The subject considers key legal concepts employed in commercial law and the practical role they play in solving commercial disputes. Our focus is on key structures and relationships used in commercial transactions, and the question of how such structures and relationships may affect third parties. As commercial parties often need to decide what legal structure to adopt in a relationship, we consider and compare the differing legal consequences of different types of commercial transactions, looking at their effect on both contracting parties and third parties. In doing so, we look at how key conceptual building blocks of commercial law (such as agency; trusts; sale; assignment; and security) are applied in practice. Given the international nature of much commercial law, and the important ongoing influence of shared common law concepts, we consider both Australian and English materials.

The syllabus remains flexible to ensure that our focus is on recent developments and topics of current interest. In 2020, the core topics studied will be: (i) agency: its internal and external aspects; (ii) trusts and their use in commercial transactions; (iii) sale and the effect of passing property; (iv) assignment of contractual rights and the practical effects of non-assignment clauses; (v) the operation of good faith in commercial relationships. Broader themes to be discussed include: (i) the effects of different transactions on third parties, including the limits placed by the law on the parties’ freedom to determine such effects; (ii) the interaction of common law, equity and statute in commercial contexts.

Students taking this subject will be assumed to have a basic knowledge of the principles of contract law, property law, equity and trusts, as applied in Australia or other legal jurisdictions.

Principal topics:

• Agency: internal and external aspects
• The use of trusts in commercial relationships
• Sale and the effect of passing property
• The transfer and protection of intangible commercial rights, including assignment of choses in action
• The role of good faith in commercial transactions

Australia has a detailed and comprehensive consumer protection regime dealing with the supply of goods and services, including financial products, to consumers. Primary legislation is the Australian Consumer Law (ACL), found in Schedule 2 of the Competition and Consumer Act 2010(Cth); equivalent provisions in the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) applying to financial services and products; and, for consumer credit, the National Consumer Credit Protection Act 2009 (NCCP Act). This subject provides students with a detailed knowledge of key features of the consumer protection regimes underlying the supply of goods, services and credit to consumers, along with the common law principles and policy imperatives that underpin these regimes. The lecturers include one of the Law School's private lawyers with specialist expertise in consumer law, and a leading practitioner in this field of law.

Principal topics include:

• Purposes of consumer protection law
• The regulatory toolkit
• Common law doctrines underlying the legislative regime
• Enforcement and remedial strategies.
• Key consumer protection regimes under the ACL, ASIC Act and NCCP Act:
  • Misleading or deceptive conduct
  • Unconscionable conduct
  • Interest rate caps and responsible lending
  • The specific regulation of small amount loans
  • Unfair contract terms.
  • Consumer guarantees and implied terms

Equitable doctrines and remedies lie at the heart of commercial conduct, transactions and private law litigation. They provide unique standards of conduct that restrict and guide commercial dealings and a raft of powerful personal and proprietary remedies that dictate defendant liability when transactions fail. Over recent years their influence has been seen not only in important judicial decisions affecting commercial dealings, but in the raft of legislation that now builds on those equitable foundations. This subject considers some of the more pressing points of convergence between equitable doctrine and commercial practice, and examines their ongoing relationship with key statutory counterparts. In doing so, the subject is tightly structured to ensure that students are exposed to cutting-edge legal theory concerning court-led equitable developments and to the ramifications of those developments at the coal-face of commercial practice and dealings.

This subject will be relevant to transaction lawyers involved in planning, initiating and drafting contracts, for corporate lawyers and regulators involved in consumer and banking law and for commercial litigators. The lecturers are internationally recognised experts in the commercial applications of equitable doctrines and remedies. They are also exceptional teachers, evidenced by the consistently outstanding results in the student experience surveys for this subject.

Principal topics include:

• The role of equity in commercial transactions
• The nature of the fiduciary obligations, including the avoidance and ‘management’ of fiduciary conflicts
• Undue influence, mistakes and the enforcement of domestic guarantees in banking contexts
• Quistclose trusts
• The role of estoppel in commercial transactions
• Equitable remedies for breach of obligation, with special reference to gain-based awards and constructive and resulting trusts.

