantime there's a helpful formula which you may or may not have heard of. It's called the "IRAC" formula and you should probably be able to find a little bit more about it on google.
Hope this helps
Here you have the flexibility to approach this in whichever way is best for you. Some lawyers tend to find that a party-by-party basis is best; if you're told to advise Michael, John and Jack then have one paragraph explaining the arguments which you'd raise in favour of each party and the defences which may provide a hurdle for your client to surmount. I tend to find it easier to identify all the relevant causes of action for all the parties in one paragraph and then all the relevant defences for your client to surmount in another, separate one.
Once you've identified the legal issues, discussed the relevant law and applied it to the facts of the case you then have to draw some sort of conclusion. This is an opportunity for you to advise the client as to whether or not you think that he/she has a valid claim and, crucially, what the courts will award if he/she is successful. This is where a brief discussion the type and quantum of damages is important. This also happens to be what most first year students forget to do.
All of this stuff will become natural to you with practice but in the meantime there's a helpful formula which you may or may not have heard of. It's called the "IRAC" formula and you should probably be able to find a little bit more about it on google.
Hope this helps
Thank you both for your help.
Another question which i have just remembered - in my problem question there are facts missing. According to Glanville Williams in Learning the Law this is normal in problem questions.. but the fact that a vital fact is missing in the question determines how I interpret the term in question. Therefore should I just state that interpretation can go either way and then say which way I think it is likely to go but also state until my client gives me all the facts I won't be able to say which way the court will almost probably go?
Another question which i have just remembered - in my problem question there are facts missing. According to Glanville Williams in Learning the Law this is normal in problem questions.. but the fact that a vital fact is missing in the question determines how I interpret the term in question. Therefore should I just state that interpretation can go either way and then say which way I think it is likely to go but also state until my client gives me all the facts I won't be able to say which way the court will almost probably go?
lol2003
Thank you both for your help.
Another question which i have just remembered - in my problem question there are facts missing. According to Glanville Williams in Learning the Law this is normal in problem questions.. but the fact that a vital fact is missing in the question determines how I interpret the term in question. Therefore should I just state that interpretation can go either way and then say which way I think it is likely to go but also state until my client gives me all the facts I won't be able to say which way the court will almost probably go?
Another question which i have just remembered - in my problem question there are facts missing. According to Glanville Williams in Learning the Law this is normal in problem questions.. but the fact that a vital fact is missing in the question determines how I interpret the term in question. Therefore should I just state that interpretation can go either way and then say which way I think it is likely to go but also state until my client gives me all the facts I won't be able to say which way the court will almost probably go?
That's exactly what you should do. Facts are usually omitted because you won't have time to cover all the relevant law. Just state that it's important and that you'd need further information to make a decision.
Everything said above is spot-on, just to add some thoughts of my own:
- How would an introduction start??
Will I just be identifying the area of law in which i am advising my client and then the terms in the contract?
You don't need a separate introduction for the sake of it - get straight to applying the law to the facts. You may want to briefly introduce the issues if it would help a reader understand your structure: e.g. a sentence to the effect of "A will only be able to claim damages if he can prove that there is a contract. This requires offer and acceptance, consideration, certainty and intent to create legal relations".
I'd refer to the parties in the terms used in the question - so A/B or Smith/Jones. Its not a good idea to get in the habit of using "my client" because not all problem questions will ask you to approach it from the position of a particular party: you can be asked to advise on the legal position of the parties generally.
As a general rule, in essays yes, but in problems no.
Journals will be useful in problems where there is genuine uncertainty as to the law (i.e. one journal article says the law is X, the other says Y, and the cases don't make it clear whether the law is X or Y), or where a particular area of law is looking shaky.
Let me give an example. Royscott Trust v Rogerson says that you get the fraudulent measure of damages for even a innocent or negligent misrepresentation because that is what the Misrepresentation Act says. There is a journal article by Hooley that explains why Royscott Trust is doubtful authority and takes an interpretation of the MRAct that wasn't intended by parliament. Lord Steyn mentioned that article in Smith New Court and seemed to agree with it. Here it would be appropriate to mention the article if you had a problem where you have a negligent/innocent misrepresentation but the claimant wants the fraudulent measure of damages. You would apply Royscott and explain that the fraudulent measure of damages might be available, but you would explain why Royscott is doubtful authority with reference to Hooley's article.
