LAW 960 Legal Studies for Professionals Research Essay

QUESTION

"...The principles of equity have sought to repair injustice from gaps left in the common law of contract, however, they confer an excessive discretion upon the Court that undermines the clarity and certainty that the common law rules of contract themselves otherwise provide..."

Critically Analyse the above statement by way of reference to the following two cases:

- Waltons Stores Interstate Ltd v Maher (1998) 164 CLR 387 (Promissory Estoppel) and

- Commercial Bank v Amadio (1983) 151 CLR 447 (Unconscionable conduct) In your answer, with respect to each of the above cases/areas of law, you should also refer to at least one recent case in each area of law that applies these case authorities to support your point of view.

Essay Frequently Asked Questions (FAQs)

Where should I start in researching and preparing to write this essay?

Essay Frequently Asked Questions (FAQs)

Where should I start in researching and preparing to write this essay?

1. Locate the cases in the textbook and read the material in those parts of the chapters. You can consult the case index at the front of the book to find the case summaries and the sections of the book that they appear in. When you have read these sources, do some more research. It is recommended that you consult at least 6 other sources, either primary or secondary, in addition to the references provided above. Look for quality, scholarly sources: primary sources from reputable and verifiable agencies or institutions; or secondary sources from academic journals and books, for example.

Ultimately, the maximum number of references you consult is up to you.

You should do some research on the topic in order to adequately address the topic.

Look at the terms used in the essay topic. Try to define these terms in your own words and drawing on the knowledge you have gained from your readings (remember to provide references for sources you have paraphrased, or quoted if you have used direct quotes). Once you understand the basic concepts referred to in the topic, you are in a better position to address the topic itself.

What should I do to maximise my marks in this assessment task?

1. Remember to answer the topic set (this is one of the criteria for assessment, ie. focus on addressing the essay topic).

2. If you only address part of the topic, or only vaguely address the topic, your focus on addressing the essay topic will likely not be very good, which will affect your marks.

3. Download the cases and read them ! Refer to them in your essay!

4. You need to understand that the common law rules are quite mechanical and that Equity can override the strict application of the common law rules. In the cases, try to see how equitable principles have overruled the common law, and decide what you think about this. Read and re read the question.

5. There will not be much room in 6 pages to give too many irrelevant details. When referring to case facts - keep them brief. Remember that The marker knows the cases and the principles.

6. You need to develop arguments in your essay, in response to the topic. This may be in the form of an overall argument advanced throughout the paper using sub-arguments, or may be a series of arguments leading up to an overall conclusion in response to the essay topic. Development of argument in response to the essay topic is also one of the assessment criteria. You need to provide more than just description of a relevant issue/s in relation to the essay topic: see critical evaluation below. Don't forget about counter-arguments: raise and address these in addition to your key arguments, in order to strengthen your position.

7. A critical evaluation means that you need to examine the foundations of the statement and express your views about how you perceive the statement. Do you agree with it? Why? Do you disagree? Why?

8. Structure of argument and your expression: There should be a clear, logical response to the essay topic, including in the presentation of your arguments. Concentrate on using clear, concise expression, and expressly stating how you will address the essay topic (normally in the introduction). In the body of your paper, critically analyse the topic and develop arguments where appropriate in response to the topic. These arguments should follow a logical progression: one argument should lead to the next and so forth. Don't jump around in your arguments, eg. By partly addressing an argument, then starting on a new one, only to go back to a previous argument. Also be wary of repetition - there is no need to repeat yourself if you have made an argument clearly the first time; to do so would be a waste of valuable space in light of the word limit.

Remember to use paragraphs in your essay: this sounds obvious, but some students do forget, and end up with one paragraph continuing over several pages! You are strongly encouraged to use headings in your essay, including 'Introduction' and 'Conclusion' as stated above. In the body of your essay, headings should reflect the content of the section to which the heading is given.

9. Analysis and critical evaluation. This is also one of the assessment criteria. Don't just accept and reproduce other people's arguments. Are the arguments supportable? What support is offered for the argument? Do other commentators agree? Why or why not? Do you agree? Why or why not? Are there any counter arguments - if so, what is their basis? How might they be addressed?

10. Provision of appropriate references: You are required, as noted above, to footnote and provide a bibliography in accordance with the Australian Guide to Legal Citation (AGLC) available at . Specific questions, such as how to reference a particular source are clearly answered in the AGLC. Questions about sources which are not included in the AGLC can be directed to your tutor or to the Subject Coordinator.

11. A couple of tips based on marking of previous papers and common errors:

It is not sufficient to provide one reference/footnote at the end of a paragraph or section of your essay for the whole of that paragraph or section. You need to provide a footnote for each source referred to in a sentence, or part of a sentence (where a sentence refers to more than one source).

1500 words

7 references AGLC referencing style.