This subject provides an outline of the UNCITRAL Model Law legislation and the LEADR & IAMA Rules and a detailed analysis of the procedures involved in the conduct of domestic commercial arbitration proceedings. It will provide lawyers involved in the conduct of such proceedings and practising arbitrators with an opportunity to develop a comprehensive understanding of all elements of the process. The subject includes consideration of the principles of procedural fairness, the law of evidence and their application to commercial arbitration proceedings. The subject will also include written exercises intended to develop skill in the process of decision-making and the writing of decisions and awards in arbitrations.

Principal topics include:

• An introduction to the UNCITRAL Model Law legislation
• A detailed analysis of procedural rules and their use in the course of proceedings
• Identification of issues, pleadings and issues statements
• Evidence, documents, statements of evidence and admissibility generally
• Expert evidence, identification of issues, adoption of rules and procedural control
• Procedural fairness and its application in practice
• Procedural efficiency and control of the process
• The process of analysis of evidence and reasoning
• Award writing.

In an increasingly globalised world, it is no longer enough for lawyers to be familiar with only the law in their jurisdiction. This subject aims to develop a nuanced and sophisticated understanding of family law issues arising in many jurisdictions around the world, grounded in an Australian perspective. Based on a subject taught at the University of Cambridge, core areas of family law will be looked at in a comparative perspective that examines traditional statutory and judicial materials in the context of the specific legal, cultural and social traditions of each jurisdiction. Through this approach, the subject aims to encourage fresh insights on how we think about family law (including options for reform) as it operates in our ‘home’ jurisdictions, and to deepen our understanding, appreciation and working knowledge of family law as it operates elsewhere. The subject aims to leave students – including those not intending to practice in family law – better placed to identify relevant family law problems arising in national and international cases.

Principal topics include:

• What is Comparative Family Law?
• The relevance of gender in family law (particularly in relation to relationship recognition)
• Divorce
• Legal recognition of adult relationships (including married, de facto and non-cohabiting couples; carers; non-conjugal relationships)
• Property and maintenance on relationship separation
• Financial agreements and private autonomy
• Parentage and the right to know one’s genetic heritage (including questions of medically assisted reproduction)
• Parental responsibility/time.

In this subject, students explore the external constraints on construction. These are legal, via the public law of land use planning (sometimes called development control or zoning) and of applicable construction standards; and via the private law rights of those close to the project site. But they are also extra-legal, via community pressures to stop or modify planned development. The subject takes a comparative common law approach, considering a selection of Australian states and territories (including Victoria) and New Zealand, but also England and Wales, whose law remains the origin of the relevant law in Australasia, as well as in Hong Kong, Malaysia, Singapore and most of North America.

Philip Britton has extensive construction law teaching experience at King’s College London and in the Melbourne Law Masters and has published on ‘neighbour issues’ in construction. Melbourne colleagues will also contribute, together with guest speakers from ‘the field’.

This subject provides an examination of the legal and non-legal issues which operate as external constraints on construction projects, within a comparative common law context.

Principal topics include:

• The public law of land use planning: its aims, structures, operation in practice and openness to legal challenge
• The law of ‘building control’, via applicable construction standards: definitions, operation, enforcement and inspectors’ powers, including ongoing reforms in Victoria
• The private law rights ‘neighbours’ enjoy against the negative aspects of construction, via property/land law and the law of tort
• The remedies available in court for actual or potential infringement of these rights and judges’ approaches to the choice of remedy, including (in particular) to the assessment of damages
• How the structuring of the project may determine who bears the ultimate cost (or liability) if a neighbour successfully challenges the whole project, or where or how it is being constructed
• The powers (legal and extra-legal) of community action groups to influence decisions about new construction and how project sponsors may respond.