Take each claimant at a time (or defendant in criminal)
Systematically run through the requirements for each cause of action the claimant might have. Be systematic and thorough. Don't just think "oh awesome, this question is about consideration and Williams v Roffey" and leap straight into a discussion of Williams v Roffey.
For each requirement of each cause of action, STATE the law (e.g. "you need consideration" ) --> EXPLAIN the law (e.g. explain what consideration is) --> APPLY the facts (e.g. "there is/is not consideration here because"/"these facts are similar to case X because"/"this case doesn't apply to these facts because" ) --> CONCLUDE (e.g. "there is consideration here"/"a court would be very likely to hold that there is consideration here but I can't be sure" ).
lol2003
- How would an introduction start??
Will I just be identifying the area of law in which i am advising my client and then the terms in the contract?
You don't need a separate introduction for the sake of it - get straight to applying the law to the facts. You may want to briefly introduce the issues if it would help a reader understand your structure: e.g. a sentence to the effect of "A will only be able to claim damages if he can prove that there is a contract. This requires offer and acceptance, consideration, certainty and intent to create legal relations".
- How do i refer to my client in my essay? Shall i just refer to them as 'My Client'?
I'd refer to the parties in the terms used in the question - so A/B or Smith/Jones. Its not a good idea to get in the habit of using "my client" because not all problem questions will ask you to approach it from the position of a particular party: you can be asked to advise on the legal position of the parties generally.
- Do i need to include journal articles and critical analysis? If so how do I incorporate this?
As a general rule, in essays yes, but in problems no.
Journals will be useful in problems where there is genuine uncertainty as to the law (i.e. one journal article says the law is X, the other says Y, and the cases don't make it clear whether the law is X or Y), or where a particular area of law is looking shaky.
Let me give an example. Royscott Trust v Rogerson says that you get the fraudulent measure of damages for even a innocent or negligent misrepresentation because that is what the Misrepresentation Act says. There is a journal article by Hooley that explains why Royscott Trust is doubtful authority and takes an interpretation of the MRAct that wasn't intended by parliament. Lord Steyn mentioned that article in Smith New Court and seemed to agree with it. Here it would be appropriate to mention the article if you had a problem where you have a negligent/innocent misrepresentation but the claimant wants the fraudulent measure of damages. You would apply Royscott and explain that the fraudulent measure of damages might be available, but you would explain why Royscott is doubtful authority with reference to Hooley's article.
- How would the general structure of the question pan out?
Take each claimant at a time (or defendant in criminal)
Systematically run through the requirements for each cause of action the claimant might have. Be systematic and thorough. Don't just think "oh awesome, this question is about consideration and Williams v Roffey" and leap straight into a discussion of Williams v Roffey.
For each requirement of each cause of action, STATE the law (e.g. "you need consideration" ) --> EXPLAIN the law (e.g. explain what consideration is) --> APPLY the facts (e.g. "there is/is not consideration here because"/"these facts are similar to case X because"/"this case doesn't apply to these facts because" ) --> CONCLUDE (e.g. "there is consideration here"/"a court would be very likely to hold that there is consideration here but I can't be sure" ).
The problem question i'm doing is about terms and the interpretation of terms in a contract to decipher whether there is breach of contract on the party who repudiated the contract. So whether the term is a condition, warranty or major or minor innominate term.
Is the Sale of Goods Act my main statute here?? Most of the legal sources i'm going to be putting in will be case law.
Is the Sale of Goods Act my main statute here?? Most of the legal sources i'm going to be putting in will be case law.
lol2003
The problem question i'm doing is about terms and the interpretation of terms in a contract to decipher whether there is breach of contract on the party who repudiated the contract. So whether the term is a condition, warranty or major or minor innominate term.
Is the Sale of Goods Act my main statute here?? Most of the legal sources i'm going to be putting in will be case law.