The law of contract interpretation is one of the most practically important areas of commercial law. In recent years, interpretation disputes have come to dominate contract litigation. Because views can differ as to basic questions — such as whether particular words have a plain meaning, and what 'commercial sense’ dictates in a given situation — the outcomes of these cases can be difficult to predict. This subject will study the core principles of contract interpretation in Australian and English law. It will also examine the closely related principles concerning implied terms, rectification and estoppel by convention. Current issues and controversies will be considered. The common law approach to contract interpretation will be compared with those adopted in important international instruments such as the United Nations (UN) Convention on Contracts for the International Sale of Goods. The lecturer is a former commercial practitioner who has taught contract law for many years and has published widely on relevant topics.

This subject will examine the principles governing the interpretation of commercial contracts, and the closely related principles concerning implied terms, rectification and estoppel by convention.

Principal topics include:

• Contemporary approaches to interpretation
• The availability and relevance of extrinsic evidence
• Comparison between the common law principles of contract interpretation and those of international instruments such as the UNIDROIT Principles of International Commercial Contracts
• The role of contractual purposes
• The role of commercial commonsense
• Plain meaning, absurdity and unreasonableness
• The interpretation of limitation of liability clauses
• Implied terms
• The equitable remedy of rectification
• Estoppel by convention

Contract is central to the legal regulation of most commercial and economic activity, and underlies many specialist areas of legal practice. As market costs and values move, many contracts become increasingly valuable to one party and burdensome to the other. One party’s ability to terminate, or to successfully resist the termination of, a commercial contract is frequently a matter of considerable financial importance. The complex interaction between common law termination rights and rights to terminate expressly conferred by clauses in the contract in question is seldom properly understood, as illustrated by many of the cases from which this subject is taught.

This subject is taught from selected cases rather than textbooks. Principal topics include:

• Breach of conditions, including what makes a promissory term a strict condition
• Non-fulfilment of conditions precedent, and associated promissory obligations
• Breaches of intermediate terms, and what makes them sufficiently serious to justify termination
• Repudiation in its different forms
• Breach of time obligations, and the use and consequences of Notices to Perform/Complete
• Express termination clauses—the different principles concerning their operation, and ‘compare and contrast’ the principles concerning termination at common law
• Possible limits on an aggrieved party’s right to terminate through:
  • Election/affirmation
  • Estoppel
  • Breach or an absence of readiness, willingness and ability to perform on his/her own part
  • Relief against forfeiture
• Remedies accompanying effective or attempted terminations, including:
  • Principles of quantifying expectation damages at common law
  • Limited rights to damages on termination pursuant to an express clause
  • Contractual rights to remuneration accrued due prior to the termination
  • Exceptional limitations on the recoverability of contractual remuneration.

This subject introduces students to the common law method, to provide an understanding of the development of the modern law of contract as well as the fundamental principles of the subject, and to develop advanced analytical and critical skills that will help them to succeed in their Masters degree.

The lecturer has taught contract law for many years and has published extensively in the area.

Topics to be covered, principally through a series of case studies, include:

• The evolution of the modern law of contract; the 'objective' approach; an overview of some current issues
• Principles of contract formation: agreement; intention to be bound; consideration; certainty
• The doctrine of privity of contract
• Terms of the contract: express and implied terms; written contracts and their interpretation
• Vitiating elements: misrepresentation; mistake; duress; undue influence; unconscionable bargain
• Discharge of contracts: breach; frustration
• Remedies for breach of contract: damages; specific performance

Negligence is one of the most heavily litigated causes of action in common law jurisdictions. It is of enormous practical importance in a very wide range of fact situations. It is also a dynamic area of law: the relevant principles are constantly being applied to new fact situations, and the courts are regularly forced to grapple with difficult questions about the scope of negligence liability. This subject examines key current issues and controversies in the law of negligence in the light of theoretical and comparative perspectives. The lecturers have both published widely on private law topics, including a range of issues in the law of negligence.

Principal topics include:

• An overview of the law of negligence, including theoretical and historical perspectives and the place of negligence in tort law and private law
• The duty of care requirement in general terms, including the distinction between duty in law and duty in fact, the approach to the duty question in novel situations and the role of public policy in duty decisions
• Liability for psychiatric injury
• Liability for pure economic loss
• Liability for omissions
• Liability of public authorities
• Current issues in the standard of care and its application, with particular reference to professional negligence cases
• The requirement of damage
• Factual causation, including recovery for loss of a chance
• Scope of liability (legal causation and remoteness)
• Defences (both common law and statutory).

This subject provides an introduction to the global law relating to international commercial contracts. A major focus will be on contracts of sales, as codified by the Vienna Convention on the International Sale of Goods (CISG). However, some issues of the general law of contract will also be covered in detail (eg formation, interpretation, third party rights, the duty of good faith and fair dealing). The treatment of some of these topics will be based on an examination of the 2016 UNIDROIT Principles of International Commercial Contracts (PICC). The approach is comparative. Examples will be drawn from the decisions of national courts as well as arbitral awards.

Principal topics include:

• Global commercial contracts
• Applicability and application of the CISG and the PICC
• Interpretation and supplementation of the CISG and the PICC
• Contract formation
• Interpretation of international commercial contracts
• Third party rights
• Obligations of sellers and buyers
• Contractual remedies
• Good faith and fair dealing
• Transnational commercial dispute resolution.

This new subject will consider cutting-edge issues in the law governing the liability of public authorities. Government liability is a field of great practical significance for government and those who interact with government. It also raises difficult issues of theory, lying at the border of public law and private law, and complex policy questions, such as the balance to be struck between interests in individual redress and public interests including the preservation of public finances. The subject will focus on the law of Australia and common law jurisdictions.

The subject will consider significant issues that arise across the major fields of liability. Within the law of torts the course will consider: public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services; misfeasance in public office; malicious prosecution; private and public nuisance; trespassory torts; statutory immunities or defences that provide special protection to public authorities; particular difficulties relating to governments direct and vicarious liability; and issues in the law of damages, including the novel subject of vindicatory damages. Within the law of unjust enrichment, the subject will consider the different grounds on which public authorities can be stripped of unjust gains, and particular issues associated with claims for the return of taxes unlawfully demanded. In the law of contract, the course will consider various special rules that may apply to government contracts including immunities, and will consider the consequences where contracts are entered into without authority. The subject will also consider the history of law reform proposals that seek to make government compensate for ultra vires administrative action, and the role of ex gratia payments.

Principal topics include:

• The law of torts
  • Public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services
  • Misfeasance in public office
  • Malicious prosecution
  • Private and public nuisance
  • Trespassory torts including false imprisonment
  • Vicarious liability of public authorities
  • Statutory immunities and special defences for public authorities
  • Damages awards against public authorities including vindicatory damages
• The law of unjust enrichment
  • Grounds for seeking restitution against public authorities
  • Recovery of unlawfully demanded taxes
  • Special defences for public authorities
• The law of contract
  • Special rules regulating government contracts
  • Consequences of ultra vires contracts
• Compensation beyond private law
  • Law reform proposals for compensation for ultra vires administrative action
  • Ex gratia payments.

With the explosion in international commercial transactions in the past decades there has also come a significant increase in cross-border disputes before Australian and other national courts. The aim of this subject is to examine the key principles governing cross-border litigation in Australia, focusing on the questions of jurisdiction, applicable law and the recognition of foreign judgments. The subject is designed for both practitioners and scholars and will be taught by Professor Richard Garnett, a leading expert on conflict of laws in Australia who regularly advises on cross-border disputes, and Dr Albert Dinelli of the Victorian Bar, who completed his Oxford doctorate in the field.

This subject will examine, from an advanced and specialist point of view, litigation of cross-border disputes in a commercial setting. It will consider the key doctrinal principles in the area as well as problems commonly encountered in commercial practice.

Principal topics include:

• Whether a Victorian/Australian court has jurisdiction to consider a matter
• Whether a Victorian/Australian court will decline jurisdiction in a matter by staying its proceedings or whether it may restrain proceedings in a foreign court
• Which law should govern the substantive issues (in the areas of tort, contract and equitable obligations)
• The effect of foreign judgments and orders in Victoria/Australia.