Is the Sale of Goods Act my main statute here?? Most of the legal sources i'm going to be putting in will be case law.
Most of this area is governed by case law and the courts tend to look at a number of criteria (verification, importance and expertise) when deciding whether or not something is a term, a representation or just a mere "puff". The Sale of Goods Act does deal with implied terms (particularly ss. 13 and 14 which deal with description and quality) and s 11 is particularly important for when you come to decide whether or not a term is a condition or a warranty. You should probably aim to strike a balance though, and comment on both the statute and common law.
lol2003
The problem question i'm doing is about terms and the interpretation of terms in a contract to decipher whether there is breach of contract on the party who repudiated the contract. So whether the term is a condition, warranty or major or minor innominate term.
Is the Sale of Goods Act my main statute here?? Most of the legal sources i'm going to be putting in will be case law.
Is the Sale of Goods Act my main statute here?? Most of the legal sources i'm going to be putting in will be case law.
Entirely depends on the question. If you think that one of the terms may be useful for the claimant (or any of the other provisions, but you probably don't go into those on a contract course), then yes the SoG is relevant. If not, then it isn't.
jacketpotato
Entirely depends on the question. If you think that one of the terms may be useful for the claimant (or any of the other provisions, but you probably don't go into those on a contract course), then yes the SoG is relevant. If not, then it isn't.
One final question (sorry!)
The question regards the nature of terms in a contract. There is an individual who has been employed by another company to look after their boats. The company who has employed this person has terminated the contract because they believe the term in question, which the person has breached, is a condition.
what statutes can I use to help me answer my question - since i cannot just use case law can I?
Is there legislation that outlines the consequences of breaching a condition, warranty etc....?
My lecturer says I have to use the sale of goods act in the answer but I really don't see how this fits in since there is no sale of goods here, it literally is just a company employing an individual to look after their boats.
xxx
lol2003
One final question (sorry!)
The question regards the nature of terms in a contract. There is an individual who has been employed by another company to look after their boats. The company who has employed this person has terminated the contract because they believe the term in question, which the person has breached, is a condition.
what statutes can I use to help me answer my question - since i cannot just use case law can I?
Is there legislation that outlines the consequences of breaching a condition, warranty etc....?
My lecturer says I have to use the sale of goods act in the answer but I really don't see how this fits in since there is no sale of goods here, it literally is just a company employing an individual to look after their boats.
xxx
The question regards the nature of terms in a contract. There is an individual who has been employed by another company to look after their boats. The company who has employed this person has terminated the contract because they believe the term in question, which the person has breached, is a condition.
what statutes can I use to help me answer my question - since i cannot just use case law can I?
Is there legislation that outlines the consequences of breaching a condition, warranty etc....?
My lecturer says I have to use the sale of goods act in the answer but I really don't see how this fits in since there is no sale of goods here, it literally is just a company employing an individual to look after their boats.
xxx
There will be many topics in contract where there simply is not any legislation to use. Don't feel that you "have" to have legislation just for the sake of it. Contract is predominantly a common law area - things like the nature of terms, offer and acceptance, consideration and remedies don't have any major statutes at all.
The consequences of breaching a condition/innominate term/warranty are laid out in case law not statute
You'd only use the SoG Act if you had a particular reason to want to use one of its provisions. I don't know what you've covered and I don't know the facts of the question so its difficult to advise further than that. I suspect that your tutor meant the duty of reasonable care and skill implied into services contracts by the Supply of Goods and Services Act 1982, but I can't be sure.
jacketpotato
There will be many topics in contract where there simply is not any legislation to use. Don't feel that you "have" to have legislation just for the sake of it. Contract is predominantly a common law area - things like the nature of terms, offer and acceptance, consideration and remedies don't have any major statutes at all.
The consequences of breaching a condition/innominate term/warranty are laid out in case law not statute
You'd only use the SoG Act if you had a particular reason to want to use one of its provisions. I don't know what you've covered and I don't know the facts of the question so its difficult to advise further than that. I suspect that your tutor meant the duty of reasonable care and skill implied into services contracts by the Supply of Goods and Services Act 1982, but I can't be sure.