International Legal Internship allows students to gain credit for undertaking advanced legal research and analysis on an approved international internship of at least eight weeks of full-time work in an approved international institution or organisation. This subject is focused on providing students with an opportunity to engage with legal and policy issues in contemporary society through work experience and further develop oral and written communication skills. Students are required to secure and fund their internships personally.

Students are encouraged to discuss their internship proposals with the subject coordinators. Students who successfully enrol in International Legal Internship must arrange a meeting with at least one of the subject coordinators both prior to their internship and upon completion, to develop a better understanding of research and the role of international institutions in international law and relations.

This subject is at its core is an advanced common law treatment of international trade law dealing with the import and export of goods by sea. Apart from CIF, FOB and related matters, it deals with bankers’ letters of credit financing such sales. Approximately 20 per cent of the course is also dedicated to the United Nations Convention on the International Sale of Goods 1980, with emphasis on the differences between this instrument and the common law approach. This subject deals with the international sale of goods, primarily with respect to the sale of commodities, where the interplay between sale as a commercial activity and sale as a speculative instrument can most acutely be observed. Uniformity is an important theme is this subject, whether it is based upon the choice of a standard form contract and the same applicable national law, or the uniformity that is manifest in the national law of the United Nations Convention on the International Sale of Goods 1980.

Principal topics include:

• The passing of title to, and risk in, the goods
• Allocation of responsibility for arranging carriage and insurance
• The relationship between the carriage and insurance contracts and the sale contract
• Export and import licences
• Bills of lading and the network of contracts that work to effect international sales
• How and when payment is to be made for the goods
• The International Chamber of Commerce Incoterms 2010
• The application and content of the UN Convention on the International Sales of Goods (CISG)
• Non-conformity of goods and the buyer’s remedies
• Documentary letters of credit and documentary collection
• Uniform Customs and Practice for Documentary Credits 2007 (UCP 600).

This subject is a study of trusts in an international context, beginning with the rise of the modern form of discretionary trust and the problems of holding trustees to account and controlling the exercise of their discretion. It explores how trusts are used in the 'offshore world', which allows for private purpose trusts and makes use of enforcers, protectors, and letters of wishes. It looks at how trusts are used, and misused, to protect assets from creditors, and how they are used in civil law jurisdictions.

It is suitable for those with common law or civil law backgrounds, whether they have studied trusts at an undergraduate level or not. Suggestions for some extra introductory reading will be provided for those who are new to trusts or wish to brush-up on basic trust concepts.

Principal topics include:

• Control of trustees
• Purpose trusts
• Enforcers and protectors
• Letters of wishes
• Shams
• Asset protection
• Trusts in private international law
• Trusts in civil law jurisdictions.

With a primary focus on experiential learning and interactive discussion, this subject will provide a practical guide to the use of mediation in resolving disputes and to the legal environment in which mediation takes place. The objectives of this subject are to identify where mediation sits among available dispute resolution processes; its distinguishing characteristics and advantages; the applicable legal environment; to learn to apply mediation principles and techniques in the resolution of disputes; and to explore topical issues in mediation, including different regimes applicable to the admissibility of evidence of communications within mediation.

The lecturers are lawyers who have led and been at the cutting-edge of developing mediation and other ADR techniques. They are nationally accredited mediators and also have substantial experience in teaching and training in this field.

Principal topics include:

• Identifying the characteristics of different dispute resolution methods
• The roles of facilitative and evaluative techniques in mediation
• Practising mediation techniques in mediation scenarios
• The legislative environment in which mediation takes place
• Case law and guidelines for lawyers applicable to mediation.

Lawyers need to persuade many different audiences, including their clients, their opponents, their employers and employees, juries, the courts and others. This subject will help lawyers to persuade more effectively, through a mixture of theoretical and practical approaches. Students will read widely about advocacy, persuasion and influence, including from empirical studies and research from disciplines other than law (such as psychology). Students will also develop their practical skills in both written and oral persuasion, led by a very experienced teaching team: Noah Messing from the Yale Law School (and author of The Art of Advocacy), Justice Elizabeth Hollingworth from the Supreme Court of Victoria and experienced commercial barrister and teacher David O’Callaghan QC.

Principal topics include:

• Leading theories of persuasion, in the law and generally
• Empirical research into the persuasion of judges, other lawyers and lay people in a legal context (including juries and clients)
• Empirical research into other instances of persuasion
• Cognitive biases and how the law does—and should—react to them
• The balance between ethics and persuasiveness
• Developing a generalised theory of persuasiveness and how various actors reach various decisions
• Different ways to practically apply those theoretical approaches.

A considerable amount of litigation is concerned with legal responsibility for things said and done during contract negotiations, whether or not those negotiations result in a formal contract. Liability can arise from promises, representations and non-disclosure, and can arise by way of unintended contracts, the addition of unintended contract terms, through different forms of estoppel, under statute, in tort or in restitution. All of the relevant causes of action are at various points complex and uncertain. This subject will involve an advanced study of the circumstances in which those causes of action arise, their remedial consequences and the relations and distinctions between them. It will focus particularly on recent developments in Australian and English law. The lecturers have written extensively on the topics covered by the subject, and their published work has been widely cited and discussed by the courts in Australia and the United Kingdom.

Principal topics include:

• Preliminary agreements and ‘subject to contract’ clauses
• The incorporation of contract terms, the parol evidence rule and ‘entire agreement’ or merger clauses
• Pre-contractual promissory estoppel, proprietary estoppel and estoppel by convention
• Pre-contractual misleading or deceptive conduct
• Pre-contractual liability in tort
• Liability in restitution where contracts fail to materialise.

This topical subject deals with the interface between private law and public law in common law systems from the perspectives of history, doctrine, theory and practice. It will explore the traditional absence of such a division in the common law, and the reasons for this, as a basis for understanding the relevance of the distinction in the contemporary legal system. The subject will critically assess the distinction from a theoretical perspective, testing whether the idea of a distinction between public law and private law can withstand scrutiny. A range of cutting-edge doctrinal issues will be examined and placed in wider context. These include whether public law principles should extend to the activities of non-governmental entities such as private firms and charities; whether the law should recognise a special set of rules to regulate public contracts; whether public authorities should be governed by the ordinary law of tort or a set of special administrative liability principles; procedural divisions between public law and private law; the role of the public interest in private remedies and of private remedies in public law cases; and whether public law issues should be heard by specialist administrative courts. The subject should be of interest to lawyers working in any field in a common law legal system and to those trained in the different traditions of the civil law who are interested in better understanding the structures and assumptions of the common law.

Principal topics are likely to include:

• History of the concept of public law in common law legal systems
• Concepts of public and private
• Implications of a distinction between public law and private law
• Overview of current practice
• Law applicable to non-governmental entities
• Legal framework for public contracts
• Liability of public authorities
• Remedies
• Specialist or generalist courts.

This subject examines the remedies commonly awarded in commercial litigation. All the major common law, equitable and statutory remedies will be covered, along with personal remedies, such as damages and proprietary remedies, such as the constructive trust. The strategic selection of remedies in commercial disputes will be considered and Australian law will be compared, where relevant, with the law of other major commercial law jurisdictions.

Principal topics include:

• Damages in tort (excluding personal injuries) and for breach of contract, including issues of concurrency, where both tort and contract damages are available. Expectation and reliance damages and the protection of the ‘performance interest’ in contract. The role of liquidated damages clauses, and the penalties doctrine, will be considered, as well as the principles governing the award of exemplary and nominal damages.
• Statutory damages awards, with particular reference to damages awarded under the Competition and Consumer Act 2010 (Cth)
• Equitable compensation for breach of equitable obligations, including breach of fiduciary obligation. Statutory damages under the Chancery Amendment Act 1858 (Imp) and equivalent Australian legislation
• Specific performance of contracts, with particular reference to the role of specific performance in common law and civil law jurisdictions
• Injunctions, including a study of the interests protected in injunction litigation. Interlocutory orders, including Mareva orders, will be examined
• The account of profits as a remedy for equitable wrongdoing, and debates about the availability of the account of profits as a remedy for breach of contract
• Proprietary remedies, with particular reference to the distinction between institutional and remedial constructive trusts
• A comparison of the role of the constructive trust, in commercial litigation, in Australia, the United Kingdom and the United States.