The consequences of breaching a condition/innominate term/warranty are laid out in case law not statute
You'd only use the SoG Act if you had a particular reason to want to use one of its provisions. I don't know what you've covered and I don't know the facts of the question so its difficult to advise further than that. I suspect that your tutor meant the duty of reasonable care and skill implied into services contracts by the Supply of Goods and Services Act 1982, but I can't be sure.
Thank you once again!! I'm reluctant to post my question on here simply because i don't want to cheat or be told the answer. I'm really just looking for guidance. I'm just concerned that there doesn't seem to be any legislation for me to refer to in my cwork essay and i'm worried that i'll be significantly reducing my marks if i leave something obvious out!!
Are there any specific cases which lay out the consequences of a condition and warranty?? I know the hong kong fir case is the key case with innominate terms.
I may well be back!!
Once again, thank you for your help!
lol2003
Thank you once again!! I'm reluctant to post my question on here simply because i don't want to cheat or be told the answer. I'm really just looking for guidance. I'm just concerned that there doesn't seem to be any legislation for me to refer to in my cwork essay and i'm worried that i'll be significantly reducing my marks if i leave something obvious out!!
Are there any specific cases which lay out the consequences of a condition and warranty?? I know the hong kong fir case is the key case with innominate terms.
I may well be back!!
Once again, thank you for your help!
Are there any specific cases which lay out the consequences of a condition and warranty?? I know the hong kong fir case is the key case with innominate terms.
I may well be back!!
Once again, thank you for your help!
No worries
If you've thought about everything covered on your lecture handouts and in the relevant sections of textbooks, you'll be fine
lol2003
Sorry, another question...
how many cases should i be citing within a 1500 word problem question - how much is enough to prove relevant authority for something? approximately how many cases am I looking at in total?
how many cases should i be citing within a 1500 word problem question - how much is enough to prove relevant authority for something? approximately how many cases am I looking at in total?
As Jacket Potato has said, don't mention cases or statutes for the sake of it. It depends entirely upon the topic area and what the question is actually asking. For a 1500 word essay it could be anything between 3 cases and 23 cases but only talk about those which are relevant.
I have a problem question on contract law.. I do not know what part of the contract law it is wheather it is on offer and acceptance, misrep or consideration....or I don't not know that in a problem question cn I talk about all ov them because all it tells me advise Gerry,hariette and Imran...plz help me
Original post by Manchester1234
I have a problem question on contract law.. I do not know what part of the contract law it is wheather it is on offer and acceptance, misrep or consideration....or I don't not know that in a problem question cn I talk about all ov them because all it tells me advise Gerry,hariette and Imran...plz help me
Post the question and what you have done so far. When you get to your exams it's unlikely that the question will announce which bit(s) of contract law are involved, you need to practice 'issue-spotting' now.
Might be an idea to make a new thread as well since this one is three years old.
Original post by jumax28
The issue now is I don't know the area which is also covered by this question apart from offer and acceptance, consideration and intention to bind. Am thinking if it also include terms (express and implied terms)
Please can someone help me out, it an assessed question. Thank u
The issue now is I don't know the area which is also covered by this question apart from offer and acceptance, consideration and intention to bind. Am thinking if it also include terms (express and implied terms)
Please can someone help me out, it an assessed question. Thank u
Three points. The first is minor, the second and third may seem very harsh but I think you are operating under a misconception of what is involved in a law degree.
1) Start a new thread rather than bumping old threads from 2012.
2) If this is an assessed question, someone helping you out would be cheating. The whole point of assessments is to test what the candidate understands, not to test how good the candidate is at finding someone who understands. If it was discovered by your university that someone else had answered the question for you, then I presume you would be thrown off the course.
3) If you're at the stage where you're doing assessed work and you cannot even identify which areas of law are raised by the question, then you are going to fail and fail very badly unless you take immediate action to remedy it. How will you even begin to answer an exam question if you can't tell whether it's about, say, terms, or offer and acceptance? I suggest that you go to your tutor immediately and see what can be done to catch up on what you have obviously missed.
(edited 10 years ago)
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