Although of ancient origin, the law of restitution is a new, intensely interesting and vital part of the common law of Australia. The law of restitution intersects with, sits alongside or forms a part of, contract law, insolvency, equity, trusts and torts, and as such an understanding of the subject is important for lawyers or non-lawyers with an interest or who practise in the field of private law. The subject syllabus focuses on decisions of Australian courts, with some reference to English and Canadian cases. Through the cases, an understanding of the law of restitution is developed. Practical and theoretical aspects are also considered: from how to plead a claim for restitution to examining the place of the law of restitution under the current High Court. Both lecturers are ideally suited to provide instruction on the subject: The Hon. Keith Mason as the former President of the NSW Court of Appeal and co-author of the leading Australian text on the subject. Mr Michael Rush, presently practising at the Victorian Bar with a doctorate in restitution from the University of Oxford.

This subject provides an analysis of the law of restitution in Australia. Principal topics will include:

• Overview of the law of restitution, including the principles on which it is based, its nature and ambit, how it should be pleaded, its role as part of the common law of Australia and its impact on unwinding commercial transactions
• Identification of parties: Determining the breadth of what constitutes an enrichment in the hands of a defendant and how a plaintiff can establish a connection to that enrichment sufficient to found a cause of action in restitution
• Reasons for restitution: When is it unjust for a defendant, who receives an enrichment at the expense of the plaintiff, to retain that enrichment? Grounds for restitution, including benefits conferred by mistake, failure of consideration, duress, undue influence and instances where the claimant has no intention to benefit the recipient. Consideration of restitutionary claims for wrongdoing, including breach of contract and breach of fiduciary duty
• Defences: Change of position, estoppel, passing on, illegality, bona fide purchase and ministerial receipt.

A properly functioning legal system can be seen as a defining characteristic of modern society. The adversary system can be seen as a defining characteristic of a common law legal system. But as times change, both the common law and the adversary system of trial have changed and will continue to change. What then are the bases of these systems? What corollaries follow from adopting a particular mode of trial? What are the challenges with which the Australian legal system must now deal in resolving disputes? How might those challenges be dealt with and are there implications for what we define as the adversary system and, more generally, the rule of law in a properly functioning legal system?

Principal topics include:

• Development of the common law
• The 20th century adversary system
• The adversary system today and its implications
• Statutes and the common law
• Lessons from other systems
• Complexity – issues, evidence, experts and costs
• Curial method – the law, facts and findings
• Economic and commercial implications – class actions, alternative dispute resolution, arbitration and access to justice
• Legislative and executive power
• Implications for the rule of law and the practitioner.

Many international transactions choose the law of a US jurisdiction as governing law—especially New York or Californian law. This subject covers doctrines distinctive to US contract law, with attention to important differences between New York and California. US contract law derives from the common law, but departs in important and surprising ways from the law of other common law countries. This subject will therefore be of interest to both common law and civil law lawyers. The focus will be on those aspects of US contract law that are distinctively different from the law of England or Australia. This includes substantive differences in legal doctrine as well as distinctive legal sources in the US federal system. The lecturer, first trained in Australian law, has taught contract law at New York University School of Law for 20 years, including many times to foreign-trained lawyers. He has published on the theory of contract law.

Principal topics include:

• Legal sources for US contract law, including the Restatement of Contracts II and the Uniform Commercial Code (UCC)
• Enforceability, focusing on the unique US doctrine of promissory estoppel and its implications for other doctrines such as the Statute of Frauds
• Interpretation and the parol evidence rule, focusing on differences between New York and California law.
• Distinctive elements of the US law of contract remedies, including remedies for promissory estoppel, restitution as a remedy for breach of contract, and the remedies provisions of the UCC
• The US approach to problems of assent in the context of standard forms, including the ‘battle of the forms’ under the UCC and the idea of ‘rolling assent’
• Termination for breach.